Thursday, August 19, 2010

DRBA and RRBA Submit Comments to NAS on Provisional Appointees on Uranium Mining Study

Roanoke River Basin

Comment:  Thanks for the statement!

August 18, 2010

The Roanoke River Basin Association and the Dan River Basin Association appreciate this opportunity to comment on the composition of the provisional study committee on uranium mining in Virginia. As described below, we recommend that the backgrounds and professional relationships of several provisional appointees be further investigated to ensure no conflict of interest.

Most importantly, we request that the Board on Earth Sciences and Resources (BESR) recruit individuals with expertise in hydrology, geohydrology, human health, and post-mining tailings management to serve on the committee.

The committee was established to examine the scientific, technical, environmental, human health, safety, and regulatory aspects of uranium mining, milling, and processing as they relate to the Commonwealth of Virginia. The committee’s work is extraordinarily important, as the findings of the study will assist the Commonwealth in determining whether uranium mining, milling, and processing can be undertaken in a manner that safeguards the environment, natural and historic resources, agricultural lands, and the health and well-being of its citizens.

Proposed uranium mining has been a controversial issue in the Commonwealth of Virginia since late 1970s when the uranium mining deposits were first discovered. For years, this matter has been an issue of outmost concern for the communities that may potentially be affected by uranium mining. For these reasons, it is very important that this uranium mining study be performed by a well-balanced and objective panel of scientists and experts who are free of any obligations to entities that may either benefit or be disadvantaged by the findings of this study.

It has been widely reported in the Virginia local press that the funding for this study is coming from Virginia Uranium, Inc., the company seeking to lift Virginia’s 1982 moratorium on uranium mining, and that the Virginia Center for Coal and Energy Research at the Virginia Polytechnic Institute and State University is serving as a conduit for funneling the study funds to the National Research Council. The Governing Board Executive Council of National Academies was apprised of this situation in an October 2, 2010 letter signed by over 30 concerned citizens. Because of the nature of the end source of funding, the study’s credibility is already being questioned by the public.

Unfortunately, it appears that several members of the provisional committee may have conflicts of interest that could significantly impair their objectivity and further damage the credibility of this study in the eyes of the public. As more fully discussed below, we respectfully request that the BESR conduct a review of Dr. Corby G. Anderson, Dr. Lawrence W. Barnthouse, and Dr. Michel Cuney for a potential conflict of interest, and remove Mr. Henry Schnell from the study committee due to an apparent conflict of interest.

Under these circumstances, it is especially important that the study process be conducted in a manner ensuring transparency and an ample opportunity for public comment. Accordingly, we respectfully request that the BESR publicize that the comment period is not firm and that comments will be accepted beyond the publicized date of August 17, 2020. Pursuant to Section 15(b) of the Federal Advisory Committee Act (thereafter, FACO), the National Academy of Sciences “shall … provide a reasonable opportunity for the public to comment on … appointments before they are made or… in the period immediately following the appointments.” While a 20-day comment period has been the National Academies’ long-standing practice, limiting it to 20 days is not required by law. In this particular case, given the controversial nature of the issue to be examined in the uranium mining study, and the fact that most of Virginia residents received either no notice or insufficient notice of the commencement of the comment period, the BESR should publicly announce an extension of the public comment period to allow all interested parties to comment on the composition of the provisional committee.

Going forward, we urge the BESR to conduct public hearings to provide an open public forum for interested parties to participate in the study committee discussions in accordance with Section 15(b)(3) of FACO and to promptly make available to the public a summary of any committee meetings and any materials provided to the study committee in compliance with Sections 15(b)(3)-(4). The general public should also be provided with a sufficient notice of at least thirty (30) days prior to the date of the public meeting and an opportunity to submit written comments on the public committee discussions.

As the state-wide study progresses, public meetings should be held in locations in the Commonwealth of Virginia that may potentially be affected by uranium mining. Historically, uranium companies have shown interest in uranium in Culpeper, Fauquier, Franklin, Floyd, Henry, Madison, Nelson, Orange, Patrick, and Pittsylvania Counties and leased mineral rights on approximately 50,000 acres in the 1980s. Downstream from these areas, counties and municipalities whose drinking water could be affected by uranium mill tailings include Brunswick, Fairfax, Halifax, Mecklenburg, Virginia Beach, Chesapeake, and others. If the uranium mining ban is lifted, we would likely see exploration for uranium in the black shale of Southwest Virginia, in crystalline granite throughout the Blue Ridge, and in sedimentary rock in the Coastal Plains, as well as further exploration in the Northern and Southern Piedmont. The public meetings at multiple locations are necessary to ensure the utmost degree of transparency of the study process for such a controversial issue as uranium mining.

Potential Conflict of Interest

The National Academies have established policies and procedures for addressing potential conflicts of interest to be used by committees in the development of its reports. This policy states that “It is essential that the work of committees of the institution used in the development of reports not be compromised by any significant conflict of interest. For this purpose, the term "conflict of interest" means any financial or other interest which conflicts with the service of the individual because it (1) could significantly impair the individual's objectivity or (2) could create an unfair competitive advantage for any person or organization. Except for those situations in which the institution determines that a conflict of interest is unavoidable and promptly and publicly discloses the conflict of interest, no individual can be appointed to serve (or continue to serve) on a committee of the institution used in the development of reports if the individual has a conflict of interest that is relevant to the functions to be performed.”

We wish to bring the following matters of concern to the attention of the National Academies and the Board regarding employment, existing fiduciary duties, consulting services, and promotional activities of Dr. Corby G. Anderson, Dr. Lawrence W. Barnthouse, Dr. Michel Cuney, and Mr. Henry Schnell that to the best of our knowledge have not been publicly disclosed as potential conflicts of interest in regard to the uranium mining study.

Dr. Corby G. Anderson currently serves as s trustee for the Northwest Mining Association, a trade association, whose stated purpose is to represent and inform members on legislative, regulatory and technical issues, to support and advance the mineral resource and related industries, and to foster and promote economic opportunity. Among the members of the Northwest Mining Association are Denison Mines Corp., a publicly traded company operating three uranium mines and two uranium mills in North America, and Uranium One Inc., one of the world’s largest publicly traded uranium producers. As a trustee of this trade association, Dr. Anderson has a fiduciary duty to the association and its members to act in their best interests. Although the study is designed to examine the feasibility of uranium mining in the Commonwealth of Virginia, the outcome of this study, similar to all studies completed by the National Academies, may set a precedent for the entire uranium mining industry here in the United States and possibly around the world. The study findings are intended to serve as the basis for the Virginia General Assembly’s determination of whether to lift the 28-year ban on uranium mining. The Virginia General Assembly’s action on the uranium mining ban has a potential of impacting economic opportunities for many uranium mining companies, including the companies that are corporate members of the Northwest Mining Association.

In addition, to the best of our knowledge, Dr. Anderson routinely undertakes contracted projects for global industrial client projects, including serving as an expert witness in mining litigation. Under the National Academies’ Policy on Committee Composition and Balance and Conflicts of Interest, a consulting relationship, such as serving as an expert witness in litigation, constitutes a potential financial conflict of interest.

Furthermore, Anderson also serves on the Board of Directors of Phoenix Minerals, Inc. and is President and COO of Getty Copper Inc. Both are publicly traded mining companies. We respectfully request that BESR investigate whether any of the two companies currently operate a uranium mine or mill and whether they presently have plans to mine or mill uranium.

Dr. Lawrence W. Barnthouse is an owner of LWB Environmental Services, Inc., a consulting company that provides ecological risk assessments and risk-based environmental restoration planning. Among Dr. Barnthouse’s clients are large law firms that represent clients from all over the country in environmental litigation and environmental regulatory proceedings. This appears to indicate that Dr. Barthhouse serves as an expert witness for those law firms and their companies on the issues that are the subject matter of the uranium mining study. The National Academies’ policy on conflicts of interest provides that serving as an expert witness is a type of consulting relationship that may constitute a financial interest. Accordingly, we request that BESR further investigate Dr. Barnthouse for a conflict of interest based the nature of the consulting services he provides to his clients. BESR’s review should address whether Dr. Barnthouse serves as an expert witness on issues that will be examined in the uranium mining study and whether he provides expert testimony on behalf of uranium mining companies, regardless of whether they are his direct clients or clients of his clients.

Dr. Michael Cuney’s industry consultation includes work for major uranium mining companies, such as Areva and Uranor Inc. The findings of the uranium mining study will determine future economic opportunities for Dr. Cuney’s corporate clients in the Commonwealth of Virginia. Thus, Dr. Cuney’s consulting relationship with uranium mining companies constitutes a potential conflict of interest and warrants review by BESR.

In addition, as stated in Dr. Cuney’s biography, he has visited and/or worked on most major uranium deposits of the world. BESR should investigate in what capacity Dr. Cuney traveled to all those mining sites, who funded his trips and whose interests he represented during those trips and to which companies he provided the services in connection with the trips, and whether these companies continue to use his services.

Furthermore, Dr. Cuney participated in numerous international conferences. In fact, he was a speaker at the Global Uranium International Conference held in Colorado in May 2009, where the Coles Hill, VA deposit was discussed at length. We, therefore, request that BESR require Dr. Cuney to disclose whether he received any honorarium or travel expense reimbursements for his participation in these activities and any other uranium mining conferences and who sponsored his trips to conferences.

Mr. Henry Schnell has an apparent conflict of interest based on his employment. Mr. Schnell holds a senior position in the Mining Business Unit with Areva NC Inc., a multinational company that owns and operates either directly or through its subsidiaries uranium mines in many parts of the world, including North America. Specifically, Areva’s subsidiary Pathfinder Mines Corporation operates large uranium mines in Wyoming that are currently undergoing reclamation. As stated above, the study’s finding will set precedent for the entire uranium mining industry and will have a potential to affect economic opportunities for many uranium mining companies, including Mr. Schnell’s employer, Areva.

In addition, we would like to bring to BESR’s attention the fact that Areva is actively involved in promoting uranium mining in Virginia. Virginia Energy Independence Alliance, whose two out of three corporate members are Areva Inc. and Virginia Uranium, Inc., has been very outspoken and pro-active in its campaign to support uranium mining in the Commonwealth. The VEIA Chairman Ray Ganthner has just retired from his position of Senior Vice President with Areva. Most recently Mr. Ganthner appeared on behalf of VEIA at the June 22, 2010 public hearing conducted by the Virginia Coal and Energy Commission on uranium mining and spoke publicly on behalf of VEIA in favor of uranium mining. Because VEIA at this time has only three corporate members, one of which is Areva, it is reasonable to conclude that when the VEIA Chairman speaks on the subject of uranium mining, it represents Areva’s views and promotes Areva’s best interests.

This demonstrates that Mr. Schnell’s employer Areva may directly benefit or may be disadvantaged by the findings of the uranium mining study. Because of his employment and his employer’s particular interest in uranium mining in Virginia, Mr. Schnell’s objectivity may be significantly comprised. Mr. Schnell’s participation in this study may create an unfair competitive advantage for Areva. Accordingly, we request that Mr. Schnell be removed from the study committee due to his apparent conflict of interest.

Balance of the Study Committee

Under the Statement of Task for the uranium mining study, the study committee is called upon to examine 12 questions covering a wide range of areas from legal framework to public health and safety to mining methods to reclamation and waste management to cultural issues to geology, climate and water management, etc. Despite the fact that the scope of the uranium mining study is vast and complex, the study committee is comprised of only 13 experts. It appears that some of the issues included in the study will be examined by only one expert. A committee that has only one expert per issue cannot be characterized as balanced because the study process will fail to ensure peer review on one or more issues. For this reason, we believe that the committee membership must be expanded to include more experts, especially in the areas highlighted below.

The first item of the Statement of Task directs the study committee to “assess the potential short- and long-term occupational and public health … considerations … including the potential human health risks.” Item 4 directs to “analyze the impact of uranium mining, milling, processing, and reclamation operations on public health.” Comprehensive examination of items 1 and 4 of the Statement of Task requires an expert in occupational and public health, as well as a medical doctor. The provisional committee currently includes public and occupational health experts and epidemiologists but no medical doctor. We, therefore, request that the BESR appoint an expert with the medical doctor degree to the study committee.

Pursuant to item 4 of the Statement of Task, the study committee is to “analyze the impact of uranium mining, milling, processing, and reclamation operations … at sites with comparable .. hydrologic … characteristics to those found in the Commonwealth.” In addition, item 9 directs the study committee to “identify the issues that may need to be considered regarding the quality and quantity of groundwater and surface water… As relevant, water and waste management … may also be considered.” The potential impact of uranium mining on water supply has of utmost concern for the communities where uranium mines may be developed and to the communities, like Fairfax and Halifax Counties and the City of Virginia Beach, and all the communities in the Roanoke River Basin including those in North Carolina whose sources of drinking water are located in areas where uranium mining is likely to occur should the uranium mining ban is lifted. For this reason, we respectfully request BESR to ensure that the study committee includes a sufficient number of experts with the expertise in hydrology and water-related issues.

Item 5 of the Statement of Task directs the study committee to “review the … cultural settings … in the Commonwealth of Virginia.” A comprehensive analysis of the cultural settings requires an expertise in environmental justice. Unfortunately, it is not apparent from the information posted on the credentials of the provisional committee members whether the committee includes experts in environmental justice. Because uranium mining is likely to affect many communities with relatively low socioeconomic status and very little influence over legislative decisions and limited access to the legal system, it is very important that the issue of environmental justice be examined thoroughly in the study. To this end, the study committee should be expanded to include at least two experts in environmental justice with experience of addressing these issues in the communities affected by uranium mining. We would welcome an opportunity to provide nominations for all above-mentioned areas of expertise.

In addition, it appears that the majority of questions under the Statement of Task require global expertise in uranium mining and broad knowledge of world-wide trends and experiences of other U.S. states and foreign nations with uranium mining. Unfortunately, the provisional committee does not include experts with such level of expertise. We, therefore, respectfully request that BESR expand the committee to include at least four experts who have studied the effects of uranium mining world-wide.

It is also unclear from the published bios of the provisional committee members whether anyone of them has an expertise required for evaluating post-mining impacts of tailings impoundments, including long-term monitoring and maintenance and potential impact of catastrophic failure of tailings containment cells on downstream waterways. We, therefore, respectfully request that BESR ensure that an expert in this very specific area is included in the committee.

Thank you for your consideration of these comments. We expect that this very important study will proceed in a most transparent manner.

Gene Addesso, Roanoke River Basin Association
Katherine Mull, Dan River Basin Association