Federal appeals court judges skeptical of New Mexico ISL uranium mining proposal
Hydro Resources Inc. was formerly run by Powertech CEO Richard Clement; after 14 years company still waits for approval to mine
Posted May 17, 2008
In the 1990s Richard Clement was unsuccesful at convincing Navajo residents of Church Rock and Crownpoint, New Mexico that in-situ leach mining of uranium could be done without contaminating their drinking water. He left his position as president of Hydro Resources Inc. and in 2006 became CEO of the Canadian shell corporation Powertech Uranium Corp.
Northern Colorado residents seem to share the Navajos' distrust of Clement's assurances that he can use high-pressure pumps to circulate a solution containing elevated levels of uranium, radium, and other heavy metals through the aquifer they use for drinking water without contaminating their wells.
On Monday, attorneys for the Navajos argued to a federal appeals court in Denver that the Nuclear Regulatory Commission improperly issued a mining permit to HRI. (Colorado is an "agreement state" and NRC permitting authority has been delegated to the state.) The three federal judges were surprised that uranium mining would be conducted in an aquifer used for drinking water by thousands of people.
Below is a story about the hearing published in the Seattle Post-Intelligencer. I've also included a 1999 story from the National Catholic Reporter that features several statements from Richard Clement about the controversy in Church Rock and Crownpoint.
Last updated May 12, 2008 5:05 p.m. PT
DENVER -- Federal judges expressed surprise Monday that the Nuclear Regulatory Commission has issued permits to allow a company to leach uranium out of an aquifer that supplies drinking water to thousands of Navajos in New Mexico.
Local groups are challenging the NRC's approval of permits for Hydro Resources Inc., a New Mexico company, to operate in-situ mines near the Navajo communities of Crownpoint and Church Rock in western New Mexico.
A three-judge panel of the U.S. 10th Circuit Court of Appeals heard arguments Monday in what lawyers say is the first-ever challenge to the NRC's approval of licenses for an in-situ uranium mining operation.
Opponents said the proposed mining would push radiation levels in the area past federal standards for human exposure, while lawyers for the mine developer and the NRC said the mine would be safe for area residents and wouldn't affect drinking water.
The in-situ process uses chemicals to free uranium from the surrounding ore, allowing it to be pumped out of the ground with water and refined on the surface.
Dozens of companies have proposed similar mines around the West as uranium prices climb. Companies have recently submitted dozens of letters of intent to the NRC outlining plans for new in-situ mines in Wyoming, Utah, Colorado, New Mexico and other states.
Monday's court hearing drew representatives from citizen groups fighting similar mine proposals in Colorado and South Dakota.
The Crownpoint-Church Rock area remains scarred from uranium-mining booms of decades past. Old underground mining operations have left piles of tailings, or processed mine waste, on the ground in many places. Critics blame the mining activity for sickening miners, many of them Navajo.
The Navajo Nation, which includes lands in western New Mexico and eastern Arizona, outlawed uranium mining in 2005.
Navajo school children from Crownpoint traveled to Denver on Monday and held placards in front of the federal courthouse with messages such as "Say no to uranium, say no to sickness."
Savanna Cowboy, 15, a student at Crownpoint Middle School, said the school is about a half-mile from Hydro Resources' proposed processing plant.
"I know for a fact what uranium can cause," Cowboy said outside of the courthouse Monday. "It causes health problems, health effects and contaminates the water really bad."
Eric D. Jantz, a lawyer for the citizens' group Eastern Navajo Dine Against Uranium Mining and for the Southwest Research and Information Center, told the judges that radioactive waste from past mining activities continues to contaminate people at Church Rock.
Jantz said experts have calculated that the proposed in-situ mining operations would generate enough radiation that, when combined with existing radiation from past mining, would exceed federal human exposure limits.
"The question for you today, your honors, is whether the NRC can disregard radiation from that source and continue to do its statutory duty to protect the public?" Jantz told the judges.
Jantz said the company proposes to leach uranium "in the same aquifer where the town of Crownpoint gets its water."
In response, Judge David M. Ebel said, "I can't even begin to understand that."
Lawyer Charles E. Mullins, representing the NRC, told the judges that he disagreed with Jantz' assertion that the combined effect of the in-situ mining and existing radiation in the area would exceed federal exposure limits. And he said the mining wouldn't affect drinking water.
Mullins said the NRC permit would require Hydro Resources to restore groundwater in each of its four proposed mining sections before moving to another area.
He said mining activity would only be conducted in parts of the aquifer that hold enough uranium to make the water unsuitable for drinking anyway.
Anthony Thompson, a lawyer for Hydro Resources, also said the portion of the aquifer that the company would be mining near Crownpoint would not be drinking water.
To that, Judge Carlos Lucero responded, "I do not understand it. If it's just vertically confined and not horizontally confined, what's to keep this water from flowing into the municipal drinking water?"
Thompson said the company would be responsible for monitoring wells in the area and would always pump more water from the ground than it would inject back in to make sure that nothing flowed away from the sites.
Lucero seemed unconvinced. "In other words, the licensee's checking himself?" the judge asked. "You don't have the city or some independent body doing it?"
Lucero said there would be no way to know whether the Hydro Resources' plan would work to protect citizens' drinking water until the process started.
The appellate panel will issue a decision in the case later.
History of legal case:
November 19, 1999Arthur Jones
Company wants to draw mineral through a pristine aquifer
Mitchell Capitan turned off the road, slipped his truck into four-wheel drive and churned dust as he forced the vehicle up an embankment onto a plateau. From this vantage point, for miles in every direction, all that can be seen is the occasional settlement, a few horses here, a few cows and sheep there. This is a parched and arid corner of a parched and arid state.
What can't be seen is the uranium, the radioactive and toxic silvery white element buried 2,000-feet down, in sand below the pristine Westwater Canyon Aquifer. The aquifer is the sole drinking water supply for an extended region of 15,000 people, including the adjoining Eastern Navajo Agency.
Crownpoint and Church Rock, two Navajo villages, are part of a region that sits atop the United States' richest and most extensive uranium deposits, deposits that spread throughout this Four Corners region where New Mexico, Arizona, Colorado and Utah abut.
These two villages, close to the agency -- part of the enormous Navajo Nation -- also sit atop a growing controversy.
Capitan is leading a handful of Navajo desperately fighting -- and losing -- a legal battle to prevent three new mines from opening here. Despite almost five years of interventions and objections by the Eastern Navajo Dine Against Uranium Mining (ENDAUM), on Aug. 20 Administrative Law Judge Peter Bloch of the U.S. Nuclear Regulatory Commission granted Hydro Resources Inc. of Albuquerque the license to open the first of its three Crownpoint-Church Rock mines.
Highlights of the dispute, as protesting Navajos take their case to Washington:
* The extent to which, some say, the public is being cut out of the licensing process for any new nuclear U.S. domestic nuclear reactors;
* The extent of funding received by members of Congress from the nuclear power industry lobby;
* Accusations that the Nuclear Regulatory Commission, threatened by 1998 U.S. Senate with budget cuts, has gone "belly up" and is giving the nuclear power industry everything it wants;
* Evidence of the continued easing of nuclear safety standards, from lowering of reactor safety regulations to permitting into circulation decommissioned nuclear weapon radioactive metals that will be manufactured, without public knowledge, into everything from "belt buckles to frying pans."
What the protesting Navajos are witnessing, said Diane D'Arrigo of Nuclear Information and Resource Service, is a regulatory commission "extremely supportive of uranium mining. It's part of [the Nuclear Regulatory Commission's] beholdeness to the nuclear power industry," D'Arrigo said.
Nuclear Information and Resource Service is headquartered in Washington, where the joke around town is that there has been a nonhostile takeover of the Regulatory Agency by the Nuclear Energy Institute, the industry lobby. In Crownpoint-Church Rock, that's no laughing matter.
Just 20 years ago Church Rock was the site of the largest radioactive liquid waste spill in U.S. history. On July 16, 1979, at 6 a.m., 93 million gallons of radioactive water breached the south side of United Nuclear Corp.'s earthen tailings dam, and along with 1,100 tons of uranium tailings containing other heavy metals, entered the Puerco River, which carried it through downtown Gallup, N.M., across the entire width of Arizona and finally into Lake Mead.
This Four Corners region has already been devastated by uranium mining, from the leaking Atlas Mine uranium tailings site in Moab, Utah, which government scientists say will dribble radioactive liquids into the Colorado River for the next 270 years, to Church Rock, where the radon levels in the air are 10 times the national average.
Poisoning the `Land of Enchantment'
In this "Land of Enchantment" state, Crownpoint and Church Rock are not solely the names of local settlements and mines. To many Navajos they are epitaphs in the making. Just as many Americans remember above- and below-ground nuclear testing, the Four Corners Navajos remember what fueled those tests: the 1950s to 1970s uranium boom-and-busts when fathers, uncles and grandfathers worked unprotected in radioactive open "dog pits," or jack-hammered uranium-bearing ore out of tunnels deep into mines.
Most of those men are dead now, many from cancer connected to the radioactive dust they breathed and the radioactive water they sloshed through. Only belatedly in 1990, and only in some cases, did the federal government agree to compensate the families.
Today, the Eastern Navajo Dine Against Uranium Mining, rebuffed by the administrative law courts, has switched the fight to Washington where it is attempting to rally political support against the mines.
ENDAUM'S predicament, say Washington-based public interest groups opposed to nuclear power, is that the nuclear power industry is coming back strong and sweeping the public and the regulatory agencies before it.
One predicament for the public is that the issue is so divisive independent authorities don't seem to exist. "Good luck," one university physicist told this newspaper when asked for the name of a physicist both sides would regard as a detached yet informed observer. "It's certainly not me. We're either on one side or the other."
"That's probably true," said physics professor Hall L. Crannell, of The Catholic University of America. "The sides are so far apart you're not going to find somebody who is respected by both."
Georgetown University physicist, professor Joseph McClure, who admits to "a certain bias in favor of nuclear power," though "very mindful of how dangerous the stuff can be," said much the same. "If there is such a person, I don't know whom," said McClure, who described himself as a popularizer of a relatively technical subject, nuclear energy. "This is an extremely polarizing question. You could go to any other high-tech question and never generate this much emotion."
Where big money is involved, political emotions run high, too. The industry's lobby, the Nuclear Energy Institute, larger than the tobacco lobby at its prime, has been throwing its money around Congress for years.
"Unacceptable," thundered Public Citizen's 1998 report, "The Nuclear Industry -- a Cash Cow for Congress." It documents Energy Institute political action committee handouts of $15.5 million to members of Congress right across the political spectrum to fight their 1998 election and re-election campaigns.
Since 1997, the report stated, Nuclear Energy Institute affiliates tossed in an additional $7.5 million in "soft money."
In New Mexico, mining company HRI has been dangling visions of $10 million in future pay-offs to those Navajo under whose lands the uranium rests. And, say those Navajo leaseholders, they'll be happy to take it. The prospect has divided tribe and families.
From dozens of interviews in New Mexico and Washington, the National Catholic Reporter has pulled together the many strands of a complex and controverted situation.
Surprised by mining plan
Offended by the approach of Mitchell Capitan's pick-up truck, two dozen sheep trotted out of the yard into the sparse grass nearby. A dog lay in the shaded dust and watched incuriously as Capitan pulled up by the tree. This is Grace's place, Capitan explained.
Crownpoint-Church Rock is in the "checkerboard region" of the United States, and land patterns and holdings are outside the U.S. norm. The checkerboard developed when the federal government gave the railroads every second section of land.
To further complicate matters, privately owned land, tribal trust land and allotted land make up the region. Tribal trust is land owned by the federal government and held in trust for the Navajo Nation. Indian allotted lands were awarded to Native Americans (termed "allottees") as individual allotments by the federal government and can be inherited by the children.
Capitan drove on, to show the corral where he keeps several fine-looking horses and a few calves. Capitan, when not working for the local utility company and not fighting proposed uranium mining, ropes calves at rodeos. He's also a rodeo judge.
Back on the hard road, he explained that Grace Tsosie, his mother-in-law who lives on the rented acreage, is the person who alerted the Navajo community in the mid-1990s to the fact that Hydro Resources was quietly signing leases with some neighbors to mine their privately held land.
"The mining company went to different landowners," he said, "keeping it to themselves, not letting any word out to the public. Grace was told to move off the land, though they'd built a homestead and everything.
"Then, right before Thanksgiving 1994," said Capitan, "we saw in the Gallup Independent `Uranium mine approved for this area.' Two weeks after that we got the Draft Environmental Impact Statement in our mailbox. We said, `Look at this. No one knows about it.'"
Capitan decided to go around the community. "A lot of people didn't really know about the mine coming, so we called a meeting [for] Dec. 22, 1994. Forty came to the chapter house." They agreed to work together to prevent the mine, held biweekly meetings, and as the numbers doubled, came up with a name for the organization. Dine is the Navajo name for Navajo.
"We organized," said Mitchell, "but we were kind of lost. Didn't know which way to go." When checking rural electric meters in the Mariano Lake area, Capitan stopped in at the local chapter house, the local tribal headquarters and meeting place, for a meal.
While there he talked with people attending a meeting; one was Chris Shuey of the Southwest Research and Information Center. The center became the technical advisers for the Eastern Navajo Dine Against Uranium Mining and an intervener along with ENDAUM against the Crownpoint-Church mines.
To pursue its case, Capitan estimates, ENDAUM has spent $150,000 fighting the mine, most of it going for fees to expert witnesses who dispute fact-for-fact Hydro Resources' claims about the region's geological structure and the likelihood of water and air contamination. Southwest Research and Information Center's Shuey estimates the total bill, including pro bono legal services and staff time, now exceeds a half-million dollars. Capitan said most of the money was raised from foundations in New York and elsewhere.
The mining company will not be blasting uranium out of rock, but pumping it out of the ground, a process known as "in situ leach mining." Capitan knows a little about this mining. He was a lab technician in a Mobil Oil in situ pilot project in the 1980s. And, he said, Mobil was never able to clean up the water.
Richard Clement Jr., Hydro Resources' president, though not connected with the Mobil pilot, described it as "very successful, well-defined and very lucrative.
No harmful effects
Irma Julian, president of the association of allottees, said the Mobil pilot mine was on her family's land. Julian, city deputy assessor in Gallup where she lives with her husband in a neat mobile home park, said there were "no harmful effects after the Mobil demonstration project."
Capitan contends, however, that ground-water was affected. "They kind of disrupted it," he said. He was one of those testing the water as Mobil attempted to restore it. "They never could get it right," he said. "They keep pumping clean water down but bad water keeps coming up, and the engineers would keep arguing. We'd send the samples to other labs and get the same results."
Capitan is leading the local fight, but not all his Navajo neighbors are lining up behind him.
"I'm either hated or loved," he said. "I'm a person who says there are better things than money -- your health, your children. Money will only be here for a while. They say this kind of mining is safe. They're probably thinking, `Let's see what happens to their water.' We don't want to be guinea pigs."
Capitan estimates that 95 percent of the area Navajo are opposed to the mine. "The only true supporters are the allottees," he said.
The Navajo Nation is organized into regional chapters. In 1993 the Crownpoint Chapter supported the mining company's application. In 1999, hated or loved, the Crownpoint Chapter elected Capitan its president.
Irma Julian denies there was ever any secrecy involved in negotiations with the mining company. "About 12 years ago we had a big meeting. Everybody was supposed to be involved, every institute in the Navajo Nation -- churches --it was on the radio," Julian said. "We had a big old meeting. We've invited the opposition. That's another story."
Julian is president of the Eastern Navajo Allottees Association, which, she said, includes "close to 400 allottees." The association has its own lawyer, and many individual allottee families also have a lawyer.
To illustrate how diverse the holdings are, Julian explained that including her children, there are 21 "allottees" now in her family -- mostly living away from the area or in other states.
A 500-word statement prepared by the allottee's association said, "We believe the primary reason the Bureau of Indian Affairs [which has authority over privately held tribal trust lands, even those not on the reservation] has not been able to ratify our leases is because of legal actions taken by well-funded Albuquerque, Washington, D.C., and Santa Fe environmental activists and lawyers funded by a number of foundations, including the Ted Turner foundations.
"They claim to represent local Navajo," the statement continued, "but in reality they represent only one family who is jealous of our land ownership and [jealous] that we will benefit from our land and not they."
The statement spoke of the 70 percent unemployment rate in some localities, of bootlegging and alcohol abuse, and the need to provide good jobs. Further, it said, "We believe the project has been thoroughly reviewed and found to be safe." The ENAA would "not support the development of our land," it said, if the mining project had been shown to be harmful to the public health or environment.
Michele "Mitch" Morris, who runs the Tohatchi village youth club's environmental program, is a Navajo Nation Environmental Projection Agency professional who understands the competing arguments -- the Navajo EPA had both technical and cultural objections to the HRI mine.
Morris considers the mining company's projections for creating employment "part of the strategy, I guess. They say they'll create this many jobs. But they'll bring in their own people," said Morris. "There won't be many jobs for ordinary Navajos. Seventy-five percent of the jobs are specialized."
She doesn't believe the allottees will do particularly well financially, either, but she understands their reasons for supporting the mine. "When you break it down, there isn't a whole lot of money. They want to use it for a good cause, send their kids to school and stuff. They have no other way out. They're already at the poverty level, and it's hard for them to make that decision.
"They say they're doing it for the kids, and we're trying to let their kids know, 'Do you really want this, or do you think you can make it on your own? The community's here to help you.' But at the same time, there's not a whole lot we can offer them," said Morris. "Basically we're asking them, 'How much is your land worth? Your land's going to be impacted. You're not going to have the same grazing rights.'
"It's tough," said Morris, "to let them know the primary basis is to preserve the area." But she's seeing the area deteriorate.
Morris, who until 1994 worked on oil and gas EPA matters before switching to uranium issues, said she's seen the problem in those other communities. "Oil is not as hazardous. But there's a house here, and a house there, and people live with hydrocarbons in the air all the time. Water problems. Wells not properly closed, and the water really salting up. We don't want those problem here."
Industry sees future demand
With uranium selling below $10 a pound, and a price approaching $16 a pound needed to oper Crownpoint and Church Rock, why has Hydro Resources bothered pushing ahead with its uranium mining plans?
In an Albuquerque airport restaurant, sitting side-by-side, sipping iced tea, Hydro Resources' president Richard Clement and Mark Pelizza, the company's vice president for health, safety and environment, answered.
"Because," said Clement, "worldwide reactor demand is for about 140 million pounds annually while annual production is only 70 million." The difference is made up from existing stockpiles.
Russian dumping and the U.S. government handout of 70 million pounds of uranium to "support the new company's economics" when it privatized the government-owned U.S. Enrichment Corp, has currently depressed prices, he said.
Even uranium from decommissioned nuclear weapons is not much of a market threat, said Clement. If the existing weapons stockpile was transformed into reactor grade uranium and put on the market today, it would be gone in 4 to 5 years, he said.
Hydro Resources' opponents watch to see if the company survives financially. Clement says it will, though its owner, Uranium Resources Inc. of Dallas was de-listed by the NASDAQ Stock Market in 1998. The company is still publicly traded -- on Bulletin Board.
Clement, a geologist and a former Mobil Oil employee who has been in uranium mining since the 1960s, said Hydro Resources has successfully opened and operated in situ leach mines for itself and others since the 1970s in Wyoming and Texas. They're in New Mexico, Clement said, because it has produced more uranium than any other state.
The Crownpoint-Church Rock mines, Clement said, have "well over 100 million pounds of uranium. Thirty years of production. And from what we know today geologically, there are extensions of those deposits."
Bottom line, said Pelizza, is that "we are in the lowest 25 percent for production costs in the world."
If prices improve, Hydro Resources' new mines could come on-stream in two to four years. "The benefits to the allottee will be $10 million in a typical section," he said.
Hydro Resources' critics aim many salvos at the company. One is for its direct dealings with individual Navajos, such as wining and dining tribal chiefs. Past president Albert Hale resigned early; successor Thomas Atcitty left office after the tribe charge him with nine ethics violations, including accepting in 1996 and 1997 more that $2,000 in free hotel rooms, meals and $240 worth of golf fees on HRI funded trips.
Hydro Resources was reported to have also paid the way for Atcitty and representatives of the Navajo Environmental Protection Agency to attend an April 1997 Phoenix meeting on the proposed Crownpoint-Church Rock mines.
According to the Gallup Independent, the Navajo special prosecutor's report stated "at the time of the benefits and gifts, HRI was seeking to negotiate with Navajo Nation officials and was engaged in extensive litigation designed to allow it to proceed with business plans worth thousands of dollars annually."
NCR asked Clement if, on reflection, it was a good business move or bad PR to wine and dine the tribal chiefs.
Clement replied, "The people we were dealing with in Navajo Nation historically were the past president of the tribe, Albert Hale, an attorney. He worked for us before his election. He was involved in radiation control act compensation for Navajos' historical mining.
"Before he got involved with our company he went down [to HRI's South Texas] facilities and saw this [in situ leech mining] was not like what had occurred in [uranium rock ore mining] in the past," Clement said. "There are not a lot of people in contact with [in situ mining]. Because of what he saw, he agreed to take us on as a client and represented us in general discussions with the tribe." Hale recused himself from tribal discussions with the company, said Clement, and his place was taken by then vice president Thomas Atcitty.
It was consistent with the tribe's best interests, said Clement, that they were "brought down to visit our operations in South Texas." Staff and family members along, he said, and "it wasn't a junket by most standards. And there was no wine."
Clement said that Hydro Resources has "a very clean, benign mining technique" and "all the slide shows in world" can't convey that. "Unless people view facilities and walk through them it's hard to explain."
Julian, the allottee's president, said she was one of those who went to Texas, "to see for myself."
Capitan doubts the value of Navajos visiting the company's Texas facilities for comparison. "That water was already bad, like ocean water," he said, "and they only had to restore it back to that level. One dig in the Texas area is only 150 to 300 feet deep. The ore body here is 2,000 feet. That really makes a difference."
"What this [wining-and-dining controversy] has done," said Hydro Resources' Pelizza, is "to stymie us from approaching the next Navajo Nation administration, sitting down with them and having lunch."
Is Hydro Resources' mining operation safe?
"Absolutely foolproof," said Pelizza. Critics say "there are underground channels" causing polluted liquid to migrate. "It's just not so. We force water through solid rock. In effect we create a draining bathtub, pumping the escaping liquid draining from the bathtub up to the surface. Because the water is moving so quickly -- relatively speaking -- it doesn't circulate. It concentrates toward where it is being extracted. We monitor. Every well we drill is surrounded by monitor wells, 400 feet apart. Sampled every two weeks. And that's done right through to the last day of restoration."
Added Clement, "This water may take a week to move 100 feet. That's pretty fast. Natural groundwater flow in these areas is 10 feet a year."
Clement said that "one of the reasons we've been a great focus for the opposition is obviously they're opposed to nuclear development. The way they look at it, if they can oppose the development of the uranium, it's more difficult to develop nuclear reactors. And we're a relatively small company, so we're an easy target.
"For the people fighting against this," he said, "we are their biggest money-making opportunity of the year. They make money opposing. They are nonprofit organizations funded by their benefactors. They need a lightning rod to bring moneys in. We're their current lightning rod."
Not a local issue
Following the favorable ruling, on Aug. 26 the company applied to the court for sanctions, reprimand or censure and costs against the Eastern Navajo Dine Against Uranium MIning, its technical adviser, Southwest Resources and Information Center, and their counsel for their "repeated disruptive, contemptuous and borderline libelous conduct" and "frivolous claims."
On Sept. 20, requesting the sanctions motion be denied, ENDAUM and Southwest Resources and Information Center stated that the real issue raised by Hydro Resources' sanctions motion "is whether the interventers have a right under the Atomic Energy Act and the First Amendment to dispute Hydro Resources' proposal to mine uranium." ENDAUM and its advisers also petitioned the Nuclear Regulatory Commission's five members to review the commission's handling of the Crownpoint-Church Rock decision.
"All we want to do," counter Hydro Resources' president Clement "is run a simple, safe in situ leach mine, and they're throwing Hiroshima and Nagasaki at us."
Uranium is no mere local controversy. It is an ongoing national and international confrontation between those who back nuclear-powered reactors and nuclear weapons, and those who don't.
The Crownpoint-Church Rock battle has already gained momentum in national and international indigenous circles. In June, Capitan was a plenary session panelist at the Indegenous Enviromental Network's 10th annual meeting. The session's topic was "Uranium and Indigenous People." Delegates came from Canada, the United States and Australia.
Moreover, the local uranium mine dispute has been documented with U.N.'s International Indian Treaty Council, said Anna Rondon, a Navajo activist. "People are aware of the uranium impact on indigenous lands," she said, "but as for the U.N.'s ability to stop any kind of project, such as HRI, that hasn't been tested yet."
Rondon, a member of the Southwest Indigenous Uranium Forum, was spreading the word at both the Indigenous Environmental Network gathering and, in September, the Nuclear-Free Future Award's gathering in Los Alamos where recipients included two Native Americans, a German couple, a former Soviet physicist and former Interior Secretay Stewart Udall.
Mass of documents
Those battling for a uranium-free future in Crownpoint-Church Rock, in addition to ENDAUM members such as Capitan, Kathleen Tsosie and Larry King, are intervenors like Chris Shuey of the Southwest Research and Information Center; Jaime Chavez of the Water Information Network, both in Albuquerque, and attorneys from the New Mexico Environmental Law Center and the Washington firm of Harmon, Curran, Spielberg and Eisenberg.
The legal fight is a mass of technical documents and testimony from geologists, hydrologists, scientists and environmentalists.
In situ leach mining is a continuous process in which water is pumped from the aquifer and uranium-freeing oxygen and carbonates added.
At Crownpoint-Church Rock, the liquid, pumped down to 2,000 feet, circulates in the uranium-bearing sand. The freed uranium joins the liquid and the liquid is pumped back up. There, the uranium is extracted, the water restored and pumped back into the aquifer. Polluted water remains above in storage tanks (some estimates say millions of gallons for each Crownpoint-Church Rock mine). The uranium "yellow cake" is then trucked to a nearby processing plant.
HRI has proposed relocating existing municipal wells. The aquifer will not be tainted, they say, and withdrawn water will be properly restored.
ENDAUM geologists and hydrologists counter that the aquifer is at risk, that polluted water will migrate horizontally and vertically, that the mining company's water restoration abilities and monitoring do not meet the needs, and that the existing radioactive air pollution levels have not been taken into proper account.
Protesting Navajos add that the project is "inimical to health and safety," and that there'll be few jobs for ordinary Navajos.
Nuclear Regulatory Commission staff dispute the Navajo's experts' findings -- apparently with some impunity. When Maryknoll Sr. Rose Marie Ceccini, cofounder of New Mexico Interfaith Stewards of Creation, wrote to President Clinton in July asking for an independent investigation into the regulatory commission's handling of the Hydro Resources license, the White House simply bumped the letter to commission's Office of Nuclear Material Safety. The reply stated in part, "the NRC staff has done a thorough job of analyzing the HRI application."
Nuclear Regulatory Commission watchers say that for obvious reasons the commission rarely goes against staff recommendations.
Judge Bloch, who granted the HRI license, didn't.
If the Washington anti-nuclear groups seem to all know each other, and appear a little clubby, the clubbiness goes two ways. Not only does the Nuclear Energy Institute keep politicians' campaign chests topped up, according to Jim Riccio, staff attorney on administrative law for Public Citizen's Critical Mass Energy Project, staff leaving the regulatory commission can usually find a well-paid berth in the nuclear power industry.
Nuclear Regulatory Commission licensing Judge Bloch is not quite a case in point. A regulatory commission judge since the 1980s, in 1997 he sought to join the Washington law firm of Shaw Pittman Potts & Trowbridge. The law firm subsequently broke off the talks.
Shaw Pittman represents the mining industry's lobby, the National Mining Association. And though Hydro Resources is apparently not a Mining Association member, Shaw Pittman is also HRI's lawyer.
What troubles critics of the regulatory commission is not the nuclear industry's clubbiness so much as its impact on the public's right to be heard.
Some judges agree.
The public is being given the bum's rush, according to Federal Judge Patricia M. Wald, at an Oct. 6 hearing on Baltimore Gas & Electric's Calvert Cliffs, Md. nuclear power plant licensing renewal application. (The current Calvert Cliffs 40-year license expires in 2014.)
The Calvert Cliffs hearing raises some of the same issues that interveners contend plagued their opposition to the HRI mines in Crownpoint-Church Rock, N.M., including that at each new stage they were given insufficient time to prepare their arguments; that the schedule is stacked in the Nuclear Regulatory Commission's favor.
In March, local newspapers reported that Douglas Meiklejohn of the New Mexico Environmental Law Center in effect accused Bloch of bias for giving Hydro Resources and the regulatory commission second chances to present materials, but no second opportunities to the interveners to rebut. The Eastern Navajo Dine Against Uranium Mining, the Southern Research and Information Center and lawyer Diane Curran have complained of insufficient time to mount their case.
That, according to Congressional critics, is the way a Congress flush with money from the nuclear energy industry wants it -- a "one-step," speeded up licensing and renewal process. The regulatory commission now says, for example, it can reduce the lengthy license renewal process by one to three years and still safely regulate the aging reactors in the United States.
A bargain for big energy
At issue is very big money. Calvert Cliffs, for example, provides half of Baltimore Gas & Electric's electricity. Because of their low operating costs once built, the existing 100-plus nuclear powered electricity generators in the United States are a bargain for big enery corporations.
For most nuclear power plants, retirement is still at least a decade or two away. Which means, say critics, that the emerging energy oligopolies have two decades to mold the federal and state regulatory processes to their needs -- such as getting the taxpayers to pick up more of the downside risks, like paying for nuclear waste disposal through government-funded central depositories or accepting higher levels of radiation in their daily lives through the "deregulation" of low-level radioactive waste and materials.
Making regulations and adjudicating disputes along the pro-and-anti uranium continuum, the Rockville, Md.-based U.S. Nuclear Regulatory Commission has a $500 million budget which, though supervised by Congress, is actually funded primarily by the nuclear industry it licenses and regualates.
The commission's immediate past chairman (1995-1999), Shirley Ann Jackson, now president of Rensselaer Polytechnic Institute in Troy, N.Y., told NCR that she believes there ought to be a better way to fund the regulatory agency's work.
Essentially, energy industry watchers see public utility deregulation as a way in which the emerging energy giants receive huge bailouts -- better than $28 billion for California utilities -- for existing nuclear power plants, not least by providing cash allowances or continuing operating subsidies.
The Nuclear Regulatory Commission can lower nuclear utilities' operating costs and raise profits by lowering safety and oversight regulations.
Riccio, of Critical Mass Energy Project, points to the "Reduction in Requirements Marginal to Safety," and NRC regulation, as an example. To avoid having to shut the reactor down when there's a problem, he said, a telephone call from the utility company saying it's fixed -- instead of an inspection team going in -- will be sufficient for the NRC to permit the utility to continue running.
Nuclear reactor safety violations are not rarities. In September, Northeast Utilities agreed to pay the largest fine in nuclear power generator history when it was fined $10 million for 25 felony counts ranging from lying about its plant operators' qualifications to dumping pollutants into Long Island Sound.
Reduced public involvement
The Nuclear Regulatory Commission is cutting back regulation and safety measures wherever it can, said Riccio.
Nonsense, says past chairman Shirley Ann Jackson. The commission's first priority, said the theoretical physicist, is "keeping the focus on safety. With that focus comes a need for balance -- to balance the views and concerns of the various stake-holders: the public, because of the responsibility under law for public health and safety; the public as individual citizens and Republic interest groups; those we regulate, one has to be fair and straightforward about what our expectations are; our own employees, and the Congress who oversees us."
Riccio checked off NRC actions, old and new, that he said reduced the public's involvement.
A decade ago, after state emergency planning regulations were used by New York Gov. Mario Cuomo to block the Shoreham reactor after only six hours, and by Massachusetts Gov. Michael Dukakis who used the regulations to delay nearby New Hampshire's Seabrook reactor's opening for years, the NRC simply eliminated state involvement from emergency planning provisions.
"One-step licensing is on the books already," said Riccio, "but no one's used it yet. Basically it means that the public no longer has a right to a hearing after the NRC licenses a nuclear plant in the U.S."
Riccio said, "The Atomic Energy Act said the public does have that right, but the industry consistently argued that it unduly delayed licensing. There hasn't been a nuclear reactor approved for the U.S. since 1973.
"If another reactor is ordered for the U.S.," he said, "the public will be rolled over. They will be allowed to participate only in the highly technical and massively voluminous front end. Not the [ongoing public hearing] involvement the Atomic Energy Act required."
Riccio also charges that the Nuclear Regulatory Commission dissipates the public's focus by using a technique called "site banking." Instead of selecting a single site for a possible future nuclear power station, the utility can name a dozen different ones without specifying which might be finally selected, he said.
With no single site for the public to focus on, there is no impetus for the public to be involved because there is no imminent threat. "It's just another way of knocking the public out of the licensing process," he said.
The Department of Energy projections into the next several decades show a declining percentage of U.S. electricity from nuclear reactors, no doubt due to older ones being phased out. What would a new U.S. reactor cost if one we built? (The last reactor to open, Watts Bar in Tennessee near the Oak Ridge national lab, cost $7 billion to $8 billion to build and decades to construct.) Comparisons with earlier, 1970s reactors aren't valid, said a Nuclear Energy Institute spokesperson, because of "dramatic improvements" in design since the Three Mile Island nuclear accident.
"NEI does expect new nuclear reactors to be built in the U.S.," said the spokesperson, "but we don't know when. It's something that will be determined by need, economics and the regulatory process. Three advanced light-water reactors have already been certified by the NRC. NEI and others are continuing to work on the regulatory process. There is certainly an adequate supply of nuclear fuel, including uranium, to provide nuclear power well into the future."
Riccio said the industry is also to trying to deregulate the disposal of low-level radiation nuclear waste because "basically the utilities are being clobbered by nuclear waste disposal costs."
"NRC is consistently dropping nuclear safety standards and reducing the industry's operating costs," said Riccio.
Lowering standards? "Obviously I don't agree with that [characterization]," said former Regulatory Commission chairman Jackson. "I think what is happening is a clarification of what the standards really are. Being more explicit about what one will hold the licensees to. Safety's the issue."
The Nuclear Energy Institute, the industry's lobby, is equally adamant about the nuclear power world's safety concerns. Immediately after the recent explosion at the nuclear fuel reprocessing plant in Tokai, Japan, the institute posted an explanation of "Why it should not happen in the United States." No similar plants, it said. That is disputed by Tri-Valley CARES -- Livermore National Laboratory, Calif., Watchers. Of 60 worldwide criticality accidents, 33 have occurred here, Tri-Valley contends. And Livermore experimental criticality physicist Jack Truher documented one he witnessed as early as 1963.
Shipping nuclear waste by road, rail
The Nuclear Energy Institute touts the safety of shipping used nuclear fuel by road and rail. Of more than 2,900 shipments, the institute said, no nuclear fuel container has ever leaked or cracked. There have been only eight accidents involving nuclear fuel containers, only four of the containers were loaded and none spilled, according to the institute.
There are allied issues.
D'Arrigo of the Nuclear Information and Resource Services, said a classic example of Nuclear Regulatory Commission disregard for public safety and its right to know is its decision to allow 126,000 tons of radioactively contaminated metal to be commercially recycled as everything from "frying pans to belt buckles" without the material being labeled or the public being informed.
Even Vise President Al Gore, a native of Tennessee, is captive, she said. Gore supports a U.S. Department of Energy contract that will permit a British company, BNFL Inc., to stream the radioactive nickel, aluminum, copper and steel from Tennessee's Oak Ridge lab into the U.S. manufacturing process. What's more, there's a blackout on revealing which manufacturing companies will receive the tainted metals.
In June, U.S. Federal District Court Judge Gladys Keisler commented that the potential "for environmental harm is great, given the unprecedented amount of hazardous material they seek to recycle." In August Congressmen Ron Klink (D-Pa) and John Dingell (-Mich.) in a letter to Department of Energy Secretary Bill Richardson accused the department of abdicating its responsibility for the control of contaminated nuclear weapons materials.
D'Arrigo said the Energy Department is already "quietly releasing" radioactive material on "a case by case" basis from other nuclear facilities.
Why does Congress go along?
Because "the nuclear power industry makes sure all parties get their share," said D'Arrigo. "Even socialist Rep. Bernie Sanders, [a Vermont Independent] is a nuclear industry supporter. It's not partisan politics. The industry's got the resources to buy state and federal legislators and the regulatory agencies, and that's what it does. Sounds cynical? Well?"
Critics see a relentless and sustained nuclear energy industry attack. In "Who the Hell is Regulating Who?" a 1996 report by the Project on Government Oversight, the group described "a cozy relationship between the NRC and the nuclear industry allowing the industry to go decades without fixing what the NRC considered 'high priority' safety issues."
More recently, the Oversight Project has been battling with the Regulatory Commission over the Atlas Corporation's uranium tailings pile in Moab, Utah.
Essentially, the Nuclear Regulatory Commission's budget is arrived at by Congress. The amount is subdivided among the various licensees and fee payers and their share allocated accordingly. Jackson, former Commission chair, told NCR she's "not sure a health and safety agency should be funded by the fees of those subject to it because of the potential conflict."
With his 25 years in Congress, many in Washington see Sen. Pete Domenici (R.N.M.) as the political power behind the nuclear industry and nuclear weapons throne.
"He represents a district that includes Los Alamos and Sandi national laboratories," said David Lochbaum of the Union of Concerned Scientists, "and he does it well. He represents their interests, which means jobs and taxes, and believes nuclear power has an answer for global warming. I personally disagree with him, but I think his conviction is sincere and his actions consistent."
Domenici declined an interview.
Regulatory Commission critics regard Domenici as the prime mover behind last year's Senate appropriation committee's warning to the Nuclear Regulatory Commission to streamline its licensing and renewal process -- or else. The committee threatened to slash NRC's budget by 25 percent unless the commission became more industry friendly. That would have cut 700 inspectors from the commission's roughly 2,900 employees.
"To avoid that kind of bloodshed in the ranks, the NRC went belly up," said Lochbaum. "It now will do anything they possibly can to make the Senate happy."
Counters Jackson, "That's not how I see it. The agency, in the end is a creature of Congress. As such, it has a responsibility to be responsive to Congressional concerns. However derived."
Lochbaum described the Regulatory Commission's post-threat oversight as "drive-by regulation." Under such over-sight it is obvious that if a U.S. energy giant decides beyond 2010 to take the public gamble of trying to build another reactor in the United States, the regulatory deck will be stacked in its favor to a degree unimaginable in the 1970s. Whether the public outcry would kill a prospective new reactor is untested.
If the public is to be alerted, Navajos batling Crowpoint-Church Rock could play a key role.
It was strategy session and luncheon in a U.S. Senate cafeteria that brought together Kathleen Tsosie, ENDAUM administrative officer; Larry King, ENDAUM board member whose land abuts the Church Rock mine site; Chris Shuey of Southwest Research and Information Center; Diane Curran of the Washington law firm of Harmon, Curran, Spielberg and Eisenberg; and Jaime Chavez of the Water Information Network. They had spent much of the morning in Rep. Cynthia Mckinney's (DGa.) office and were headed toward Rep. Tom Udall's (D-N.M.).
On Capitol Hill, King is telling all who will listen that Hydro Resources has proposed using some of his family's leased land, but the family will not agree. "My family and I live a traditional life, graze 24 head of cattle," he said. "We hold home site leases from the Navajo Nation and grazing leases from the Bureau of Indian Affairs'" he said. "If our land is contaminated, the land or water or air or vegetation, there will be nowhere to go."
Tsosie's family knows the perils of uranium mining; her uncles and others in her grandparents' generation worked in the mines around Cove. This is a justice issue, said Tsosie and King. Adds King, people do not understand the risks in what is going on. In Church Rock, he said, "we are vulnerable."
No guarantees for water
Both fear that the mining company will not be able to afford to clean up operating accidents or to restore the groundwater; there are no guarantees that HRI can afford a surety bond that will cover the risks.
Lawyer Curran explains what has been another aspect of the legal challenge to the Crowpoint-Church Rock proposal.
"For the past 20 years NRC has been very firm about instituting requirements for clean-up funding, a decommissioning surety or fund. Basically, for nuclear licensees," she said, "you have to show, A) you've made a reasonable estimate of what it is going to cost to clean it up, and B) you have the set-asides -- the money, or a certain percentage of your profit over time, or a surety up front.
"That's before you get a license," said Curran. "These folks [Hydro Resources] have not been required to do this. The NRC is bending over backwards to license [in situ leach] mines -- using a loophole -- to make it possible for them to operate even when they can't make the licensing requirements.
"In this HRI fight," she said, "the Nuclear Regulatory Commission staff did not require an advanced showing of decommissioning funding. To make matters worse, the hearing did not take place until after the license was issued."
If the Nuclear Regulatory Commission -- as is likely -- upholds Bloch's ruling, what's next in Washington?
Southwest Research's Shuey said there are three approaches: 1. An appeal to the U.S. Appeals Court; 2. attracting national attention to the injustices the HRI mines represent; and 3. continuing to work with the elected Navajo leadership on the threat posed by the mine.
"We're in Washington," Shuey said, "to convince people to sign on to the Cynthia McKinney 'Dear Colleague' letter to say no more uranium mining on Navajo land, at least not until a time when all existing problems are dealt with. We're here to make it clear that this is not just an unsafe project and an unneeded project. It is an unjust project."
For Capitan and others, back home in Crownpoint-Church Rock it's been an unusually wet summer. The grass the sheep nibble around Grace Tsosie's spread is tall and green.
Hydro Resources and its allies see a different sea of green in this vast area, the millions of dollars worth of uranium down below -- holding out promises of riches for some and employment for others.
To people like Capitan though, such promises are the fleece of a dangerous and permanently damaging environmental wolf in sheep's clothing.
RELATED ARTICLES: 100 reactors operating in United States
IN 1998, reports the Energy Information Administration of the Department of Energy, there were more than 100 nuclear reactors operating in more than two dozen U.S. states from Alabama (five) to Wisconsin (three).
U.S. uranium production declined 17 percent over the previous year in 1998, but $22 million was spent in exploration and development.
The Energy Information Administration also reported a development in an entirely different direction: a new technology that could lead to solar power plants as large as 200 megawatts. The $55 million Solar Two, a 10 megawatt "power tower" demonstration project in Barstow, Calif., was funded by the Department of Energy and private corporations including Southern California Edison.