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Judge Rules: Mining Clean-up Plan "Deficient"

Uranium mining remains prohibited at a proposed in situ leach (ISL) mine in the Navajo community of Church Rock, New Mexico, until "deficiencies" in a clean-up plan are fixed, a federal administrative law judge ruled in February in the ongoing adjudication of the Hydro Resources, Inc. (HRI), Crownpoint Uranium Project.

Judge Thomas S. Moore of the U.S. Nuclear Regulatory Commission (NRC) found that HRI's Restoration Action Plan (RAP) - a blueprint for calculating the amount of money that will be needed to restore contaminated groundwater, decommission surface facilities and reclaim disturbed lands at the end of mining - underestimated well-plugging, reclamation equipment and labor costs for independent contractors that would take over clean-up should HRI go bankrupt. Intervenors Eastern Navajo Diné Against Uranium Mining (ENDAUM) and Southwest Research and Information Center (SRIC) had challenged the adequacy of the RAP for the proposed Church Rock Section 8 mining site in briefs and expert testimony filed in 2000 and 2001.

"In accordance with [the] Commission's [previous] decision . . . prohibiting HRI from using its license . . . until the filing and approval of an acceptable restoration action plan for Section 8, the license prohibition is reinstated until the foregoing deficiencies in the RAP for Section 8 are corrected . . .," Moore ruled. Three years ago, the five-member Commission agreed with an appeal by ENDAUM and SRIC that the NRC staff erred by not requiring HRI to file a financial assurance plan as part of its license application. Following that ruling in 2000 and 2001, HRI filed financial assurance plans for each of its four proposed mining sites. Moore's decision last month addressed only the adequacy of the plan for Section 8.

ENDAUM and SRIC petitioned to intervene in the HRI case in late-1994 and early-1995 after the NRC staff had reviewed the company's license application and issued a draft environmental impact statement (EIS). The NRC published a final EIS in February 1997 and issued a "source materials" license to HRI in January 1998. ENDAUM, SRIC and two Navajo women from the neighboring Navajo community of Pinedale were granted standing to intervene in the case in May 1998. In November 1998, ENDAUM and SRIC began filing legal briefs and expert testimony on 10 different "areas of concern" about the safety of mining at Section 8 and processing of uranium at a central plant in Crownpoint.

ENDAUM Administrative Officer Wynoma Foster hailed Moore's ruling as further evidence of the soundness of the Intervenors' opposition to the proposed mines.

"The deficiencies he found in HRI's Section 8 RAP were based largely on the testimony of our experts," Foster said. "His decision means HRI is still barred from using its license to mine uranium at Church Rock Section 8. This protects the health of the people and the quality of our precious water supplies."

Eric Jantz, an attorney with the New Mexico Environmental Law Center who represents ENDAUM and SRIC in the case, said that even if HRI corrects the deficiencies in the RAP and the NRC staff approves the revised plan, HRI would still be legally prohibited from mining at Section 8.

"They don't have an aquifer exemption for Section 8, and they don't have an underground injection control permit for Section 8," Jantz said. "They need both to actually sink wells and being mining."

Pending appeals, Moore's ruling on the Section 8 RAP ends Phase I of the case. The Intervenors' challenge of the other three proposed mining sites (Church Rock Section 17, Unit 1 near Crownpoint, and the Crownpoint site) is scheduled to resume later this year.

A Simple Question of Institutional Racism

A striking example of institutional racism is occurring right now on the Navajo Nation. Despite widespread Navajo opposition to further uranium mining, the U.S. Nuclear Regulatory Commission (NRC) in 1998 granted a license to a mining company to open four new in-situ leach mines in Crownpoint and Church Rock, New Mexico. These mines will contaminate the only source of drinking water for 15,000 Navajos, according to the expert testimony of hydrologists, geochemists and geologists hired by the communities to review the mining proposals.

The proposed mines have been vehemently opposed by the overwhelming majority of Navajo community members, by the two Navajo chapters where the mines would be built, and by the previous and current Navajo Nation presidents. Nonetheless, an NRC administrative law judge in August 1999 upheld the NRC staff's issuance of the license, saying that the past impacts of uranium mining on the Navajo people, while "regrettable", were irrelevant to the question of whether the mines could be opened and operated safely (USNRC, 1999).

To consider whether the judge's decision was "environmental racism," one does not have to think of complicated ethical, legal or scientific arguments. Rather simply, one needs only to ask the question, would NRC license uranium mines that threaten the only water supply for a predominantly white and affluent community in Albuquerque, Santa Fe, San Francisco or New York City?

— John Fogarty

REFERENCE: U.S. Nuclear Regulatory Commission. In the Matter of Hydro Resources, Inc., Docket No. 40-8968-ML, Partial Initial Decision, LBP-99-30 (50 NRC 77 (1999)), p. 123.

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