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OLENDER REPORTING, INC. 1100 Connecticut Avenue, NW, #810, Washington, DC 200336 Washington: (202) 898-1108 / Baltimore: (410) 752 -3376

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### Public Hearing on 1 

### Proposed Revisions to National Emission Standards 2 

### for Radon Emissions from Operating Mill Tailings 3

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

### Thursday, September 4, 2014 8

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### 1595 Wynkoop Street 11 

### Denver, Colorado 80202 12

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OLENDER REPORTING, INC. 1100 Connecticut Avenue, NW, #810, Washington, DC 200336 Washington: (202) 898-1108 / Baltimore: (410) 752 -3376

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### EPA PANEL: 1 

### ELYANA SUTIN, Chair; EPA 2 

### TOM PEAKE, EPA 3 

### DANIEL SCHULTHEISZ, EPA 4

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OLENDER REPORTING, INC. 1100 Connecticut Avenue, NW, #810, Washington, DC 200336 Washington: (202) 898-1108 / Baltimore: (410) 752 -3376

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


### PAGE 2 

### SCOTT BAKKEN, Energy Fuels 11 3 

### SARAH FIELDS, Uranium Watch 17 4 

### TRAVIS STILLS, Energy and Conservation Law 24 5 

### RICHARD BLUBAUGH, Power Tech 34 6 

### SHARYN CUNNINGHAM , Colorado Citizens 7 

### Against Toxic Waste 39 8 

### KAY HAWKLEE 48 9 

### SARAH FIELDS, Uranium Watch 53 10 

### SHARYN CUNNINGHAM, Colorado Citizens 11 

### Against Toxic Waste 61 12 

### JOHN CASH, Ur-Energy 75 13 

### DAVID FRYDENLUND, Energy Fuels 83 14 

### SARAH FIELDS, Uranium Watch 90 15

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OLENDER REPORTING, INC. 1100 Connecticut Avenue, NW, #810, Washington, DC 200336 Washington: (202) 898-1108 / Baltimore: (410) 752 -3376

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

2 

### MS. SUTIN: So good morning everyone. I 3 

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

### Elyana Sutin, and I am the regional judicial 5 

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

### coming this morning. 7 

### I will be presiding over the hearing 8 

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

### and Dan Schultheisz from the Office of Radiation 10 

### and Indoor Air in Headquarters. This hearing is 11 

### now in session. 12 

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

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

### National Emission Standards for Radon Emissions 15 

### from Operating Mill Tailings, also known as 40 16 

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

### EPA is proposing to revise certain 18 

### portions of the standards based on its 19 

### determination as to what constitutes general 20 

### available control technology or management 21 

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

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### source category. 1 

### EPA announced this proposed rule on May 2


### 2 nd 

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

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

### , 4 

### 2014. On July 21st EPA extended the comment 5 

### period to October 29 th



### . 6 

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

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

### before I turn it over to Tom, I’d like to explain 9 

### a bit about how the hearing will work today. 10 

### There will be two sessions today, one 11 

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

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


### conference room. 14 

### Please be sure to have checked in at the 15 

### registration desk even if you are not planning to 16 

### speak today. 17 

### I will call the scheduled speakers to the 18 

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

### then speak. Your comments will be transcribed 20 

### and included in the record of comments on the 21 

### proposed rule. 226

OLENDER REPORTING, INC. 1100 Connecticut Avenue, NW, #810, Washington, DC 200336 Washington: (202) 898-1108 / Baltimore: (410) 752 -3376

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### In order to ensure that everyone has the 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. There is no 6 

### pressure to speak the ten minutes. If your 7 

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

### like you have to say more. 9 

### With that said, if you have more to say 10 

### after your ten minutes and you would like to 11 

### speak again with information that is new and 12 

### discreet from your previous testimony, and is not 13 

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

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

### And I believe there will be. 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. 227

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### If you have written copies of your 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 7 

### October 29 th

### by 5:00 p.m. 8 

### Let me assure you that the EPA gives just 9 

### as much consideration to written comments as we 10 

### do to comments that we receive in public hearing. 11 

### Instructions for submitting comments are included 12 

### in the fact sheet at the registration table. And 13 

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


### door. 15 

### Today’s public hearing is scheduled to 16 

### end once the last registered speaker has provided 17 

### comments. So if you would like to testify but 18 

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

### the registration table outside of the room. 20 

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

### summarize the proposed rule -– I’m sorry, Tom, I 228

OLENDER REPORTING, INC. 1100 Connecticut Avenue, NW, #810, Washington, DC 200336 Washington: (202) 898-1108 / Baltimore: (410) 752 -3376

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### apologize. 1 

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

### I'm the director for the Center for Waste 3 

### Management and Regulations in Washington, D.C. 4 

### We're in the Radiation Protection Division of the 5 

### Office of Air and Radiation. 6 

### We are here today to receive your 7 

### comments on EPA’s proposed rulemaking for the 8 

### revisions to the National Emission Standards for 9 

### Radon Emissions, or NESHAPS, from Operating Mill 10 

### Tailings, also known as Subpart W. 11 

### The proposed revisions would require the 12 

### use of generally available control technologies, 13 

### or GACT, to limit radon emissions from tailings 14 

### at all uranium recovery facilities. Specific 15 

### control technologies would be required at 16 

### conventional tailings impoundments, evaporation 17 

### ponds and heap leach piles. 18 

### We are also proposing to add new 19 

### definitions to the rule, revise existing 20 

### definitions, and clarify that the rule applies to 21 

### uranium recovery facilities that extract uranium 229

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### through the in-situ leach method and the heap 1


### leach method. 2 

### Specifically, the EPA is proposing the 3 

### following: 4 

### We are clearly stating that the standards 5 

### apply to all units that contain uranium byproduct 6 

### material. These units include, but are not 7 

### limited to, conventional tailing impoundments, 8 

### evaporation ponds or other nonconventional 9 

### impoundments at uranium recovery facilities and 10 

### heap leach piles. 11 

### We are proposing that all uranium 12 

### recovery facilities comply with GACT management 13 

### practices, including the use of double liners and 14 

### leak detection systems. 15 

### The proposed rule would remove the 16 

### requirement for monitoring radon, but limit the 17 

### amount of byproduct material that can be exposed. 18 

### For conventional impoundments, limit 19 

### tailings exposure using either phased disposal or 20 

### continuous disposal. 21 

### For heap leach piles, limit tailings 2210

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### exposure using phased disposal and maintain a 30 1 

### percent moisture content in the pile. 2 

### For evaporation ponds, require at least 3 

### one meter of liquid be constantly maintained in 4 

### the pond. 5 

### We are proposing to add definitions for 6 

### when a uranium recovery facility is in operation 7 

### or standby. 8 

### Lastly, the proposed rule would require 9 

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

### uranium recovery facility to maintain records 11 

### that confirm that impoundments have been 12 

### constructed according to the requirements. 13 

### In summary, we are here today asking for 14 

### your comments on the proposed rule. The comment 15 

### period ends on October 29 th. 

### And we are looking 16 

### forward to hearing from you. 17 

### Thank you. 18 

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

### first speaker is Scott Bakken. Again, if you 20 

### could please spell your name, especially your 21


### last name for the record -- for the court 2211

OLENDER REPORTING, INC. 1100 Connecticut Avenue, NW, #810, Washington, DC 200336 Washington: (202) 898-1108 / Baltimore: (410) 752 -3376

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### reporter, that would be great. 1 

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

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

### an environmental manager with Energy Fuels. Our 4 

### company is currently America’s largest 5 

### conventional uranium producer, supplying 6 

### approximately 25 percent of the uranium produced 7 

### in the U.S. in 2013. 8 

### The focus of my comments today are on the 9 

### applicability of the proposed revisions to 10 

### nonconventional fluid retention impoundments 11 

### located at in-situ leach or ISL uranium recovery 12 

### facilities. These nonconventional impoundments, 13 

### commonly referred to as holding ponds, storage 14 

### ponds or evaporation ponds, are used to store 15 

### and/or treat liquid effluents during the 16 

### wastewater disposal process at facilities 17 

### regulated by the U.S. Nuclear Regulatory 18 

### Commission and/or NRC Agreement States. 19 

### It is Energy Fuels’ position that 20 

### regulation of radon emissions from 21 

### nonconventional fluid retention impoundments by 2212

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### the EPA is unnecessary. The administrative 1 

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

### Method 115 rationale and procedures strongly 3 

### suggest that radon emissions from nonconventional 4 

### impoundments are low, if not negligible, pose 5 

### little risk to public health and the environment. 6 

### And, thus, do not warrant the application of 7


### standards to control radon. 8 

### Given that the NRC and Agreement States 9 

### already have robust standards in place, the 10 

### proposed revisions to Subpart W would result in 11 

### dual regulation while providing little to no 12 

### additional benefit to public health or the 13 

### environment beyond what is already in place under 14 

### the Atomic Energy Act. 15 

### Energy Fuels believes that the “one-size 16 

### fits all” approach to nonconventional 17 

### impoundments is not appropriate, and that any 18 

### standards imposed on ISL facilities should be 19 

### appropriate for the nature, scale and relevant 20 

### risk associated with various impoundments. 21 

### Based on review of the proposed revisions 2213

OLENDER REPORTING, INC. 1100 Connecticut Avenue, NW, #810, Washington, DC 200336 Washington: (202) 898-1108 / Baltimore: (410) 752 -3376

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### and supporting documents, it is Energy Fuels’ 1 

### opinion that the “base case” and other 2 

### assumptions used to evaluate impacts to ISL 3 

### facilities is not necessarily representative in 4 

### terms of the number, size and type of various 5 

### impoundments in place at current and planned ISL 6 

### facilities. 7 

### The result is that the proposed revisions 8 

### may result in much greater costs or operational 9 

### impacts than those evaluated, including costs 10 

### above and beyond what was required to license 11 

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

### the proposed revisions. 13 

### Energy Fuels questions the methodology 14 

### implied by the EPA in regards to radon 15 

### attenuation and control attributed to the 16 

### proposed control measure of maintaining one meter 17 

### of water in nonconventional impoundments. In the 18 

### proposed revision the EPA states: 19 

### “The benefit incurred by this requirement 20 

### is that significantly less radon will be released 21 

### to the atmosphere. The amount varies from 2214

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### facility to facility based on the size of the 1 

### nonconventional impoundment, but across existing 2 

### facilities radon can be expected to be reduced by 3 

### approximately 24,600 curies, a decline of 4 

### approximately 93 percent.” 5 

### It is perplexing as to how a 93 percent 6 

### decline was attributed to this control measure. 7 

### In Table 46 of the background information 8 

### document, for example, a radon attenuation factor 9 

### of 0.07, that is a 93 percent reduction was 10 

### applied to the calculated maximum radon release 11 

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

### facility. 13 

### As described in section 4.4 of the 14 

### background document, this calculation was based 15 

### on either theoretical or actual release values 16 

### and as such should be representative of radon 17 

### releases for both processing facilities and 18 

### impoundments. 19 

### Further, considering that the EPA has 20 

### acknowledged that radon release from 21 

### nonconventional impoundments is small, that is 2215

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### less than 1 percent of the facility total radon 1 

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

### the majority of this calculated radon release was 3 

### associated with processing facilities, not the 4 

### impoundments. 5 

### Assuming that the 36,500 curies per year 6 

### radon release for the aforementioned ISL facility 7 

### is from both processing facilities and 8 

### impoundments, and that even 1 percent of this 9 

### amount is attributed to impoundments, the annual 10 

### radon release associated with the impoundments 11 

### would be 365 curies. 12 

### Based on this analysis, a 93 percent 13 

### reduction in radon release attributed to 14 

### maintaining 1 meter of water in impoundments 15 

### would only result in a maximum facility wide 16 

### reduction of approximately 340 curies per year, 17 

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

### in Table 46 of the background document. 19 

### This represents a radon release reduction 20 

### of less than 1 percent for the overall facility 21 

### versus a decline of approximately 93 percent, as 2216

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### stated by EPA in the proposed revision. 1 

### Clearly, an incremental reduction in 2 

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

### Thank you for the opportunity to comment. 4 

### MS. SUTIN: Thank you. 5 

### MR. PEAKE: You said that the base case 6 

### analyzed by EPA wasn't representative. 7


### MR. BAKKEN: That's correct. 8 

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

### providing information or data that you think is 10 

### more representative? 11 

### If you say that what we have isn’t 12 

### representative, will you be explaining why that 13 

### is not the case and have other information? 14 

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

### comments we will provide more detail. 16 

### MR. PEAKE: And will that include data or 17 

### just calculations or -- 18 

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

### the variety of wastewater treatment and disposal 20 

### systems that are in place at ISL facilities, that 21 

### range from, for example, small holding ponds, 2217

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### storage ponds located at facilities. Also you 1 

### utilize deep disposal well injection for disposal 2 

### of wastewater. It would include nonconventional 3 

### impoundments that may be used to store water 4 

### prior to disposal via land application and 5 

### conventional evaporation ponds that are located 6 

### at ISL facilities. 7 

### MR. PEAKE: Okay. Thank you. 8


### MR. BAKKEN: You’re welcome. 9 

### MS. SUTIN: Thank you. 10 

### Next if we could have Sarah Fields? 11 

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

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

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

### or fourth, I think, opportunity to speak. 15 

### I want to say just a little something 16 

### about your nonconventional impoundments that the 17 

### previous speaker talked about, the 18 

### nonconventional impoundments at ISL facilities. 19 

### However, under the proposed regulations your 20 

### nonconventional liquid impoundments would also 21 

### include those liquid impoundments at conventional 2218

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### mills. They're currently at the White Mesa Mill. 1 

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

### receiving liquids. So they would be currently 3 

### considered nonconventional impoundments. 4 

### And based on EPA's calculations as to the 5 

### amount of radon emissions per picocuries per 6 

### liter of radium, Cell 1 is releasing 228.9 7 

### picocuries per meter squared per second at 8 

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

### picocuries per meter squared per second. 10 

### You also have liquid impoundments on top 11 

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

### this time. And Cell 3, 573.3 picocuries per 13 

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

### picocuries per meter squared per second. 15 

### So these liquid impoundments, based on 16 

### Energy Fuels’ data regarding the amount of radium 17 

### in these liquid impoundments, and EPA's 18 

### determination as to the emissions per -- based on 19 

### the amount of the radium in these liquid 20 

### impoundments, these are not negligible emissions. 21 

### So you can’t lump all nonconventional 2219

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### impoundments together. 1 

### If there's a determination that the 2 

### nonconventional impoundments at ISL do have 3 

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

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

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

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

### that out. Unfortunately, that really wasn't 8


### done. 9 

### Now I'd like to a little bit about 10 

### what -- these new impoundments. Now, my 11 

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

### remove the emissions standard for existing 13 

### impoundments because you don't have a factual 14 

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


### water. So we have to look at the new 16 

### impoundments. 17 

### There are two new impoundments at 18 

### conventional mills since 1989. Those are cells 19 

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

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

### but eventually it will receive the solid tailings 2220

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### slurry. 1 

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

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

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

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

### impoundment and the forty acres really does 6 

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

### You’re just assuming that throughout the whole 8 

### life of that impoundment that everything will be 9 

### okay. 10 

### In the Federal Register Notice, they talk 11 

### about the use of soil and water to attenuate the 12 

### radon for these impoundments, but there is no 13 

### requirement for -- in the proposed rule for the 14 

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

### radon throughout the life. 16 

### Let’s just assume we’re talking about 17 

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

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

### have -– they will stop putting liquid in the 20 

### impoundment. And through either a natural 21 

### process or active dewatering, that will start to 2221

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### dry out. 1 

### Well, if that were an existing 2 

### impoundment with radon monitoring, and the 3 

### requirement to keep it under 20 picocuries, the 4 

### licensee would start covering it with soil as it 5 

### started to dry out. But under your current 6 

### regulations there's no requirement to start 7 

### covering it with soil. 8 

### And that impoundment might sit there for 9 

### decades uncovered, without an interim cover, 10 

### emitting radon. The licensee doesn’t intend to 11 

### put a permanent radon barrier on any of those 12 

### impoundments until the closure -- until at least 13 

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

### are ready for the final radon barrier. But you 15 

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

### dried to a certain point because the impoundment 17


### has to settle. 18 

### So there are two reasons to dry it out. 19 

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

### more leakage. And that’s why they accelerated 21 

### the process for drying out Cell 2, because that 2222

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### was done under their groundwater discharge 1 

### permit, not their radioactive license -- I 2 

### mean, that requirement to accelerate the 3 

### dewatering. 4 

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

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

### requirement to monitor the radon, there's no 7 

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

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

### liquids in -- within the cell are eliminated. 10 

### And that’s the situation. 11 

### But it seems like the EPA doesn't really 12 

### have a very good concept of what exactly happens 13 

### at a tailings impoundment. It’s certainly not 14 

### reflected in the Federal Register Notice. 15 

### And another thing about the available 16 

### technology, one of the available technologies 17 

### that is currently being used and relied upon to 18 

### reduce the amount of radon emissions at 19 

### conventional mills is measuring and monitoring 20 

### the radon emissions. And then if the radon 21 

### emissions are above the standard, taking 2223

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### corrective actions to reduce emissions -- the 1 

### emissions. 2 

### But if you have no requirement for 3 

### monitoring, you have no knowledge of what exactly 4 

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

### that no action can be taken because nobody knows 6 

### what's going on. 7 

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

### believe is an adequate means of controlling 9 

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

### my mind that you would think that -- 11 

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

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

### approach to controlling the radon emissions. Not 14 

### knowing what the emissions are, not having any 15 

### requirement to take corrective actions to reduce 16 

### the emissions is the best way to regulate the 17 

### conventional tailings impoundment. I find that 18 

### really ridiculous. 19 

### Thank you. 20 

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

### Next if we could have Travis Stills? 2224

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### MR. STILLS: Do I need to hold the mic or -- 1 

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


### hear. 3 

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

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

### Good morning. My name is Travis Stills. 6 

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

### And today I’m here with the Plaintiffs who 8 

### brought the lawsuit that compelled this 9 

### rulemaking, including Colorado Citizens Against 10 

### Toxic Waste. 11 

### You know, the key issue that we’re 12 

### dealing with is in the rulemaking we’re writing 13 

### new law responding to a real problem in the world 14


### as far as what should be done to reduce radon 15 

### emissions associated with uranium processing. 16 

### I think you have heard quite a bit from 17 

### the public about the inadequacies of the –- both 18 

### the NRC regulations and the Clean Air Act 19 

### regulations that apply, that have resulted in 20 

### emissions far beyond the 20 picocuries that were 21 

### adopted in ’89, far beyond the 10 picocuries that 2225

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### really should have been adopted as the numeric 1 

### standard in 1989. 2 

### But let me back up and welcome you to 3 

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

### here, that folks have come from Washington. 5 

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

### you have basically come to the industry's 7 

### headquarters. I know EPA has a regional office 8 

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

### the headquarters for the industry. And you have 10 

### seen that reflected in the attendance here. 11 

### I'll renew and reiterate the request of 12 

### many groups, community groups, Native American 13 

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

### you know, get away from the lobbyists, the 15 

### consultants, the abstract models, and come out on 16 

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

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

### know these sites better than the operators 19


### themselves. 20 

### You hear a lot of, you know, measurement 21 

### in a bucket to simulate what a uranium mill does 2226

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### and what the tailing cells do. Come out and 1 

### actually take some measurements and talk to 2 

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

### And like I said, I understand that the 4 

### folks here are not the ones to mete this 5 

### criticism out to, but please take that back to 6 

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

### of good folks with a lot of good information that 8 

### you would very much benefit in this rulemaking if 9 

### you went to the sites and you went to the 10 

### affected communities. 11 

### As a matter of environmental justice, I 12 

### think the EPA’s own policies compel that. 13 

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

### There is no serious question that EPA has 15 

### authority to regulate hazardous air pollution, 16 

### and in particular, radon from uranium processing. 17 

### The National Mining Association, who 18 

### meets regularly with the EPA and NRC, and are 19 

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

### floated these arguments over and over and over 21 

### again. And note that their arguments are based 2227

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### on staff memos of NRC who has over the decades 1 

### attempted to push EPA out as far as a regulator 2 

### when it comes to uranium processing. 3 

### The groups that I work with very much 4 

### welcome and invite and encourage and depend on 5 

### EPA to regulate in this field. 6 

### It is the norm, it is not the exception 7 

### for multiple laws to apply to a given facility. 8 

### Any kind of industry knows that inside or outside 9 

### of the energy field. 10 

### There is some mention today by Energy 11 

### Fuels of deep well injection of some of their 12 

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

### Drinking Water Act -- Safe Drinking Water Act 14 

### Underground Injection Control Program. This is 15 

### not unique. 16 

### The National Mining Association’s one 17 

### stop shopping argument has failed, and it should 18 

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

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

### serious argument, it doesn’t have a serious 21 

### basis. 2228

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### Congress has also rejected that single 1 

### regulating approach when adopting UMTRCA, which 2 

### is a response, a direct response to an industry 3 

### that has failed to operate cleanly, has cost 4 

### billions of dollars in taxpayer money on clean 5 

### up, and has caused unnecessary deaths and health 6 

### impacts due to the failure to follow laws and 7 

### to -- and based on the aggressive lobbying 8 

### against environmental protection laws. 9 

### What we're dealing with in this rule is 10 

### largely -- although processing facilities, as you 11 

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

### emission that should be looked at within this 13 

### rulemaking -- and now I have information from 14 

### Energy Fuels on the record that says that the 15 

### processing facility itself should probably be 16 

### regulated because of its contribution to overall 17 

### emissions. 18 

### But what we're mostly dealing with here 19 

### today is open air processing and disposal, 20 

### whether it’s heap leach or the disposal. 21 

### This is dark ages kind of stuff for folks 2229

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### who work outside of the uranium industry. 1 

### Processing -- industrial processing in an open 2 

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

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

### What the focus should be in the 5 

### rulemaking, where it should really shift the 6 

### focus back on the mechanisms that are used in the 7 

### Clean Air Act, the mechanisms adopted by Congress 8 

### as the policy of the United States to keep it 9


### clean. 10 

### You should be looking at numeric limits, 11 

### probably more in the 5 picocuries or 4 picocuries 12 

### level that was analyzed in the 1986 and 1989 13 

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

### probably too high. It was raised to 20 for 15 

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

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

### and 10 numeric limits, actual monitoring, actual 18 

### reporting and actual enforcement. 19 

### When this lawsuit was brought to bring 20 

### this rulemaking, Region 8 didn’t know who 21 

### regulated what. We have emails in the court 2230

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### record back and forth saying, oh, does it say do 1 

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

### find out. 3 

### This is an important regulatory field. 4 

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

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

### afield as the National Mining Association is 7 

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


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

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

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

### it. 12 

### Control technologies, that’s what the 13 

### Clean Air Act is about. Open air processing with 14 

### some water on it is not a control technology. 15 

### Limiting the number and size of open air storage 16 

### is not -- is not control technology. 17 

### Our written comments will talk in a 18 

### little more detail about the generally available 19 

### versus maximum achievable. You know, this is 20 

### radon, this is radioactive materials, this is 21 

### cancer and this is health effects, not to mention 2231

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### the environmental effects that haven’t been 1 

### really looked at. 2 

### This should be looked at and implemented 3 

### under a maximum available control technology. 4 

### But unfortunately, as written, there are really 5 

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

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

### a good look, either directly or comparatively, 8 

### across technologies. Phased disposal is not a 9 

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

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

### should be abolished. It barely squeaked through 12 

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

### When it comes to the industry’s financial 14 

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

### really been viable financially, you know, 16 

### probably since the price accords were taken away 17 

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

### water dumping. 19 

### You know, dumping water underground to 20 

### pollute our groundwater, dumping their waste into 21 

### the open air, that’s not a -- that’s not a viable 2232

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### 21st technology. 1 

### This industry will not change on its own. 2 

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

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

### industry only responds to regulation. 5 

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

### MR. STILLS: Okay. Thank you. 7 

### And to close, what we really need to look 8 

### at here is the full life cycle of processing, 9 

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

### the fake nuances that were put forward as far as 11 

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

### byproduct, that’s well established. 13 

### But this rulemaking is an opportunity to 14 

### pull back and look at 21st Century control 15 

### technologies, which should probably also include 16 

### a prohibition on open air processing, also known 17 

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

### which is the phased disposal, in favor of pace 19 

### technologies (phonetic), continuous cover, all 20 

### different forms of tailings disposal that are 21 

### used throughout the mining industry. And get 2233

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### past what I would describe as a filibuster by 1 

### industry to keep the EPA’s regulations from 2 

### moving into the 21 st

### Century. 3 

### MS. SUTIN: Time is up. 4 

### MR. STILLS: We are private citizens and we 5 

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

### federal government are here to help too. 7 

### Thank you very much. 8 

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

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

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

### question. 12 

### MR. STILLS: Certainly. 13 

### MR. PEAKE: In your written comments, will 14 

### you be providing specific language as part of 15 

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

### that you're recommending? 17 

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

### of the process, I think we are contemplating 19 

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

### it’s more than likely we will. 21 

### MR. PEAKE: Thank you. 2234

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### MS. SUTIN: Thank you, Mr. Stills. 1 

### Okay. Next, if we could have Richard 2 

### Blubaugh? 3 

### MR. BLUBAUGH: Thank you. 4 

### My name is Richard Blubaugh. And I am the 5 

### vice president of health, safety and 6 

### environmental resources with Power Tech USA Inc. 7 

### Power Tech is currently completing 8 

### permitting activities for a Dewey-Burdock ISR 9 

### project in Southwest South Dakota. Power Tech is 10 

### in the process also of completing a business 11 

### transaction with Azarga Resources Inc. And the 12 

### new company will be named Azarga Uranium 13 

### Resources, Inc. 14 

### However, Power Tech USA, which has 15 

### recently received a license to operate an ISR in 16 

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

### a wholly-owned subsidiary, and will not be 18 

### affected by the transaction, the corporate 19 

### change. 20 

### Our headquarters are located in the 21 

### Denver Tech Center, and our initial project is 2235

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### the Dewey-Burdock project. 1 

### As a prospective operator of an ISR 2 

### facility, Power Tech is concerned about the 3 

### regulations under which it must operate. We 4 

### believe regulations should be protective of human 5 

### health and environment. We also believe they 6 

### should be fair and reasonable, and not punitive, 7 

### particularly to small business entities. 8 

### While the proposed rule appears to be 9 

### reasoned and technology based, there are errors 10 

### and omissions in the proposed rule that should be 11 

### reviewed and reconsidered. 12 

### However, there are some changes to the 13 

### rule that are commendable, some that were 14 

### mentioned earlier, eliminating the limits on pond 15 

### number and size for ISL and ISR operations, 16 

### eliminating the requirement for radon monitoring 17 

### ponds that maintain the water level, and choosing 18 

### to regulate these facilities under the generally 19 

### available controlled technologies and management 20 

### practices, or GACT. 21 

### Our comments here today are going to 2236

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### focus really on just a couple of issues. And 1 

### they will be followed by written comments prior 2 

### to the extended deadline. 3 

### In the preliminary discussion of the rule 4 

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

### allow a situation where the reduction of radon 6 

### emissions comes at the expense of increased 7 

### pollution of the ground or surface water. 8 

### Therefore, all piles will be required to meet 9 

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

### protects water supplies from contamination." 11 

### Interestingly, the statement that 12 

### immediately follows this quote reads, therefore, 13 

### all impoundments are required to meet the 14 

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

### While EPA may not clearly distinguish 16 

### between piles and impoundments, those of us in 17 

### the ISR side of the industry do not accept the 18 

### premise that our facilities generate tailings, 19 

### which EPA on page 20 of the document clearly 20 

### describes being generated by conventional uranium 21 

### mills. 2237

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### Power Tech potentially will be using a 1 

### dual system for disposal of wastewater, deep 2 

### disposal wells, which is a preference, and land 3 

### application, or possibly both. 4 

### In either case, Power Tech will treat the 5 

### water to remove radium, the precursor to radon 6 

### and its progeny. Consequently, there will not be 7 

### any radon levels to reduce in the storage and 8 

### holding ponds. The radium will be contained in 9 

### one of two radium treatment ponds upstream of the 10 

### storage holding ponds which will have the 11 

### required liner system. 12 

### It appears that the agency did not 13 

### consider this technological situation for ISR 14 

### facilities and that its requirement that all 15 

### impoundments are required to meet the 16 

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

### size fits all remedy that EPA seems to prefer. 18 

### There's a statement the ISL facility 19 

### ponds contained uranium byproduct materials. It 20 

### apparently assumes that no ISL operator removes 21 

### radium prior to disposal of wastewater. This 2238

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### assumption should be revisited. 1 

### Power Tech has proposed and NRC has 2 

### licensed a treatment process that removes radium 3 

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

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

### used as irrigation water on the native soils. 6 

### On page 25 of the risk assessment -- and 7 

### again, this is from the April 17 th

### version, Table 8 

### 15 -- EPA demonstrates the effectiveness of 9 

### barium chloride in removing radium from the 10 

### Church Rock ground point sample groundwater, 11 

### which reflects a 95 to 99 percent radium removal 12 

### efficiency for barium chloride given by the EPA 13 

### in 2006. 14 

### So without reconsideration and revision 15 

### of the proposed rule by EPA Power Tech will 16 

### likely be required to construct (unintelligible) 17 

### designed ponds at considerable cost, even though 18 

### there will be no radon gas emissions, nor a 19 

### realistic risk of contaminating groundwater or 20


### surface water. 21 

### The description of the liner system 2239

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### indicates that 40 CFR 264.221 requires a triple 1 

### liner with a leak detection collection system. I 2 

### know it was said earlier that it was a double 3 

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

### compacted clay. That's also a liner. 5 

### There will be no hazardous waste 6 

### deposited in these storage or holding ponds, nor 7 

### do the radium treatment ponds contain hazardous 8 

### waste. They contain byproduct material. 9 

### I hope you will consider these comments. 10 

### Thank you for your attention. 11 

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

### Could you please spell your name, your 13 

### last name for the record for the court reporter? 14 

### MR. BLUBAUGH: Sure, I’m sorry. 15 

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

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

### Sharyn Cunningham? 18 

### MS. CUNNINGHAM: Hello, my name is Sharyn 19 

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

### specifically from the Lincoln Park area, which is 21 

### the Superfund site that the Cotter Uranium Mill 2240

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### caused with the contamination that moved away 1 

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

### Citizens Against Toxic Waste, which is a local 3 

### Cañon City, Fremont County group that formed in 4 

### 2002 to follow and address and try to help with 5 

### the Superfund issue and the issues happening at 6 

### the Cotter Mill. 7 

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

### downhill from the Cotter Uranium Mill. I have 9 

### two wells that have been contaminated, one still 10


### above standards. 11 

### I feel like what often is missing is just 12 

### this real life experience. I fear that people are 13 

### sitting in Washington or here in Denver at their 14 

### desks and looking at things in a very generalized 15


### way. 16 

### And just an example of that is ever since 17 

### our group began we have climbed a ridge on the 18 

### south side of Cotter, above Cotter, with 19 

### permission from the owner, and taken photographs 20 

### of impoundment ponds. And one of the things in 21 

### this rule is that you're going to -- the proposed 2241

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### rule is you’re going to depend on these work 1 

### practices to reduce radon. 2 

### And everyone commenting has talked about 3 

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

### reduces it down to a very, very low emission 5


### rate. 6 

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

### look at photographs we've taken over these twelve 8 

### years, you would see that every year the water 9 

### coverage changes. If we have two or three years 10 

### of drought, the water shrinks, because the Cotter 11 

### Corporation at that time had to pay for city 12 

### water to treat its city water to keep that 157 13 

### acre impoundment pond covered with water. So 14 

### some years there would be tailings 15 

### (unintelligible), and then other years we were 16 

### fearing it was going to overflow when we would 17 

### have a lot of rain. 18 

### This all began after our group began. I 19 

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

### became concerned about the radon situation at the 21 

### Cotter Mill. Their flux reports went up and 2242

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### down. Some years they would be low. One year in 1 

### particular it was almost at 20 picocuries per 2 

### square meter per second. And we were concerned. 3 

### We read at that time that anytime a radon flux 4 

### gets close to that standard that the agencies 5 

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

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

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

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

### while. That didn’t happen. 10 

### Also, Cotter’s whole method of 11 

### determining radon emissions at their mill, 12 

### whether at the boundary with their air stations, 13 

### came into question and they were told to create a 14 

### method of doing that. 15


### And we've had two world renowned 16 

### scientists look at their method of determining 17 

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

### depend on now. If a conventional mill like this 19 

### with their impoundment don’t have to do those 20 

### radon flux tests, then the people that live near 21 

### them are depending on that company’s method of 2243

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### determining background from radon and whether or 1 

### not they're in compliance with standards. 2 

### Also, we were concerned because Cotter’s 3 

### 157 acre impoundment pond is divided into two 4 

### cells. One of them is called a secondary 5 

### impoundment. And they filled it with old 6 

### tailings and covered it with water, and said 7 

### we’re not putting anymore tailings in this, 8 

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

### So for all of the years that radon flux 10 

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

### secondary impoundment. And we were concerned 12 

### about that. And so we probably made enough noise 13 

### that somebody came in, either the health 14 

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

### Cotter in 2007 did a radon flux test on that 16 

### secondary impoundment. And it was -- it was 17 

### above the standard, it was at 23. 18 

### So they then put dirt where they thought 19 

### they needed dirt in order to reduce it and they 20 

### got it reduced down. But then they never did 21


### another radon flux test. 2244

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### And I think the point's been made. In 1 

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

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

### conditions change as time goes by with weather 4


### and so on. 5 

### Then in 2010, Cotter had -- was on 6 

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

### use that primary impoundment anymore. That was 8 

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

### going to do radon flux tests anymore. 10 

### And so at that point EPA said, well, 11 

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

### anything else about that. Cotter came back and 13 

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

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

### Cotter submitted to the state their request for 16 

### termination of their license. So they kind of 17 

### officially finally said that they were going to 18


### close. 19 

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

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

### sure they didn't do it voluntarily, somebody 2245

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### probably asked them to do it, the health 1 

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

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

### So in 2012 they do one in July and the 4 

### primary impoundment is above the standard. It’s 5 

### at 23 something or other. So Cotter goes out 6 

### there and they cover with dirt some of the hot 7 

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

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

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

### So basically, one of the issues I wanted 11 

### to address is the risk assessment that was done 12 

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

### asked them to look at and do a risk assessment 14 

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

### analysis of the dose and the risk to revise the 16 

### risk assessment for NESHAPS. 17 

### And it’s basically about the risk from 18 

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

### sites, conventional mills, ISL facilities, et 20 

### cetera. And then you at EPA base your decision 21 

### on how to change these regulations using that 2246

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### risk assessment. 1 

### And one of the things that I was very 2 

### upset with living next door to this, and in 3 

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

### there were several huge errors by Cohen in regard 5 

### to the Cotter Mill. 6 

### First of all -- and when we send our 7 

### written comments out we'll do more details on 8 

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


### that there was no Cotter radon data for them to 10 

### get. And so instead they used the radon flux 11 

### reports to then do a calculation as to the amount 12 

### of radon coming off of the mill site. 13 

### Well, Cotter's been collecting radon data 14 

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

### this is sentence from it -- they got Colorado 16 

### State University to do a risk assessment in 1995. 17 

### And they said the data that CSU collected 18 

### included airborne particulate data and radon 222 19 

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

### MS. SUTIN: One minute. 21 

### MS. CUNNINGHAM: Okay. That there was no 2247

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### data. 1 

### The second real big problem was the 2 

### population. They used a 2000 census, did a 3 

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

### November 2011. They could have used the 2010 5


### census data. 6 

### Cohen claims in a two mile radius around 7 

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

### mile radius there's 6,000 people. 9 

### And there was further problems with that. 10 

### A third one was meteorology. They claimed that 11 

### there was no meteorological data from Cotter. 12 

### And they used meteorological data from Colorado 13 

### Springs. Cotter has had a meteorological air 14 

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

### annual report every year. 16 

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

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

### started in 2006 with concerns about this radon. 19 

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

### hope that you will reconsider doing real 21 

### measurement rather than assuming that a company 2248

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### is going to put dirt on there when they feel like 1 

### it when no one is out there inspecting them for 2 

### months and months at a time. 3 

### So anyways, thank you for the chance to 4


### talk. 5 

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

### Next if we can have Kay Hawklee? 7 

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

### Thank you all for allowing us to testify. 9 

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

### Cotter Lincoln Park Superfund Site, the CAG. But 11 

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

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

### CAG since 2007. 14 

### And January 3 rd

### of 1965 the Denver Post 15 

### published the first article saying that Cotter 16 

### was going to close. This January that will be 17 

### fifty years. So for fifty years they have been 18 

### going into lengthy times of standby and saying 19 

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

### fifty years later. 21 

### UMTRCA was created so that uranium mills 2249

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### would not linger with contamination. But in 1 

### Cotter’s case, with a leaking impoundment, 2 

### leaking into Lincoln Park’s groundwater and 3 

### causing a Superfund site that’s been here for 4 

### thirty years -- the Superfund site has been 5 

### around for thirty years -- Cotter is the prime 6 

### example of lingering contamination. 7 

### Under the Clean Air Act the EPA needs to 8 

### look at the full history of this industry. This 9 

### is why what is ongoing at Cotter needs a new 10 

### rule. We're concerned because the Cohen study 11 

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

### proposed a rule that relies on this 13 

### misinformation by Cohen. 14 

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

### the rule to reflect the proper actual data. And 16 

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

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

### Cañon City and meet with us to go through the 19 

### actual data that Cotter has not provided yet, but 20 

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


### been done. 2250

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### We would like for you to check on actual 1


### radon flux measurements that have been taken and 2 

### have at times exceeded the 20 picocuries limit. 3 

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

### the NMA says. 5 

### Instead of relying on hypothetical models 6 

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

### out and look at the reality, our real world 8 

### examples using real world data. It would take 9 

### more time than I have today to detail what has 10 

### fallen through the regulatory cracks at Cotter. 11 

### And here we go again. This rulemaking is 12 

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

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

### That gap is being created where there is no radon 15


### flux measurements between closure and the 16 

### placement of the cap, which could be decades away 17 

### still. And we would like you to use authority 18 

### under the Clean Air Act to regulate hazardous 19 

### pollutants from these uranium mills. 20 

### We look forward to working with the EPA. 21 

### You've heard from the National Mining Association 2251

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### that there are no emissions. There are. And 1 

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

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

### world solution from EPA. 4 

### I just brought a study that I have gotten 5 

### that talks about the need for monitoring. And I 6 

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

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

### line in here that says the implications for the 9 

### various assessments of long term releases of 10 

### radon are discussed, including aspects such as 11 

### the need for ongoing monitoring of rehabilitation 12 

### at uranium mining and milling sites and life 13 

### cycle accounting. 14 

### And I would just ask you to please relook 15 

### at this concept of no monitoring because Sharyn 16 

### lives a mile from the toe of the impoundments, 17 

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

### toe of the impoundment. And not taking 19 

### measurements is such an avoidance of 20 

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

### it’s outrageous. And I would just ask you to 2252

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### please look at that again and reconsider that 1 

### aspect. So I will give you this paper. 2 

### Thank you. 3 

### MS. SUTIN: We have a question too. 4 

### MS. HAWKLEE: Oh, okay. 5 

### MS. SUTIN: Thank you. 6 

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

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

### providing that in your written comments? 9 

### MS. HAWKLEE: Yes, we can. 10 

### MR. PEAKE: Okay. Thank you. 11 

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

### Okay. We have heard from all of the 13 

### registered speakers so we will pause the hearing 14 

### until someone arrives that would like to speak. 15 

### Thank you. 16 

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

### at 10:30. 18 

### (Whereupon, a recess was taken.) 19 

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

### And we have two additional speakers. First is 21 

### Sarah Fields. 2253

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### MS. FIELDS: Thank you. My name is Sarah 1 

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

### I think, as some of the discussion has 3 

### revealed, that one of the big issues is what 4 

### happens when a tailings impoundment or a mill as 5 

### a whole enters some sort of closure period. And 6 

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

### determines that Subpart W compliance for an 8 

### existing tailings impoundment is no longer 9 

### applicable. 10 

### In both Cañyon City and White Mesa you 11 

### had closure and ending of radon monitoring, but 12 

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

### appendix A which require reclamation milestones. 14 

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

### These are long processes. 16 

### So recently at White Mesa a determination 17 

### was made that Subpart W no longer applies. And 18 

### whether or not there is an approved closure plan, 19 

### and whether or not there are reclamation 20 

### milestones for dewatering, interim cover and the 21 

### final radon barrier, those tailings impoundments 2254

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### are going to sit there for decades. And there 1 

### will be no requirement to monitor the radon 2 

### emissions and determine whether or not the radon 3 

### emissions are increasing, and no requirement to 4 

### take corrective -- any corrective actions. 5 

### Fortunately for Cell 2, even though in 6 

### 2008 they ceased putting waste in the 7 

### impoundment, there were six years where even 8 

### though you might say essentially they had entered 9 

### the closure period, they had not officially 10 

### requested that they no longer be required to 11 

### comply with Subpart W. 12 

### So for six years they continued to 13 

### accumulate data. And when they found that the 20 14 

### picocuries standard was exceeded they took 15 

### corrective actions. But from now on for the 16 

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


### data. 18 

### So as a friend of mine has often said, 19 

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

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

### emissions because the impoundment has entered 2255

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### closure, or the whole -- as in Cañon City, the 1 

### whole mill has entered closure, there will be no 2 

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

### problem there's no requirement to take any 4 

### corrective action. 5 

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

### call that protecting the public health and 7 

### safety. And it really goes back to the 8 

### rescission of Subpart T. Subpart T would have 9 

### required compliance with 20 picocuries throughout 10 

### the closure period. 11 

### Subpart T was rescinded a number of years 12 

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

### certain situations at a number of mills that had 14 

### already been closed down. 15 

### Well, currently any of those mills that 16 

### were addressed in the 1991 memorandum of 17 

### understanding between the EPA and the NRC in the 18 

### agreement states, “those mills have either had 19 

### the completion of the radon barrier or they are 20 

### currently under a requirement to maintain a 20 21 

### picocuries limit on the radon emissions because 2256

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### they have gone beyond the initial reclamation 1 

### milestones." So they've had the milestones 2 

### extended. Because they requested those 3 

### extensions of the milestones they have to now 4 

### comply with the 20 picocuries. 5 

### The rescission of Subpart T really didn't 6 

### address the issues that you now see at the Cotter 7 

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

### now will be extensive periods of time before 9 

### there is a final radon barrier where there will 10 

### be no monitoring and no requirement for 11 

### corrective actions. 12 

### It will be even worse for the new 13 

### impoundments because throughout the life of those 14 

### new impoundments at White Mesa there never will 15 

### be a requirement for any radon monitoring. There 16 

### will be no requirement for keeping the tailings 17 

### impoundments wet, there will be no requirement 18 

### when they do start to dry out for putting an 19 

### interim cover and soil on the impoundment because 20 

### it seems they enter closure and there's no 21 

### closure plan, there are no reclamation 2257

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### milestones. So these impoundments, Cell 4A and 1 

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

### just sit there emitting radon. No one will know 3


### how much radon for decades. 4 

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

### had in mind. I think the EPA should reinstate 6 

### Subpart T because I think it is important for 7 

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

### Mesa Mill to have continual radon monitoring 9 

### throughout the closure period. 10 

### I think it’s important that corrective 11 

### actions be taken in a timely manner to assure 12 

### that the radon emissions are kept within the 20 13 

### picocuries limit. 14 

### And they -- the situation for Cell 2 has 15 

### shown this is a very doable solution. And it 16 

### also demonstrates how as the tailing impoundment 17 

### dries out, the radon emissions will increase. 18 

### You have a regulatory gap. You shouldn’t 19 

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

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

### information on the radon emissions and no 2258

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### requirement to reduce those emissions. 1 

### And I also agree with Mr. Stills, you 2 

### have to also consider the possibility that -- 3 

### reducing that 20 picocuries of limit. And it 4 

### would have been helpful in the rulemaking if 5 

### there had been additional data on each of the 6 

### mills, the history of all of the impoundments, 7 

### what their radon emissions have been over the 8 

### years. Unfortunately, that data wasn't included 9 

### in the rulemaking. 10 

### Thank you. 11 

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

### MS. FIELDS: Thank you. 13 

### MR. PEAKE: In listening to what you were 14 

### saying, it sounds like you’re addressing the 15 

### issue of operations of the facility as far as the 16 

### definition. 17 

### In the regulation and proposal, we have a 18 

### definition of operation. And so I would like to 19 

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

### EPA should define when operations end for 21 

### compliance with Subpart W? 2259

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### MS. FIELDS: Well, you could extend the 1 

### period of operations until the placement of the 2 

### final radon barrier. In fact, Energy Fuels 3 

### assumed, and this is stated in their annual 4 

### Subpart W compliance reports, that closure began 5 

### after the placement of an interim cover. 6 

### I mean, that was their assumption. So 7 

### there has always been a confusion as to when 8 

### closure actually began. I mean, differing 9 

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

### begins. 11 

### So that is something that you could do, 12 

### is extend that period of compliance with Subpart 13 

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

### always -- you still need the radon monitoring 15 

### throughout the period of drying of the 16 

### impoundments to give you a heads up on different 17 

### areas where you might need additional soil, a 18 

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

### come from another impoundment and they needed to 20 

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

### a barrier between impoundments. With the 2260

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### placement of the different charcoal, these little 1 

### charcoal monitoring devices in the different 2 

### areas that tells you which area needs additional 3 

### soil. 4 

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

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

### final radon barrier because they're not going to 7 

### put a final radon barrier on one impoundment, and 8 

### then another impoundment, and then another 9 

### impoundment. Their whole idea in their 10 

### reclamation plan is to put them over all of the 11 

### impoundments. 12 

### Well, the rescission of Subpart W assumes 13 

### that once one impoundment was closed and 14 

### dewatered, you would have at least within seven 15 

### years a placement of final radon barrier, not an 16 

### indefinite period. And right now it’s an 17 

### indefinite period because who knows when all of 18 

### those additional impoundments will be filled up 19 

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

### they go through closure period, dewatering, 21 

### settlement and time to put the final radon 2261

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### barrier on. 1 

### So you have a lot of reality issues that 2 

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

### least for White Mesa and for Cañon City. 4 

### MR. PEAKE: Thank you. 5 

### MS. SUTIN: Next Sharyn Cunningham. 6 

### MS. CUNNINGHAM: My name again is Sharyn 7 

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

### Against Toxic Waste from Cañon City. 9 

### I also forgot to mention that I have been 10 

### a member of the Community Advisory Group for the 11 

### Cotter Lincoln Park Superfund site since it began 12 

### in 2004. 13 

### I thank you for this opportunity because 14 

### there are a couple of other points that I wanted 15 

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


### fast. 17 

### I had mentioned with the Cohen Risk 18


### Assessment that there was actual data at Cotter 19 

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

### risk assessment. 21 

### In fact, every three months we 2262

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### participated in a teleconference call with EPA on 1 

### this Subpart W rulemaking since 2008 or 2009. 2 

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

### the first draft came out of the risk assessment, 4 

### I brought up the fact with the problems with 5 

### population being wrong, et cetera. And Jim Cain 6 

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

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

### Cohen never contacted them for specific data from 9 

### their site. 10 

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

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

### in the November 2011 version of the risk 13


### assessment. 14 

### I mentioned that there was no radon data, 15 

### which was available from Cotter. There was 16 

### available meteorological data that they did not 17 

### use. But there was another important part, I 18 

### thought. 19 

### In 2003 the health department asked 20 

### Cotter to submit an inventory of the contents of 21 

### the impoundment ponds. Right at this moment 2263

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### there is close to 6 million tons of contents. 1 

### And that includes all of the tailings over all of 2 

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

### earth moving equipment. It’s all in that 4 

### impoundment pond now. And there is a good 5 

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

### they finish cleaning up. 7 

### So if Cohen had gotten that inventory 8 

### from 2003 they would have known the exact amount 9 

### of radium and its radiological concentration from 10 

### that inventory, which would have helped them 11 

### determine the potential radon emissions, as well 12 

### as the yearly radon flux tests that happened. 13 

### And then another point that I wanted to 14 

### bring up in regards to the risk assessment was 15 

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

### radon. But the radon progeny, or daughters is 17 

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

### or considered in this. 19 

### And I live a mile or so from this 20 

### impoundment pond. I’m not worried about inhaling 21 

### radon gas, I’m concerned about radon traveling 2264

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### through the groundwater. But nobody tests for 1 

### that in the groundwater. 2 

### And I’m concerned about the progeny 3 

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

### or so, it changes to radioactive lead, which 5 

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

### every time the wind blows it gets lifted up and 7 

### re-suspended and moves farther down. 8 

### And in fact, the NRC was concerned about 9 

### these progeny and they put out a draft interim 10 

### guidance, September 2011, called Evaluations of 11 

### Uranium Recovery Facilities Surveys of Radon and 12 

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

### I'll provide that paper in written comments. 14 

### Here is a direct quote, “as discussed 15 

### later, radon progeny are addressed because most 16 

### of the dose to people from the releases of radon 17 

### is actually due to exposure to radon progeny." 18 

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

### radioactive bismuth, radioactive lead. 20 

### I think that should have been a part of 21 

### this risk assessment. You have to realize we've 2265

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### never had any epidemiological studies at our 1 

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

### the cancer registry. 3 

### When you look at radon and its daughters, 4 

### then you’re looking at health effects that are 5 

### more than just cancer. 6 

### And then the last point I wanted to make 7 

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

### concerned about the gap. I have heard health 9 

### department and EPA staff state that the final cap 10 

### may not go on that impoundment pond for twenty to 11 

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

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

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


### radon. 15 

### For twenty years or -- to fifty, you 16 

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

### And we'll be exposed to radioactive lead blowing 18 

### in the wind. 19 

### Also, it causes us to rely solely on 20 

### Cotter’s method to determine background and 21 

### compliance with radon standards at their boundary 2266

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### of the air stations. And we question Cotter’s 1 

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

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

### Tarlton at the health department. 4 

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

### health department would have looked at this. And 6 

### we asked that it be evaluated by a radon expert 7 

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


### ago. 9 

### We've still never gotten an agency person 10 

### to evaluate that method. And now, without the 11 

### radon flux tests, we are solely dependent on 12 

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

### compliance. 14 

### And one of the things in the NRC Interim 15 

### Guidance stated, it said background must be 16 

### determined very carefully. And that’s what this 17 

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

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

### with you, having some expert review this method 20 

### that they're using. 21 

### And, you know, finally, I just want to 2267

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### say that as a layperson, it looks to me like the 1 

### Clean Air Act provides EPA with the authority to 2 

### regulate all radon at mills. And I really hope 3 

### that you will work to close this gap that people 4 

### who live near these facilities are going to 5


### suffer from. 6 

### Thank you. 7 

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

### MS. CUNNINGHAM: Okay. 9 

### MS. SUTIN: Okay. We are through the 10 

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

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

### 11:30. 13 

### If anyone wants to speak between now and 14 

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

### will close the hearing and we will start up again 16 

### at 1:00 O’clock. 17 

### Thank you. 18 

### (Whereupon, a recess was taken.) 19 

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

### additional speakers for the morning session. So 21 

### we are officially closing this session for today. 2268

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### (Whereupon, the morning session was concluded 1 

### at 11:30 a.m.) 2 

### MS. SUTIN: Good afternoon everyone. I think 3 

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

### Sutin and I am the Regional Judicial Officer for 5 

### EPA Region 8. Thank you all for coming this 6


### afternoon. 7 

### I will be presiding over the hearing. 8 

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

### Schultheisz from the Office of Radiation and 10 

### Indoor Air in headquarters. This hearing is now 11 

### in session. 12 

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

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

### national emission standards for radon emissions 15 

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

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

### EPA is proposing to revise certain 18 

### portions of the standards based on its 19 

### determination as to what constitutes general 20 

### available control technology or management 21 

### practices, also known as GACT, for this area 2269

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### source category. 1 

### EPA announced this proposed rule on May 2


### 2 nd 

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

### and was to end on July 31 st 

### . On July 21 st 

### , 2014 4 

### EPA extended the comment period to October 29 th 

### , 5 

### 2014. 6 

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

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

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

### bit about how today’s hearing will work. 10 

### There was a session this morning from 11 

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

### sure to check in to the registration desk even if 13 

### you are not planning to speak today. 14 

### I will call the scheduled speakers to the 15 

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

### speak, please state your name, spell your last 17 

### name for the court reporter and your affiliation 18 

### before you begin your testimony. Your comments 19 

### will be transcribed and included in the record of 20 

### comments on the proposed rule. 21 

### In order to ensure that everyone has the 2270

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### opportunity to speak, and to ensure fairness, 1 

### please limit your testimony to ten minutes. We 2 

### will signal to you when you have one minute left 3 

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

### you to complete your testimony. 5 

### As I said before, there is no pressure to 6 

### speak the ten minutes if your statement is 7


### shorter. 8 

### However, if you have more that you want 9 

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

### additional comments that are new from what you 11 

### have said before and are not a rebuttal to 12 

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

### speak again please check in with the registration 14 

### desk and they will sign you up. 15 

### After you finish your testimony members 16 

### of the panel may ask clarifying questions. We 17 

### are not here today to answer questions about the 18 

### proposed rule. If you have questions about the 19 

### process please find one of the EPA 20 

### representatives after the hearing. 21 

### If you have written copies of your 2271

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### testimony, or supporting documentation, please 1 

### give a copy to our staff at the registration 2 

### table. This will be helpful as we prepare the 3 

### transcript. If you have additional comments you 4 

### would like to make you can submit them in 5 

### writing. Comments must be received on or before 6 

### 5:00 p.m. on October 29 th 

### , 2014. 7 

### Let me assure you that EPA gives just as 8 

### much consideration to comments we receive in 9 

### writing as we do to comments we receive at public 10 

### hearing. 11 

### Instructions for submitting comments are 12 

### included in the fact sheet at the registration 13 

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


### the door. 15 

### Today’s public hearing is scheduled to 16 

### end once the last registered speaker has provided 17 

### comments. So if you would like to testify but 18 

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

### at the registration table. 20 

### Now I will turn it over to Tom who will 21 

### summarize the proposed rule. 2272

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### MR. PEAKE: Thank you. 1 

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

### director for the Center for Waste Management and 3 

### Regulations in the Environmental Protection 4 

### Agency’s Office of Radiation and Indoor Air in 5 

### Washington, D.C. 6 

### And with me is Dan Schultheisz, the 7 

### associate director for the Center for Waste 8 

### Management and Regulations. 9 

### We are here today to receive your 10 

### comments on EPA’s proposed rulemaking for the 11 

### revisions to the national emission standards for 12 

### radon emissions, or NESHAPS, from operating mill 13 

### tailings, also known as Subpart W. 14 

### The proposed revisions would require the 15 

### use of generally available control technologies, 16 

### or GACT, to limit radon emissions from the 17 

### tailings at all uranium recovery facilities. 18 

### Specific control technologies would be required 19 

### at conventional tailings impoundments, 20 

### evaporation ponds and heap leach piles. 21 

### We are also proposing to add new 2273

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### definitions to this rule, revise existing 1 

### definitions, and clarify that the rule applies to 2 

### uranium recovery facilities that extract uranium 3 

### through the in-situ leach method and the heap 4


### leach method. 5 

### Specifically, the EPA is proposing the 6 

### following: 7 

### We are clearly stating that the standards 8 

### apply to all units that contain uranium byproduct 9 

### material. These units include, but are not 10 

### limited to, conventional tailings impoundments, 11 

### evaporation ponds or other nonconventional 12 

### impoundments at uranium recovery facilities, and 13 

### heap leach piles. 14 

### We are proposing that all uranium 15 

### recovery facilities comply with GACT management 16 

### practices, including the use of double liners and 17 

### leak detection systems. 18 

### The proposed rule would remove the 19 

### requirement for monitoring radon, but limit the 20 

### amount of byproduct material that can be exposed. 21 

### For conventional impoundments, limit 2274

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### tailings exposure using either phased disposal or 1 

### continuous disposal. 2 

### For heap leach piles, limit tailings 3 

### exposure using phased disposal and maintain a 30 4 

### percent moisture content in the pile. 5 

### For evaporation ponds, we propose to 6 

### require at least one meter of liquid be 7 

### constantly maintained in the pond. 8 

### We are also proposing to add definitions 9 

### for when a uranium recovery facility is in 10 

### operation or standby. 11 

### The proposed rule would also require the 12 

### owner/operator of a uranium recovery facility to 13 

### maintain records that confirm that impoundments 14 

### have been constructed according to the 15 

### requirements. 16 

### In summary, we are here today asking for 17 

### your comments on the proposed rule. The comment 18 

### period ends on October 29 th, 

### 2014. And we are 19 

### looking forward to hearing from you today. 20 

### Thank you. 21 

### MS. SUTIN: Okay. I will call our first 2275

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### speaker, John Cash. 1 

### MR. CASH: Thank you. 2 

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

### president of regulatory affairs for Ur-Energy. 4 

### We operate the Lost Creek in-situ facility near 5 

### Bairoil, Wyoming. 6 

### And I really do appreciate the 7 

### opportunity to make some comments today. And I 8 

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

### country where I can make comments on proposed 10


### rules. 11 

### A number of my colleagues in the industry 12 

### have already commented earlier today and 13 

### yesterday on some legalities of the proposed 14 

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


### on that. 16 

### What I would like to do today in my 17 

### comments is focus more on the Lost Creek Facility 18 

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

### rules will impact that facility. So I will try 20 

### to give you real life examples of the impact of 21 

### these proposed regulations. 2276

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### I'd like to start off by talking about a 1 

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

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

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

### office, Region 8, to discuss the Lost Creek 5 

### project, and specifically EPA’s decision to 6 

### reinterpret 40 CFR, Part 192, health and 7 

### environmental protection standards for uranium, 8 

### uranium mill tailings, to include holding ponds 9 

### at in-situ facilities in the definition of mill 10 

### tailings. 11 

### At that time and currently we do not 12 

### agree with EPA’s proposed action to redefine or 13 

### re-interpret the term mill tailings to bring in14 

### situ holding ponds under the jurisdiction of 40 15 

### CFR, Part 192 regs. 16 

### It continues to be our position that the 17 

### framers of the regulation did not intend water 18 

### impoundments to be regulated as tailings. And a 19 

### plain reading of the regulations supports this 20 

### conclusion. 21 

### Despite our holding a contrary 2277

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### understanding of the regulations from EPA’s new 1 

### interpretation, we felt compelled to submit a 2 

### holding pond application to the EPA in order to 3 

### advance the permitting process so that uranium 4 

### recovery could occur in accordance with corporate 5 

### objectives. 6 

### The engineering design of the holding 7 

### ponds presented in the application, and 8 

### subsequently approved after a lengthy review 9 

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

### there that that review process I believe was 11 

### slightly over a year -- on December 20 th 

### , 2011, 12 

### complied with the design criteria enumerated in 13 

### 40 CFR 264.221. 14 

### It should also be noted that EPA approved 15 

### the design of the Lost Creek holding pond while 16 

### Subpart W rulemaking was in progress. 17 

### We are greatly concerned that the 18 

### proposed regulation does not expressly 19 

### grandfather in nonconventional impoundments like 20 

### the ones recently permitted by the EPA at Lost 21 

### Creek, and subsequently constructed at 2278

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### significant cost. 1 

### Earlier this week, before I traveled down 2 

### to Denver for this for this meeting from Casper, 3 

### I spoke with our engineers who designed and 4 

### constructed the facility. And they went and they 5 

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

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

### about 600,000 dollars that we have invested to 8 

### construct those ponds. That is a significant 9 

### amount of money. 10 

### The EPA approved design and permit does 11 

### not require maintaining a minimum of one meter of 12 

### fluid cover. And such a requirement will render 13 

### the new ponds virtually worthless since the water 14 

### level must also be maintained at least three feet 15 

### below the top of the embankment to prevent 16 

### overtopping. 17 

### We respectfully request that EPA remove 18 

### this requirement from the proposed regulation, or 19 

### at least grandfather in all existing approved 20 

### facilities. 21 

### And I would like to interject one other 2279

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### point here. It’s not just EPA that approved these 1 

### holding ponds after over a year of review, there 2 

### are six other agencies that were involved in the 3 

### review and/or permitting of the facilities, 4 

### including the Wyoming State Engineers Office, the 5 

### NRC, Wyoming Department of Environmental Quality 6 

### Land Quality Division, the BLM. 7 

### And then there were a couple of agencies 8 

### that were involved in regulatory reviews, and 9 

### that included the Wyoming Game and Fish 10 

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

### Without doubt, these are the most heavily 12 

### regulated systems at our mine. 13 

### And I forgot to mention Sweetwater County 14 

### also performed a review. 15 

### Evaporation ponds are typically designed 16 

### to be very shallow in order to minimize the 17 

### thermal mass and therefore maximize the 18 

### evaporation rate. The proposed, and apparently 19 

### arbitrarily selected, one meter standard will 20 

### diminish evaporation rates and operators will be 21 

### required to build larger evaporation ponds or 2280

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### seek alternative disposal methods in order to 1 

### compensate for the loss of evaporation rates. 2 

### The consequences of the rulemaking should 3 

### be fully understood, and the associated costs, 4 

### including the resulting need to install larger 5 

### evaporation ponds should be analyzed. 6 

### The regulation should specifically 7 

### address the use of alternative methods to control 8 

### radon emissions on a case by case basis if the 9 

### proponent can adequately demonstrate the efficacy 10 

### of the proposed method. 11 

### For example, an operator may wish to 12 

### install a floating cover to keep birds off the 13 

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

### floating cover may also prevent the release of 15 

### radon and should be allowed in lieu of 16 

### maintaining one meter of fluid. 17 

### And I would like to switch now to 18 

### discussion of the definition of byproduct 19 

### material and the impact of that on operations in 20 

### relation to this rulemaking. 21 

### Since the EPA is expanding the coverage 2281

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### of 40 CFR 61, Subpart W to include 1 

### nonconventional impoundments, the agency should 2 

### recognize that such impoundments may contain 3 

### byproduct material that, while meeting the strict 4 

### AEC definition, have been treated to below the 5 

### effluent standards promulgated in 10 CFR 20, 6 

### Appendix B, Table 2. 7 

### For example, a proponent may wish to 8 

### store permeate generated from reverse osmosis in 9 

### the holding pond. The permeate may satisfy all 10 

### drinking water and effluent standards, but would 11 

### still be considered byproduct under the Atomic 12 

### Energy Act, and therefore regulated under the 13 

### proposed rule. 14


### Waters treated to meet the effluent 15 

### standards present little or no hazard. And 16 

### therefore EPA should consider removing them from 17 

### regulation under the proposed rules, especially 18 

### if the water meets the radium and radon effluent 19


### standards. 20 

### Regulating water which does not present a 21 

### hazard creates unintended additional regulatory 2282

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### burden and associated cost for industry and the 1 

### agency while generating no benefit to the public. 2 

### The EPA has at least two legal mechanisms 3 

### to distinguish between byproduct and byproduct 4 

### which falls below the effluent standard. The 5 

### Clean Water Act allows for deletion of source 6 

### categories in Section 112(c), or alternatively 7 

### the administrator, when developing standards, 8 

### “may distinguish among classes, types and sizes 9 

### of sources within a category or subcategory in 10 

### establishing such standards,” as provided for in 11 

### Section 112(d). 12 

### So those -- that concludes my remarks. 13 

### Again, I think you for the opportunity to provide 14 

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

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

### facing at Lost Creek. 17 

### One final comment is, and we've talked 18 

### about the issue of putting permeate holding 19 

### ponds, that is something that we are considering 20 

### at Lost Creek. And that water will meet drinking 21 

### water standards, even the new proposed standard 2283

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### for radon that the EPA is now going through the 1 

### process of promulgating. So it is essentially 2 

### drinking water. And to leave that under 3 

### regulation just would create a lot of additional 4 

### burden unnecessarily. 5 

### I thank you for your time. 6 

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

### Next if we could have David Frydenlund? 8 

### MR. FRYDENLUND: Good afternoon. My name is 9 

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

### I am senior vice president and general 11 

### counsel for Energy Fuels Resources USA, Inc. We 12 

### operate the White Mesa Uranium Mill in Utah, 13 

### which is the only operating uranium mill in the 14 

### United States. 15 

### We are also in the process of permitting 16 

### the Sheep Mountain project, which is a proposed 17 

### uranium heap leach processing facility in 18 

### Wyoming. 19 

### I will touch on a few key points this 20 

### afternoon. Energy Fuels will be submitting more 21 

### comprehensive written comments at a later date. 2284

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### First, I'd like to note that Energy Fuels 1 

### agrees with a number of the positions taken by 2 

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

### that evaporation of similar ponds should not be 4 

### counted as one of the two impoundments that may 5 

### be in operation at any one time under the 6 

### proposed management practice standards. 7 

### We also agree that there should be no 8 

### limitation on the number and size of such ponds. 9 

### In order to operate a uranium mill, a large 10 

### evaporative capacity is necessary. Water balance 11 

### is paramount at a zero-discharge facility such as 12 

### the White Mesa Mill. 13 

### However, requiring the proposed minimum 14 

### of one meter of water cover can be prohibitively 15 

### burdensome with little or no benefit. As EPA has 16 

### noted, the radon emissions from saturated 17 

### tailings are only approximately 2 percent of 18 

### emissions from dry tailings. And adding one meter 19 

### in water would result in a negligible reduction. 20 

### However, there are significant costs 21 

### associated with this proposed requirement. 2285

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### First, the cost of maintaining this one 1 

### meter of water would be significantly greater 2 

### than EPA has estimated given the high evaporation 3 

### rates and scarcity of water at facilities such as 4 

### the White Mesa Mill. We will address these costs 5 

### in more detail in our written submissions. 6 

### Second, this requirement will seriously 7 

### impact and may eliminate a mill’s ability to 8 

### recirculate tailings solutions back into the 9 

### process because the addition of fresh water will 10 

### change the chemistry of the solutions in the 11 

### tailings. 12 

### Third, a mill will be prevented from 13 

### reducing solution levels in evaporation ponds 14 

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

### perform maintenance activities on the 16 

### impoundments. 17 

### Finally, evaporative and holding capacity 18 

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

### fresh water to the system would displace needed 20 

### capacity for process solutions. This would 21 

### generally require construction of additional 2286

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### evaporative and holding capacity at significant 1 

### capital cost. 2 

### Energy Fuels fully supports added 3 

### protections to public health, safety and the 4 

### environment when required. However, in these 5 

### circumstances the added protections are 6 

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

### added requirements are prohibitive and cannot be 8 

### justified. 9 

### Energy Fuels recommends instead that the 10 

### proposed rule be changed to require full 11 

### saturation or water cover on evaporation ponds 12 

### during operation, but not to require a minimum 13 

### liquid level in the ponds. 14 

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

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

### the existing and proposed rules is different from 17 

### the definition in the Atomic Energy Act. We 18 

### don’t believe EPA has the authority to promulgate 19 

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

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

### a key definition can lead to unnecessary 2287

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### confusion. Those definitions should be the same. 1 

### We also have concerns relating to the 2 

### proposed application of Subpart W to heap leach 3 

### facilities. A heap leach facility is not a 4 

### tailings impoundment while in operation. Heap 5 

### leaching is part of the milling process. And the 6 

### proposed rules would interfere with such 7 

### processing operations. 8 

### For example, the requirement to maintain 9 

### a 30 percent moisture content would have the 10 

### effect of diluting process solutions and 11 

### impacting operations. 12 

### This is in stark contrast to a tailings 13 

### impoundment at a uranium mill where Subpart W 14 

### does not apply to process operations, but only to 15 

### tailings that have been finally disposed of after 16 

### processing, and hence cannot impact processing. 17 

### Subpart W should not extend to regulating process 18 

### operations. 19 

### Once process operations have ceased at a 20 

### heap leach facility, the facility would then go 21 

### into closure and be subject to the requirements 2288

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### of 10 CFR Part 40, Appendix A. Hence, there is 1 

### no place for regulation under Subpart W at heap 2 

### leach facilities. 3 

### The radiological protection programs 4 

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

### adequate protections and monitoring for radon at 6 

### such facilities. 7 

### Finally, the removal of the phrase “as 8 

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

### and a number of the additional record-keeping 10 

### requirements, amount to dual jurisdiction over 11 

### the construction and operation of tailings 12 

### impoundments. 13 

### This is in contravention of Section 275 14 

### of the Atomic Energy Act under which EPA is 15 

### required to set standards for the management of 16 

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

### implementation and enforcement of the standards 18 

### is expressly stated to be the responsibility of 19 

### NRC and Agreement States in the conduct of their 20 

### licensing activities under the Act. 21 

### Section 275 of the Atomic Energy Act also 2289

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### expressly states that no permit is required by 1 

### EPA for the processing, possession, transfer or 2 

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

### Under the proposed rules an operator 4 

### would be required to simultaneously go through 5 

### the entire design and permitting process for new 6 

### tailings cells with the NRC or Agreement State, 7 

### and with the EPA. Otherwise, the facility would 8 

### be subject to possible different implementation 9 

### of the rules by the EPA after construction. 10 

### There is no need for such dual 11 

### jurisdiction in order to implement the NESHAPS 12 

### requirements under the Clean Air Act. And it 13 

### will unnecessarily burden the regulatory process. 14 

### Such dual jurisdiction is tantamount to EPA 15 

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

### byproduct material, in contravention of the 17 

### Atomic Energy Act. 18 

### Thank you for the opportunity to comment. 19 

### As I mentioned earlier, Energy Fuels will be 20 

### submitting more detailed written comments at a 21


### later date. 2290

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### MS. SUTIN: Thank you. 1 

### Next if we could have Sarah Fields? 2 

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

### am with Uranium Watch of Moab, Utah. 4 

### One thing I would like to point out is 5 

### that uranium recovery facilities have lived under 6 

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

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

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

### it’s become a very important issue to some 10 

### members of the industry and the National Mining 11 

### Association. 12 

### One thing I wanted to touch on is the 13 

### question of uranium mills that are on standby. 14 

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

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

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

### the future they will start processing ore again. 18 

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

### number of permitted uranium mines both in Utah, 20 

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


### Colorado. 2291

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### It’s a totally different situation for 1 

### the Shootaring Canyon Mill. The Shootaring 2 

### Canyon Mill last operated for a very short period 3 

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

### uranium industry is a boom and bust economy. A 5 

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

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

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

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


### down. 10 

### All during this up and down period in the 11 

### last uranium renaissance, the Shootaring Canyon 12 

### Mill did not reopen. So you have a small 13 

### tailings impoundment. And the only reason really 14 

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

### time the mill will start operating again and need 16 

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

### will not be able to put new tailings in that 18 

### impoundment because it does not comply with the 19 

### current requirements for a tailings impoundment. 20 

### So the Division of Radiation Control would not 21 

### allow the mill to start operating again without 2292

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### the construction of a new lined impoundment. 1 

### So the reason it’s kept open is because 2 

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

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

### mill and enter reclamation. And they need that 5 

### impoundment to dispose of the mill contaminating 6 

### soils. 7 

### In fact, they'll put more material 8 

### closing the mill than is actually in the 9 

### impoundment right now. Most of the stuff that is 10 

### in the impoundment is not even from the 11 

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

### disposal of the waste and equipment from the old 13 

### hydra-jet heap leach operation. 14 

### So both the EPA, and first the NRC and 15 

### now the Utah Division of Radiation Control, have 16 

### kind of let that mill stay on standby for over 17 

### thirty years assuming that at some time it’s 18 

### going to start operating again. 19 

### And I don’t think that’s a very 20 

### reasonable way of regulating uranium mills, 21 

### whether you’re doing that under the Clean Air Act 2293

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### or under the Atomic Energy Act. 1 

### I think there must be some kind of limit 2 

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

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

### mines associated with this mill at this time. 5 

### So if it was ever to start up again they 6 

### would need a new lined impoundment. And they now 7 

### actually need to permit several uranium mines. 8 

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

### this. 10 

### Apparently a new company is going to 11 

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

### a plan for reclamation or a license renewal 13 

### application. So by the end of this year they 14 

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

### But leaving a mill on standby for over thirty 16 

### years does not make sense. 17 

### Another thing I wanted to cover is the 18 

### discussion of possible uranium milling in 19 

### Virginia, which has a very different kind of 20 

### situation than the west. The west is dry. 21 

### I guess my time is about up -- no, I 2294

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### don't know what that light means. 1 

### Okay. So the EPA seems to think that all 2 

### you need to do is follow the construction and 3 

### design requirements of having lined impoundments 4 

### at forty acre impoundments and that will create a 5 

### very safe controlling environment for radon. 6 

### And yet if you envision a uranium mill in 7 

### Virginia, you also have to envision a lot of 8 

### holding ponds, because under the EPA regulations 9 

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

### allowed to discharge tailings effluent because 11 

### the amount of precipitation is greater than the 12 

### rate of evaporation. But they would have to with 13 

### barium chloride or some kind of other treatment. 14 

### So you would probably have a number of 15 

### treatment ponds. You would have a number of 16 

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

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

### So you would also have unusual 19 

### meteorological conditions. You have the 20 

### potential of hurricanes, you have the potential 21 

### for large storms, and you have the potential for 2295

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### tornados. 1 

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

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

### top of a more solid tailings impoundment, or just 4 

### a totally liquid pond, would contain those 5 

### liquids, or contain those tailings under those 6 

### circumstances. 7


### I also don’t understand how the EPA can 8 

### conceive of a situation where a solid tailings 9 

### impoundment could actually dry out in the State 10 

### of Virginia where you have continual 11 

### precipitation. You have sometimes very intense 12 

### precipitation. 13 

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

### regulation of conventional tailings, and the 15 

### reclamation of tailings, is based on the 16 

### assumption of eventually the tailings dry out so 17 

### that there could be a permanent radon barrier. 18 

### And that permanent radon barrier would prevent 19 

### liquid, rain and other precipitation from 20 

### entering the tailings impoundments. 21 

### I don't see that happening in Virginia. And I 2296

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### don’t see any kind of really honest evaluation by 1 

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

### balance, the whole conceptual basis for 3 

### regulating that under either Subpart W or NRC's 4 

### Part 40. 5 

### Thank you. 6 

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

### MS. FIELDS: Any questions? 8 

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

### the registered speakers. We are anticipating 10 

### others coming later this afternoon. So we will 11 

### be on pause until the next speaker arrives. 12 

### Thank you. 13 

### (Whereupon, recess was taken) 14


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

### it is 3:53. 16 

### We have had all of the registered 17 

### speakers that intended to speak give their 18 

### comments and so the hearing this afternoon is 19 

### officially closed. 20 

### Thank you all for attending. 21 

### (Whereupon, the hearing concluded at 3:53 2297

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### p.m.) 1