DENVER – After more than two decades of fighting powerful uranium mining interests, some Navajo Nation members and others are asking the U.S. Supreme Court to take another look at a 10th U.S. Circuit Court of Appeals ruling that upheld the licensing of proposed mines near Church Rock in northwestern New Mexico.
Specifically, the high court is being asked whether radioactive emissions from existing mine waste can be ignored when determining whether radiation from proposed mining exceeds regulatory limits. Opponents also question whether the Nuclear Regulatory Commission violated its own criteria for protecting drinking water for area residents.
The mining company, Hydro Resources Inc., touts the economic benefits of its enterprises and the company funds civic ventures in towns it impacts, area residents have said. The Diné Natural Resources Protection Act of 2005 bans uranium mining within the Navajo Nation because of potential economic detriment and environmental damage.
Although the NRC told the public that licensing the mine would result in a cleanup of “highly contaminated areas” of a former underground uranium mine site emitting surface radiation, the appeals court upheld the NRC when it later said it did not have the authority to order the action.
Debris from the prior conventional (uranium) mining operation already emits a greater amount of airborne radiation than the NRC regulations allow, “even before considering the airborne radiation that the ISL (in situ leach) mining might produce,” the appeals court noted in a split ruling issued in March.
The NRC said, however, that its regulations required the agency only to consider the amount of airborne radiation the ISL mining it sought to license would emit “irrespective of the airborne radioactive emissions already occurring on the site.”
“The majority has allowed the government to renege on its promise to the members of the public living near the HRI mine, who must now live indefinitely with radioactive contamination that will ‘unnecessarily and unjustifiably compromise the health and safety of the people who currently live within and immediately downwind’” from the site, the current petition states, quoting the dissenting opinion in the earlier appeals court ruling.
“The NRC’s erroneous decision and majority’s endorsement of that decision will expose those families (downwind of the mining operation) to levels of radiation beyond those deemed safe by the NRC’s own regulations, jeopardizing their health and safety,” Circuit Judge Carlos F. Lucero said in dissent.
Licensing the HRI mine is misstated in environmental compliance documents as “likely to benefit the community by resulting in an NRC-ordered cleanup of existing contamination,” states the petition filed with the Supreme Court Sept. 16.
The in situ leach process of the proposed mine injects a solution into an underground aquifer (that, in this case, serves as a drinking water supply), dissolves the uranium into the solution, and then pumps it out before repeating the process.
“This is the first time that the NRC has licensed a mining operation in a community drinking water supply, despite the fact that no aquifer in which ISL uranium mining has occurred has ever been restored to pre-mining conditions,” said the New Mexico Environmental Law Center, which represented community-based Eastern Navajo Diné Against Uranium Mining and the Southwest Research and Information Center, Albuquerque, N.M.
Opponents argue that adequate groundwater restoration goals have not been established nor has money been set aside to restore drinking water quality, and they contend practical considerations should not permit the NRC to issue a license that would be inimical to the health and safety of the public.
The NRC cannot grant a license application if, in its opinion, the license would adversely affect the health and safety of the public.
Those appealing the circuit court’s ruling are Navajo Nation members Marilyn Morris and Grace Sam, who live and graze livestock near the two Church Rock mine sites in question, ENDAUM, and Southwest Research and Information Center.
HRI’s parent company is Uranium Resources Inc., which has a joint venture with Itochu, a Tokyo-headquartered transnational, to begin producing an estimated 6 to 9 million pounds of uranium annually from New Mexico. The mine sites are in an area east of Gallup, N.M. where Indian trust lands are interspersed with privately held tracts.