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STATE OF NEW MEXICO
NEW MEXICO ENVIRONMENT DEPARTMENT
IN THE MATTER OF THE APPLICATION FOR
OF LOUISIANA ENERGY SERVICES, LP
FOR A DISCHARGE PERMIT (DP-1481)
FOR THE NATIONAL ENRICHMENT FACILITY NO. GWB-06-44(P)
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
OF CITIZENS FOR ALTERNATIVES TO RADIOACTIVE DUMPING (CARD)
Having heard the evidence and considered the exhibits, administrative record,
and the arguments of counsel at the hearing held in this matter, CARD proposes
that the Hearing Officer find and conclude that it should be recommended to
the Secretary of the NMED that the proposed Permit be denied, that additional
scientific testing and site characterization be required, and makes the
following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Neither Citizens for Alternatives to Radioactive Dumping (CARD),
nor Dr. Richard Hayes Phillips, expert witness for CARD, were provided with
a copy of the applicant’s Statement of Intent to Present Technical Testimony
prior to the hearing held at Eunice, New Mexico on Monday, January 29, 2007
(Transcript of Public Hearing, January 29, 2007, pp. 156-157, 186-187).
2. Among all the expert witnesses who testified at the public hearing
on January 29, 2007, Dr. Phillips is the only one who holds a Ph.D. (Transcript
of Public Hearing, January 29, 2007, pp. 58, 59, 60, 63, 89). Dr. Phillips’
Ph.D., from the University of Oregon, awarded in 1987, is in geomorphology –
the study of landforms and the processes that create them and destroy them
(Transcript of Public Hearing, January 29, 2007, p. 119). Dr. Phillips’
dissertation is entitled: “The Prospects for Regional Groundwater Contamination
due to Karst Landforms in Mescalero Caliche at the WIPP Site near Carlsbad,
New Mexico.” (Resumé submitted as Exhibit CARD 1).
3. Prior to testifying, Dr. Phillips asked the Hearing Officer if he should
state his credentials (refer to Transcript of Public Hearing, January 29,
2007, p. 117). The Hearing Officer told Dr. Phillips to proceed with his
testimony. This exchange does not appear in the Transcript of Public Hearing
(p. 116).
4. The advice of the Hearing Officer to Dr. Phillips, advising him not to
state his credentials, left Dr. Phillips vulnerable to an adversarial voir dire
challenge from Tannis Fox, Attorney for the New Mexico Environment Department
(NMED). (Transcript of Public Hearing, January 29, 2007, pp. 117-125).
5. During the voir dire challenge, Ms. Fox selectively represented Dr. Phillips’
employment record, failing to note his teaching experience at seven colleges and
universities. Ms. Fox twice objected when Dr. Phillips attempted to state his
college teaching experience, which is clearly listed on page one of his resumé
(Transcript of Public Hearing, January 29, 2007, pp. 121-123; resumé submitted
as Exhibit CARD 1).
6. The Public Hearing was called to consider a site proposed by Louisiana
Energy Services (LES) for a uranium processing facility. The site is located
in Lea County, New Mexico, one-half mile from the Texas state line (Transcript
of Public Hearing, January 29, 2007, p. 116).
7. Directly across the state line in Andrews County, Texas is a site
proposed by Waste Control Specialists (WCS) for a nuclear waste disposal
facility (Transcript of Public Hearing, January 29, 2007, p. 116).
8. The Pecos River Valley of southeastern New Mexico and west Texas is
recognized as one of the largest karst regions in the United States (Map of
Karst Areas submitted by Dr. Phillips at Public Hearing, January 29, 2007,
submitted for the record in Exhibit CARD 14).
9. The portion of the Pecos River Valley in the vicinity of the LES
site is the Monument Draw watershed (Environmental Impact Statement for the
Proposed National Enrichment Facility in Lea County, New Mexico, NUREG-1790,
June 2005, p. 3-33).
10. Monument Draw flows almost due south through Lea County, always within
2.5 miles of the Texas state line, crossing into Texas one mile east of Route
18, where it bends to the southwest, flows through Cheyenne, and thence to the
Pecos River. In New Mexico, the surface drainage course of Monument Draw is
incised and plainly visible in air photos. (Aerial photograph submitted by
Dr. Phillips at Public Hearing, January 29, 2007, submitted for the record in
Exhibit CARD 14). However, it seems to disappear underground before it gets to
the Pecos River (Transcript of Public Hearing, January 29, 2007, pp. 128-129.
11. Waste Control Specialists (WCS), in its application to the State of
Texas (p. 2-6), acknowledges that Monument Draw “developed in response to
subsurface dissolution of evaporites,” presumably the halite and gypsum of the
Salado and Rustler formations (Transcript of Public Hearing, January 29, 2007,
p. 129).
12. Louisiana Energy Services (LES), in its Environmental Impact Statement
submitted to the State of New Mexico (p. 3-33), acknowledges that while Monument
Draw is typically dry, its maximum historical flow was measured at 575,000
gallons per minute (Transcript of Public Hearing, January 29, 2007, p. 129).
13. Where caliche caprock is present In Lea and Andrews counties,
rainwater recharge occurs primarily where the caprock is fractured, perforated
or degraded. Infiltrating rainwater will migrate along the caprock until it
reaches an opening which allows it to move downward (Transcript of Public
Hearing, January 29, 2007, p. 130; see also Phillips and Snow, “A Conceptual
Model for Contaminant Transport in Karst Aquifers at the WIPP Site,” p. 7).
14. Caliche caprock is always underlain by softer or looser material which
is more prone to erosion and may contain cave systems, undercutting the caprock.
Karstic landforms may develop, such as closed depressions and discontinuous
drainage (Transcript of Public Hearing, January 29, 2007, p. 130).
15. Karstic depressions in Lea County, New Mexico are generally aligned in
groups, or chains. Some are so shallow as to be noticeable only by a vegetative
change (Transcript of Public Hearing, January 29, 2007, p. 130), such as the
chain of ten or more depressions extending west-northwestward from the proposed
federal facility in Texas and into New Mexico, as shown in the black-and-white
air photo dated January 14, 1996, when the site was still undisturbed, submitted
by WCS in its application to the State of Texas (Cook-Joyce, Inc., Figure 6.4-
26a, submitted for the record in Exhibit CARD 14).
16. In the vicinity of the LES and WCS sites, the watershed divide for both
surface water and groundwater is uncertain. Thomas H. Lehman states that
the Red Bed Ridge “probably acts as a regional groundwater divide” separating
the Ogallala aquifer to the northeast from the Pecos River aquifers to the
southwest (Transcript of Public Hearing, January 29, 2007, p. 132).
17. The “Red Bed Ridge” is a buried structural feature, being the crest
of the Triassic red bed deposits underlying the Antlers Formation, or the
Ogallala Formation, or both (Transcript of Public Hearing, January 29, 2007,
p. 132; Lehman, “Elevation on Top of Red Beds,” submitted for the record in
Exhibit CARD 14).
18. The places where caliche caprock is at or near the land surface roughly
coincide with the axis of the “Red Bed Ridge.” The WCS site is located
directly on the caprock divide. The LES site, located to the west of the WCS
site, probably lies southwest of the caprock divide (Transcript of Public
Hearing, January 29, 2007, pp. 133-134; Lehman and Rainwater, “Location of
Cross-Sections,” submitted for the record in Exhibit CARD 14).
19. Figure 1, provided by Dr. Phillips (Exhibit CARD 2), identifies the
locations of 17 boreholes that struck water. Of these, according to Lehman,
13 were in the Antlers Formation, three were in the Ogallala Formation, and
one was in caliche, all of which are above the Chinle Formation red beds
(Exhibit CARD 11). Three boreholes struck water directly beneath the caprock
divide, and two struck water southwest of the caprock divide, as shown on
Figure 1 (Exhibit CARD 2), which raises doubts as to whether the structural
divide and the groundwater divide are one and the same (Transcript of Public
Hearing, January 29, 2007, p. 135).
20. Southwest of the divide, caliche in 5 of 15 boreholes was described
as “poorly developed” and/or “discontinuous” (Exhibit CARD 11), presenting no
barrier to rainwater infiltration. In all five boreholes the Antlers and
Ogallala formations are absent. All five boreholes bottomed in the upper 15
feet of the Chinle Formation redbeds (Exhibit CARD 11), and might have struck
water if the drilling had been deeper (Transcript of Public Hearing, January 29,
2007, pp. 135-136).
21. Figure 2 (Exhibit CARD 3), provided by Dr. Phillips, maps the water
levels of 17 wells that struck water, whether in the Antlers Formation, in the
Ogallala Formation, or in caliche. Smooth contour lines can be drawn for the
water table no matter where in the stratigraphic column the water was
encountered. Contaminated water escaping to the northeast of the LES or WCS
sites would flow downgradient, perpendicular to the contour lines, in a
generally southeastward direction, into the Ogallala aquifer and toward the
karstic limestone aquifers of the Edwards Plateau (Transcript of Public Hearing,
January 29, 2007, p. 136).
22. The WCS site in Andrews County, Texas, and the structural ridge on which it
is located, have been investigated in earnest. About 130 soil borings were
drilled into an area about 10,800 feet long and 3,600 feet wide, more than one
borehole per 7 acres (Transcript of Public Hearing, January 29, 2007, p. 136;
see Lehman and Rainwater, Figure 2, Location of Cross Sections; Intera & Cook-
Joyce, Figure 6.5-1.1, RCRA Investigation Boring Locations; Intera & Cook-Joyce,
Figure 6.5-1.2, Weaver Boos MSW Landfill Boring Locations; Intera & Cook-Joyce,
Figure 6.5-1.3, 1999 Siting Investigation Boring Locations; submitted for
the record in Exhibit CARD 14).
23. By contrast, only 14 soil borings were drilled into the LES site (Statement
of Intent, Figure 3.4-6), and another 14 southeast of the LES site (Intera &
Cook-Joyce, Figure 6.5-1.2, Weaver Boos MSW Landfill Boring Locations), 28
boreholes in all, to investigate an area of about 870 acres, or one borehole
per 31 acres (Transcript of Public Hearing, January 29, 2007, p. 137).
24. There are absolutely no boreholes north of the LES site (Statement of
Intent, Figure 3.4-6), so there is no way of knowing whether contaminated water
escaping the LES site could flow northward, or what would happen if it did
(Transcript of Public Hearing, January 29, 2007, p. 137).
25. Figure 3 (Exhibit CARD 4), provided by Dr. Phillips, shows a pathway east
and southeast of the LES site within which the lithologic logs for all 12
boreholes describe the caliche as soft, weak, loose, poorly cemented, semi-
cemented, semi-consolidated, or friable (easily crumbled) (Exhibit CARD 7;
Exhibit CARD 8). This is clearly a pathway of preferential rainwater
infiltration (Transcript of Public Hearing, January 29, 2007, pp. 138-139).
26. At the head of this pathway are two boreholes which struck water
(NMB-37 and NMB-24, Exhibit CARD 10), and a structural depression 27 feet deep
in the caliche (Figure 3, Exhibit CARD 4). Similar structural depressions in
the caliche appear near Windmill Hill, also near a borehole which struck water
(A-7, Exhibit CARD 9); and within the southeast corner of the LES site downhill
from borehole MW-2, which produced water within 24 hours of the completion of
drilling (Transcript of Public Hearing, January 29, 2007, p 139, citing Ground
Water Discharge Permit Application, Appendix B, Summary of Field Activities).
27. Figure 4 (Exhibit CARD 5), provided by Dr. Phillips, depicts, east of the
Texas state line, a relatively flat-topped red bed ridge, 1200 to more than
3000 feet wide, pockmarked by at least seven structural depressions. One of
these structural depressions, 12 feet deep in the red bed surface, lies directly
underneath the WCS federal waste disposal facility. Another structural
depression, 19 feet deep in the red bed surface, coincides with the 27-foot-deep
depression in the caliche surface described above, and was investigated in the
field by Dr. Phillips on January 27, 2007 (Transcript of Public Hearing, January
29, 2007, pp. 139-140).
28. The structural depression investigated in the field by Dr. Phillips, and
shown in color photographs presented by Dr. Phillips (in Exhibit CARD 14),
is a closed topographic depression, 3000 square feet in extent. It is floored
with desiccated clay, which was moist on January 27, 2007. There are two
overflow basins, totaling 750 square feet in extent, also floored with
desiccated clay, adjacent to the depression. Surface water flows into this
depression from more than one direction, as indicated by arroyos visible in the
field. There is no evaporite crust as might be expected in an undrained playa.
This depression is a recharge point for underlying aquifers (Transcript of
Public Hearing, January 29, 2007, pp. 142-144).
29. Water was encountered in boreholes both above and below this depression,
at 38 feet below the surface above it (at NMB-37, Exhibit CARD 10), and at
212 feet below the surface below it (at NMB-24, Exhibit CARD 10), indicating
that water may find its way through open fractures in the underlying red beds
and into deeper levels, as has been observed elsewhere in southeastern
New Mexico (Transcript of Public Hearing, January 29, 2007, p. 144).
30. To the south and west of the flat-topped red bed ridge, as shown in
Figure 4 (Exhibit CARD 5), are four more deep depressions in the red bed
surface, one of which has cut into the edge of the flat-topped red bed ridge;
the other three coincide with the pathway of soft, loose, poorly cemented
caliche described above (Transcript of Public Hearing, January 29, 2007,
p. 140).
31. Color photographs of Baker Spring presented by Dr. Phillips (in Exhibit
CARD 14) show a pond fed by spring water that discharges from caves that have
formed in the shallow alluvium beneath the caliche caprock and above the
Chinle Formation red beds. The caves have formed in very poorly consolidated
silt containing chert pebbles (Transcript of Public Hearing, January 29, 2007,
pp. 146-148).
32. Baker Spring is located approximately 2000 feet from the LES (NEF) site,
as correctly stated by Kevin Myers of NMED during redirect examination
(Transcript of Public Hearing, January 29, 2007, p. 171), and not 1.6 km
(1 mile) from the site, as stated by the applicant (Statement of Intent to
Present Technical Testimony, p. 3.3-3).
33. Baker Spring is depicted on the USGS topographic map submitted by
Dr. Phillips (in Exhibit CARD 14) as containing water on a perennial basis,
not intermittently as stated by the applicant (Statement of Intent to Present
Technical Testimony, p.3.3-3).
34. Nowhere in the applicant’s Statement of Intent to Present Technical
Testimony does the applicant mention the presence of caves at Baker Spring, or
that groundwater discharges there. The discussion of hydrology is devoted to
surface water drainage courses (Statement of Intent to Present Technical
Testimony, p. 3.4-3), and completely avoids the subject of the karstic
groundwater system that discharges into Baker Spring, as shown in color
photographs presented by Dr. Phillips (in Exhibit CARD 14). Baker Spring is
not even mentioned in text of the Ground Water Discharge Permit Application.
35. Figure 3.4-5 in the applicant’s Statement of Intent to Present Technical
Testimony, entitled “View of Baker Spring Area to the Northeast of the NEF
Site,” is of such poor quality that no caves are discernible.
36. The applicant cites “personal interviews” from which the applicant claims
that it “appears” that mining operations of sand and gravel “began in the
1940s and continued into the 1950s.” (Statement of Intent to Present Technical
Testimony, p. 3.4-3) The applicant does not say where these mining operations
appear to have occurred, but one may infer from the context that the applicant
is referring to Baker Spring. The applicant has not provided, for the record,
the names of the persons interviewed, or the names of any witnesses to the
alleged mining operations, and therefore the authenticity of such claims cannot
be verified.
37. The applicant cites “an aerial photograph from 1949” that “appears” to
show a fresh excavation in the red beds, and a network of roads leading
southward. (Statement of Intent to Present Technical Testimony, p. 3.4-3)
The applicant has not provided, for the record, any such aerial photograph,
or even stated where the alleged photograph may be obtained, and therefore
the authenticity of such claims cannot be verified.
38. The applicant describes a “pedestrian survey” during which “debris such as
thick cable and scrap metal components” were found “in the area around Baker
Spring.” (Statement of Intent to Present Technical Testimony, p. 3.4-3) The
applicant does not indicate where, in relation to Baker Spring, this debris
was found, nor has the applicant verified that the alleged debris is from
quarrying operations and not from road construction on the caprock surface
ehind Baker Spring. Dr. Phillips, when conducting field work on foot, four
times walked the entire distance between Highway 176 and Baker Spring, twice in
each direction, and saw no such debris.
39. There is nothing on the record to support the applicant’s assertion that
the arroyos which presently flow from the northwest and the northeast into
Baker Spring “formerly ran to the south,” (Statement of Intent to Present
Technical Testimony, p. 3.4-3), or that the inlet that flows into Baker Spring
from the south, shown in the color photographs presented by Dr. Phillips (in
Exhibit CARD 14), is actually an “outlet that would otherwise flow to the
south.” (Statement of Intent to Present Technical Testimony, p. 3.4-3). Swallow
holes and disrupted drainage, the absence of through-going surface water
courses, are characteristic of a karstland (Phillips and Snow, “A Conceptual
Model for Contaminant Transport in Karst Aquifers at the WIPP Site,” p. 7; see
also Transcript of Public Hearing, January 29, 2007, p.127).
40. Roger Peery, testifying for the applicant under redirect examination,
testified that Cook-Joyce “talked to Wallach of Wallach quarry,” that it was
“indicated” that the Baker Spring area was actually a quarry at one time, and
that it was “indicated” that Baker hauled his rock over to the Wallach quarry to
be processed. Mr. Peery failed to identify, for the record, the Cook-Joyce
employee or employees who “talked to” Wallach, or from whom Wallach received his
indications, or any eyewitness to the alleged quarrying (Transcript of Public
Hearing, January 29, 2007, p. 162), which the applicant claims to have occurred
some fifty years ago (Statement of Intent to Present Technical Testimony,
p. 3.4-3). Mr. Peery’s testimony is hearsay of hearsay of hearsay, and there
is nothing on the record to substantiate it.
41. Figure 3.4-1 in the applicant’s Statement of Intent to Present Technical
Testimony, entitled “Local Hydrologic Features,” shows Baker Spring to be
located nearly 3000 feet east of the Wallach quarry.
42. The applicant, in its Statement of Intent to Present Technical Testimony
(Figure 3.3-5, Site Boring Plan and Profile), includes a geologic cross-section
which depicts the basin containing Baker Spring as a structural depression,
filled with 50 feet of alluvial deposits, and overlain by another 20 feet of
alluvial deposits and a layer of soft caliche. Within the structural
depression, the top of the Chinle Formation red beds is shown at approximately
3360 feet in elevation, compared to 3415 feet in elevation to the north at the
base of the caprock escarpment, and 3390 feet in elevation to the south where
the red beds are depicted as overlain by alluvial deposits and soft caliche.
43. Alluvial deposits (or alluvium) are defined as clay, silt, sand and gravel
deposited by flowing streams. (Direct Testimony of George Rice, testifying as
an expert witness before the Atomic Safety and Licensing Board of the Nuclear
Regulatory Commission, Docket No. 70-3103, ASLBP No. 04-826-01-ML, revised
January 28, 2005, p. 4, footnote 4).
44. If this basin were a former gravel quarry, as suggested by the applicant,
the caliche layer overlying the alluvial deposits (Statement of Intent to
Present Technical Testimony, Figure 3.3-5, Site Boring Plan and Profile) would
not have survived the excavations.
45. The applicant states that “the Baker Spring area appears to have been
excavated to the top of the redbed through the removal of the overlying sand and
gravel reserves.” (Statement of Intent to Present Technical Testimony, p. 3.4-3)
(emphasis added) Such quarrying would not have proceeded 50 feet deep into the
red beds, creating the 50-foot-deep structural depression depicted in the cross-
section provided by the applicant (Statement of Intent to Present Technical
Testimony, Figure 3.3-5).
46. Even if Baker Spring is a disturbed site, it is karst. Groundwater from
underground caves discharges there. The caves have formed in the alluvium,
mainly silt and gravel, above the Chinle Formation red beds, as shown in color
photographs presented by Dr. Phillips (in Exhibit CARD 14; see also Direct
Testimony of George Rice, Docket No. 70-3103, ASLBP No. 04-826-01-ML, Revised
January 28, 2005, p. 4). As stated by George Rice: “Existing conditions must be
characterized in order to predict how the proposed facility will affect
groundwater in the future. In my opinion, LES and the NRC staff have failed to
characterize the site sufficiently to predict such impacts.” (Direct Testimony
of George Rice, Docket No. 70-3103, ASLBP No. 04-826-01-ML, Revised January 28,
2005, p. 5).
47. Roger Peery, testifying for the applicant under cross-examination,
acknowledged that the source of the water flowing into Baker Spring from the
caves shown in the color photographs provided by Dr.Phillips (in Exhibit CARD
14) is from precipitation that infiltrates through the caliche caprock, and that
there must be a continuous conduit, or a network of multiple fractures, from
recharge areas at the land surface to the caves discharging at Baker Spring
(Transcript of Public Hearing, January 29, 2007, pp. 167-168).
48. Roger Peery, testifying for the applicant under redirect examination,
stated that: “None of the data from the LES site, the nearby Lea County
landfill, the former AVLIS site, (or) the WCS site indicate that there is any
karst present at any of those, in the over 300 boreholes that were drilled on
those combined properties.” (Transcript of Public Hearing, January 29, 2007,
pp. 160-161). To the contrary, Dr. Phillips utilized 199 of these very
boreholes (Transcript of Public Hearing, January 29, 2007, p. 117) to construct
contour maps of the caliche surface and the red bed surface (Transcript of
Public Hearing, January 29, 2007, pp. 136-137) showing numerous structural
depressions (Transcript of Public Hearing, January 29, 2007, pp. 139-140),
one of which he photographed in the field and identified as a karstic recharge
basin (Transcript of Public Hearing, January 29, 2007, pp. 142-144).
49. The applicant states that there is no effective groundwater outlet
from Baker Spring, specifically that because the pond is underlain by “the very
low permeability clay of the redbed, limited vertical migration of the ponded
water occurs.” It is “suspected” that during periods of ponding, surface water
infiltrates into the banks, and is discharged back to the pond when the surface
water level declines (Statement of Intent to Present Technical Testimony, p.
3.4-3). There is nothing on the record to indicate that the applicant has done
any investigation whatsoever into the possibility of a groundwater outlet from
Baker Spring to points unknown.
50. The applicant states that “Monument Draw is an intermittent stream and the
closest surface water conveyance feature” to the NEF (LES) site. (Statement
of Intent to Present Technical Testimony, p. 3.4-4) Dr. Phillips has presented,
for the record, numerous photographs of arroyos draining into Baker Spring and
into a clay-filled recharge basin and two overflow basins (in Exhibit CARD 14),
all of which are much closer than Monument Draw to the LES site.
51. The applicant states that: “The first presence of saturated porous
media beneath the site appears to be within the Chinle red bed clay where there
exists a low-permeability silty sandstone or siltstone.” (Statement of Intent
to Present Technical Testimony, p. 3.4-5). The applicant further states that
“there is no consistent groundwater in the sand and gravel layer above the
Chinle Formation” (Statement of Intent to Present Technical Testimony,
p. 4.4-5).
52. The existence of substantial amounts of groundwater in the sand and gravel
layer above the Chinle Formation, near the LES site, within 2000 feet of the
LES site, is illustrated by the caves from which groundwater discharges to Baker
Spring, as shown in color photographs presented by Dr. Phillips (in Exhibit CARD
14). The applicant has not properly characterized the flow of groundwater in
the shallow alluvium, nor has NMED required the applicant to do so.
53. Kevin Myers of NMED, under cross-examination, was unable to state with
certainty that none of the features shown in the color photographs presented by
Dr. Phillips (in Exhibit CARD 14) are hydrologically connected to the LES site
(Transcript of Public Hearing, January 29, 2007, p. 183).
54. Mr. Myers, in response to a direct question under cross-examination, stated
that field work on the part of NMED consisted of “walking around” the LES site
on one day. When asked if NMED also examined areas adjacent to the site,
Mr. Myers stated that NMED “field work, actually getting out on the ground
walking, was confined to the site on that day. We certainly drove by and
possibly saw some of the areas you’re referring to.” (Transcript of Public
Hearing, January 29, 2007, pp. 95-96).
55. Neither Baker Spring nor the clay-filled recharge basin, shown in the
color photographs presented by Dr. Phillips (in Exhibit CARD 14), are visible
from any public road.
56. Mr. Myers, under cross-examination, acknowledged that he does not know the
ultimate discharge point of groundwater flowing from the LES site. Based on
the topography of the top of the red beds, Mr. Myers states that groundwater
from the LES site would discharge at Monument Draw, but acknowledges that he has
not observed or been informed of the locations of any springs at Monument Draw
(Transcript of Public Hearing, January 29, 2007, pp. 184-186).
57. Mr. Myers, in response to a direct question under cross-examination,
did not confirm that anyone at NMED had ever reviewed any of the actual soil
boring logs, well construction logs, or geophysical logs provided by the
applicant or its contractors (Transcript of Public Hearing, January 29, 2007,
pp. 94-95).
58. Drilling logs transcribed and submitted for the record by Dr. Phillips
(Exhibit CARD 6, Exhibit CARD 7, Exhibit CARD 8, Exhibit CARD 9, Exhibit CARD
10, Exhibit CARD 11) show that groundwater was found in the alluvium above the
Chinle Formation red beds in at least 21 boreholes. Seventeen of these
boreholes (Hole Nos. 1, 2, 3, 6, 9, 10, 11, 12, 13, 14, 16, 17u, 18u, 26, 32, 33
and 34, in Exhibit CARD 11) are depicted in Figure 1 (Exhibit CARD 3) and Figure
2 (Exhibit CARD 4), and four of these boreholes (A-7 & A-16, in Exhibit CARD 9;
B-41, in Exhibit CARD 6; and NMB-37, in Exhibit CARD 10) are depicted in
Figure 3 (Exhibit CARD 5) and Figure 4 (Exhibit CARD 6). At NMB-37 the water
was encountered in “light reddish-brown silty sand and gravel” at 38 feet below
land surface (Exhibit CARD 10). NMB-37 is located in the State of New Mexico,
about 3000 feet northeast of the LES site (Intera & Cook-Joyce, Figure 6.5-1.3,
1999 Siting Investigation Boring Locations; submitted for the record in Exhibit
CARD 4), in the vicinity of Baker Spring and the recharge basin shown in the
color photographs presented by Dr. Phillips (in Exhibit CARD 14).
59. The applicant acknowledges that “there are occurrences of shallow
groundwater in a thin saturated stratum just above the Chinle Formation red bed
clays in various locations to the north and east of the NEF (LES) site. These
localized zones of saturation are due to local infiltration mechanisms, such as
fractures in the caprock caliche leading to underlying sand and gravel deposits,
and infiltration through ‘buffalo wallow’ depressions that pond surface water
runoff. None of these shallow saturated occurrences are laterally continuous
and none extend to the NES site.” (Statement of Intent to Present Technical
Testimony, p. 3.4-15). Nowhere in the record, prior to the testimony of Dr.
Richard Hayes Phillips, did the applicant or the NMED note the occurrence of
caves discharging groundwater to Baker Spring, or the existence of a clay-
filled recharge basin and two overflow basins, all of which are within 0.5 miles
of the LES site, and all of which receive groundwater from the alluvium above
the Chinle Formation (as shown in color photographs presented by Dr. Phillips in
Exhibit CARD 14). No evidence is presented that these are “buffalo wallows”
rather than karst features. No evidence is presented that these features are
not connected to the LES site by preferential pathways in the alluvial deposits
above the Chinle Formation red beds.
60. The applicant states that some of the wells are dry in the sand and
gravel above the Chinle Formation red beds, “owing to the localized nature of
the perched conditions.” (Statement of Intent to Present Technical Testimony,
p. 3.4-4) Perched water tables can be characteristic of a karstland (Phillips
and Snow, “A Conceptual Model for Contaminant Transport in Karst Aquifers at the
WIPP Site,” p. 6).
61. The applicant states that “when water is encountered in the sand and gravel
above the Chinle Formation red beds its level is slow to recover following
sampling events, due to the low permeability of the perched saturated zones.”
(Statement of Intent to Present Technical Testimony, p. 3.4-4) Nowhere on the
record has the applicant provided measured data from bailing tests or pump
tests of the “perched saturated zone” in the sand and gravel above the Chinle
Formation red beds. Thus the applicant’s characterization of its permeability
as “low” cannot be independently assessed or verified.
62. Without benefit of measured data, based on numbers taken from geologic
literature published in 1979 for sand and gravel aquifers elsewhere, the
applicant states that “the saturated hydraulic conductivity of the surface soils
is likely to range from 10-5 to 10-1 cm/sec (3.9 x 10-6 to 3.9 x 10-2 in/sec).”
(Statement of Intent to Present Technical Testimony, p. 3.4-15) (emphasis
added) This range equals .028 to 280 feet per day, which, in turn, equals a
range of about 10 feet per year to 20 miles per year.
63. The applicant claims to have utilized “geochemical and soil-physics based
techniques, as well as computer modeling, to show that there is no recharge
occurring in thick, desert vadose zones with desert vegetation.” (Statement of
Intent to Present Technical Testimony, p. 3.4-4) An almost identical statement
was made by the applicant in the Profiled Testimony of Roger L. Peery at p. 13,
who states that “no precipitation recharge occurs in thick, desert vadose
(unsaturated) zones with desert vegetation.” Such a categorical statement is
indefensible. If there are groundwater springs and/or recharge basins anywhere
in the watershed (as shown in color photographs presented by Dr. Phillips in
Exhibit CARD 14), some rainwater recharge must be occurring.
64. Phillips and Snow, in their study entitled “A Conceptual Model for
Contaminant Transport in Karst Aquifers at the WIPP Site” (pp. 19-20), submitted
for the record, presented a water balance analysis for the Nash Draw watershed
in Eddy County, New Mexico, immediately adjacent to Lea County. Phillips and
Snow conclude that about 96% of the rainfall is lost through evaporation and
transpiration, and about 4% infiltrates into the groundwater system. Climatic
and vegetative conditions are not dissimilar in the vicinity of the LES site.
The applicant has never accounted for infiltrating rainwater that fails to
evaporate, or identified ultimate groundwater discharge points.
65. The uncertainty of the applicant’s position is acknowledged in the
Statement of Intent to Present Technical Testimony at p. 3.4-12, where the
applicant states that “natural recharge to groundwater is not inferred to
be taking place at the site” (emphasis added), and again in the Profiled
Testimony of Roger L. Peery at p. 11, where Mr. Peery states that “natural
recharge to groundwater is not inferred to be taking place beneath the site.”
(emphasis added)
66. The applicant acknowledges in its Statement of Intent to Present Technical
Testimony (p. 3.4-5) that one of the nine soil borings within the NEF (LES)
site “produced cuttings that were slightly moist at 1.8 to 4.2 m (6 to 14 ft)
below ground surface.” In its Statement of Intent to Present Technical
Testimony, the applicant does not identify the borehole, or its location.
67. The soil boring which produced moist cuttings within the LES site is
identified as B-9 in the applicant’s Ground Water Discharge Permit Application
(Appendix A, Lithologic Logs), which describes the interval between from 6 to 14
feet below land surface as: “Fine sand with silt and gravel (< ½ in. Dia.) –
very loose, slightly moist.”
68. The applicant acknowledges in the Profiled Testimony of Roger L. Peery
(p. 13) that one of the five geotechnical borings completed by LES, specifically
B-2, “exhibited slight moisture from a depth of 35 to 41.4 feet below ground
surface.” According to the lithologic log for MACTEC boring B-2, this interval
was not in the sand and gravel above the Chinle Formation, but in the red beds
themselves. It is described as “very hard, dark red and purple, moist, high
plasticity clay.” (Ground Water Discharge Permit Application, Appendix A,
Lithologic Logs)
69. The applicant states that cuttings from eight of nine soil borings within
the NEF (LES) site were “very dry,” and concludes that “there is no recharge
from the ground surface at the site.” (Statement of Intent to Present Technical
Testimony, p. 3.4-5) The applicant states that cuttings from four of five
geotechnical borings completed by LES, “on the whole, also were very dry.”
(Profiled Testimony of Roger L. Peery, p. 13). There is no indication that soil
samples were promptly collected and sealed, and their moisture content measured
in a soils laboratory, according to standard procedure. Even if 12 of 14
boreholes were “very dry,” two of them were not, which indicates that rainwater
recharge is occurring within the LES site. By the applicant’s own admission,
the nine soil borings were oriented “on a three-by-three grid” (Transcript of
Public Hearing, January 29, 2007, p. 109), and were not located in order to
investigate features that might function as recharge basins.
70. Roger Peery, under redirect examination, confirmed that caliche
caprock is not present at the LES site (Transcript of Hearing, January 29, 2007,
p. 159), and that subsurface caliche is discontinuous, having been encountered
in only 5 of 14 shallow borings at the LES site (Transcript of Public Hearing,
January 29, 2007, p. 160; see also Figure 3, presented by Dr. Phillips).
71. Alluvial deposits (sand and silt with gravel) were found in all nine
of the Cook-Joyce soil borings at the LES site, with an average thickness of 25
feet, and ranging from 3 feet thick at B-7 to 40 feet thick at B-1 and B-9.
Except at B-2, where the alluvial deposits are exposed at the land surface, the
alluvial deposits are overlain only by windblown sand and silt, with an average
thickness of 16.5 feet, and ranging from 6 feet thick at B-9 to 30 feet thick at
B-5 (Ground Water Discharge Permit Application, Appendix A, Lithologic Logs).
The alluvial deposits appear to be continuous across the LES site, and there is
no barrier to rainwater infiltration reaching the alluvial deposits, yet the
hydraulic properties of the alluvial deposits were not measured in the field.
72. George Rice, testifying as an expert witness before the Atomic Safety and
Licensing Board of the Nuclear Regulatory Commission, stated that LES and NRC
have failed to: (1) measure the hydraulic properties of the shallow materials
(alluvial deposits) underlying the site, including, at a minimum, tests to
determine the range of hydraulic conductivities; (2) explain the presence of
moisture found in the shallow alluvium underlying the site, such moisture being
a probable indication of recent rainwater recharge; (3) investigate water-bearing
units that may exist beneath the site; and (4) investigate the possibility that
fractures at the site may act as preferential flow paths for groundwater
(Testimony of George Rice, Docket No. 70-3103, ASLBP No. 04-826-01-ML, Revised
January 28, 2005, pp. 5-6).
73. Regarding the presence of moisture found in the shallow alluvium underlying
the site (at B-9 in the shallow alluvium at 6-14 feet below land surface, and at
MACTEC B-2 in the clay at the top of the Chinle Formation), George Rice testified
that: “The most straightforward explanation for the presence of this moisture is
that it represents residual water from episodic recharge events. That is, from
time to time, rainwater or snowmelt will flow downward from the land surface to
the interface of the alluvium and the Chinle. Such recharge may enter the
subsurface along preferential flow paths that result from water ponding in
depressions or beneath sand dunes. Preferential flow paths may also result from
variations in the permeability of the shallow materials underlying the site.
The moist clay in boring B-2 is likely to be the result of recharge that ponded
along the interface between the alluvial materials and the relatively impermeable
Chinle. The clay retains water longer than the overlying alluvium.” (Testimony
of George Rice, Docket No. 70-3103, ASLBP No. 04-826-01-ML, Revised January 28,
2005, pp. 6-7)
74. Regarding the possibility that fractures at the site may act as preferential
flow paths, allowing water to flow rapidly from the alluvium to the saturated
zones in the Chinle Formation or to the deeper Santa Rosa aquifer, George Rice
testified that the boreholes at the LES site were not drilled in a manner that
would reveal the presence of fractures, because: (1) the boreholes drilled into
the Chinle Formation were vertical, and thus the chances that the boreholes would
intercept vertical or near-vertical fractures were not great; and (2) the test
borings were not cored, and thus no core samples could be examined for the
presence of fractures. By contrast, test borings at the nearby WCS site were
cored, and fractures were found at various depths in the Chinle Formation in
21 of 28 boreholes (Testimony of George Rice, Docket No. 70-3103, ASLBP No.
04-826-01-ML, Revised January 28, 2005, pp. 8-9).
75. Regarding the applicant’s contention that the Chinle Formation is generally
“very dry,” George Rice testified that: (1) water may flow along fractures only
on occasion, in response to episodic recharge events (rainfall or snowmelt),
which would wet the area immediately adjacent to a fracture, but not far beyond
it; and (2) moisture content can be difficult to judge in the field, as
illustrated by WCS boring/monitor well B-20 (11-D), which was dry according
to the boring log and well construction diagram (Appendix 6.5-1, Geologic Logs
and Monitor Well Diagrams, cited in Exhibit CARD 6), but which was later found
to contain 100 feet of standing water (Testimony of George Rice, Docket No. 70-
3103, ASLBP No. 04-826-01-ML, Revised January 28, 2005, pp. 9-10).
76. Regarding the allegedly low permeability of the Chinle Formation, based
upon laboratory measurements of core samples from the WCS site, and a slug test
performed at the LES site, George Rice testified that “such extremely limited
measurements, where faults are present, cannot describe the permeability of the
entire site,” because (1) laboratory measurements do not account for
preferential flow paths such as fractures, and may be a thousand times smaller
than permeabilities measured in the field; and (2) slug tests only measure
hydraulic properties in the area immediately surrounding the well, and do not
indicate that fractures are absent (Testimony of George Rice, Docket No. 70-
3103, ASLBP No. 04-826-01-ML, Revised January 28, 2005, pp. 2, 10-11; see also
Phillips and Snow, “A Conceptual Model for Contaminant Transport in Karst
Aquifers at the WIPP Site, p. 3).
77. The applicant states that the estimated hydraulic conductivity of the
Chinle Formation red bed clay is “on the order of 7.9 x 10-9 inches per second”
(Statement of Intent to Present Technical Testimony, p. 3.4-5), which equals
5.7 x 10-4 feet per day, or 0.21 feet per year. From this, the applicant
estimates “vertical travel times through this clay unit to be on the order of
thousands of years.” (Statement of Intent to Present Technical Testimony,
p. 3.4-5) This analysis considers the permeability of clay samples only, and
does not consider the permeability of preferential pathways for groundwater
movement, such as fractures, nor does it consider the horizontal permeability
of the alluvial deposits above the Chinle Formation red beds.
78. The applicant states that laboratory tests of vertical permeability in
the Chinle Formation at the nearby WCS site ranged as high as 1.53 x 10-5 cm/sec
(Profiled Testimony of Roger L. Peery, p. 14), which equals 6.02 x 10-6 inches
per second. This, in turn, equals 0.434 feet per day, or 158 feet per year.
This is 750 times the rate of vertical permeability estimated for the LES site
(Statement of Intent to Present Technical Testimony, p. 3.4-5). No reason is
given for the disparity.
79. The applicant has presented a table of water levels in the three monitoring
wells (MW-1, MW-2 and MW-3) screened at the sandstone and siltstone interval
in the Chinle Formation at 213.8-228.8 feet, 216.82-231.82 feet, and
220.9-235.9 feet below land surface, respectively (Ground Water Discharge Permit
Application, Attachment C, Table 2, Groundwater Level Data). During the period
from 9/22/03 to 10/15/03, the water level in MW-2 varied by 57.10 feet,
fluctuating between 190.78 feet and 133.68 feet below land surface. During the
period from 10/16/03 to 11/10/03, the water level in MW-2 varied by 51.24 feet,
fluctuating between 165.48 and 114.24 feet below land surface. This indicates
that recharge is occurring at MW-2. Drilling, casing, and screening on all
three wells was completed by 9/21/03 (Ground Water Discharge Permit Application,
Attachment D, Monitor Well Construction Summary), so the water level
fluctuations at MW-2 are not attributable to drilling activities at MW-1 or
MW-3. Contrary to the applicant’s assertion that “groundwater levels continued
to recharge at MW-2 throughout the monitoring period” (Ground Water Discharge
Permit Application, Attachment C, Site Geologic Report, p. 6), the water level
in MW-2 actually dropped on seven occasions: by 28.96 feet on 10/1/03, by 2.45
feet on 10/6/03, by 2.53 feet on 10/8/03, by 6.85 feet on 10/14/03, by 24.95
feet on 10/15/03, by 14.01 feet on 10/20/03, and by 7.58 feet on 11/12/03, at
which time monitoring appears to have been terminated.
80. The applicant states that the membrane liners planned for its Treated
Effluent Evaporative Basin and its Site Stormwater Detention Basin will
“preclude any infiltration into the ground.” (Profiled Testimony of Roger L.
Peery, pp. 15-16). This is not a fact. George Rice, testifying as an expert
witness before the Atomic Safety and Licensing Board of the Nuclear Regulatory
Commission, stated that: “LES assumes that these basins will not leak. That is
not a good assumption. They leak because the liners contain defects.” Mr. Rice
identified these as: manufacturing defects (typically 0.5 to 1.0 pinholes per
acre); installation defects (including unsealed seams, punctures from sharp
objects, and damage caused by the operation of heavy equipment, expectably 1 to
2 defects per acre); and deterioration after installation. Mr. Rice cited a
report by Laine and Miklas, who examined 61 geosynthetic-lined facilities:
“Leaks were detected in 58 of 61 facilities. The average density of leaks at
all facilities was about 13 per acre. Clearly, it is not reasonable to assume
that the lined basins will not leak. NRC and LES should investigate this
possibility and use the results to determine the fate of the water and
contaminants (e.g., flow rates, discharge areas) that may leak from the basins.”
(Testimony of George Rice, Docket No. 70-3103, ASLBP No. 04-826-01-ML, Revised
January 28, 2005, pp. 17-18)
81. Kevin Myers of NMED, testifying under direct examination, made the following
statement: “However, we have seen when you have a contrast of alluvium material
on top of a red bed, a clay that doesn’t really accept much water, there is a
chance that water will form on top of that red bed.” For this reason, even
though the applicant did not propose to construct monitoring wells in the
shallow alluvium, NMED has required it. “In the event there is a leak, we don’t
want to wait for it to reach the Chinle, we’ll have these shallow wells here in
the alluvium.” (Transcript of Public Hearing, January 29, 2007, p. 79, 82)
82. According to Slide 25 of the Power Point Presentation of Kevin Myers
at the Public Hearing on January 29, 2007, three of the four monitoring wells
in the shallow alluvium are clustered closely together. Locating them farther
apart would cover a larger area for monitoring purposes. NMED, by its own
admission, has no potentiometric map for the shallow alluvium at the LES site
(Transcript of Public Hearing, January 29, 2007, pp. 185-186), and relies
instead on a generalized contour map of the Chinle Formation red bed surface
based on a limited number of soil borings (Statement of Intent to Present
Technical Testimony, Figure 3.4-6), and therefore NMED cannot be certain that
the narrow area covered by the monitoring wells is the one and only potential
flow path in the shallow alluvium.
83. According to Slide 25 of the Power Point Presentation of Kevin Myers at
the Public Hearing on January 29, 2007, three of the five monitoring wells
for the Chinle Formation are north of the proposed LES evaporation, which is
believed by both the applicant (Ground Water Discharge Permit Application,
Ground Water Gradient Contours, p. 69) and NMED (Transcript of Public Hearing,
January 29, 2007, p. 84) to be upgradient. Either these three wells are not
intended to monitor possible groundwater contamination in the event of a leak,
or there is reason to believe that water in the Chinle Formation could flow
northward from the LES site.
84. Bill Olson, testifying for the applicant under cross-examination, agreed
with Janet Greenwald’s assessment of his position, as follows: Q. “Is it
your opinion that the geology and the hydrology of the LES site is not very
important because the plastic liners and the detection system are sufficient
to assure that toxic metals and other chemicals from the LES site will not
penetrate drinking water or irrigation water?” A. “Yes, it is.” (Transcript
of Public Hearing, January 29, 2007, p. 174) Mr. Olson, testifying for the
applicant under cross-examination, later acknowledged that “no system is fail-
safe.” (Transcript of Public Hearing, January 29, 2007, pp. 176-177)
85. For the record, CARD has submitted a report by the General Accounting
Office (GAO) concerning efforts to clean up radioactive contamination identified
in groundwater, surface water, drinking water wells, and soils located within
and outside the boundaries of the federal government’s uranium enrichment plant
in Paducah, Kentucky (GAO/RCED-00-96, Exhibit CARD 12). Dr. Phillips has
himself investigated uranium, radium and thorium contamination in the Illinois
and Arkansas rivers from leaking evaporation ponds at the Kerr-McGee uranium
processing facility in Gore, Oklahoma (Transcript of Public Hearing, January 29,
2007, p. 121).
86. The disparity in the frequency of test boreholes within and near the
LES site, compared to the frequency of test boreholes within and near the WCS
site, is illustrated by the applicant’s own exhibit (Statement of Intent to
Present Technical Testimony, Figure 3.4-6), and is further corroborated by the
exhibits cited in points 22 and 23 above.
87. The grid pattern of borehole placement at the proposed WCS waste disposal
facilities ensures that test boreholes are located no more than 500 feet apart
(Intera & Cook-Joyce, Figure 6.5-1.1, RCRA Investigation Boring Locations,
submitted for the record in Exhibit CARD 14). Core samples were taken at no
fewer than 28 of these boreholes (Testimony of George Rice, Docket No. 70-3103,
ASLBP No. 04-826-01-ML, Revised January 28, 2005, pp. 8-9, footnote 37, citing
Holt, 1993, NIRS/PC Exhibit 19).
88. The grid pattern of borehole placement at the LES site is such that the
nine Cook-Joyce boreholes are approximately 1320 to 1600 feet apart (Statement
of Intent to Present Technical Testimony, Figure 3.4-6), not 1000 feet apart
as incorrectly stated by Roger L. Peery, testifying for the applicant under
cross-examination (Transcript of Public Hearing, January 29, 2007, p. 110).
89. At the five MACTEC boreholes located within the LES site the elevation
of the redbeds is approximate, due to the fact that sample cuttings were taken
only at five-foot intervals. (e-mail from George A. Harper to Kevin Myers, May
12, 2006, 8:31 A.M.)
90. There are no test boreholes along the perimeter of the LES site. The
nearest Cook-Joyce boreholes to the perimeter of the LES site are B-1, B-2 and
B-3, which are approximately 250 feet, 500 feet, and 750 feet, respectively,
from Highway 176 (Statement of Intent to Present Technical Testimony, Figure
3.4-6).
91. If additional test boreholes were drilled at the four corners of the
LES site, and 1320 feet apart along the western, northern, and eastern
perimeters of the LES site, and at midpoints between these additional boreholes
and Cook-Joyce borings B-4, B-7, B-8, B-9 and B-6, and 1760 feet apart along the
southern perimeter of the LES site, and within the interior of the LES site at
the four midpoints between the nine Cook-Joyce borings, this would amount to
26 additional borings, resulting in a grid pattern of boreholes located
approximately 1000 feet apart (refer to Statement of Intent to Present Technical
Testimony, Figure 3.4-6), twice the distance between the boreholes at the WCS
waste disposal facilities (Intera & Cook-Joyce, Figure 6.5-1.1, RCRA
Investigation Boring Locations, submitted for the record in Exhibit CARD 14).
92. Dr. Richard Hayes Phillips, in his direct testimony, stated that
“New Mexico deserves an environmental investigation as thorough as the one
in Texas, and the New Mexico Environment Department, NMED, should require it.”
(Transcript of Public Hearing, January 29, 2007, p. 137).
93. If continuous core samples were taken from the Chinle Formation at 26
additional boreholes, the resulting inventory would be roughly equivalent to
that at the WCS site (Testimony of George Rice, Docket No. 70-3103, ASLBP No.
04-826-01-ML, Revised January 28, 2005, pp. 8-9, footnote 37, citing Holt, 1993,
NIRS/PC Exhibit 19), thus allowing for some analysis of the presence or absence
of fractures in the Chinle Formation at the LES site, and whether such fractures
may act as preferential flow paths for groundwater (Testimony of George Rice,
Docket No. 70-3103, ASLBP No. 04-826-01-ML, Revised January 28, 2005, pp. 5-6),
as indicated by the presence of shallow water above (NMB-37) and deeper water
below (NMB-24) the clay-filled recharge basin shown in photographs presented by
Dr. Phillips in Exhibit CARD 14 (see paragraph 29, above). Slant coring would
be necessary for adequate characterization, because vertical coring may not
reveal the presence of vertical or near-vertical fractures (Testimony of George
Rice, Docket No. 70-3103, ASLBP No. 04-826-01-ML, Revised January 28, 2005,
pp. 8-9).
94. Dr. Phillips has presented color photographs of Baker Spring (in
Exhibit CARD 14) showing that, within 2000 feet of the LES site, the shallow
alluvium is a water-bearing formation. Groundwater was found in the shallow
alluvium at 38 feet below land surface at NMB-37 (Exhibit CARD 10), about 3000
feet northeast of the LES site (Intera & Cook-Joyce, Figure 6.5-1.3, 1999 Siting
Investigation Boring Locations; submitted for the record in Exhibit CARD 14), in
the vicinity of Baker Spring. One of the Cook-Joyce boreholes (B-2) found moist
cuttings, within the LES site, directly beneath the shallow alluvium (Ground
Water Discharge Permit Application, Appendix A, Lithologic Logs). The applicant
has not properly characterized the flow of groundwater in the shallow alluvium,
nor has NMED required the applicant to do so.
95. The applicant should be required to: (1) measure the hydraulic properties
of the alluvial deposits underlying the site, including, at a minimum, tests
to determine the range of hydraulic conductivities (Testimony of George Rice,
Docket No. 70-3103, ASLBP No. 04-826-01-ML, Revised January 28, 2005, pp. 5-6),
rather than relying on numbers taken from geologic literature published in
1979 for sand and gravel aquifers elsewhere (see paragraph 62 above, citing
Statement of Intent to Present Technical Testimony, p. 3.4-15); (2) explain the
presence of moisture found in the shallow alluvium underlying the LES site
(at B-9, in Ground Water Discharge Permit Application, Appendix A, Lithologic
Logs) and directly beneath the shallow alluvium underlying the LES site
(at MACTEC B-2, in Ground Water Discharge Permit Application, Appendix A,
Lithologic Logs), such moisture being a probable indication of recent rainwater
recharge (Testimony of George Rice, Docket No. 70-3103, ASLBP No. 04-826-01-ML,
Revised January 28, 2005, pp. 5-6; see paragraphs 63 & 64 above), rather than
inferring that rainwater recharge is not taking place at the LES site (see
paragraph 65 above, citing Statement of Intent to Present Technical Testimony,
p. 3.4-12); (3) locate the karstic groundwater conduits that discharge at the
caves at Baker Spring (shown in color photographs presented by Dr. Phillips in
Exhibit CARD 14) and the locations of the rainwater recharge that supply the
water to these conduits (such recharge being acknowledged by the applicant in
Transcript of Public Hearing, January 29, 2007, pp. 167-168); (4) locate the
ultimate discharge point of groundwater in the shallow alluvium (such discharge
point being unknown at present, as acknowledged by NMED in Transcript of Public
Hearing, January 29, 2007, pp. 184-186), including that of the clay-filled
recharge basin shown in the color photographs presented by Dr. Phillips (in
Exhibit CARD 14); and (5) determine, through hydraulic testing, the direction
of groundwater flow in the shallow alluvium, including any localized preferred
orientation, or anisotropy (Phillips and Snow, “A Conceptual Model for
Contaminant Transport in Karst Aquifers at the WIPP Site,” p. 3) rather than
relying on contour maps of the top of the Chinle Formation red beds (Transcript
of Public Hearing, January 29, 2007, pp. 183-186).
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