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1 Public Hearing on 

2 Proposed Revisions to National Emission Standards 

3 for Radon Emissions from Operating Mill Tailings 

4 

5 

6 

7 9:00 a.m. to 3:53 p.m. 

8 Thursday, September 4, 2014 

9 

10 

11 1595 Wynkoop Street 

12 Denver, Colorado 80202 

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1 EPA PANEL: 

2 ELYANA SUTIN, Chair; EPA 

3 TOM PEAKE, EPA 

4 DANIEL SCHULTHEISZ, EPA 

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1 C O N T E N T S 

2 PAGE 

3 SCOTT BAKKEN, Energy Fuels 11 

4 SARAH FIELDS, Uranium Watch 17 

5 TRAVIS STILLS, Energy and Conservation Law 24 

6 RICHARD BLUBAUGH, Power Tech 34 

7 SHARYN CUNNINGHAM , Colorado Citizens 

8 Against Toxic Waste 39 

9 KAY HAWKLEE 48 

10 SARAH FIELDS, Uranium Watch 53 

11 SHARYN CUNNINGHAM, Colorado Citizens 

12 Against Toxic Waste 61 

13 JOHN CASH, Ur-Energy 75 

14 DAVID FRYDENLUND, Energy Fuels 83 

15 SARAH FIELDS, Uranium Watch 90 

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

2 

3 MS. SUTIN: So good morning everyone. I 

4 think we are going to get started. My name is 

5 Elyana Sutin, and I am the regional judicial 

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

7 coming this morning. 

8 I will be presiding over the hearing 

9 today. And joining me on the panel is Tom Peake 

10 and Dan Schultheisz from the Office of Radiation 

11 and Indoor Air in Headquarters. This hearing is 

12 now in session. 

13 We are here today to listen and receive 

14 your comments on EPA’s proposed revisions to the 

15 National Emission Standards for Radon Emissions 

16 from Operating Mill Tailings, also known as 40 

17 C.F.R. Part 61, Subpart W. 

18 EPA is proposing to revise certain 

19 portions of the standards based on its 

20 determination as to what constitutes general 

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 this proposed rule on May 

2

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

and was to end on July 31st, 2014 -- on July 31st 4 , 

5 2014. On July 21st EPA extended the comment 

period to October 29th 6 . 

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, I’d like to explain 

10 a bit about how the hearing will work today. 

11 There will be two sessions today, one 

12 this morning from 9:00 until noon, and one this 

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

14 conference room. 

15 Please be sure to have checked in at the 

16 registration desk even if you are not planning to 

17 speak today. 

18 I will call the scheduled speakers to the 

19 chair in front of me and you will -- you will 

20 then speak. Your comments will be transcribed 

21 and included in the record of comments on the 

22 proposed rule. 
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1 In order to ensure that everyone has the 

2 opportunity to speak, and to ensure fairness, 

3 please limit your testimony to ten minutes. We 

4 will signal to you when you have one minute left 

5 to speak. When one minute has passed I will ask 

6 you to complete your testimony. There is no 

7 pressure to speak the ten minutes. If your 

8 remarks are less than that, please don’t feel 

9 like you have to say more. 

10 With that said, if you have more to say 

11 after your ten minutes and you would like to 

12 speak again with information that is new and 

13 discreet from your previous testimony, and is not 

14 a rebuttal to someone else’s testimony, we are 

15 happy to have you speak again if there is time. 

16 And I believe there will be. 

17 After you finish your testimony, members 

18 of the panel may ask clarifying questions. We 

19 are not here today to answer questions about the 

20 proposed rule. If you have questions about the 

21 process please find one of the EPA 

22 representatives after the hearing. 
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1 If you have written copies of your 

2 testimony or supporting documentation, please 

3 give a copy to our staff at the registration 

4 table. This will be helpful as we prepare the 

5 transcript. If you have additional comments you 

6 would like to make you can submit them in 

7 writing. Comments must be received on or before 

October 29th 8 by 5:00 p.m. 

9 Let me assure you that the EPA gives just 

10 as much consideration to written comments as we 

11 do to comments that we receive in public hearing. 

12 Instructions for submitting comments are included 

13 in the fact sheet at the registration table. And 

14 you can pick that up at the table outside of the 

15 door. 

16 Today’s public hearing is scheduled to 

17 end once the last registered speaker has provided 

18 comments. So if you would like to testify but 

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

20 the registration table outside of the room. 

21 Now I'll turn it over to Dan, who will 

22 summarize the proposed rule -– I’m sorry, Tom, I 
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1 apologize. 

2 MR. PEAKE: Hello. My name is Tom Peake and 

3 I'm the director for the Center for Waste 

4 Management and Regulations in Washington, D.C. 

5 We're in the Radiation Protection Division of the 

6 Office of Air and Radiation. 

7 We are here today to receive your 

8 comments on EPA’s proposed rulemaking for the 

9 revisions to the National Emission Standards for 

10 Radon Emissions, or NESHAPS, from Operating Mill 

11 Tailings, also known as Subpart W. 

12 The proposed revisions would require the 

13 use of generally available control technologies, 

14 or GACT, to limit radon emissions from tailings 

15 at all uranium recovery facilities. Specific 

16 control technologies would be required at 

17 conventional tailings impoundments, evaporation 

18 ponds and heap leach piles. 

19 We are also proposing to add new 

20 definitions to the rule, revise existing 

21 definitions, and clarify that the rule applies to 

22 uranium recovery facilities that extract uranium 
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1 through the in-situ leach method and the heap 

2 leach method. 

3 Specifically, the EPA is proposing the 

4 following: 

5 We are clearly stating that the standards 

6 apply to all units that contain uranium byproduct 

7 material. These units include, but are not 

8 limited to, conventional tailing impoundments, 

9 evaporation ponds or other nonconventional 

10 impoundments at uranium recovery facilities and 

11 heap leach piles. 

12 We are proposing that all uranium 

13 recovery facilities comply with GACT management 

14 practices, including the use of double liners and 

15 leak detection systems. 

16 The proposed rule would remove the 

17 requirement for monitoring radon, but limit the 

18 amount of byproduct material that can be exposed. 

19 For conventional impoundments, limit 

20 tailings exposure using either phased disposal or 

21 continuous disposal. 

22 For heap leach piles, limit tailings 
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1 exposure using phased disposal and maintain a 30 

2 percent moisture content in the pile. 

3 For evaporation ponds, require at least 

4 one meter of liquid be constantly maintained in 

5 the pond. 

6 We are proposing to add definitions for 

7 when a uranium recovery facility is in operation 

8 or standby. 

9 Lastly, the proposed rule would require 

10 the owner/operator of a uranium recovery -– a 

11 uranium recovery facility to maintain records 

12 that confirm that impoundments have been 

13 constructed according to the requirements. 

14 In summary, we are here today asking for 

15 your comments on the proposed rule. The comment 

period ends on October 29th. 16 And we are looking 

17 forward to hearing from you. 

18 Thank you. 

19 MS. SUTIN: Okay. We will get started. Our 

20 first speaker is Scott Bakken. Again, if you 

21 could please spell your name, especially your 

22 last name for the record -- for the court 
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1 reporter, that would be great. 

2 MR. BAKKEN: Good morning. My name is Scott 

3 Bakken. Last name is spelled B-a-k-k-e-n. I’m 

4 an environmental manager with Energy Fuels. Our 

5 company is currently America’s largest 

6 conventional uranium producer, supplying 

7 approximately 25 percent of the uranium produced 

8 in the U.S. in 2013. 

9 The focus of my comments today are on the 

10 applicability of the proposed revisions to 

11 nonconventional fluid retention impoundments 

12 located at in-situ leach or ISL uranium recovery 

13 facilities. These nonconventional impoundments, 

14 commonly referred to as holding ponds, storage 

15 ponds or evaporation ponds, are used to store 

16 and/or treat liquid effluents during the 

17 wastewater disposal process at facilities 

18 regulated by the U.S. Nuclear Regulatory 

19 Commission and/or NRC Agreement States. 

20 It is Energy Fuels’ position that 

21 regulation of radon emissions from 

22 nonconventional fluid retention impoundments by 
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1 the EPA is unnecessary. The administrative 

2 records in Subparts T and W, as well as the EPA’s 

3 Method 115 rationale and procedures strongly 

4 suggest that radon emissions from nonconventional 

5 impoundments are low, if not negligible, pose 

6 little risk to public health and the environment. 

7 And, thus, do not warrant the application of 

8 standards to control radon. 

9 Given that the NRC and Agreement States 

10 already have robust standards in place, the 

11 proposed revisions to Subpart W would result in 

12 dual regulation while providing little to no 

13 additional benefit to public health or the 

14 environment beyond what is already in place under 

15 the Atomic Energy Act. 

16 Energy Fuels believes that the “one-size 

17 fits all” approach to nonconventional 

18 impoundments is not appropriate, and that any 

19 standards imposed on ISL facilities should be 

20 appropriate for the nature, scale and relevant 

21 risk associated with various impoundments. 

22 Based on review of the proposed revisions 
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1 and supporting documents, it is Energy Fuels’ 

2 opinion that the “base case” and other 

3 assumptions used to evaluate impacts to ISL 

4 facilities is not necessarily representative in 

5 terms of the number, size and type of various 

6 impoundments in place at current and planned ISL 

7 facilities. 

8 The result is that the proposed revisions 

9 may result in much greater costs or operational 

10 impacts than those evaluated, including costs 

11 above and beyond what was required to license 

12 them under the NRC, contrary to what is stated in 

13 the proposed revisions. 

14 Energy Fuels questions the methodology 

15 implied by the EPA in regards to radon 

16 attenuation and control attributed to the 

17 proposed control measure of maintaining one meter 

18 of water in nonconventional impoundments. In the 

19 proposed revision the EPA states: 

20 “The benefit incurred by this requirement 

21 is that significantly less radon will be released 

22 to the atmosphere. The amount varies from 
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1 facility to facility based on the size of the 

2 nonconventional impoundment, but across existing 

3 facilities radon can be expected to be reduced by 

4 approximately 24,600 curies, a decline of 

5 approximately 93 percent.” 

6 It is perplexing as to how a 93 percent 

7 decline was attributed to this control measure. 

8 In Table 46 of the background information 

9 document, for example, a radon attenuation factor 

10 of 0.07, that is a 93 percent reduction was 

11 applied to the calculated maximum radon release 

12 of 36,500 curies per year from an operating ISL 

13 facility. 

14 As described in section 4.4 of the 

15 background document, this calculation was based 

16 on either theoretical or actual release values 

17 and as such should be representative of radon 

18 releases for both processing facilities and 

19 impoundments. 

20 Further, considering that the EPA has 

21 acknowledged that radon release from 

22 nonconventional impoundments is small, that is 
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1 less than 1 percent of the facility total radon 

2 release, it is assumed that -- it is assumed that 

3 the majority of this calculated radon release was 

4 associated with processing facilities, not the 

5 impoundments. 

6 Assuming that the 36,500 curies per year 

7 radon release for the aforementioned ISL facility 

8 is from both processing facilities and 

9 impoundments, and that even 1 percent of this 

10 amount is attributed to impoundments, the annual 

11 radon release associated with the impoundments 

12 would be 365 curies. 

13 Based on this analysis, a 93 percent 

14 reduction in radon release attributed to 

15 maintaining 1 meter of water in impoundments 

16 would only result in a maximum facility wide 

17 reduction of approximately 340 curies per year, 

18 not the 33,100 curies per year that is presented 

19 in Table 46 of the background document. 

20 This represents a radon release reduction 

21 of less than 1 percent for the overall facility 

22 versus a decline of approximately 93 percent, as 
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1 stated by EPA in the proposed revision. 

2 Clearly, an incremental reduction in 

3 “almost nothing” is still “almost nothing”. 

4 Thank you for the opportunity to comment. 

5 MS. SUTIN: Thank you. 

6 MR. PEAKE: You said that the base case 

7 analyzed by EPA wasn't representative. 

8 MR. BAKKEN: That's correct. 

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

10 providing information or data that you think is 

11 more representative? 

12 If you say that what we have isn’t 

13 representative, will you be explaining why that 

14 is not the case and have other information? 

15 MR. BAKKEN: Yes, we will, in our written 

16 comments we will provide more detail. 

17 MR. PEAKE: And will that include data or 

18 just calculations or -- 

19 MR. BAKKEN: It will include data in terms of 

20 the variety of wastewater treatment and disposal 

21 systems that are in place at ISL facilities, that 

22 range from, for example, small holding ponds, 
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1 storage ponds located at facilities. Also you 

2 utilize deep disposal well injection for disposal 

3 of wastewater. It would include nonconventional 

4 impoundments that may be used to store water 

5 prior to disposal via land application and 

6 conventional evaporation ponds that are located 

7 at ISL facilities. 

8 MR. PEAKE: Okay. Thank you. 

9 MR. BAKKEN: You’re welcome. 

10 MS. SUTIN: Thank you. 

11 Next if we could have Sarah Fields? 

12 MS. FIELDS: Thank you. My name is Sarah 

13 Fields, S-a-r-a-h, F-i-e-l-d-s. I’m with Uranium 

14 Watch in Moab, Utah. Thank you for the second -- 

15 or fourth, I think, opportunity to speak. 

16 I want to say just a little something 

17 about your nonconventional impoundments that the 

18 previous speaker talked about, the 

19 nonconventional impoundments at ISL facilities. 

20 However, under the proposed regulations your 

21 nonconventional liquid impoundments would also 

22 include those liquid impoundments at conventional 
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1 mills. They're currently at the White Mesa Mill. 

2 You have a Cell 1 and a Cell 4B that are just 

3 receiving liquids. So they would be currently 

4 considered nonconventional impoundments. 

5 And based on EPA's calculations as to the 

6 amount of radon emissions per picocuries per 

7 liter of radium, Cell 1 is releasing 228.9 

8 picocuries per meter squared per second at 

9 this -- for 2013. And Cell 4B would be 102.2 

10 picocuries per meter squared per second. 

11 You also have liquid impoundments on top 

12 of Cell 3. And Cell 4A is also mostly liquid at 

13 this time. And Cell 3, 573.3 picocuries per 

14 meter squared per second, and Cell 4A, 110.6 

15 picocuries per meter squared per second. 

16 So these liquid impoundments, based on 

17 Energy Fuels’ data regarding the amount of radium 

18 in these liquid impoundments, and EPA's 

19 determination as to the emissions per -- based on 

20 the amount of the radium in these liquid 

21 impoundments, these are not negligible emissions. 

22 So you can’t lump all nonconventional 
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1 impoundments together. 

2 If there's a determination that the 

3 nonconventional impoundments at ISL do have 

4 minimal emissions, first you'd have to look at 

5 the radium content, you'd have to look at actual 

6 data and put those data into a formula, into a 

7 model, and use a little bit of math and figure 

8 that out. Unfortunately, that really wasn't 

9 done. 

10 Now I'd like to a little bit about 

11 what -- these new impoundments. Now, my 

12 assumption is you’re not going to be able to 

13 remove the emissions standard for existing 

14 impoundments because you don't have a factual 

15 basis for that. Your factual basis doesn’t hold 

16 water. So we have to look at the new 

17 impoundments. 

18 There are two new impoundments at 

19 conventional mills since 1989. Those are cells 

20 4A and 4B at White Mesa. They are approximately 

21 40 acres. 4B is now just being used for liquids, 

22 but eventually it will receive the solid tailings 
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1 slurry. 

2 You don’t have a -- any radon emissions 

3 standard. And I think that’s a grave error. I 

4 think you need –- and one of the reasons is that 

5 you don’t -- your requirements for a double lined 

6 impoundment and the forty acres really does 

7 little to stop –- to stop the emission of radon. 

8 You’re just assuming that throughout the whole 

9 life of that impoundment that everything will be 

10 okay. 

11 In the Federal Register Notice, they talk 

12 about the use of soil and water to attenuate the 

13 radon for these impoundments, but there is no 

14 requirement for -- in the proposed rule for the 

15 use of soil or the use of water to attenuate the 

16 radon throughout the life. 

17 Let’s just assume we’re talking about 

18 Cell 4A. So now assume gradually over the years 

19 it will get filled up. And at some point it will 

20 have -– they will stop putting liquid in the 

21 impoundment. And through either a natural 

22 process or active dewatering, that will start to 
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1 dry out. 

2 Well, if that were an existing 

3 impoundment with radon monitoring, and the 

4 requirement to keep it under 20 picocuries, the 

5 licensee would start covering it with soil as it 

6 started to dry out. But under your current 

7 regulations there's no requirement to start 

8 covering it with soil. 

9 And that impoundment might sit there for 

10 decades uncovered, without an interim cover, 

11 emitting radon. The licensee doesn’t intend to 

12 put a permanent radon barrier on any of those 

13 impoundments until the closure -- until at least 

14 4A and 4B have been -– have ceased operation and 

15 are ready for the final radon barrier. But you 

16 can’t put a final radon barrier on until it has 

17 dried to a certain point because the impoundment 

18 has to settle. 

19 So there are two reasons to dry it out. 

20 One is to reduce the heads so there will be no 

21 more leakage. And that’s why they accelerated 

22 the process for drying out Cell 2, because that 
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1 was done under their groundwater discharge 

2 permit, not their radioactive license -- I 

3 mean, that requirement to accelerate the 

4 dewatering. 

5 So what you would have at Cell 4A is an 

6 impoundment that's drying out. There's no 

7 requirement to monitor the radon, there's no 

8 requirement to keep -- put a soil cover on after 

9 it -- once the liquids on the top or -– and the 

10 liquids in -- within the cell are eliminated. 

11 And that’s the situation. 

12 But it seems like the EPA doesn't really 

13 have a very good concept of what exactly happens 

14 at a tailings impoundment. It’s certainly not 

15 reflected in the Federal Register Notice. 

16 And another thing about the available 

17 technology, one of the available technologies 

18 that is currently being used and relied upon to 

19 reduce the amount of radon emissions at 

20 conventional mills is measuring and monitoring 

21 the radon emissions. And then if the radon 

22 emissions are above the standard, taking 
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1 corrective actions to reduce emissions -- the 

2 emissions. 

3 But if you have no requirement for 

4 monitoring, you have no knowledge of what exactly 

5 is going on at a tailings impoundment, what -- so 

6 that no action can be taken because nobody knows 

7 what's going on. 

8 And that's what you’re asking us to 

9 believe is an adequate means of controlling 

10 radon. It's like -- it’s a little bit bizarre in 

11 my mind that you would think that -- 

12 MS. SUTIN: One minute, Ms. Fields. 

13 MS. FIELDS: -- not knowing is the best 

14 approach to controlling the radon emissions. Not 

15 knowing what the emissions are, not having any 

16 requirement to take corrective actions to reduce 

17 the emissions is the best way to regulate the 

18 conventional tailings impoundment. I find that 

19 really ridiculous. 

20 Thank you. 

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

22 Next if we could have Travis Stills? 
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1 MR. STILLS: Do I need to hold the mic or -- 

2 MS. SUTIN: Yes, so folks in the audience can 

3 hear. 

4 MR. STILLS: I didn’t know if which -- and 

5 now that I hear the echo, it’s even more fun. 

6 Good morning. My name is Travis Stills. 

7 I’m an attorney with Energy and Conservation Law. 

8 And today I’m here with the Plaintiffs who 

9 brought the lawsuit that compelled this 

10 rulemaking, including Colorado Citizens Against 

11 Toxic Waste. 

12 You know, the key issue that we’re 

13 dealing with is in the rulemaking we’re writing 

14 new law responding to a real problem in the world 

15 as far as what should be done to reduce radon 

16 emissions associated with uranium processing. 

17 I think you have heard quite a bit from 

18 the public about the inadequacies of the –- both 

19 the NRC regulations and the Clean Air Act 

20 regulations that apply, that have resulted in 

21 emissions far beyond the 20 picocuries that were 

22 adopted in ’89, far beyond the 10 picocuries that 
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1 really should have been adopted as the numeric 

2 standard in 1989. 

3 But let me back up and welcome you to 

4 Denver and to Colorado. I appreciate that you're 

5 here, that folks have come from Washington. 

6 Unfortunately, and I won’t dwell on this, 

7 you have basically come to the industry's 

8 headquarters. I know EPA has a regional office 

9 here as well. But it’s well known that Denver is 

10 the headquarters for the industry. And you have 

11 seen that reflected in the attendance here. 

12 I'll renew and reiterate the request of 

13 many groups, community groups, Native American 

14 tribes, who have asked that the folks from D.C., 

15 you know, get away from the lobbyists, the 

16 consultants, the abstract models, and come out on 

17 the ground and talk to people, who you've heard a 

18 couple, and will hear a couple here, who probably 

19 know these sites better than the operators 

20 themselves. 

21 You hear a lot of, you know, measurement 

22 in a bucket to simulate what a uranium mill does 
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1 and what the tailing cells do. Come out and 

2 actually take some measurements and talk to 

3 people, find out the real impacts on the ground. 

4 And like I said, I understand that the 

5 folks here are not the ones to mete this 

6 criticism out to, but please take that back to 

7 Washington and let folks know that there’s a lot 

8 of good folks with a lot of good information that 

9 you would very much benefit in this rulemaking if 

10 you went to the sites and you went to the 

11 affected communities. 

12 As a matter of environmental justice, I 

13 think the EPA’s own policies compel that. 

14 So again, this is a Clean Air Act rulemaking. 

15 There is no serious question that EPA has 

16 authority to regulate hazardous air pollution, 

17 and in particular, radon from uranium processing. 

18 The National Mining Association, who 

19 meets regularly with the EPA and NRC, and are 

20 perhaps in this room but -- you know, they 

21 floated these arguments over and over and over 

22 again. And note that their arguments are based 
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1 on staff memos of NRC who has over the decades 

2 attempted to push EPA out as far as a regulator 

3 when it comes to uranium processing. 

4 The groups that I work with very much 

5 welcome and invite and encourage and depend on 

6 EPA to regulate in this field. 

7 It is the norm, it is not the exception 

8 for multiple laws to apply to a given facility. 

9 Any kind of industry knows that inside or outside 

10 of the energy field. 

11 There is some mention today by Energy 

12 Fuels of deep well injection of some of their 

13 wastes. That is also an EPA program, the Safe 

14 Drinking Water Act -- Safe Drinking Water Act 

15 Underground Injection Control Program. This is 

16 not unique. 

17 The National Mining Association’s one 

18 stop shopping argument has failed, and it should 

19 fail again. And it really should be ignored as a 

20 diversion to the real work at hand. It’s not a 

21 serious argument, it doesn’t have a serious 

22 basis. 
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1 Congress has also rejected that single 

2 regulating approach when adopting UMTRCA, which 

3 is a response, a direct response to an industry 

4 that has failed to operate cleanly, has cost 

5 billions of dollars in taxpayer money on clean 

6 up, and has caused unnecessary deaths and health 

7 impacts due to the failure to follow laws and 

8 to -- and based on the aggressive lobbying 

9 against environmental protection laws. 

10 What we're dealing with in this rule is 

11 largely -- although processing facilities, as you 

12 have heard today, is also a major source of radon 

13 emission that should be looked at within this 

14 rulemaking -- and now I have information from 

15 Energy Fuels on the record that says that the 

16 processing facility itself should probably be 

17 regulated because of its contribution to overall 

18 emissions. 

19 But what we're mostly dealing with here 

20 today is open air processing and disposal, 

21 whether it’s heap leach or the disposal. 

22 This is dark ages kind of stuff for folks 
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1 who work outside of the uranium industry. 

2 Processing -- industrial processing in an open 

3 air setting, that’s absurd. I don't know why in 

4 the world that's even still on the table. 

5 What the focus should be in the 

6 rulemaking, where it should really shift the 

7 focus back on the mechanisms that are used in the 

8 Clean Air Act, the mechanisms adopted by Congress 

9 as the policy of the United States to keep it 

10 clean. 

11 You should be looking at numeric limits, 

12 probably more in the 5 picocuries or 4 picocuries 

13 level that was analyzed in the 1986 and 1989 

14 documents. At a -- you know, at a 10 would be 

15 probably too high. It was raised to 20 for 

16 economic reasons. If you want to protect -- be 

17 protective of health, you need to be looking at 5 

18 and 10 numeric limits, actual monitoring, actual 

19 reporting and actual enforcement. 

20 When this lawsuit was brought to bring 

21 this rulemaking, Region 8 didn’t know who 

22 regulated what. We have emails in the court 
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1 record back and forth saying, oh, does it say do 

2 that, oh, I don't know, maybe the EPA does, let’s 

3 find out. 

4 This is an important regulatory field. 

5 And we are happy to help EPA bring it back into 

6 line with the Clean Air Act. And not as far 

7 afield as the National Mining Association is 

8 arguing to take you as far as, you know, you 

9 don’t even have a role here. And that’s -- 

10 that’s just absurd. The EPA has a role. We 

11 welcome it, we depend on it, we look forward to 

12 it. 

13 Control technologies, that’s what the 

14 Clean Air Act is about. Open air processing with 

15 some water on it is not a control technology. 

16 Limiting the number and size of open air storage 

17 is not -- is not control technology. 

18 Our written comments will talk in a 

19 little more detail about the generally available 

20 versus maximum achievable. You know, this is 

21 radon, this is radioactive materials, this is 

22 cancer and this is health effects, not to mention 
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1 the environmental effects that haven’t been 

2 really looked at. 

3 This should be looked at and implemented 

4 under a maximum available control technology. 

5 But unfortunately, as written, there are really 

6 no technologies -- they're not analyzed in the 

7 rule. I don’t seen anywhere where EPA has taken 

8 a good look, either directly or comparatively, 

9 across technologies. Phased disposal is not a 

10 control technology. It’s dump and wait and clean 

11 up someday in the future. That should be -- that 

12 should be abolished. It barely squeaked through 

13 in the 80’s. It is not a 21st century technology. 

14 When it comes to the industry’s financial 

15 capacity, this industry has not been -- has not 

16 really been viable financially, you know, 

17 probably since the price accords were taken away 

18 in the 1950’s. It depends on open air and open 

19 water dumping. 

20 You know, dumping water underground to 

21 pollute our groundwater, dumping their waste into 

22 the open air, that’s not a -- that’s not a viable 
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1 21st technology. 

2 This industry will not change on its own. 

3 We've seen that in practice at White Mesa, we've 

4 seen it at Cotter, we've seen it at Uravan. This 

5 industry only responds to regulation. 

6 MS. SUTIN: One minute, Mr. Stills. 

7 MR. STILLS: Okay. Thank you. 

8 And to close, what we really need to look 

9 at here is the full life cycle of processing, 

10 creation of tails and wastes -- I won’t get into 

11 the fake nuances that were put forward as far as 

12 the differences there. Liquid wastes or 11e.(2) 

13 byproduct, that’s well established. 

14 But this rulemaking is an opportunity to 

15 pull back and look at 21st Century control 

16 technologies, which should probably also include 

17 a prohibition on open air processing, also known 

18 as heap leach, and open air dumping of wastes, 

19 which is the phased disposal, in favor of pace 

20 technologies (phonetic), continuous cover, all 

21 different forms of tailings disposal that are 

22 used throughout the mining industry. And get 
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1 past what I would describe as a filibuster by 

2 industry to keep the EPA’s regulations from 

moving into the 21st 3 Century. 

4 MS. SUTIN: Time is up. 

5 MR. STILLS: We are private citizens and we 

6 are here to help. I hope you all from the 

7 federal government are here to help too. 

8 Thank you very much. 

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

10 MR. STILLS: S-t-i-l-l-s, T-r-a-v-i-s. 

11 MS. SUTIN: Mr. Stills, we have a clarifying 

12 question. 

13 MR. STILLS: Certainly. 

14 MR. PEAKE: In your written comments, will 

15 you be providing specific language as part of 

16 your comments? You know, as far as rule language 

17 that you're recommending? 

18 MR. STILLS: If that will be helpful as part 

19 of the process, I think we are contemplating 

20 that. And given your interest in it, I think 

21 it’s more than likely we will. 

22 MR. PEAKE: Thank you. 
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1 MS. SUTIN: Thank you, Mr. Stills. 

2 Okay. Next, if we could have Richard 

3 Blubaugh? 

4 MR. BLUBAUGH: Thank you. 

5 My name is Richard Blubaugh. And I am the 

6 vice president of health, safety and 

7 environmental resources with Power Tech USA Inc. 

8 Power Tech is currently completing 

9 permitting activities for a Dewey-Burdock ISR 

10 project in Southwest South Dakota. Power Tech is 

11 in the process also of completing a business 

12 transaction with Azarga Resources Inc. And the 

13 new company will be named Azarga Uranium 

14 Resources, Inc. 

15 However, Power Tech USA, which has 

16 recently received a license to operate an ISR in 

17 South Dakota from NRC, is a South Dakota company, 

18 a wholly-owned subsidiary, and will not be 

19 affected by the transaction, the corporate 

20 change. 

21 Our headquarters are located in the 

22 Denver Tech Center, and our initial project is 
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1 the Dewey-Burdock project. 

2 As a prospective operator of an ISR 

3 facility, Power Tech is concerned about the 

4 regulations under which it must operate. We 

5 believe regulations should be protective of human 

6 health and environment. We also believe they 

7 should be fair and reasonable, and not punitive, 

8 particularly to small business entities. 

9 While the proposed rule appears to be 

10 reasoned and technology based, there are errors 

11 and omissions in the proposed rule that should be 

12 reviewed and reconsidered. 

13 However, there are some changes to the 

14 rule that are commendable, some that were 

15 mentioned earlier, eliminating the limits on pond 

16 number and size for ISL and ISR operations, 

17 eliminating the requirement for radon monitoring 

18 ponds that maintain the water level, and choosing 

19 to regulate these facilities under the generally 

20 available controlled technologies and management 

21 practices, or GACT. 

22 Our comments here today are going to 
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1 focus really on just a couple of issues. And 

2 they will be followed by written comments prior 

3 to the extended deadline. 

4 In the preliminary discussion of the rule 

5 there is a quote that reads in part, “EPA cannot 

6 allow a situation where the reduction of radon 

7 emissions comes at the expense of increased 

8 pollution of the ground or surface water. 

9 Therefore, all piles will be required to meet 

10 requirements of 40 C.F.R. 192.32(a), which 

11 protects water supplies from contamination." 

12 Interestingly, the statement that 

13 immediately follows this quote reads, therefore, 

14 all impoundments are required to meet the 

15 requirements at 40 C.F.R. 192.32(a). 

16 While EPA may not clearly distinguish 

17 between piles and impoundments, those of us in 

18 the ISR side of the industry do not accept the 

19 premise that our facilities generate tailings, 

20 which EPA on page 20 of the document clearly 

21 describes being generated by conventional uranium 

22 mills. 
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1 Power Tech potentially will be using a 

2 dual system for disposal of wastewater, deep 

3 disposal wells, which is a preference, and land 

4 application, or possibly both. 

5 In either case, Power Tech will treat the 

6 water to remove radium, the precursor to radon 

7 and its progeny. Consequently, there will not be 

8 any radon levels to reduce in the storage and 

9 holding ponds. The radium will be contained in 

10 one of two radium treatment ponds upstream of the 

11 storage holding ponds which will have the 

12 required liner system. 

13 It appears that the agency did not 

14 consider this technological situation for ISR 

15 facilities and that its requirement that all 

16 impoundments are required to meet the 

17 requirements at 40 CFR 192.32(a) is another one 

18 size fits all remedy that EPA seems to prefer. 

19 There's a statement the ISL facility 

20 ponds contained uranium byproduct materials. It 

21 apparently assumes that no ISL operator removes 

22 radium prior to disposal of wastewater. This 
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1 assumption should be revisited. 

2 Power Tech has proposed and NRC has 

3 licensed a treatment process that removes radium 

4 226 before the water is piped to a storage pond. 

5 From there it will go to a deep disposal well or 

6 used as irrigation water on the native soils. 

7 On page 25 of the risk assessment -- and 

again, this is from the April 17th 8 version, Table 

9 15 -- EPA demonstrates the effectiveness of 

10 barium chloride in removing radium from the 

11 Church Rock ground point sample groundwater, 

12 which reflects a 95 to 99 percent radium removal 

13 efficiency for barium chloride given by the EPA 

14 in 2006. 

15 So without reconsideration and revision 

16 of the proposed rule by EPA Power Tech will 

17 likely be required to construct (unintelligible) 

18 designed ponds at considerable cost, even though 

19 there will be no radon gas emissions, nor a 

20 realistic risk of contaminating groundwater or 

21 surface water. 

22 The description of the liner system 
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1 indicates that 40 CFR 264.221 requires a triple 

2 liner with a leak detection collection system. I 

3 know it was said earlier that it was a double 

4 liner, but you’re talking about three feet of 

5 compacted clay. That's also a liner. 

6 There will be no hazardous waste 

7 deposited in these storage or holding ponds, nor 

8 do the radium treatment ponds contain hazardous 

9 waste. They contain byproduct material. 

10 I hope you will consider these comments. 

11 Thank you for your attention. 

12 MS. SUTIN: Thank you, Mr. Blubaugh. 

13 Could you please spell your name, your 

14 last name for the record for the court reporter? 

15 MR. BLUBAUGH: Sure, I’m sorry. 

16 B-l-u-b-a-u-g-h. 

17 MS. SUTIN: Okay. Next if we could have 

18 Sharyn Cunningham? 

19 MS. CUNNINGHAM: Hello, my name is Sharyn 

20 Cunningham. I’m from Cañon City, Colorado, 

21 specifically from the Lincoln Park area, which is 

22 the Superfund site that the Cotter Uranium Mill 
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1 caused with the contamination that moved away 

2 from their site. I’m also a co-chair of Colorado 

3 Citizens Against Toxic Waste, which is a local 

4 Cañon City, Fremont County group that formed in 

5 2002 to follow and address and try to help with 

6 the Superfund issue and the issues happening at 

7 the Cotter Mill. 

8 I live about one-and-a-half miles or less 

9 downhill from the Cotter Uranium Mill. I have 

10 two wells that have been contaminated, one still 

11 above standards. 

12 I feel like what often is missing is just 

13 this real life experience. I fear that people are 

14 sitting in Washington or here in Denver at their 

15 desks and looking at things in a very generalized 

16 way. 

17 And just an example of that is ever since 

18 our group began we have climbed a ridge on the 

19 south side of Cotter, above Cotter, with 

20 permission from the owner, and taken photographs 

21 of impoundment ponds. And one of the things in 

22 this rule is that you're going to -- the proposed 
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1 rule is you’re going to depend on these work 

2 practices to reduce radon. 

3 And everyone commenting has talked about 

4 the water cover, that prevents radon, you know, 

5 reduces it down to a very, very low emission 

6 rate. 

7 What you don’t realize, and if you could 

8 look at photographs we've taken over these twelve 

9 years, you would see that every year the water 

10 coverage changes. If we have two or three years 

11 of drought, the water shrinks, because the Cotter 

12 Corporation at that time had to pay for city 

13 water to treat its city water to keep that 157 

14 acre impoundment pond covered with water. So 

15 some years there would be tailings 

16 (unintelligible), and then other years we were 

17 fearing it was going to overflow when we would 

18 have a lot of rain. 

19 This all began after our group began. I 

20 mean, this rulemaking we’re at right now, when we 

21 became concerned about the radon situation at the 

22 Cotter Mill. Their flux reports went up and 
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1 down. Some years they would be low. One year in 

2 particular it was almost at 20 picocuries per 

3 square meter per second. And we were concerned. 

4 We read at that time that anytime a radon flux 

5 gets close to that standard that the agencies 

6 could step in and say, okay, you need to do 

7 something, like put some dirt out there or water, 

8 and they did both over a number of years. Or you 

9 need to do a radon flux test monthly for a little 

10 while. That didn’t happen. 

11 Also, Cotter’s whole method of 

12 determining radon emissions at their mill, 

13 whether at the boundary with their air stations, 

14 came into question and they were told to create a 

15 method of doing that. 

16 And we've had two world renowned 

17 scientists look at their method of determining 

18 the radon. And that’s what we are going to 

19 depend on now. If a conventional mill like this 

20 with their impoundment don’t have to do those 

21 radon flux tests, then the people that live near 

22 them are depending on that company’s method of 
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1 determining background from radon and whether or 

2 not they're in compliance with standards. 

3 Also, we were concerned because Cotter’s 

4 157 acre impoundment pond is divided into two 

5 cells. One of them is called a secondary 

6 impoundment. And they filled it with old 

7 tailings and covered it with water, and said 

8 we’re not putting anymore tailings in this, 

9 therefore, we don’t have to do radon flux tests. 

10 So for all of the years that radon flux 

11 tests were required, they didn't do them on the 

12 secondary impoundment. And we were concerned 

13 about that. And so we probably made enough noise 

14 that somebody came in, either the health 

15 department here in Colorado, or maybe EPA, and so 

16 Cotter in 2007 did a radon flux test on that 

17 secondary impoundment. And it was -- it was 

18 above the standard, it was at 23. 

19 So they then put dirt where they thought 

20 they needed dirt in order to reduce it and they 

21 got it reduced down. But then they never did 

22 another radon flux test. 
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1 And I think the point's been made. In 

2 real life, when you’re a mile from this place and 

3 you see it frequently, you know that it -- the 

4 conditions change as time goes by with weather 

5 and so on. 

6 Then in 2010, Cotter had -- was on 

7 standby. And they said, well, we're not going to 

8 use that primary impoundment anymore. That was 

9 when they were putting stuff in. And so we're not 

10 going to do radon flux tests anymore. 

11 And so at that point EPA said, well, 

12 you're supposed to. But then we never saw 

13 anything else about that. Cotter came back and 

14 said we don’t think we have to. Then in January 

15 of 2012 -- oh, yeah, in July -- January of 2012 

16 Cotter submitted to the state their request for 

17 termination of their license. So they kind of 

18 officially finally said that they were going to 

19 close. 

20 And then in July of that year, I don't 

21 know who -- why they did it, they were -- I’m 

22 sure they didn't do it voluntarily, somebody 
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1 probably asked them to do it, the health 

2 department or EPA, they did radon flux test. So 

3 they hadn’t done radon flux for 2 years. 

4 So in 2012 they do one in July and the 

5 primary impoundment is above the standard. It’s 

6 at 23 something or other. So Cotter goes out 

7 there and they cover with dirt some of the hot 

8 spots and so on. But they didn't send -- they 

9 weren't required to do it, they claimed, so they 

10 didn’t send an official report to EPA on it. 

11 So basically, one of the issues I wanted 

12 to address is the risk assessment that was done 

13 by Cohen. And from -- in layman's terms, you 

14 asked them to look at and do a risk assessment 

15 again. And the purpose of it is to do an 

16 analysis of the dose and the risk to revise the 

17 risk assessment for NESHAPS. 

18 And it’s basically about the risk from 

19 radon. And you -- Cohen went to a number of 

20 sites, conventional mills, ISL facilities, et 

21 cetera. And then you at EPA base your decision 

22 on how to change these regulations using that 
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1 risk assessment. 

2 And one of the things that I was very 

3 upset with living next door to this, and in 

4 this -- I am inside the Superfund site, was that 

5 there were several huge errors by Cohen in regard 

6 to the Cotter Mill. 

7 First of all -- and when we send our 

8 written comments out we'll do more details on 

9 this. But on page 22 of the report Cohen claims 

10 that there was no Cotter radon data for them to 

11 get. And so instead they used the radon flux 

12 reports to then do a calculation as to the amount 

13 of radon coming off of the mill site. 

14 Well, Cotter's been collecting radon data 

15 for decades. In fact, in a 1995 annual report --

16 this is sentence from it -- they got Colorado 

17 State University to do a risk assessment in 1995. 

18 And they said the data that CSU collected 

19 included airborne particulate data and radon 222 

20 data. But Cohen’s report says that -- 

21 MS. SUTIN: One minute. 

22 MS. CUNNINGHAM: Okay. That there was no 
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1 data. 

2 The second real big problem was the 

3 population. They used a 2000 census, did a 

4 calculation when -- Cohen’s report came out in 

5 November 2011. They could have used the 2010 

6 census data. 

7 Cohen claims in a two mile radius around 

8 the mill there are 400 people. No, within a two 

9 mile radius there's 6,000 people. 

10 And there was further problems with that. 

11 A third one was meteorology. They claimed that 

12 there was no meteorological data from Cotter. 

13 And they used meteorological data from Colorado 

14 Springs. Cotter has had a meteorological air 

15 station on their site for decades. It’s in their 

16 annual report every year. 

17 There's more. If I have time later I may 

18 say something else. We came to you in 2000 -- we 

19 started in 2006 with concerns about this radon. 

20 And we look to you to protect us and you -- I 

21 hope that you will reconsider doing real 

22 measurement rather than assuming that a company 
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1 is going to put dirt on there when they feel like 

2 it when no one is out there inspecting them for 

3 months and months at a time. 

4 So anyways, thank you for the chance to 

5 talk. 

6 MS. SUTIN: Thank you, Ms. Cunningham. 

7 Next if we can have Kay Hawklee? 

8 MS. HAWKLEE: It’s K-a-y, H-a-w-k-l-e-e. 

9 Thank you all for allowing us to testify. 

10 I'm member of the community advisory group to the 

11 Cotter Lincoln Park Superfund Site, the CAG. But 

12 I’m here speaking as an individual, I’m not 

13 speaking for the CAG. I’ve been a member of the 

14 CAG since 2007. 

 And January 3rd 15 of 1965 the Denver Post 

16 published the first article saying that Cotter 

17 was going to close. This January that will be 

18 fifty years. So for fifty years they have been 

19 going into lengthy times of standby and saying 

20 that they were going to close, but here we are 

21 fifty years later. 

22 UMTRCA was created so that uranium mills 
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1 would not linger with contamination. But in 

2 Cotter’s case, with a leaking impoundment, 

3 leaking into Lincoln Park’s groundwater and 

4 causing a Superfund site that’s been here for 

5 thirty years -- the Superfund site has been 

6 around for thirty years -- Cotter is the prime 

7 example of lingering contamination. 

8 Under the Clean Air Act the EPA needs to 

9 look at the full history of this industry. This 

10 is why what is ongoing at Cotter needs a new 

11 rule. We're concerned because the Cohen study 

12 was just wrong in many places. And you've 

13 proposed a rule that relies on this 

14 misinformation by Cohen. 

15 So what I’m asking is, will you correct 

16 the rule to reflect the proper actual data. And 

17 often it's us, the affected citizens, who check 

18 those facts. And we’re inviting you to come to 

19 Cañon City and meet with us to go through the 

20 actual data that Cotter has not provided yet, but 

21 is -- that is there, that is out there and has 

22 been done. 
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1 We would like for you to check on actual 

2 radon flux measurements that have been taken and 

3 have at times exceeded the 20 picocuries limit. 

4 You do have the authority to do so no matter what 

5 the NMA says. 

6 Instead of relying on hypothetical models 

7 of Brown and Cohen, we would like for you to come 

8 out and look at the reality, our real world 

9 examples using real world data. It would take 

10 more time than I have today to detail what has 

11 fallen through the regulatory cracks at Cotter. 

12 And here we go again. This rulemaking is 

13 creating another very large gap. So what we're 

14 asking for you to do is help us close the gap. 

15 That gap is being created where there is no radon 

16 flux measurements between closure and the 

17 placement of the cap, which could be decades away 

18 still. And we would like you to use authority 

19 under the Clean Air Act to regulate hazardous 

20 pollutants from these uranium mills. 

21 We look forward to working with the EPA. 

22 You've heard from the National Mining Association 
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1 that there are no emissions. There are. And 

2 they've been measured many times above the limit. 

3 This is a real world problem. We need a real 

4 world solution from EPA. 

5 I just brought a study that I have gotten 

6 that talks about the need for monitoring. And I 

7 will give it to you. I don’t have the capacity to 

8 upload it at home and send it so -- but there's a 

9 line in here that says the implications for the 

10 various assessments of long term releases of 

11 radon are discussed, including aspects such as 

12 the need for ongoing monitoring of rehabilitation 

13 at uranium mining and milling sites and life 

14 cycle accounting. 

15 And I would just ask you to please relook 

16 at this concept of no monitoring because Sharyn 

17 lives a mile from the toe of the impoundments, 

18 the Arkansas River is a mile-and-a-half from the 

19 toe of the impoundment. And not taking 

20 measurements is such an avoidance of 

21 documentation that is -- in my mind is absurd and 

22 it’s outrageous. And I would just ask you to 
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1 please look at that again and reconsider that 

2 aspect. So I will give you this paper. 

3 Thank you. 

4 MS. SUTIN: We have a question too. 

5 MS. HAWKLEE: Oh, okay. 

6 MS. SUTIN: Thank you. 

7 MR. PEAKE: Okay. You said that you have 

8 data that you want to share with us. Will you be 

9 providing that in your written comments? 

10 MS. HAWKLEE: Yes, we can. 

11 MR. PEAKE: Okay. Thank you. 

12 MS. SUTIN: Thank you, Ms. Hawklee. 

13 Okay. We have heard from all of the 

14 registered speakers so we will pause the hearing 

15 until someone arrives that would like to speak. 

16 Thank you. 

17 We're going to take a break and come back 

18 at 10:30. 

19 (Whereupon, a recess was taken.) 

20 MS. SUTIN: Okay. We're back on the record. 

21 And we have two additional speakers. First is 

22 Sarah Fields. 
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1 MS. FIELDS: Thank you. My name is Sarah 

2 Fields and I'm with Uranium Watch in Moab, Utah. 

3 I think, as some of the discussion has 

4 revealed, that one of the big issues is what 

5 happens when a tailings impoundment or a mill as 

6 a whole enters some sort of closure period. And 

7 the EPA, or in Utah the Division of Air Quality, 

8 determines that Subpart W compliance for an 

9 existing tailings impoundment is no longer 

10 applicable. 

11 In both Cañyon City and White Mesa you 

12 had closure and ending of radon monitoring, but 

13 no compliance with EPA 192 or NRC criterian 6A of 

14 appendix A which require reclamation milestones. 

15 For Cell 2, there is no approved closure plan. 

16 These are long processes. 

17 So recently at White Mesa a determination 

18 was made that Subpart W no longer applies. And 

19 whether or not there is an approved closure plan, 

20 and whether or not there are reclamation 

21 milestones for dewatering, interim cover and the 

22 final radon barrier, those tailings impoundments 
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1 are going to sit there for decades. And there 

2 will be no requirement to monitor the radon 

3 emissions and determine whether or not the radon 

4 emissions are increasing, and no requirement to 

5 take corrective -- any corrective actions. 

6 Fortunately for Cell 2, even though in 

7 2008 they ceased putting waste in the 

8 impoundment, there were six years where even 

9 though you might say essentially they had entered 

10 the closure period, they had not officially 

11 requested that they no longer be required to 

12 comply with Subpart W. 

13 So for six years they continued to 

14 accumulate data. And when they found that the 20 

15 picocuries standard was exceeded they took 

16 corrective actions. But from now on for the 

17 next, I don't know, fifty years, there will be no 

18 data. 

19 So as a friend of mine has often said, 

20 “no data, no problem”. So as long as the EPA 

21 feels that they don't need any data on radon 

22 emissions because the impoundment has entered 
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1 closure, or the whole -- as in Cañon City, the 

2 whole mill has entered closure, there will be no 

3 data. And there will be no problem. And with no 

4 problem there's no requirement to take any 

5 corrective action. 

6 I don’t call that regulation. I don’t 

7 call that protecting the public health and 

8 safety. And it really goes back to the 

9 rescission of Subpart T. Subpart T would have 

10 required compliance with 20 picocuries throughout 

11 the closure period. 

12 Subpart T was rescinded a number of years 

13 ago. And it was basically to take -- to address 

14 certain situations at a number of mills that had 

15 already been closed down. 

16 Well, currently any of those mills that 

17 were addressed in the 1991 memorandum of 

18 understanding between the EPA and the NRC in the 

19 agreement states, “those mills have either had 

20 the completion of the radon barrier or they are 

21 currently under a requirement to maintain a 20 

22 picocuries limit on the radon emissions because 
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1 they have gone beyond the initial reclamation 

2 milestones." So they've had the milestones 

3 extended. Because they requested those 

4 extensions of the milestones they have to now 

5 comply with the 20 picocuries. 

6 The rescission of Subpart T really didn't 

7 address the issues that you now see at the Cotter 

8 Mill or at the White Mesa Mill. So what you see 

9 now will be extensive periods of time before 

10 there is a final radon barrier where there will 

11 be no monitoring and no requirement for 

12 corrective actions. 

13 It will be even worse for the new 

14 impoundments because throughout the life of those 

15 new impoundments at White Mesa there never will 

16 be a requirement for any radon monitoring. There 

17 will be no requirement for keeping the tailings 

18 impoundments wet, there will be no requirement 

19 when they do start to dry out for putting an 

20 interim cover and soil on the impoundment because 

21 it seems they enter closure and there's no 

22 closure plan, there are no reclamation 
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1 milestones. So these impoundments, Cell 4A and 

2 4B, will likely, at least under EPA regulation, 

3 just sit there emitting radon. No one will know 

4 how much radon for decades. 

5 I don’t think that this is what the EPA 

6 had in mind. I think the EPA should reinstate 

7 Subpart T because I think it is important for 

8 these -- for the Cotter Mill and for the White 

9 Mesa Mill to have continual radon monitoring 

10 throughout the closure period. 

11 I think it’s important that corrective 

12 actions be taken in a timely manner to assure 

13 that the radon emissions are kept within the 20 

14 picocuries limit. 

15 And they -- the situation for Cell 2 has 

16 shown this is a very doable solution. And it 

17 also demonstrates how as the tailing impoundment 

18 dries out, the radon emissions will increase. 

19 You have a regulatory gap. You shouldn’t 

20 have this gap. You shouldn’t have a whole period 

21 that may extend for decades when there's no data 

22 information on the radon emissions and no 
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1 requirement to reduce those emissions. 

2 And I also agree with Mr. Stills, you 

3 have to also consider the possibility that -- 

4 reducing that 20 picocuries of limit. And it 

5 would have been helpful in the rulemaking if 

6 there had been additional data on each of the 

7 mills, the history of all of the impoundments, 

8 what their radon emissions have been over the 

9 years. Unfortunately, that data wasn't included 

10 in the rulemaking. 

11 Thank you. 

12 MS. SUTIN: One question, Ms. Fields. 

13 MS. FIELDS: Thank you. 

14 MR. PEAKE: In listening to what you were 

15 saying, it sounds like you’re addressing the 

16 issue of operations of the facility as far as the 

17 definition. 

18 In the regulation and proposal, we have a 

19 definition of operation. And so I would like to 

20 ask to help clarify, you know, how do you think 

21 EPA should define when operations end for 

22 compliance with Subpart W? 
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1 MS. FIELDS: Well, you could extend the 

2 period of operations until the placement of the 

3 final radon barrier. In fact, Energy Fuels 

4 assumed, and this is stated in their annual 

5 Subpart W compliance reports, that closure began 

6 after the placement of an interim cover. 

7 I mean, that was their assumption. So 

8 there has always been a confusion as to when 

9 closure actually began. I mean, differing 

10 opinions as to when closure began -- or when it 

11 begins. 

12 So that is something that you could do, 

13 is extend that period of compliance with Subpart 

14 W. But just having an interim cover doesn’t 

15 always -- you still need the radon monitoring 

16 throughout the period of drying of the 

17 impoundments to give you a heads up on different 

18 areas where you might need additional soil, a 

19 heads up on the fact that wind-blown tailings had 

20 come from another impoundment and they needed to 

21 be removed, or maybe – and in this case they put 

22 a barrier between impoundments. With the 
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1 placement of the different charcoal, these little 

2 charcoal monitoring devices in the different 

3 areas that tells you which area needs additional 

4 soil. 

5 And there's a big question, like at White 

6 Mesa, it might be fifty years before they put the 

7 final radon barrier because they're not going to 

8 put a final radon barrier on one impoundment, and 

9 then another impoundment, and then another 

10 impoundment. Their whole idea in their 

11 reclamation plan is to put them over all of the 

12 impoundments. 

13 Well, the rescission of Subpart W assumes 

14 that once one impoundment was closed and 

15 dewatered, you would have at least within seven 

16 years a placement of final radon barrier, not an 

17 indefinite period. And right now it’s an 

18 indefinite period because who knows when all of 

19 those additional impoundments will be filled up 

20 and they'll want to put the final -- and then 

21 they go through closure period, dewatering, 

22 settlement and time to put the final radon 
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1 barrier on. 

2 So you have a lot of reality issues that 

3 the EPA has never -- hasn't really considered, at 

4 least for White Mesa and for Cañon City. 

5 MR. PEAKE: Thank you. 

6 MS. SUTIN: Next Sharyn Cunningham. 

7 MS. CUNNINGHAM: My name again is Sharyn 

8 Cunningham. I’m co-chair of Colorado Citizens 

9 Against Toxic Waste from Cañon City. 

10 I also forgot to mention that I have been 

11 a member of the Community Advisory Group for the 

12 Cotter Lincoln Park Superfund site since it began 

13 in 2004. 

14 I thank you for this opportunity because 

15 there are a couple of other points that I wanted 

16 to make that I didn’t have time, ten minutes went 

17 fast. 

18 I had mentioned with the Cohen Risk 

19 Assessment that there was actual data at Cotter 

20 that they did not make an effort to get for the 

21 risk assessment. 

22 In fact, every three months we 
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1 participated in a teleconference call with EPA on 

2 this Subpart W rulemaking since 2008 or 2009. 

3 And on one of the calls after the Cohen Risk -- 

4 the first draft came out of the risk assessment, 

5 I brought up the fact with the problems with 

6 population being wrong, et cetera. And Jim Cain 

7 of the Cotter Corporation was on the call -- I 

8 believe it was Jim Cain -- and he stated that 

9 Cohen never contacted them for specific data from 

10 their site. 

11 Now, I don't know if after that some 

12 contact may have happened, but it’s not reflected 

13 in the November 2011 version of the risk 

14 assessment. 

15 I mentioned that there was no radon data, 

16 which was available from Cotter. There was 

17 available meteorological data that they did not 

18 use. But there was another important part, I 

19 thought. 

20 In 2003 the health department asked 

21 Cotter to submit an inventory of the contents of 

22 the impoundment ponds. Right at this moment 
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1 there is close to 6 million tons of contents. 

2 And that includes all of the tailings over all of 

3 the years, plus buildings, semi-trucks, heavy 

4 earth moving equipment. It’s all in that 

5 impoundment pond now. And there is a good 

6 million or more that will have to go into it as 

7 they finish cleaning up. 

8 So if Cohen had gotten that inventory 

9 from 2003 they would have known the exact amount 

10 of radium and its radiological concentration from 

11 that inventory, which would have helped them 

12 determine the potential radon emissions, as well 

13 as the yearly radon flux tests that happened. 

14 And then another point that I wanted to 

15 bring up in regards to the risk assessment was 

16 that it’s about radon, it’s about risk from 

17 radon. But the radon progeny, or daughters is 

18 what I used to refer to it as, is not mentioned 

19 or considered in this. 

20 And I live a mile or so from this 

21 impoundment pond. I’m not worried about inhaling 

22 radon gas, I’m concerned about radon traveling 
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1 through the groundwater. But nobody tests for 

2 that in the groundwater. 

3 And I’m concerned about the progeny 

4 because it changes within three-and-a-half days 

5 or so, it changes to radioactive lead, which 

6 attaches to dust, which lands on the ground. And 

7 every time the wind blows it gets lifted up and 

8 re-suspended and moves farther down. 

9 And in fact, the NRC was concerned about 

10 these progeny and they put out a draft interim 

11 guidance, September 2011, called Evaluations of 

12 Uranium Recovery Facilities Surveys of Radon and 

13 Radon Progeny in the Air. And this is a -- and 

14 I'll provide that paper in written comments. 

15 Here is a direct quote, “as discussed 

16 later, radon progeny are addressed because most 

17 of the dose to people from the releases of radon 

18 is actually due to exposure to radon progeny." 

19 And one of the things -- and that can include 

20 radioactive bismuth, radioactive lead. 

21 I think that should have been a part of 

22 this risk assessment. You have to realize we've 
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1 never had any epidemiological studies at our 

2 site. All that’s ever been looked at is cancer, 

3 the cancer registry. 

4 When you look at radon and its daughters, 

5 then you’re looking at health effects that are 

6 more than just cancer. 

7 And then the last point I wanted to make 

8 again, which has been made, the gap. I’m 

9 concerned about the gap. I have heard health 

10 department and EPA staff state that the final cap 

11 may not go on that impoundment pond for twenty to 

12 fifty years. And as it's been stated, at least 

13 when you’re doing radon flux tests, you know when 

14 some dirt needs to be put out there to reduce the 

15 radon. 

16 For twenty years or -- to fifty, you 

17 know, we're not going to have that protection. 

18 And we'll be exposed to radioactive lead blowing 

19 in the wind. 

20 Also, it causes us to rely solely on 

21 Cotter’s method to determine background and 

22 compliance with radon standards at their boundary 
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1 of the air stations. And we question Cotter’s 

2 method. There's a written method, we gave it to 

3 Reid Rosnick. He told us to give it to Steve 

4 Tarlton at the health department. 

5 We wouldn't have given it to Reid if the 

6 health department would have looked at this. And 

7 we asked that it be evaluated by a radon expert 

8 from the EPA. That started in 2008, six years 

9 ago. 

10 We've still never gotten an agency person 

11 to evaluate that method. And now, without the 

12 radon flux tests, we are solely dependent on 

13 Cotter’s method of determining that they're in 

14 compliance. 

15 And one of the things in the NRC Interim 

16 Guidance stated, it said background must be 

17 determined very carefully. And that’s what this 

18 method of Cotter’s does, it -- and so we -- I'd 

19 like to ask once again, and I'll discuss later 

20 with you, having some expert review this method 

21 that they're using. 

22 And, you know, finally, I just want to 
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1 say that as a layperson, it looks to me like the 

2 Clean Air Act provides EPA with the authority to 

3 regulate all radon at mills. And I really hope 

4 that you will work to close this gap that people 

5 who live near these facilities are going to 

6 suffer from. 

7 Thank you. 

8 MS. SUTIN: Thank you, Ms. Cunningham. 

9 MS. CUNNINGHAM: Okay. 

10 MS. SUTIN: Okay. We are through the 

11 speakers that registered. And it is 10 -- almost 

12 5 of 11:00. We will pause the hearing until 

13 11:30. 

14 If anyone wants to speak between now and 

15 11:30, go to registration table. At 11:30 we 

16 will close the hearing and we will start up again 

17 at 1:00 O’clock. 

18 Thank you. 

19 (Whereupon, a recess was taken.) 

20 MS. SUTIN: It is 11:30 and we have no 

21 additional speakers for the morning session. So 

22 we are officially closing this session for today. 
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1 (Whereupon, the morning session was concluded 

2 at 11:30 a.m.) 

3 MS. SUTIN: Good afternoon everyone. I think 

4 we're going to get started. My name is Elyana 

5 Sutin and I am the Regional Judicial Officer for 

6 EPA Region 8. Thank you all for coming this 

7 afternoon. 

8 I will be presiding over the hearing. 

9 And joining me on the panel is Tom Peake and Dan 

10 Schultheisz from the Office of Radiation and 

11 Indoor Air in headquarters. This hearing is now 

12 in session. 

13 We are here today to listen and receive 

14 your comments on EPA’s proposed revisions to the 

15 national emission standards for radon emissions 

16 from operating mill tailings, also known as 40 

17 CFR, Part 61, Subpart W. 

18 EPA is proposing to revise certain 

19 portions of the standards based on its 

20 determination as to what constitutes general 

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 this proposed rule on May 

2

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

and was to end on July 31st. On July 21st 4 , 2014 

EPA extended the comment period to October 29th 5 , 

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 bit about how today’s hearing will work. 

11 There was a session this morning from 

12 9:00 to noon and one this afternoon. Please be 

13 sure to check in to the registration desk even if 

14 you are not planning to speak today. 

15 I will call the scheduled speakers to the 

16 chair in front of me. When it is your turn to 

17 speak, please state your name, spell your last 

18 name for the court reporter and your affiliation 

19 before you begin your testimony. Your comments 

20 will be transcribed and included in the record of 

21 comments on the proposed rule. 

22 In order to ensure that everyone has the 
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1 opportunity to speak, and to ensure fairness, 

2 please limit your testimony to ten minutes. We 

3 will signal to you when you have one minute left 

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

5 you to complete your testimony. 

6 As I said before, there is no pressure to 

7 speak the ten minutes if your statement is 

8 shorter. 

9 However, if you have more that you want 

10 to say and there is time, we're happy to take 

11 additional comments that are new from what you 

12 have said before and are not a rebuttal to 

13 someone else’s testimony. If you would like to 

14 speak again please check in with the registration 

15 desk and they will sign you up. 

16 After you finish your testimony members 

17 of the panel may ask clarifying questions. We 

18 are not here today to answer questions about the 

19 proposed rule. If you have questions about the 

20 process please find one of the EPA 

21 representatives after the hearing. 

22 If you have written copies of your 
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1 testimony, or supporting documentation, please 

2 give a copy to our staff at the registration 

3 table. This will be helpful as we prepare the 

4 transcript. If you have additional comments you 

5 would like to make you can submit them in 

6 writing. Comments must be received on or before 

5:00 p.m. on October 29th 7 , 2014. 

8 Let me assure you that EPA gives just as 

9 much consideration to comments we receive in 

10 writing as we do to comments we receive at public 

11 hearing. 

12 Instructions for submitting comments are 

13 included in the fact sheet at the registration 

14 table. And you can pick up a copy of that outside 

15 the door. 

16 Today’s public hearing is scheduled to 

17 end once the last registered speaker has provided 

18 comments. So if you would like to testify but 

19 have not yet registered to do so, please sign up 

20 at the registration table. 

21 Now I will turn it over to Tom who will 

22 summarize the proposed rule. 
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1 MR. PEAKE: Thank you. 

2 Hello, my name is Tom Peake. And I am the 

3 director for the Center for Waste Management and 

4 Regulations in the Environmental Protection 

5 Agency’s Office of Radiation and Indoor Air in 

6 Washington, D.C. 

7 And with me is Dan Schultheisz, the 

8 associate director for the Center for Waste 

9 Management and Regulations. 

10 We are here today to receive your 

11 comments on EPA’s proposed rulemaking for the 

12 revisions to the national emission standards for 

13 radon emissions, or NESHAPS, from operating mill 

14 tailings, also known as Subpart W. 

15 The proposed revisions would require the 

16 use of generally available control technologies, 

17 or GACT, to limit radon emissions from the 

18 tailings at all uranium recovery facilities. 

19 Specific control technologies would be required 

20 at conventional tailings impoundments, 

21 evaporation ponds and heap leach piles. 

22 We are also proposing to add new 
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1 definitions to this rule, revise existing 

2 definitions, and clarify that the rule applies to 

3 uranium recovery facilities that extract uranium 

4 through the in-situ leach method and the heap 

5 leach method. 

6 Specifically, the EPA is proposing the 

7 following: 

8 We are clearly stating that the standards 

9 apply to all units that contain uranium byproduct 

10 material. These units include, but are not 

11 limited to, conventional tailings impoundments, 

12 evaporation ponds or other nonconventional 

13 impoundments at uranium recovery facilities, and 

14 heap leach piles. 

15 We are proposing that all uranium 

16 recovery facilities comply with GACT management 

17 practices, including the use of double liners and 

18 leak detection systems. 

19 The proposed rule would remove the 

20 requirement for monitoring radon, but limit the 

21 amount of byproduct material that can be exposed. 

22 For conventional impoundments, limit 
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1 tailings exposure using either phased disposal or 

2 continuous disposal. 

3 For heap leach piles, limit tailings 

4 exposure using phased disposal and maintain a 30 

5 percent moisture content in the pile. 

6 For evaporation ponds, we propose to 

7 require at least one meter of liquid be 

8 constantly maintained in the pond. 

9 We are also proposing to add definitions 

10 for when a uranium recovery facility is in 

11 operation or standby. 

12 The proposed rule would also require the 

13 owner/operator of a uranium recovery facility to 

14 maintain records that confirm that impoundments 

15 have been constructed according to the 

16 requirements. 

17 In summary, we are here today asking for 

18 your comments on the proposed rule. The comment 

period ends on October 29th, 19 2014. And we are 

20 looking forward to hearing from you today. 

21 Thank you. 

22 MS. SUTIN: Okay. I will call our first 
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1 speaker, John Cash. 

2 MR. CASH: Thank you. 

3 My name is John Cash. And I am the vice 

4 president of regulatory affairs for Ur-Energy. 

5 We operate the Lost Creek in-situ facility near 

6 Bairoil, Wyoming. 

7 And I really do appreciate the 

8 opportunity to make some comments today. And I 

9 just want to say that I'm thankful I live in a 

10 country where I can make comments on proposed 

11 rules. 

12 A number of my colleagues in the industry 

13 have already commented earlier today and 

14 yesterday on some legalities of the proposed 

15 rulemaking. And I'm not going to spend much time 

16 on that. 

17 What I would like to do today in my 

18 comments is focus more on the Lost Creek Facility 

19 that I'm familiar with, and how the proposed 

20 rules will impact that facility. So I will try 

21 to give you real life examples of the impact of 

22 these proposed regulations. 
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1 I'd like to start off by talking about a 

2 meeting that I had here with Wayne Heili, he's 

3 our president and CEO, back in September of 2009. 

4 We met I believe just down the hall here in this 

5 office, Region 8, to discuss the Lost Creek 

6 project, and specifically EPA’s decision to 

7 reinterpret 40 CFR, Part 192, health and 

8 environmental protection standards for uranium, 

9 uranium mill tailings, to include holding ponds 

10 at in-situ facilities in the definition of mill 

11 tailings. 

12 At that time and currently we do not 

13 agree with EPA’s proposed action to redefine or 

14 re-interpret the term mill tailings to bring in15 situ holding ponds under the jurisdiction of 40 

16 CFR, Part 192 regs. 

17 It continues to be our position that the 

18 framers of the regulation did not intend water 

19 impoundments to be regulated as tailings. And a 

20 plain reading of the regulations supports this 

21 conclusion. 

22 Despite our holding a contrary 
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1 understanding of the regulations from EPA’s new 

2 interpretation, we felt compelled to submit a 

3 holding pond application to the EPA in order to 

4 advance the permitting process so that uranium 

5 recovery could occur in accordance with corporate 

6 objectives. 

7 The engineering design of the holding 

8 ponds presented in the application, and 

9 subsequently approved after a lengthy review 

10 process by the EPA -- and I'll just interject 

11 there that that review process I believe was 

slightly over a year -- on December 20th 12 , 2011, 

13 complied with the design criteria enumerated in 

14 40 CFR 264.221. 

15 It should also be noted that EPA approved 

16 the design of the Lost Creek holding pond while 

17 Subpart W rulemaking was in progress. 

18 We are greatly concerned that the 

19 proposed regulation does not expressly 

20 grandfather in nonconventional impoundments like 

21 the ones recently permitted by the EPA at Lost 

22 Creek, and subsequently constructed at 
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1 significant cost. 

2 Earlier this week, before I traveled down 

3 to Denver for this for this meeting from Casper, 

4 I spoke with our engineers who designed and 

5 constructed the facility. And they went and they 

6 added up all of the costs of the facility that we 

7 had built, the holding ponds, and it’s right at 

8 about 600,000 dollars that we have invested to 

9 construct those ponds. That is a significant 

10 amount of money. 

11 The EPA approved design and permit does 

12 not require maintaining a minimum of one meter of 

13 fluid cover. And such a requirement will render 

14 the new ponds virtually worthless since the water 

15 level must also be maintained at least three feet 

16 below the top of the embankment to prevent 

17 overtopping. 

18 We respectfully request that EPA remove 

19 this requirement from the proposed regulation, or 

20 at least grandfather in all existing approved 

21 facilities. 

22 And I would like to interject one other 
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1 point here. It’s not just EPA that approved these 

2 holding ponds after over a year of review, there 

3 are six other agencies that were involved in the 

4 review and/or permitting of the facilities, 

5 including the Wyoming State Engineers Office, the 

6 NRC, Wyoming Department of Environmental Quality 

7 Land Quality Division, the BLM. 

8 And then there were a couple of agencies 

9 that were involved in regulatory reviews, and 

10 that included the Wyoming Game and Fish 

11 Department and the U.S. Fish and Wildlife. 

12 Without doubt, these are the most heavily 

13 regulated systems at our mine. 

14 And I forgot to mention Sweetwater County 

15 also performed a review. 

16 Evaporation ponds are typically designed 

17 to be very shallow in order to minimize the 

18 thermal mass and therefore maximize the 

19 evaporation rate. The proposed, and apparently 

20 arbitrarily selected, one meter standard will 

21 diminish evaporation rates and operators will be 

22 required to build larger evaporation ponds or 
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1 seek alternative disposal methods in order to 

2 compensate for the loss of evaporation rates. 

3 The consequences of the rulemaking should 

4 be fully understood, and the associated costs, 

5 including the resulting need to install larger 

6 evaporation ponds should be analyzed. 

7 The regulation should specifically 

8 address the use of alternative methods to control 

9 radon emissions on a case by case basis if the 

10 proponent can adequately demonstrate the efficacy 

11 of the proposed method. 

12 For example, an operator may wish to 

13 install a floating cover to keep birds off the 

14 water. And this is a real issue. Such a 

15 floating cover may also prevent the release of 

16 radon and should be allowed in lieu of 

17 maintaining one meter of fluid. 

18 And I would like to switch now to 

19 discussion of the definition of byproduct 

20 material and the impact of that on operations in 

21 relation to this rulemaking. 

22 Since the EPA is expanding the coverage 
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1 of 40 CFR 61, Subpart W to include 

2 nonconventional impoundments, the agency should 

3 recognize that such impoundments may contain 

4 byproduct material that, while meeting the strict 

5 AEC definition, have been treated to below the 

6 effluent standards promulgated in 10 CFR 20, 

7 Appendix B, Table 2. 

8 For example, a proponent may wish to 

9 store permeate generated from reverse osmosis in 

10 the holding pond. The permeate may satisfy all 

11 drinking water and effluent standards, but would 

12 still be considered byproduct under the Atomic 

13 Energy Act, and therefore regulated under the 

14 proposed rule. 

15 Waters treated to meet the effluent 

16 standards present little or no hazard. And 

17 therefore EPA should consider removing them from 

18 regulation under the proposed rules, especially 

19 if the water meets the radium and radon effluent 

20 standards. 

21 Regulating water which does not present a 

22 hazard creates unintended additional regulatory 
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1 burden and associated cost for industry and the 

2 agency while generating no benefit to the public. 

3 The EPA has at least two legal mechanisms 

4 to distinguish between byproduct and byproduct 

5 which falls below the effluent standard. The 

6 Clean Water Act allows for deletion of source 

7 categories in Section 112(c), or alternatively 

8 the administrator, when developing standards, 

9 “may distinguish among classes, types and sizes 

10 of sources within a category or subcategory in 

11 establishing such standards,” as provided for in 

12 Section 112(d). 

13 So those -- that concludes my remarks. 

14 Again, I think you for the opportunity to provide 

15 these to you guys. And hopefully you take a look 

16 at these as very site specific issues that we’re 

17 facing at Lost Creek. 

18 One final comment is, and we've talked 

19 about the issue of putting permeate holding 

20 ponds, that is something that we are considering 

21 at Lost Creek. And that water will meet drinking 

22 water standards, even the new proposed standard 
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1 for radon that the EPA is now going through the 

2 process of promulgating. So it is essentially 

3 drinking water. And to leave that under 

4 regulation just would create a lot of additional 

5 burden unnecessarily. 

6 I thank you for your time. 

7 MS. SUTIN: Thank you, Mr. Cash. 

8 Next if we could have David Frydenlund? 

9 MR. FRYDENLUND: Good afternoon. My name is 

10 David Frydenlund, it’s F-r-y-d-e-n-l-u-n-d. 

11 I am senior vice president and general 

12 counsel for Energy Fuels Resources USA, Inc. We 

13 operate the White Mesa Uranium Mill in Utah, 

14 which is the only operating uranium mill in the 

15 United States. 

16 We are also in the process of permitting 

17 the Sheep Mountain project, which is a proposed 

18 uranium heap leach processing facility in 

19 Wyoming. 

20 I will touch on a few key points this 

21 afternoon. Energy Fuels will be submitting more 

22 comprehensive written comments at a later date. 
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1 First, I'd like to note that Energy Fuels 

2 agrees with a number of the positions taken by 

3 EPA in the proposed rules. For example, we agree 

4 that evaporation of similar ponds should not be 

5 counted as one of the two impoundments that may 

6 be in operation at any one time under the 

7 proposed management practice standards. 

8 We also agree that there should be no 

9 limitation on the number and size of such ponds. 

10 In order to operate a uranium mill, a large 

11 evaporative capacity is necessary. Water balance 

12 is paramount at a zero-discharge facility such as 

13 the White Mesa Mill. 

14 However, requiring the proposed minimum 

15 of one meter of water cover can be prohibitively 

16 burdensome with little or no benefit. As EPA has 

17 noted, the radon emissions from saturated 

18 tailings are only approximately 2 percent of 

19 emissions from dry tailings. And adding one meter 

20 in water would result in a negligible reduction. 

21 However, there are significant costs 

22 associated with this proposed requirement. 
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1 First, the cost of maintaining this one 

2 meter of water would be significantly greater 

3 than EPA has estimated given the high evaporation 

4 rates and scarcity of water at facilities such as 

5 the White Mesa Mill. We will address these costs 

6 in more detail in our written submissions. 

7 Second, this requirement will seriously 

8 impact and may eliminate a mill’s ability to 

9 recirculate tailings solutions back into the 

10 process because the addition of fresh water will 

11 change the chemistry of the solutions in the 

12 tailings. 

13 Third, a mill will be prevented from 

14 reducing solution levels in evaporation ponds 

15 from time to time to inspect, and if necessary, 

16 perform maintenance activities on the 

17 impoundments. 

18 Finally, evaporative and holding capacity 

19 at a uranium mill is at a premium. And adding 

20 fresh water to the system would displace needed 

21 capacity for process solutions. This would 

22 generally require construction of additional 
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1 evaporative and holding capacity at significant 

2 capital cost. 

3 Energy Fuels fully supports added 

4 protections to public health, safety and the 

5 environment when required. However, in these 

6 circumstances the added protections are 

7 negligible or non-existent, and the cost of the 

8 added requirements are prohibitive and cannot be 

9 justified. 

10 Energy Fuels recommends instead that the 

11 proposed rule be changed to require full 

12 saturation or water cover on evaporation ponds 

13 during operation, but not to require a minimum 

14 liquid level in the ponds. 

15 The next point I’d like to make is that 

16 the definition of 11e.(2) byproduct material in 

17 the existing and proposed rules is different from 

18 the definition in the Atomic Energy Act. We 

19 don’t believe EPA has the authority to promulgate 

20 a different definition of 11e.(2) byproduct 

21 material. And in any event, a difference in such 

22 a key definition can lead to unnecessary 
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1 confusion. Those definitions should be the same. 

2 We also have concerns relating to the 

3 proposed application of Subpart W to heap leach 

4 facilities. A heap leach facility is not a 

5 tailings impoundment while in operation. Heap 

6 leaching is part of the milling process. And the 

7 proposed rules would interfere with such 

8 processing operations. 

9 For example, the requirement to maintain 

10 a 30 percent moisture content would have the 

11 effect of diluting process solutions and 

12 impacting operations. 

13 This is in stark contrast to a tailings 

14 impoundment at a uranium mill where Subpart W 

15 does not apply to process operations, but only to 

16 tailings that have been finally disposed of after 

17 processing, and hence cannot impact processing. 

18 Subpart W should not extend to regulating process 

19 operations. 

20 Once process operations have ceased at a 

21 heap leach facility, the facility would then go 

22 into closure and be subject to the requirements 
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1 of 10 CFR Part 40, Appendix A. Hence, there is 

2 no place for regulation under Subpart W at heap 

3 leach facilities. 

4 The radiological protection programs 

5 required under 10 CFR, Parts 20 and 40, include 

6 adequate protections and monitoring for radon at 

7 such facilities. 

8 Finally, the removal of the phrase “as 

9 determined by the NRC” in 40 CFR 61.252(b)(1), 

10 and a number of the additional record-keeping 

11 requirements, amount to dual jurisdiction over 

12 the construction and operation of tailings 

13 impoundments. 

14 This is in contravention of Section 275 

15 of the Atomic Energy Act under which EPA is 

16 required to set standards for the management of 

17 11e.(2) byproduct material. And the 

18 implementation and enforcement of the standards 

19 is expressly stated to be the responsibility of 

20 NRC and Agreement States in the conduct of their 

21 licensing activities under the Act. 

22 Section 275 of the Atomic Energy Act also 
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1 expressly states that no permit is required by 

2 EPA for the processing, possession, transfer or 

3 disposal of 11e.(2) byproduct material. 

4 Under the proposed rules an operator 

5 would be required to simultaneously go through 

6 the entire design and permitting process for new 

7 tailings cells with the NRC or Agreement State, 

8 and with the EPA. Otherwise, the facility would 

9 be subject to possible different implementation 

10 of the rules by the EPA after construction. 

11 There is no need for such dual 

12 jurisdiction in order to implement the NESHAPS 

13 requirements under the Clean Air Act. And it 

14 will unnecessarily burden the regulatory process. 

15 Such dual jurisdiction is tantamount to EPA 

16 requiring a permit for the disposal of 11e.(2) 

17 byproduct material, in contravention of the 

18 Atomic Energy Act. 

19 Thank you for the opportunity to comment. 

20 As I mentioned earlier, Energy Fuels will be 

21 submitting more detailed written comments at a 

22 later date. 
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1 MS. SUTIN: Thank you. 

2 Next if we could have Sarah Fields? 

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

4 am with Uranium Watch of Moab, Utah. 

5 One thing I would like to point out is 

6 that uranium recovery facilities have lived under 

7 this, quote, “dual regulations”, since the early 

8 80's. And that was over thirty years ago, or 

9 around thirty years ago. And now all of a sudden 

10 it’s become a very important issue to some 

11 members of the industry and the National Mining 

12 Association. 

13 One thing I wanted to touch on is the 

14 question of uranium mills that are on standby. 

15 The White Mesa Mill is going to go on standby at 

16 the end of this year. I do not doubt that at 

17 some point -- and it’s just reasonable, that in 

18 the future they will start processing ore again. 

19 Not only do they have a mill, they also have a 

20 number of permitted uranium mines both in Utah, 

21 in Arizona -- I think they also have some in 

22 Colorado. 
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1 It’s a totally different situation for 

2 the Shootaring Canyon Mill. The Shootaring 

3 Canyon Mill last operated for a very short period 

4 of time in 1982. There have been several -- the 

5 uranium industry is a boom and bust economy. A 

6 number of mills closed down in the 80’s. Some 

7 started up again. And for a long period of time 

8 no ore was processed at the White Mesa Mill. And 

9 now at the end of this year they're going to shut 

10 down. 

11 All during this up and down period in the 

12 last uranium renaissance, the Shootaring Canyon 

13 Mill did not reopen. So you have a small 

14 tailings impoundment. And the only reason really 

15 that it's kept on standby is not because at some 

16 time the mill will start operating again and need 

17 a place to put the new tailings, but because they 

18 will not be able to put new tailings in that 

19 impoundment because it does not comply with the 

20 current requirements for a tailings impoundment. 

21 So the Division of Radiation Control would not 

22 allow the mill to start operating again without 
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1 the construction of a new lined impoundment. 

2 So the reason it’s kept open is because 

3 at some point, and this may happen at any time, 

4 the mill owner will decide to enter -- close the 

5 mill and enter reclamation. And they need that 

6 impoundment to dispose of the mill contaminating 

7 soils. 

8 In fact, they'll put more material 

9 closing the mill than is actually in the 

10 impoundment right now. Most of the stuff that is 

11 in the impoundment is not even from the 

12 processing of ore at the mill, it's from the 

13 disposal of the waste and equipment from the old 

14 hydra-jet heap leach operation. 

15 So both the EPA, and first the NRC and 

16 now the Utah Division of Radiation Control, have 

17 kind of let that mill stay on standby for over 

18 thirty years assuming that at some time it’s 

19 going to start operating again. 

20 And I don’t think that’s a very 

21 reasonable way of regulating uranium mills, 

22 whether you’re doing that under the Clean Air Act 
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1 or under the Atomic Energy Act. 

2 I think there must be some kind of limit 

3 on the length of time that a mill can be on 

4 standby. I mean, there aren’t even any permitted 

5 mines associated with this mill at this time. 

6 So if it was ever to start up again they 

7 would need a new lined impoundment. And they now 

8 actually need to permit several uranium mines. 

9 And no company has come up with the money to do 

10 this. 

11 Apparently a new company is going to 

12 purchase the mill. They'll have to submit either 

13 a plan for reclamation or a license renewal 

14 application. So by the end of this year they 

15 will kind of know exactly what's going to happen. 

16 But leaving a mill on standby for over thirty 

17 years does not make sense. 

18 Another thing I wanted to cover is the 

19 discussion of possible uranium milling in 

20 Virginia, which has a very different kind of 

21 situation than the west. The west is dry. 

22 I guess my time is about up -- no, I 
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1 don't know what that light means. 

2 Okay. So the EPA seems to think that all 

3 you need to do is follow the construction and 

4 design requirements of having lined impoundments 

5 at forty acre impoundments and that will create a 

6 very safe controlling environment for radon. 

7 And yet if you envision a uranium mill in 

8 Virginia, you also have to envision a lot of 

9 holding ponds, because under the EPA regulations 

10 for -- oh, I think it's 440.34 -- they would be 

11 allowed to discharge tailings effluent because 

12 the amount of precipitation is greater than the 

13 rate of evaporation. But they would have to with 

14 barium chloride or some kind of other treatment. 

15 So you would probably have a number of 

16 treatment ponds. You would have a number of 

17 ponds that would be more than you would have at a 

18 conventional mill in -- let’s say Utah. 

19 So you would also have unusual 

20 meteorological conditions. You have the 

21 potential of hurricanes, you have the potential 

22 for large storms, and you have the potential for 
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1 tornados. 

2 So I don’t really see how the EPA can 

3 think that a liquid effluent, whether they're on 

4 top of a more solid tailings impoundment, or just 

5 a totally liquid pond, would contain those 

6 liquids, or contain those tailings under those 

7 circumstances. 

8 I also don’t understand how the EPA can 

9 conceive of a situation where a solid tailings 

10 impoundment could actually dry out in the State 

11 of Virginia where you have continual 

12 precipitation. You have sometimes very intense 

13 precipitation. 

14 And the whole basis for 192, and NRC, EPA 

15 regulation of conventional tailings, and the 

16 reclamation of tailings, is based on the 

17 assumption of eventually the tailings dry out so 

18 that there could be a permanent radon barrier. 

19 And that permanent radon barrier would prevent 

20 liquid, rain and other precipitation from 

21 entering the tailings impoundments. 

22 I don't see that happening in Virginia. And I 
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1 don’t see any kind of really honest evaluation by 

2 either the NRC or the EPA as to the whole water 

3 balance, the whole conceptual basis for 

4 regulating that under either Subpart W or NRC's 

5 Part 40. 

6 Thank you. 

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

8 MS. FIELDS: Any questions? 

9 MS. SUTIN: Okay. We have heard from all of 

10 the registered speakers. We are anticipating 

11 others coming later this afternoon. So we will 

12 be on pause until the next speaker arrives. 

13 Thank you. 

14 (Whereupon, recess was taken) 

15 MS. SUTIN: So we are back on the record and 

16 it is 3:53. 

17 We have had all of the registered 

18 speakers that intended to speak give their 

19 comments and so the hearing this afternoon is 

20 officially closed. 

21 Thank you all for attending. 

22 (Whereupon, the hearing concluded at 3:53 
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1 p.m.)