OGLALA SIOUX TRIBE AND ATTORNEY PARSONS CONFRONT POWERTECH IN SOUTH DAKOTA
Tribe's petition to intervene in NRC proceeding cites environmental failures of in-situ leach uranium mining and obsolete regulations
Posted April 15, 2010
The following excerpt is from the full petition:
Pursuant to 10 C.F.R. § 2.309, the notice published by the Nuclear Regulatory Commission (NRC or Commission) at 75 Fed.Reg. 467 (Jan. 5, 2010), and the Commission Order of March 5, 2010, Petitioner Oglala Sioux Tribe (Tribe or Petitioner) hereby requests a hearing and petitions to intervene in this proceeding regarding the application of Powertech (USA) Inc. (Powertech) for a uranium recovery license for the Dewey-Burdock Project, a proposed in-situ leach (ISL) uranium mine in Custer and Fall River Counties, South Dakota. The Tribe’s standing to intervene is described in Section II of this pleading, and the Tribe’s contentions are set forth in Section III.
The Tribe submits
this petition because the
project may pose serious threats
to the Tribe’s cultural,
historic, economic, and
conservation interests. As
detailed herein, the
Environmental Report, the
Technical Report, and the
Supplemental Report that
comprise the application contain
serious defects, such that the
application as a whole fails to
satisfy the requirements of
federal law, including the
Atomic Energy Act, the National
Historic Preservation Act, and
the National Environmental
Policy Act, along with the
implementing regulations for
these laws. As discussed in more
detail in Section III on
contentions, the primary
concerns are the lack of
compliance with both federal law
and NRC regulations and guidance
regarding protection of the
Tribe’s cultural and historic
resources, and the lack of
information necessary to
determine the hydrogeology and
geochemistry of the site. The
latter includes the lack of a
defensible baseline ground water
characterization or a thorough
review of the natural and
manmade interconnections between
aquifers in the area that may
allow for cross-contamination
with the aquifer slated for
chemical mining.
With respect to
the environmental impacts of ISL
operations, the long-term track
record of ISL mine sites in the
United States is replete with
examples of failure to
accurately predict groundwater
dynamics, especially with
respect to prevention of
horizontal or vertical
excursions and the inability to
restore ground water to
pre-mining conditions. These
impacts have occurred despite
the repeated assurances from
prospective mine operators that
ISL mining is a safe and even
“benign” activity. See, e.g.,
http://www.eoearth.org/article/In_situ_leach_%28ISL%29_mining_of_uranium
(World Nuclear Association
co-author of article). The
recent factual record
demonstrates that these projects
are not benign, and that grounds
for serious concerns exist
concerning proper regulation of
ISL mining.
For instance, despite being directly subject to NRC regulatory authority, the Smith Ranch-Highland ISL operation was cited by the State of Wyoming in 2008 for multiple serious violations of law, some dealing with fundamental aspects of protection for public health, ground water, and against taxpayer liabilities. March 7, 2008 Notice of Violation (attached as Exhibit 1). These violations were far from insignificant. In its Investigative Report accompanying the Notice of Violation, the State of Wyoming reprimands the operation:
Given that PRI’s [Power Resources, Inc.] operation has for many years been the major uranium producer in Wyoming, there is an expectation that the operation might serve as a model for excellence in ISL mining. Unfortunately, that is not the case. There are a number of major long-standing environmental concerns at this operation that demand immediate attention.
Wyoming
Department of Environmental
Quality Report of Investigation
(attached as Exhibit 2) at 1.
The Report of
Investigation goes on to charge
the facility with numerous
violations, including “major
deficiencies” in both of its
state permits. Id. at 2. Among
the more serious problems are
inadequate reclamation, where
“[i]t is readily apparent that
groundwater restoration is not a
high priority for PRI,” in part
because “both production and
restoration timeframes have
doubled or tripled and yet
additional wellfields are being
brought into production.” Id. at
3. Further, the Report details
“an inordinate number of spills,
leaks and other releases,” such
that “it appears that such
occurrences have become
routine.” Id. at 4. Lastly, with
respect to bonding, the Report
finds that “[r]ough calculations
based primarily on PRI’s figures
reveal an alarming scenario,”
such that the mine’s approved
reclamation and bonding plan “is
totally infeasible and
unsupported by any critical path
timeline or water balance,”
resulting in a finding that
“clearly the public is not
protected.” Id. at 4-5. These
findings, just two years old,
raise serious doubts for the
Tribe as to the adequacy of the
regulatory framework applicable
to ISL uranium mining. At
minimum, these concerns are ones
that the federal regulatory
system ought to have been well
aware of and corrected long
before they were ever allowed to
reach such extremes.
Unfortunately,
the apparent inability of ISL
uranium mines to succeed in
accomplishing ground water
restoration is not an isolated
occurrence. For example, the
U.S. Geological Survey has
recently confirmed that “[t]o
date, no remediation of an ISR
operation in the United States
has successfully returned the
aquifer to baseline conditions.”
Otton, J.K., Hall, S., In-situ
recovery uranium mining in the
United States: Overview of
production and remediation
issues (Abstract), U.S.
Geological Survey, 2009,
IAEA-CN-175/87ISL (attached as
Exhibit 3). This report goes on
to express its authors’ findings
that “[o]ften at the end of
monitoring, contaminants
continue to increase by
reoxidation and resolubilization
of species reduced during
remediation; slow contaminant
movement from low to high
permeability zones; and slow
desorption of contaminants
adsorbed to various mineral
phases.” Id. See also Hall,
Susan, Groundwater Restoration
at Uranium In-Situ Recovery
Mines, South Texas Coastal
Plain, U.S.G.S. Open-File Report
2009–1143 (2009) at 30 (attached
as Exhibit 4).
As demonstrated,
the NRC Staff routinely allows
for reductions in ground water
standards away from baseline
water quality. Thus, it appears
from all the available evidence
that all NRC-regulated ISL
mining has resulted in some
degradation of ground water
quality over the long-term. The
question then becomes one of how
much ground water degradation
the NRC will allow, and how far
the resulting contamination will
spread. In view of this track
record, and particularly in
considering standing, the Board
must assume a certain level of
ground water contamination.
Apart from the
risks associated with ISL
mining, as discussed above,
recent testimony before the
Commission from NRC Staff and
U.S. Environmental Protection
Agency (“EPA”) representatives
demonstrates that the regulatory
guidance and processes currently
in place for ISL mining
application reviews are in some
instances sorely out of date,
and being substantially revised
at the current time. For
instance, at a March 2, 2010
briefing to the Commission, NRC
Staff explicitly recognized that
its “regulatory infrastructure,
the regulatory guidance, the
Standard Review Plans” for ISL
mine applications are out of
date, and that “the staff is
actively working on updating
those documents.” March 2, 2010
U.S. NRC Briefing on Uranium
Recovery, at 6 (attached as
Exhibit 5). The fact that
projects such as the
Dewey-Burdock Project are
currently moving through a
regulatory regime that is
admittedly out of date raises
serious concerns with respect to
the ability of such a project to
adequately protect the public
health and environment, along
with the Tribe’s other concrete
interests.
Indeed,
throughout the March 2, 2010 NRC
briefing, the broad extent of
the needed and ongoing revisions
to the NRC’s regulatory
oversight of ISL mining became
clear. NRC staff testified that
because of the outdated nature
of the ISL regulatory framework
“[s]taff is currently revising
the standard review plan for
in-situ recovery application
reviews and ten regulatory
guides.” Exhibit 5 at 13. NRC
staff also indicated that a
major revision to the applicable
regulatory requirements for
ground water protection and
restoration at ISL mines was
imminent and would be submitted
to the Commission as early as
April of 2010 (this month). Id.
at 9.
Representatives from EPA also testified at the March 2, 2010 briefing that the EPA is updating its fundamental regulations under 40 C.F.R. Part 192 with respect to ISL mining, which the NRC is bound by statute to implement at all ISL mine sites. With respect to the need for this update, EPA representatives confided that:
These regulations have not been substantially changed to recognize the environmental challenges faced by significantly increased use of in-situ leaching recovery technology, as well as possible use of heap leaching by the uranium industry. Nor have they been revised to incorporate potentially relevant recent changes in EPA groundwater and drinking water standards, as well as the most recent updates in good science for radon and radiation protection since the rule was last revised.
Id. at 47-48.
This is in addition to the
changes EPA is making to its
regulatory controls for ISL
mines with respect to hazardous
air pollutants, including radon
under 40 C.F.R. Part 61, Subpart
W, and “doing so with
recognition of the environmental
challenges faced by
significantly increased use of
ISL recovery technology by the
uranium industry.” Id. at 49.
In addition to this testimony
regarding the outdated nature of
the regulatory program, EPA has
recently submitted comments on
an ongoing NEPA process for ISL
uranium mining in Wyoming,
expressing substantial concerns
with respect to the integrity of
the environmental analysis.
March 3, 2010 Letter from Carol
Rushin, Acting Regional
Administrator, Region 8, U.S.
EPA to Michael Lesar, Chief,
Rulemaking and Directives
Branch, NRC (attached as Exhibit
6). This EPA comment letter
rates the NEPA documents for
three ISL uranium mines in
Wyoming as “inadequate” in part
because of the failure of NRC to
“evaluate the potential effects
that non-attainment of baseline
groundwater restoration would
have on surrounding [underground
sources of drinking water].”
Among the primary concerns
raised related to ground water
are the frequent use of
alternate concentration limits
and a lack of sufficient
discussion of the causes of
excursions as ISL uranium mine
sites. Id. at 4-5.
Overall, the significant problems evidenced at ISL mine sites in Wyoming and elsewhere, which are under direct NRC regulatory authority, and the candid admissions from both the NRC staff and the EPA that the regulatory structure for the protection of public health and the environment at ISL mine sites is out of date, elevates the Tribe’s concerns with respect to the ability of the Dewey-Burdock Project to achieve such protections in the context of this regulatory process. As a result, the strictest review must be afforded to this project, and better yet, review should be delayed until a current and legally sound regulatory framework can be put in place.