pinon ridge hearing transcripts part 3

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AGREN BLANDO COURT REPORTING & VIDEO INC

Denver (303) 296-0017 Boulder (303) 443-0433 Colorado Springs (719) 635-8328 Greeley (970) 356-3306Court Reporting Videography Digital Reporting Transcription Scanning Copying

561

JUDICIAL ARBITER GROUP

JAG NO. 12 A 1318

___________________________________________________

REPORTER'S TRANSCRIPT OF HEARING, VOLUME IV

November 9, 2012

___________________________________________________

IN RE: THE APPLICATION OF ENERGY FUELS RESOURCES,

INC. FOR A RADIOACTIVE MATERIALS LICENSE FOR THE

PINON RIDGE URANIUM MILL

___________________________________________________

PURSUANT TO NOTICE to all parties in

interest, the above-entitled matter resumed for

hearing before THE HONORABLE RICHARD DANA on

Friday, November 9, 2012, commencing at 8:37 a.m.,

at 1045 Main Street, Nucla, Colorado, before

Candice F. Flowers, Certified Shorthand Reporter

and Notary Public within and for the State of

Colorado.


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562

1 APPEARANCES:

2 ENERGY & CONSERVATION LAW

By Travis Stills, Esq.

3 1911 Main AvenueSuite 238

4 Durango, Colorado 81301

and5 JEFFREY C. PARSONS, ESQ.

Western Mining Action Project

6 P.O. Box 349

Lyons, Colorado 80540

7 Appearing on behalf of SheepMountain Alliance

8

FAEGRE BAKER DANIELS LLP

9 By James R. Spaanstra, Esq.Olivia D. Lucas, Esq.

10 3200 Wells Fargo Center

1700 Lincoln Street

11 Denver, Colorado 80203and

12 ENERGY FUELS RESOURCESBy Curtis H. Moore, Esq.

13 Director of Communications & Legal

Affairs14 44 Union Boulevard, Suite 600

Lakewood, Colorado 80228

15 Appearing on behalf of Energy FuelsResources Corporation

16OFFICE OF THE ATTORNEY GENERAL

17 By Jerry W. Goad, Esq.

1525 Sherman Street18 7th Floor

Denver, Colorado 80203

19 Appearing on behalf of ColoradoDepartment of Public Health and

20 Environment

21 MATT SANDLER, ESQ.Rocky Mountain Wild

22 1536 Wynkoop StreetSuite 303

23 Denver, Colorado 80202

Appearing on behalf of Rocky24 Mountain Wild, Center for Biological

Diversity, and Colorado

25 Environmental Coalition


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563

1 APPEARANCES (continued)

2 ROBERT LOUIS GROSSMAN, Ph.D.

6215 Baseline Road3 Boulder, Colorado 80303

Party in Interest

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


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564

1 INDEX

2

3 WITNESSES PAGE

4 DR. ANN MAEST

Direct Examination by Mr. Parsons 565

5 Voir Dire Examination by Mr. Spaanstra 570

Voir Dire Examination by Mr. Goad 572

6 Direct Examination Cont'd by Mr. Parsons 574

Cross-Examination by Mr. Spaanstra 622

7 Cross-Examination by Dr. Grossman 641

8 CONSTANCE TRAVERS

Direct Examination by Mr. Parsons 652

9 Voir Dire Examination by Ms. Lucas 658

Direct Examination Cont'd by Mr. Parsons 659

10 Direct Examination Cont'd by Mr. Parsons 687

Cross-Examination by Ms. Lucas 711

11

DR. THOMAS POWER

12 Direct Examination by Mr. Stills 716

Voir Dire Examination by Mr. Moore 724

13 Direct Examination Cont'd by Mr. Stills 726

Cross-Examination by Mr. Moore 761

14 Cross-Examination by Mr. Goad 770

Cross-Examination by Dr. Grossman 77615 Redirect Examination by Mr. Stills 779

16

PUBLIC COMMENTS 785

17

18

19 SMA EXHIBITS ADMITTED

20 Exhibit 12 586

21

22

23

24

25


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565

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

2 - - -

3 THE HEARING OFFICER: Mr. Parsons.

4 MR. PARSONS: We would like to call

5 Dr. Ann Maest to the stand.

6 (Witness sworn.)

7 THE HEARING OFFICER: State your

8 full name.

9 DR. MAEST: Ann Maest, A-N-N,

10 M-A-E-S-T.

11 DR. ANN MAEST,

12 being first duly sworn in the above cause, was

13 examined and testified as follows:

14 DIRECT EXAMINATION

15 BY MR. PARSONS:

16 Q Thank you for being here, Dr. Maest.

17 Can you please tell us your occupation.

18 A I'm an environmental geochemist, and I

19 work at Stratus Consulting in Boulder, Colorado.

20 Q Can you tell us a little bit about your

21 educational background.

22 A Yes. I have an undergraduate degree in

23 geology from Boston University, and I have a Ph.D.

24 in geochemistry and water resources from Princeton

25 University. And it's a joint degree of the geology


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1 department and the environmental engineering

2 program.

3 Q Thank you. Can you describe your

4 employment history.

5 A After I got my Ph.D., I did a National

6 Research Council postdoctoral fellowship at the

7 U.S. Geological Survey in Menlo Park, where I was a

8 research geochemist for six years, and I

9 investigated the patent transport of natural and

10 anthropogenic contaminants in the environment.

11 THE HEARING OFFICER: You'd better

12 spell anthropogenic.

13 DR. MAEST: A-N-T-H-R-O-P-O-G-E-N-I-C

14 man-made contaminants or...

15 Q (By Mr. Parsons) Excuse me for

16 interrupting, Dr. Maest. I was going to mention

17 that there are several lawyers in the room, so you

18 will want to dumb down some of your testimony today

19 and perhaps --

20 MR. SPAANSTRA: I object. It's my

21 job to do the jokes.

22 THE HEARING OFFICER: Noted.

23 MR. PARSONS: I did take a cue from

24 Mr. Spaanstra's comments.

25 Q (By Mr. Parsons) But in all seriousness,


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567

1 if there are technical terms that you refer to, I

2 think it would be helpful -- and I'll remind you if

3 you don't -- but to maybe describe them in a little

4 more of a lay term, but sorry to interrupt you.

5 Please proceed.

6 A Okay. So let's see. I worked for the

7 U.S. Geological Survey where I investigated, in a

8 research fashion, the movement of contaminants in

9 the environment, mostly in surface water and

10 groundwater environments. And I became a project

11 chief there. And a lot my work was on -- I did

12 some work on mining, water pollution from mining,

13 and also arsenic contamination of groundwaters.

14 I worked at Environmental Defense Fund in

15 Washington, D.C. for about a year and learned about

16 policy aspects of hard rock mining. And then I

17 have been a consultant for about 20 years now, and

18 my primary area of expertise is in the

19 environmental effects of hard rock mining,

20 especially on water quality.

21 Q And could you maybe go into a little

22 detail as far as the work experience you have had.

23 You mentioned you worked on hard rock mine sites.

24 Can you give us a little more -- or flesh that out

25 a little bit for us.


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1 A Okay. Yeah. Maybe I should say a little

2 bit about my experience on uranium and radioactive

3 sites. For my dissertation at Princeton, I

4 conducted experimental studies of the effect of

5 temperature and organic compounds on radionuclides

6 and looked at the movement in the environment of

7 uranium, cobalt, strontium and cesium.

8 Then I worked for the New Mexico Attorney

9 General's Office evaluating characterization of the

10 Waste Isolation Pilot Plant in southern New Mexico.

11 And I evaluated the characterization studies and

12 laboratory studies that were being proposed to

13 simulate the long-term performance of that

14 high-level radioactive waste disposal site.

15 I also worked for the State of New Mexico

16 evaluating the environmental effects of about ten

17 underground uranium mines, and I estimated the

18 amount of contaminated groundwater from those mines

19 and the flux of groundwater over time.

20 I also worked for the State of New Mexico

21 in the same office on the Cavira Mill in northern

22 New Mexico and looked at the effects of leaking

23 solution ponds, some of which were lined and many

24 of which were not lined, on groundwater

25 contamination, and also the effect of leaking


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1 tailings impoundment and movement of wind transport

2 of contaminated tailings and the effect on soils.

3 On mining, I've -- as I think I

4 mentioned -- for the last 20 years, really, my main

5 area of focus has been on the water quality effects

6 of hard rock mining. And I have -- I'm the, I

7 guess I would say, primary consultant to the

8 Environmental Protection Agency on the water

9 quality effects and characterization of hard rock

10 mines for the regions, EPA regions.

11 I have also conducted a large study

12 comparing what was predicted in environmental

13 impact statements in terms of water quality and

14 environmental effects and comparing that with what

15 actually happened at a number of large hard rock

16 mining sites in the United States.

17 I have evaluated kind of every phase in

18 hard rock mining sites from proposed mines, active

19 mines, inactive mines, abandoned mines at probably

20 about 200 sites in the United States, Latin

21 America, Africa, and Asia. And I have also been on

22 settlement negotiations with mining companies on

23 some mines.

24 Q Have you served on any -- you mentioned

25 your work for the EPA. Any other federal


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570

1 government committees or task forces or things of

2 that nature?

3 A Yes. I guess the most recent, I have

4 been involved in a number of National Academy

5 committees that investigate the kind of mineral

6 resource and mining and oil and gas effects. And

7 I'm just finishing up my second three-year term on

8 one of the standing committees for the National

9 Academy of Sciences. It's called The Committee on

10 Earth Resources, and we generate studies that

11 recently included a study on Virginia uranium

12 mining -- uranium mining in Virginia.

13 MR. PARSONS: So as not to belabor

14 it, I think, based on that description of those

15 qualifications, I would proffer this witness as an

16 expert. I'm certainly willing to yield to some

17 voir dire.

18 MR. SPAANSTRA: Two, three very

19 short questions.

20 THE HEARING OFFICER: Go ahead.

21 VOIR DIRE EXAMINATION OF DR. ANN MAEST

22 BY MR. SPAANSTRA:

23 Q Doctor, that's a very impressive rsum.

24 Just to clarify, your expertise and your

25 qualifications aren't as a wildlife biologist?


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571

1 A Definitely not.

2 Q Okay. Just for my edification, I thought

3 WIPP was a transuranic waste -- a true waste site,

4 not a high-level site.

5 A Yes. That's right.

6 Q And I'm not playing games, because people

7 from Mexico might think, No, Yucca Mountain air.

8 A Right. You are correct.

9 Q One last, very important question: What

10 do you think of the Colorado School of Mines'

11 geochemistry? I'm the chair of the board of

12 trustees, so I wanted some...

13 A So you are asking me what again?

14 Q I'll withdraw the question.

15 A They have some excellent students come

16 out of there, and we have a number of them working

17 at Stratus, actually. They do a good job.

18 MR. SPAANSTRA: Thank you very much.

19 I have no objections.

20 THE HEARING OFFICER: I would think

21 not.

22 MR. GOAD: Can I ask, Your Honor,

23 what Dr. Maest is being qualified as an expert in?

24 THE HEARING OFFICER: Sure.

25 MR. PARSONS: I would proffer


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1 Dr. Maest as an expert in geochemistry -- shall I

2 say hydro-geochemistry.

3 And maybe, Dr. Maest, you can explain

4 what hydro-geochemistry is so we can have a sense

5 of that.

6 DR. MAEST: It's a -- I describe it

7 as the interaction of water and earth materials and

8 the application of chemical principles to earth

9 processes. And mostly I'm an environmental

10 geochemist and I focus on water resources, water

11 quality.

12 MR. PARSONS: I would also like to

13 offer Dr. Maest as an expert in the assessment of

14 pollution control measures at mining and mill

15 sites.

16 MR. GOAD: If I may do a little voir

17 dire, Your Honor?

18 THE HEARING OFFICER: You may.

19 VOIR DIRE EXAMINATION OF DR. ANN MAEST

20 BY MR. GOAD:

21 Q Dr. Maest, are you an engineer?

22 A I'm not an engineer, no.

23 Q Okay. Have you designed or worked on

24 waste retention systems at milling sites?

25 A I have not designed them, but I have


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1 evaluated plans for them and I have been involved

2 at many sites where those engineered designs have

3 gone wrong.

4 Q So did you evaluate ones that had gone

5 wrong or ones that were being proposed to be built?

6 A Both.

7 Q And you evaluated those in what capacity?

8 A Well, several capacities. One is looking

9 at best management practices that could be employed

10 and trying to come up with recommendations for

11 engineered measures that would be more protective

12 of the environment, and also looking at leaks from

13 engineered systems.

14 Q And this would have been from a

15 geochemical perspective?

16 A In terms of the effect on the

17 environment, yes. But my degree is a joint degree

18 with the environmental engineering program at

19 Princeton, so I have a little bit of training in

20 that, but more is my experience over the last 20,

21 25 years evaluating environmental impact statements

22 and mine operations and adaptive management plans

23 and being involved in mine sites throughout their

24 operational history.

25 Q I think I asked the question poorly. Let


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1 me ask it a different way.

2 Did you -- were you asked to review these

3 plans from a geochemical or a hydro-geochemical

4 perspective? You were brought in for your

5 expertise in those areas?

6 A You mean the plans? The plans for --

7 Q The waste retention system plan review.

8 A Yes.

9 Q Thank you.

10 MR. GOAD: I have nothing further.

11 THE HEARING OFFICER: Anybody have

12 an objection? Expertise noted.

13 MR. PARSONS: Thank you, Your Honor.

14 DIRECT EXAMINATION OF DR. ANN MAEST CONTINUED

15 BY MR. PARSONS:

16 Q Moving on to the substance of your

17 testimony, you prepared a report that was submitted

18 to the State of Colorado as part of the 2010 or

19 so -- 2010 review of the application materials; is

20 that correct?

21 A Yes.

22 Q In preparing that report, do the opinions

23 reached in that report accurately recount your

24 opinions?

25 A Yes.


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1 Q The written testimony rather accurately

2 recounts your opinions?

3 A Yes. I believe we have two reports. One

4 was kind of a follow-up memo, but yes, they do.

5 MR. PARSONS: Your Honor, I will

6 note that those reports are both in the record.

7 They were made part of the administrative record in

8 the previous lawsuit. I'm happy to provide copies

9 of those again.

10 THE HEARING OFFICER: If you have

11 them available, I would appreciate it.

12 MR. STILLS: I believe it's in

13 Exhibit 1.

14 THE HEARING OFFICER: Oh, it's in

15 the book? Okay.

16 MS. LUCAS: Are both of those

17 reports in Exhibit 1 or only the one that you

18 disclosed in --

19 MR. PARSONS: The report at Exhibit

20 1 is the December 15, 2010 report. The prior one

21 was, as noted in that December 15, 2010 report,

22 submitted on September 28, 2010. They are largely

23 similar. I would say that the December 2010 report

24 updated the September 2010 report, but I'm happy to

25 provide copies of both of them if that's helpful.


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1 MR. SPAANSTRA: Do you have it?

2 MR. PARSONS: I have it

3 electronically.

4 MR. STILLS: I will get you a record

5 cite to it here. It's in the record.

6 MR. SPAANSTRA: That's fine.

7 Thanks, Travis.

8 Q (By Mr. Parsons) So I would like to move

9 on to some of the substance of your testimony here

10 today, and I would like to start off with issues

11 related to the toxicity or the chemical

12 characteristics of the liquid waste associated with

13 the mill process.

14 Based on your review of the application

15 materials, are you familiar with the anticipated

16 chemical constituents' characteristics of the

17 raffinate, mill waste?

18 A Yes.

19 Q What materials did you review in looking

20 at those issues?

21 A The primary one was the Kleinfelder

22 report from 2008 that was authored by -- I think it

23 was Scott Dwyer. And that had information on the

24 chemical characteristics of the raffinate. I also

25 examined the SENES report that evaluated the


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1 potential effects of the raffinate on wildlife and

2 humans, actually.

3 Q And based on your review, what did Energy

4 Fuels' consultants do to characterize this waste?

5 A Well, they took ore from actually five

6 different mining sites that are nearby, but the

7 ones -- the only two that were reported in the

8 Kleinfelder 2008 report were Packrat and Pandora.

9 And they took the ore and processed it as you would

10 at a mill. So they ground it and they subjected it

11 to an acid leach using sulfuric acid. Then they

12 took it through a solvent extraction process, as

13 you would at the proposed Pinon Ridge Mill. And

14 then they extracted it for uranium and subsequently

15 vanadium, and then they created this so-called

16 barren raffinate. So that was sort of the starting

17 material. And that had a pH of 1.8, so it was

18 extremely acidic and had high concentrations of

19 metals and metalloids, such as arsenic, selenium,

20 cadmium, lead, manganese, and high sulfate

21 concentrations and total dissolved solids.

22 And then the Kleinfelder report did a

23 study where they increased the pH, so they made it

24 less acidic and more basic by adding lime to it.

25 And they moved it up to pH 4.5 and also to pH 7.5.


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1 And then they took samples of that solution and

2 they measured the concentrations of the metals and

3 the other constituents to see if they changed at

4 different pH values. So that's what they did.

5 Q And based on your review, what was the

6 result? I mean, what did they find that those

7 waste solutions would have in them from a chemical

8 perspective?

9 A They found for many of the constituents,

10 when you raise the pH, you dropped out some of the

11 metal, so you lowered some of the metal

12 concentrations in those solutions. For some

13 constituents, it was quite dramatic and others it

14 wasn't so dramatic. But a lot of the

15 concentrations were lowered at higher pH values.

16 And that's because the solubility or the amount

17 that you can fit in water decreases with increasing

18 pH for many of these contaminants of concern.

19 Q And your understanding -- based on your

20 review of the materials, your understanding of the

21 pH level that will be part of that waste discharge,

22 is it at the lower pH level or is it at the higher

23 pH level?

24 A It's definitely at the lower pH level.

25 My understanding is that the raffinate that would


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1 be put in the evaporation ponds would have, at

2 least initially, a very low pH. It would probably

3 be close to the 1.8 that they measured in the

4 raffinate that they made from those two mines.

5 And I believe I read that after it's

6 mixed with the tailings -- because what they would

7 do is mix the barren raffinate with the tailings

8 and kind of slurry them out to the tailings

9 impoundment. And the pH of that, because the

10 raffinate would interact with the tailings

11 materials a bit, it would go up a little bit to, I

12 think, 4.4, which is still a low pH.

13 Q And I'm interested in -- are you familiar

14 with how these concentrations compare to water

15 quality standards --

16 A Yes.

17 Q -- for drinking water and protection of

18 aquatic life in this instance?

19 A Yes.

20 Q And I have -- I understand that, as part

21 of your report, you had a slide that compares that.

22 I would like to pull that up for you to look at.

23 Is this the slide that's produced in your report?

24 A Yes.

25 Q Is there anything that's been added to


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1 this slide for demonstrative purposes?

2 A Yes. Actually, all of these are in our

3 report. This column is not in our report. But all

4 it is, is dividing these concentrations here, the

5 maximum concentration here, by the most protective

6 of either one of these. So this gives the maximum

7 magnitude of exceedance. And by that, I mean

8 simply that if it exceeds one, if it's one or

9 higher, that means it's equal to or higher than one

10 of these standards.

11 Q So to dumb it down a little bit, if

12 that's an exercise in division, I mean, it's

13 essentially --

14 A This column is just an exercise in

15 division, that's right.

16 Q All right. So what is the conclusion you

17 reach from this table?

18 A Well, these are some of the constituents

19 that were measured, and a lot of these are highly

20 toxic to humans and aquatic biota. This column

21 here is for humans, drinking water standards. And

22 this is for aquatic life, and that would be fish

23 and bugs that live in streams. And for some of the

24 constituents, this concentration is more protective

25 than the other one -- or is lower and this one is


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1 more protective for other metals and constituents.

2 But generally what you see -- and this,

3 again, is the raffinate that was made from Pandora

4 and Packrat at the low pH values. This is not

5 after they have increased the pH by mixing it with

6 lime or anything. You can see that some of these

7 constituents exceed water quality standards by tens

8 or thousands of times. The one that is probably

9 the highest -- we don't really look at pH here --

10 but is uranium, not surprisingly. And this is in a

11 barren solution, and it's 12,300 times higher than

12 the drinking water standard.

13 Q Let me interrupt you.

14 When you say "barren solution," you mean

15 after it's been processed to remove the

16 economically recoverable uranium?

17 A Right. That's what they call it. When

18 it's got the uranium and vanadium in it, it's

19 called pregnant solution; and then after they take

20 it out, it's called a barren solution.

21 So this is what would actually go into

22 the impoundments. It would be mixed with the

23 tailings and also would go out into the evaporation

24 ponds. So a number of these are many times higher

25 than water quality standards.


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1 THE HEARING OFFICER: If I can

2 clarify, you said that's at the low pH?

3 DR. MAEST: That's right.

4 THE HEARING OFFICER: 1.8 or 4.4?

5 DR. MAEST: 1.8. Yeah, that's up

6 here, 1.8.

7 THE HEARING OFFICER: Okay.

8 DR. MAEST: So it's not --

9 THE HEARING OFFICER: So it's not

10 yet diluted, mixed with the tailings?

11 DR. MAEST: Right. Not mixed with

12 the tailings and not neutralized in any way.

13 THE HEARING OFFICER: Okay.

14 Q (By Mr. Parsons) Let's get to that point

15 a bit.

16 What would you expect or what

17 concentrations -- are these concentrations

18 representative of what you would find in the

19 evaporation ponds or tailings over time?

20 A They are not really, because the

21 evaporation ponds are designed to evaporate this

22 water. So, if anything, the concentrations are

23 going to get higher over time for most of these

24 constituents. So this is just kind of initially

25 when you would put it out in the evaporation ponds.


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1 This might be what it looks like. And I should say

2 that this is only two samples, so it's only two

3 samples of ore that might or might not be going to

4 this mill.

5 Q I would like to get to that. You

6 mentioned that the information you reviewed in the

7 application included two samples: One from the

8 Pandora Mine and one from the Packrat Mine. Those

9 are the only numbers you saw in the report -- or in

10 the application materials?

11 A Yes. Well, for the Dwyer memo, yes.

12 Q Okay. Thank you.

13 A That is true.

14 Q But you indicated that there is

15 information that there were additional samples

16 collected as well.

17 A Right, from three other mines.

18 Q And did you find those numbers

19 represented anywhere else besides the application

20 materials?

21 A I did. We found a report that Energy

22 Fuels had done for the Environmental Protection

23 Agency in 2010, and it was about characterization

24 of the raffinate. And it wasn't part of the

25 license application materials, but it was something


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1 that was created by Energy Fuels for EPA. And in

2 that report, there was some information on the

3 characteristics of the other raffinates, the other

4 three raffinates, and Pandora and Packrat.

5 MR. PARSONS: So this slide I would

6 like to proffer as an excerpt of that report that

7 was submitted to EPA by Energy Fuels. I have

8 handed counsel for Energy Fuels a copy of the text

9 of that report. There were some quality control

10 documents attached to that. And I would like to

11 admit this, the report including this slide, as

12 exhibit -- what are up to? 11?

13 THE HEARING OFFICER: 12.

14 MR. PARSONS: Thank you. It was

15 submitted to the EPA. It's a document in the EPA

16 files and includes the information that was not

17 included in the Dwyer report. Is there an

18 objection --

19 MR. GOAD: Do you have a copy?

20 MR. SPAANSTRA: Just note that we

21 are seeing this for the first time. That said --

22 and it is not relevant to this proceeding, because

23 it doesn't address Energy Fuels. But with that, no

24 objection to you putting it in.

25 MR. PARSONS: I would note that the


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1 EPA report -- sorry -- the Energy Fuels report

2 submitted to the EPA states that these samples were

3 collected from five mines that are represent --

4 they say representative of the ore that would be

5 processed in the Pinon Ridge Mill.

6 So I think that it's directly relevant to

7 the material that would be -- and representative of

8 the material that would be processed at the mill.

9 MR. SPAANSTRA: As I said, I have no

10 objection.

11 THE HEARING OFFICER: You are

12 offering the entire report?

13 MR. PARSONS: I am.

14 THE HEARING OFFICER: Not just this

15 slide. I just want to make...

16 MR. STILLS: I believe the slide is

17 already in evidence in the record.

18 MR. PARSONS: The slide is not.

19 MR. STILLS: It's not? Oh, I'm

20 sorry. My apologies.

21 THE HEARING OFFICER: Is the report

22 in the record?

23 MR. PARSONS: It is not. It was

24 submitted to EPA but apparently never provided --

25 based on the administrative record in the case and


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1 the discovery responses, or lack thereof, that we

2 got from the State, it was never submitted to the

3 State. So we have identified this report as

4 providing information that apparently was not

5 considered to date.

6 MR. SPAANSTRA: Your Honor, we

7 believe we provided copies to CDPHE, so it's

8 probably in the record.

9 THE HEARING OFFICER: But you don't

10 have any objection to the report coming in here, do

11 you?

12 MR. SPAANSTRA: No.

13 MR. GOAD: No objection.

14 THE HEARING OFFICER: Anybody?

15 Okay. It's in. And at some point, if you'd give

16 me a hard copy, I'd appreciate it.

17 (SMA Exhibit 12 was admitted.)

18 MR. GOAD: What is the date of the

19 report?

20 MR. PARSONS: The date of the report

21 is August 2010.

22 Q (By Mr. Parsons) And so, Dr. Maest, when

23 you look at these numbers, what do you see --

24 relative to what was analyzed in the Dwyer/Energy

25 Fuels report, what does this tell you?


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1 A Okay. Well, this is a little different.

2 This is part of the experiment that I talked about

3 where they neutralized raffinate and they raised

4 the pH to 4.5 and 7.5. So these top five here are

5 all the same pH value, 4.5. And they measured --

6 they didn't have all the constituents in this

7 report for some reason. But they did have the

8 radium 226 concentrations in the solution at these

9 pH values. And what I wanted to note is that the

10 Pandora and the Packrat raffinate at these pH

11 values have the lowest reading of 226 activity of

12 the five.

13 I don't know what the other constituents'

14 concentrations are for these other three ores, but

15 we just -- I just note that those are the lowest.

16 So I think the issue here is that we don't have a

17 good characterization of the raffinate or the

18 tailings material, for that matter, that is going

19 into these waste impoundments.

20 Q What additional characterization do you

21 think should have been done?

22 A Well, we should have received -- and

23 maybe it is in the record. I don't know. But we

24 should have received a full analyte list of the

25 results of their experiment. And the reason they


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1 were doing this experiment was to see if when you

2 increased the pH, if it was more environmentally

3 benign than it would be at the really low pH. So

4 we should have gotten the information for not just

5 two of these ores but all five of the ores to

6 really get a better picture of the characteristics,

7 chemical characteristics, of the raffinate.

8 In addition, I didn't see anything that

9 mixed this raffinate with the tailings, okay?

10 Usually, what's done at mines is you can send the

11 ore and you would just send core samples to --

12 there are a number of commercial labs and they will

13 literally make tailings for you. So you can make

14 the tailings and then mix them with this raffinate

15 and then take samples of that and see what the

16 concentrations are. So we don't have a good

17 characterization of the mixed raffinate and

18 tailings. We don't have a good characterization of

19 the raffinate because we only have a couple of

20 samples. And we don't have any characterization of

21 what happens to these over time.

22 When you mix really low pH waters with

23 tailings, you are going to be pulling out or

24 leaching contaminants from those tailings, and that

25 will be in the solution water. And we don't have


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1 any measurement of that, at least that I have

2 found.

3 Q Thank you. I would like to move on a

4 little bit to what is -- are you familiar with the

5 concept of contaminant pathways or exposure

6 pathways?

7 A Yes.

8 Q Could you describe what that is.

9 A That's something that you would consider

10 early on when you are evaluating the potential

11 environmental effects of a site. You would draw

12 kind of a picture that would be the conceptual

13 model of how these contaminants would move around.

14 You look at the source materials, and in this case

15 for the mill, it would be the raffinate and the

16 tailings and that mixture.

17 And then you would ask yourself, well,

18 how could this get out into the environment and how

19 could it move through soils, into groundwater,

20 through groundwater to surface water to expose to

21 biota, et cetera. So that's what we are talking

22 about with contaminant pathways.

23 Q In your review of the materials, did

24 Energy Fuels evaluate potential contaminant

25 pathways for the movement of those contaminants


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1 from the tailing impoundments and evaporation

2 ponds?

3 A Yes, they did to some extent, and that

4 was in the environmental report.

5 Q I'm pulling up a figure on the screen

6 here. This material is in the record. It's in the

7 environmental impact analysis, Figure 57 at Page

8 115.

9 Is this an accurate depiction of what was

10 in that?

11 A Yes, this is one of those diagrams. It's

12 not a nice picture. Instead, it's a bunch of boxes

13 and arrows. And this was in the environmental

14 impact assessment that was done by CDPHE, but it

15 was taken directly from the environmental report.

16 Q And this slide deals with human

17 receptors. There is another slide, also from the

18 environmental impact analysis. This is Figure 58

19 on Page 116 of the environmental impact analysis,

20 and this appears to be slightly different from the

21 previous.

22 Can you --

23 A Right.

24 Q -- identify and describe that difference.

25 A This is a lot of arrows kind of going in


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1 a lot of directions here, but maybe one to focus on

2 down here, it says, run off/seepage from

3 radioactive product material storage areas. For

4 example, those would be the raffinate evaporation

5 ponds and the tailings impoundments. So they are

6 considering runoff and seepage, and you follow this

7 arrow, okay, and it goes up to soil.

8 So they did evaluate that possible

9 pathway, that there could be leaks or overflows or,

10 you know, breach of, you know, somehow getting

11 those contaminants out to soils. And then it goes

12 to wind and surface soil, mammals, and birds.

13 There's actually no pathway in these ecological

14 receptors that evaluates the movement of leaks

15 through the soil to groundwater and then to surface

16 water.

17 And Connie Travers is going to talk a lot

18 more about that later than I am, but I just wanted

19 to bring that up as a missing pathway.

20 Q Were these slides also included in the

21 application materials?

22 A Yes, they were also -- these were taken

23 directly from the environmental report.

24 Q So the EIA took these slides and just

25 essentially copied them directly from Energy Fuels'


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1 application without any alteration?

2 A That's correct. They didn't seem to do

3 their own evaluation of possible contaminant

4 pathways in the environment.

5 And what -- I guess what we are most

6 concerned about here is the possibility that there

7 could be leaks of all those constituents that we

8 were talking about on the previous slides -- you

9 know, arsenic, cadmium, lead, uranium, vanadium, et

10 cetera -- through the bottoms of these impoundments

11 and go into the unsaturated zone and then move to

12 groundwater or to some of these arroyos. Those

13 pathways were not considered for the ecological

14 receptors.

15 Q In your experience, is that the type of

16 review or analysis that is typically done? Do they

17 typically analyze all of those potential receptors?

18 A Absolutely.

19 Q So this one excludes some potential

20 receptors?

21 A Right. And I think the reasoning behind

22 it was -- well, number one, we have a great

23 engineering system and we don't think it's going to

24 leak below the lowest liner. And the other --

25 Q I'm sorry. When you say, we have a great


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1 one, are you saying -- are you testifying to that

2 or are you characterizing?

3 A No. I'm sorry. Energy Fuels is saying

4 that they have a very good engineered system that

5 will not leak below the lowest liner and it's a

6 double-liner system.

7 The other issue is that, as was mentioned

8 a lot of times yesterday, Energy Fuels believes

9 that there is basically no groundwater on most of

10 the site.

11 Q So moving on a little bit, you have

12 talked about the relatively high levels of chemical

13 constituents in these waste streams, and you

14 touched on it before, but I wanted to get to it

15 more directly.

16 Are there ways to reduce those

17 concentrations to make that waste stream less

18 toxic?

19 A Yes, there are.

20 Q Can you give me some examples?

21 A Yeah. I mean, the most -- the cheapest

22 and the easiest one is the one that was evaluated

23 already, which is neutralization of the raffinate,

24 and lime is not very expensive. The sludge that

25 would be created from this could probably be put on


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1 the tailings impoundment, so you would raise the pH

2 and then a lot of the metal and other constituents'

3 concentrations would decrease. So that's one

4 approach, is neutralization.

5 Another one is the use of barium chloride

6 to remove radium. That's done routinely. In fact,

7 I think it was mentioned here yesterday for the

8 mine water, that if you added barium chloride, you

9 would be able to precipitate out uranium and radium

10 and maybe use that as feed to the mill. So there

11 are a number of methods that are used.

12 Q You mentioned that neutralization was

13 considered and that it is not a difficult or

14 expensive measure. Was that something that was

15 included in this plan for the mill?

16 A It was considered, but I believe what

17 Energy Fuels decided in the end was that it didn't

18 reduce the concentrations below wildlife ecological

19 thresholds and, therefore, it wasn't really worth

20 doing.

21 Q When you say ecological --

22 A It did for some, depending on the pH, but

23 not for all of them.

24 Q So neutralization -- what effect would

25 neutralization have?


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1 A It would raise the pH, so it would be

2 less acidic, and lower the concentrations. And

3 this was mostly thinking about putting this

4 raffinate out in evaporation ponds.

5 Q So it would result in the waste streams

6 being less toxic?

7 A Definitely.

8 Q And what might be a benefit of having

9 less toxic waste streams associated with a uranium

10 mill?

11 A Well, there are a number of benefits.

12 One is that the material -- well, the raffinate

13 that would be in the evaporation ponds would be

14 less toxic to birds and other wildlife that might

15 encounter it. Also, if it leaks through any of

16 these impoundments to the environment, the

17 concentrations would be lower and the pH would be

18 lower. And it would be less likely to leach

19 additional contaminants from the environment.

20 Another advantage that I think is really

21 important is that the pH would be lower and you

22 wouldn't have as much destruction of these liners

23 that are put in place.

24 Q You said the pH would be lower?

25 A I'm sorry. The pH would be higher.


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1 Q I see.

2 A Right. It would be less acidic. And the

3 potential destruction of the liners that would be

4 in contact with this raffinate and the tailings

5 mixed with raffinate, it would be less likely that

6 those liners would be adversely affected by this

7 really acidic solution.

8 Q What is the difference between -- should

9 there be a spill, is it between having higher

10 toxic -- a solution with a low pH that is more

11 acidic and higher toxicity to clean up a spill like

12 that versus cleaning up a spill that has -- or a

13 contamination that has a higher pH and less

14 toxicity? Is there a difference, in your

15 experience, in the effort and cost associated with

16 cleaning those?

17 A I mean, either way, if it gets into the

18 environment, it is not a happy situation. But you

19 would have less treatment of the solution that you

20 would need to extract from the unsaturated zone or

21 groundwater, and that would lower your remediation

22 costs.

23 Q We heard yesterday that the liners were

24 tested, essentially, for compatibility with the

25 anticipated acidic toxic waste streams.


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1 A Right.

2 Q Did you review those testing data?

3 A Yes, I did.

4 Q Can you tell me your -- in your opinion,

5 what -- how you would rate those, that testing, or

6 what they did and how it compares?

7 A What they did is they took the liner

8 material -- I believe it was the geomembrane -- and

9 they wetted it up a little bit. And then they

10 exposed it to this pH 1.8 raffinate, and they

11 exposed it for 48 hours, so two days, to this

12 acidic solution. And then they looked at the

13 integrity of the liner afterwards.

14 NRC recommends that you do this kind of

15 testing, but what they say is that it has to be

16 done for a sufficient period of time. And they

17 also note that degradation can occur rapidly after

18 about nine months of exposure. So I don't believe

19 that a two-day exposure of this raffinate to the

20 proposed lining materials is really representative

21 of what you would have out in the environment over

22 time.

23 Q And, again, with regard to the liners, if

24 you have -- what's the difference in integrity of

25 the liners between a low pH that is a high acidity


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1 solution versus a more neutral solution? How do

2 the liners hold up under those various conditions?

3 A If they are exposed to -- and I'm not an

4 expert in this engineering piece of it. But if the

5 liners are exposed to very low pH solutions for a

6 long period of time, they will become brittle and

7 crack and more holes will be in the liner than if

8 they are not exposed to an acidic solution.

9 Q Moving on a little bit. You talked about

10 how -- you know, we have got a solution here that

11 would be, again, highly acidic and toxic. Were

12 there some measures that you identified -- and we

13 talked about the ecological receptors.

14 Were there some measures included to help

15 protect, for instance, birds or other wildlife?

16 A Yeah. Part of the plan was to put a

17 netting over the evaporation ponds and also to have

18 bird balls over the -- kind of the water, what's

19 called the tailings supernate, the water sitting on

20 the top of the tailings cells -- to have bird balls

21 over those to cut down on the exposure of birds to

22 both of those waste materials.

23 Q Would neutralization be an accepted or,

24 in your experience, a typical measure that would be

25 considered and adopted to reduce that threat of


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1 exposure?

2 A Yes. And the NRC recommends that

3 tailings that are created by acid leach should be

4 neutralized before they're put in cells.

5 Q And do we have an acid leach mill system

6 proposed here?

7 A Yes.

8 Q Now, you mentioned -- and we heard

9 yesterday a little about -- and you were here

10 yesterday listening to testimony?

11 A Yes.

12 Q You heard about the bird netting, how

13 originally it was proposed at 2-inch and then it

14 was changed to three-quarters inch?

15 A Yes.

16 Q And that presumably was designed to help

17 protect larger birds or keep the impacts from --

18 the wildlife being caught in this netting, to limit

19 those to smaller bird or bats.

20 Would reducing the size of that netting

21 have an effect on the chemical characteristics of

22 those ponds?

23 A It would indirectly, and that's because

24 the -- when you reduce the mesh size to

25 three-quarter inch, it's more like a solid fabric


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1 than if it's 2-inch mesh. So it's good in terms of

2 excluding the birds, but it's not very good in

3 terms of evaporation.

4 The proposal is that 63 gallons per

5 minute would be evaporated from these raffinate

6 solution ponds. With a smaller mesh, you are going

7 to definitely decrease the evaporation rate.

8 Q Did you see an analysis of the effects of

9 having that lower evaporation rate?

10 A No. And what should be done is the water

11 balance needs to be recalculated with this new

12 proposed mesh that we have heard about, and I did

13 not see that recalculation of the water balance

14 anywhere. And that's important because then you

15 might need a different amount of water or you might

16 have more water there -- you would have more water

17 there than you had planned for originally.

18 Q In your expert opinion, if you were to

19 change a characteristic of the evaporation ponds in

20 that way, would you expect to see the recalculation

21 component and incorporate it into the design?

22 A Yes. And that's something that should be

23 done at this stage, not after operations start.

24 Q Moving on to some of the waste

25 containment measures that we're talking about that


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1 have been proposed for this mill, are you familiar

2 in your review of the application materials with

3 the waste containment plan?

4 A Yes.

5 Q Can you describe it briefly with respect

6 to the tailings, in particular.

7 A Okay. Well, there are tailings cells.

8 The first tailing cell is divided into two, and

9 then there are two other potential future cells.

10 And the plan for the containment is a double liner,

11 a 60-mil HDPE liner on the top, and then a material

12 in between the two that has a higher permeability

13 or a higher ability to have water move through it,

14 and then underneath that, another 60-mil HDPE

15 liner, and under that, a geo-synthetic liner that

16 basically would be a manufactured clay liner under

17 that. In between those two HDPE liners would be a

18 leachate collection and removal system, and they

19 could pump any water that went through the first

20 liner through that to decrease the pressure on the

21 lower liner.

22 Q Is that a similar design proposed for the

23 raffinate ponds?

24 A Yes.

25 Q So we have got double liners and a leak


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1 detection system in between them, just to make sure

2 I'm clear.

3 A Yes.

4 Q In your experience, are -- do liners

5 leak?

6 A Yes.

7 Q Would you say that these measures are

8 failsafe?

9 A No. I think -- it used to be that there

10 was a lot of denial about liners leaking, and now

11 everyone pretty much admits, okay, liners leak. So

12 I don't think there is a lot of controversy about

13 that anymore.

14 Q And did you find, in your review of the

15 materials an acknowledgment -- and I think we may

16 have heard it yesterday in testimony -- that Energy

17 Fuels concedes and recognizes that, yes, liners

18 leak?

19 A Yes, they did. They have.

20 Q How does that square with a position that

21 there is no need for the -- to analyze that

22 ecological receptor of potentially having

23 contamination leak through those two liners?

24 A Well, I mean, in my opinion, it doesn't

25 square with it. But I think the thinking behind it


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1 is, we have a leachate collection and removal

2 system in between these two liners and then a kind

3 of manufactured clay liner underneath, and we don't

4 think it is going to go through the lower liner or

5 this clay liner underneath that.

6 Q Are you familiar with other liner designs

7 that would account for that possibility, for --

8 that is to say, account for, you know, the

9 possibility that the lower liner would also have

10 leaks?

11 A Yes, those are becoming more common.

12 Q And where, in your experience, have you

13 seen such a liner designed and installed?

14 A I mean, there -- now even municipal

15 landfills are using double liners with leachate

16 collection systems and -- you know, in between the

17 liners and underneath. And the one that I made

18 into a demonstrative is the Fernald site in Ohio,

19 which is a low-level radioactive waste disposal.

20 There's kind of mixed waste, but part of it is

21 low-level radioactive waste. So that is similar to

22 what would be at the Pinon Ridge Mill.

23 And this, I think, would be definitely

24 considered state of the art right now. And there

25 are -- okay. And just in the general sense,


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1 looking at the waste materials from farther away

2 here, there is a double liner, there's leachate

3 collection and removal in between those two liners.

4 But the thing that they have that Energy Fuels has

5 not proposed is this horizontal monitoring pipe.

6 It can be slotted at different locations here so

7 that when and if leachate goes through that bottom

8 liner, you have a very close-by way to get that

9 material out of there, to get the solution out of

10 there and see if it is leaking and see what the

11 concentrations are. So that's kind of the overview

12 of it.

13 If you look -- it's probably not very

14 easy to see here, but there's a couple of liners,

15 there's a number of clay liners and then synthetic

16 liners all lined up on top of each other. There's

17 opportunity to -- a leachate removal system in

18 between those. And then under the lowest liner,

19 there's another system to prevent migration. And

20 even under that, there is another pipe that would

21 remove any leaking solution that would get through

22 the lowest liner and send that to a collection

23 facility.

24 Q In a situation like a uranium/vanadium

25 mill, what would -- you know, in general terms,


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1 what would be the benefit of having a detection

2 system under that lowest -- or what are the

3 potential consequences of not having such a system

4 in place?

5 A If you don't have that kind of a system

6 in place, you don't know if you have any leakage

7 below the lowest liner. And then you don't know --

8 and I really do believe the way the monitoring

9 system is set up right now, that a lot could happen

10 without Energy Fuels knowing about it.

11 If you have a leak detection system and a

12 leachate collection and removal system underneath

13 the lowest liner, you at least know if you are

14 having leaks below that lowest liner.

15 Q Are there other additional systems that

16 can be put in place to minimize the risk associated

17 with, you know, accidents or leaks or spills,

18 particularly with respect to leaks from piping?

19 A With piping, you can have double-walled

20 piping. You can have lined collection ditches, and

21 Energy Fuels has proposed a line collection ditch.

22 And I believe -- at least what I have most recently

23 read -- it was proposed to be single-walled piping.

24 So that's another possible contaminant transport

25 pathway, is these pipes that are bringing tailings


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1 out to the tailings impoundment and raffinate out

2 to the evaporation ponds. They could breach. So

3 you need to make sure that those are best practice

4 as well.

5 Q Are there any other aspects of the

6 contaminant containment design that you found to be

7 less than comprehensive in your review of the

8 materials?

9 A The tailings impoundment cells are mostly

10 below grade. They are 80 percent below grade, but

11 20 percent of the material or the impoundment would

12 be above grade. The best practice there would

13 definitely be to have the entire impoundment below

14 grade. If you don't have it all below grade, then

15 the berms could potentially breach and the

16 radioactive material could be released into the

17 environment.

18 I did not see an evaluation of that

19 possible pathway. It might be there, but I

20 certainly didn't see it. And I think we heard a

21 little bit from Mr. Filas about why they decided

22 not to put them entirely below grade. But that

23 would definitely be best practice at this type of

24 facility.

25 Q Back a little bit, just to finish up with


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1 the liner systems, I guess to start: Is the liner

2 system with the leak detection below it, is it

3 unique? Would that be something that you would

4 expect to -- is it unique in the mining industry?

5 A No, it's not. You know, gold mining --

6 gold mines that have heap leach operations have

7 pregnant leach solution ponds that are double-lined

8 with leachate collection underneath with what's

9 called vadose zone or unsaturated zone monitoring.

10 So those have been in use for a long time, and so

11 it's not unique, no.

12 Q You used the word "vadose zone." Can you

13 tell me what that means.

14 A That would be the area underneath the

15 soil, and it can include the soil, that would be

16 between the ground surface and the regional water

17 table. Connie Travers is going to talk a lot more

18 about that, but that's a quick definition.

19 Q Okay. In your experience, have similar

20 systems like that design that you saw, proposed

21 design for the Pinon Ridge Mill, are they of such

22 integrity that it would render planning for failure

23 a superfluous task, you know, unneeded to look at

24 the potential for failure?

25 A No. You always have to plan for failure.


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1 You hope for the best, but you can't base your

2 monitoring program on hope. In fact, the Nuclear

3 Regulatory, NRC, recommends that -- in fact, says

4 that you can't assume that liners won't leak. So

5 the liners under the tailings impoundment, the

6 liners under the evaporation ponds, you have to

7 assume they will leak and set up the monitoring

8 program so that you can detect, at least detect.

9 And then you have a chance of fixing it more

10 rapidly and having less contamination of the

11 environment.

12 Q And does that apply to both the first

13 liner -- are they talking about only the first

14 liner or does that apply to both -- in a

15 double-lined system, would that same recommendation

16 apply to both liners?

17 A No. It applies to both. You have to

18 assume that, even though you have a double liner

19 and a leachate collection system and removal system

20 in between, that it still could leak through that

21 bottom liner.

22 Q Are you familiar with other areas that

23 have had problems with their liner systems, other

24 uranium mills, even, that had have such problems?

25 A Yes. Although they don't have such a


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1 great engineering system, but there are

2 certainly -- in fact, the work that I did at the

3 Cavira Mill in New Mexico, they had lined solution

4 ponds that leaked. So it wouldn't be the first

5 time we have heard about this.

6 Q Are there states that indeed would --

7 state laws pertaining to lining design and such

8 leak detection?

9 A Yeah, there are -- I didn't do an

10 exhaustive search, but the State of Oregon requires

11 this for cyanide ponds, but not only cyanide. Any

12 solution pond that would have toxic solution waste

13 in it, you are required to have a double liner and

14 a leachate collection and removal system underneath

15 the lowest liner. And California also has

16 something similar.

17 MS. LUCAS: Your Honor, we would

18 like to register an objection that she's testifying

19 as to a legal conclusion.

20 MR. PARSONS: I would say she is

21 merely testifying as to her understanding, that

22 there are other states in the country that require

23 this type of design she is talking about, and that

24 is her understanding of the requirements in the

25 industry.


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1 THE HEARING OFFICER: To the extent

2 it's a legal conclusion, I will sustain it. To the

3 extent it's -- and that gets us to the question of

4 whether it's regulatory or statutory. The

5 witness -- her experience, it's good enough, but

6 I'll take the objection. I don't have a good

7 answer.

8 Q (By Mr. Parsons) I have some questions

9 about the -- you mentioned a little bit about the

10 tailings impoundment being above grade and the

11 potential for failure of the retention berms.

12 What is a way to mitigate that potential?

13 A You mean if they are --

14 Q Well, in this case, we have a facility

15 that is mostly below grade. Is there a way to

16 better protect against such failure?

17 A I mean, the best approach would be to put

18 it 100 percent below grade. And if you are not

19 doing that, then you would need monitoring, you

20 know, around the sides of the impoundment. But the

21 best approach would definitely be to put the entire

22 thing below grade.

23 Q And what's the consequence of having

24 above-grade facilities?

25 A I think the main concern is storms that


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1 could come through. The impoundments are proposed

2 to be there for 40 years. We are in a changing

3 climate environment. We don't know what the future

4 climate could be, but there could be increased

5 frequency of strong storms. So the idea is that

6 those berms could be breached during a strong

7 storm. If they're below grade, there is a much

8 lower chance of that.

9 Q In your review of the materials, was that

10 scenario addressed? Was that contingency planned

11 for?

12 A You mean to monitor or put it below

13 grade?

14 Q I'm sorry. Was the potential for severe

15 storms or otherwise breaches of the retention

16 berms, was there a plan in place to protect against

17 that?

18 A I believe what we heard is that there was

19 a plan for visual observation of the berms. I did

20 not see anything that was a plan to shore up the

21 berms in a more stable way or to increase

22 monitoring. I also don't recall seeing a pathway

23 for breaching of the berms in the tailings

24 impoundment and getting contaminants into the

25 environment. So I don't think it was thoroughly


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1 evaluated.

2 Q Thank you. One of the aspects that we

3 saw identified with respect to this site is some of

4 the faults that are -- that exist. Did you

5 identify any faulting in your review of the

6 materials that may exist at the site?

7 A Yes, and I think we have seen maps

8 showing the faults. There are two faults that run

9 through this site, and I didn't see anything about

10 potential movement of contaminants along those

11 faults. And I believe that one of the tailings

12 impoundments, the fault goes right underneath that.

13 And the concern there isn't necessarily movement

14 along the fault, but if there is a leak, getting

15 that into the fault and then moving it offsite.

16 Q Okay. I'm coming to a close on this

17 aspect.

18 Would you consider this facility state of

19 the art, in your experience?

20 A It is definitely not state of the art.

21 Q Would you, in your expert opinion --

22 what's your opinion as to whether Energy Fuels has

23 adequately analyzed potential impacts from

24 potential contaminant releases at the site?

25 A I think there is some very important


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1 missing pathways that were not evaluated in the

2 environmental report or in the EIA. The most

3 important ones being the movement of contaminants

4 from leaks through these impoundments, through the

5 soil material, the unsaturated zone, to arroyos.

6 That was not evaluated.

7 Q I would like to move on to a portion of

8 your written testimony. You spoke about the term

9 "adaptive management."

10 Are you familiar with the term "adaptive

11 management"?

12 A Yes.

13 Q Can you describe what you mean by that?

14 A It's a management approach for industrial

15 and other types of facilities that assumes that we

16 don't know everything up front and that as a

17 facility is operated, you have a better idea of how

18 management and monitoring might change.

19 However, it's not an excuse not to plan

20 and not to do monitoring; quite the opposite. The

21 idea is that you would look at all the possible

22 contaminant pathways and you would, as best you

23 can, come up with the state-of-the-art monitoring

24 and operation. And then as the facility opens and

25 has experience, you know, to have, let's say,


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1 if/then. You know, if this happens, here is what

2 we are going to do.

3 Q Is that -- would that be a typical -- or

4 in your experience, is that a design practice

5 that's typically used in the industry?

6 A It is becoming more and more common, and

7 I would consider it a best management practice.

8 Q And is it an important aspect? Would you

9 consider it an important aspect of a mill design?

10 A It is because -- I mean, for example, I

11 didn't see anything that says, you know, if the --

12 you know, we have the two liners and the leachate

13 removal collection system in between the two. So

14 there is a certain rate that you would be pumping

15 at that would be called an action level. And above

16 that action level, then something would have to

17 happen, okay? You know, you would have to drain,

18 let's say, the evaporation cell and maybe fix the

19 liner. I didn't see anything that would say, all

20 right, uh-oh, the leachate collection removal rate

21 is increasing quite a bit here. What do we do?

22 There was one table, and I think it was

23 Volume 2, Appendix B1 of the tailings management

24 that said leachate action level. It mentioned it,

25 but I didn't see anywhere else where it said,


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1 here's the level that we think we want to use and

2 here is what we're going to do if we reach that

3 action level.

4 Q Some of the work you have done -- has

5 some of the work you have done dealt with

6 identifying potential financial liabilities for a

7 mill in case things don't go as planned?

8 A To some extent. I'm not a financial

9 expert on this, but I've certainly evaluated

10 remediation costs at a number of mines.

11 Q So your experience is more when something

12 goes wrong, what are the costs associated with

13 that?

14 A Yes.

15 Q Would an adaptive management plan be a

16 component of ensuring that the costs are controlled

17 with regard to a uranium mill?

18 A It would be. If you know as quickly as

19 possible when something does go wrong and you have

20 a plan for how you are going to fix it, then that

21 definitely decreases on the remediation costs in

22 the end.

23 Q Have you reviewed any information

24 regarding final remediation costs at other uranium

25 mill sites?


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1 A Yes.

2 Q In your report, your written testimony

3 that you submitted, did you include some of

4 those -- examples of those costs?

5 A Yes, I did.

6 Q And is this that table you have?

7 A Yes, it's very hard to see, but...

8 Q So that is that table from your report.

9 Can you describe what you see here and

10 why you include it and what point you were making.

11 A These are a number of mill sites in

12 different states around the country, uranium mill

13 sites. And this -- these two columns here are the

14 uranium ore process. The first one is the ore that

15 was mined that went to these mills, and this is how

16 much uranium was produced. This is -- the

17 remediated material volume is how many million

18 cubic yards was remediated and the total cost for

19 remediating those.

20 You can see that there is a pretty wide

21 range. The highest cost is this one in Grand

22 Junction, and I think it was Kim Morrison that

23 mentioned they had to move a lot of material for

24 that one, and that was pretty costly.

25 Q So just to clarify, the numbers on the


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1 right are the final remediation costs, and those

2 numbers, it says, are in thousands of U.S. dollars?

3 A Right. That's 540 million U.S. dollars.

4 Q And are those costs higher than what you

5 understand to be the bond in place at this

6 facility?

7 A Most of them are quite a bit higher. I

8 believe the bond for Energy Fuels at Pinon Ridge is

9 now 15 million, and there are some that are down in

10 that range. But they aren't -- you know, there are

11 also quite a few higher than that.

12 Q Of course, we recognize -- or do you

13 recognize that all of these sites -- I mean, there

14 hasn't been a new uranium mill built in the United

15 States in some time.

16 A Right. In 30 years it's my understanding

17 there hasn't been a uranium mill that's been

18 permitted. So a lot of these are -- somebody might

19 say, well, it's not really fair, because they

20 didn't have the same environmental protections or

21 engineered barriers, for example, as a mill that

22 would be permitted now. But I think that the main

23 message is that if things do go wrong, that it is

24 quite expensive to remediate these sites.

25 Q So, again, with respect to the adaptive


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1 management strategy you discussed, would you

2 consider that a necessary component of a competent

3 mill design and mitigation plan?

4 A I do.

5 Q I guess, again, based on your testimony

6 here today, would you consider that -- with your

7 review of the materials, do you think that the

8 planned designed for the Pinon Ridge Mill take into

9 account all of the aspects that they should have?

10 A No, they don't. There are a number of

11 important missing protective measures that could

12 have been incorporated in the design, that should

13 have been incorporated in the design, to make it

14 best practice and most protective in the

15 environment. I mentioned a few of them. I guess

16 the ones that I'm focusing on are: What happens

17 if, you know, these really acidic, high-metal

18 concentration solutions leak out into the

19 environment? We need more protections than what

20 there is now proposed.

21 Q And why are those protections important?

22 A Because you could have environmental

23 receptors, including groundwater, surface water,

24 and ecological receptors -- birds, wildlife, et

25 cetera -- that could be exposed to these toxic


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1 materials.

2 Q You know, we talked about how some of

3 these mills are old or kind of a previous life of

4 the uranium mining industry. Is there any

5 difference in the waste between what they produced

6 then in terms of waste and what we have now?

7 A No, there really isn't. I mean, it is

8 definitely true that the engineered solutions and

9 the barriers have improved greatly in, let's say,

10 30 years. There are a lot better designs for

11 preventing or minimizing the release of these

12 wastes to the environment.

13 However, the wastes that are put in these

14 impoundments are every bit as toxic as they have

15 ever been. So the raffinate is extremely toxic,

16 and there have really been

pinon ridge hearing transcripts part 3

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