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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.