Court listens as people share opinions on leaching process
By Carol Berry -- Today correspondent
DENVER - Two former uranium miners said May 12 that their experiences with radiation contamination have strengthened their determination to keep uranium companies out of the Navajo Nation in New Mexico.
Mitchell Capitan and Larry J. King, both of the Crownpoint/Church Rock area in New Mexico, were among about 100 people who packed a courtroom in the 10th U.S. Circuit Court of Appeals for a challenge to the Nuclear Regulatory Commission's approval of a license for a uranium mine that would use a leaching process.
They heard that a leach mining operation proposed by New Mexico-based Hydro Resources Inc. would draw water from the same aquifer used by Crownpoint for its municipal drinking water supply - and that HRI would be monitoring the safety of the procedure.
One judge on the three-judge panel, who termed the information ''surprising,'' said the dual operation might become linked to establishing remediation for possible future impacts.
''When I worked in uranium mining, I saw how much water was used - and it was a fraction of what is being proposed now,'' said Capitan, founder of Eastern Navajo Dine' Against Uranium Mining and an employee of the Navajo Tribal Utility Authority.
King, who with Capitan joined sign-carrying protesters outside the court house in downtown Denver, said he worked seven years underground for a now-defunct uranium company and was shocked to find that a tailings pile in his backyard had 10 times the Environmental Protection Agency allowable limit of uranium contaminants.
Millions of gallons of contaminated water spilled from mine tailings ponds in 1979 and flowed through a wash that emptied into the Little Colorado River, but the spill received scant attention, he said, unlike the Three Mile Island nuclear accident three months later that drew worldwide attention and regulatory improvements.
''They walked all over us,'' Rita Capitan, Mitchell's wife, said of uranium companies in the 1970s. ''This time they won't. They're outsiders - why should we let them come in and take what we have?''
The federal appellate court heard arguments concerning radiation contamination, potential health and environmental problems, the mining permit process, Indian lands status, and other issues in connection with the NRC's approval of HRI's source materials license.
The challenge to NRC is the first to be brought against it for licensing an in situ leach uranium mine, according to the New Mexico Environmental Law Center, whose representatives and those of the Southwest Research Information Center were present at the hearing.
In situ leach uranium mining involves the removal of uranium by pumping water and bicarbonate into the groundwater aquifer, withdrawing the solution, and then recovering the mineral.
The NRC and NMELC jointly requested the hearing of oral arguments, with the center requesting that the NRC decision to license HRI for in situ mining be set aside. No decision is expected in the near future from the federal appellate court.
Although the state of New Mexico issued HRI the aquifer exemption for in situ mining more than a decade ago, the EPA - which claims jurisdiction over one portion of the site it said is Indian land - has not issued HRI a permit.
Diane Curran, an attorney for ENDAUM and SRIC, said if an EPA permit is issued, it may be done via delegated authority to the Navajo Nation.
The Dine' Natural Resources Protection Act bans uranium mining on Navajo Nation lands, but rising prices have drawn uranium mining companies to so-called ''checkerboard'' areas where private and Indian trust lands are intermingled.
Potential public health hazards from the in situ process depend in part on whether aggregate levels of radiation from all past and present sources at the site exceed Atomic Energy Act allowable levels.
The National Environmental Policy Act-required final environmental impact statement for the project says levels would be exceeded, but residual mine waste would be cleaned up - a statement that is in the FEIS but not in the existing permit, the court was told.
Eric Jantz, lead attorney for ENDAUM, said water quality in the overall area is good and above Crownpoint it is ''excellent,'' but the city's municipal wells are only about a quarter-mile from HRI's proposed operation, the revelation that startled the judges.
HRI and NRC attorneys said the drinking water would not be drawn from the mining portion of the aquifer, which would be ''confined'' and monitored by test wells and pump tests.
The judges questioned whether contaminants would be removed before they reached the drinking water supply.
Health problems attributed to radiation contamination were cited by several of the protesters, including King, who has organized a group called Post '71 that unites people who were uranium workers from 1971 - 80, because the Radiation Exposure Compensation Act only covers the period 1940 - 70.
King said he has respiratory problems, as does Teddy Nez, from Church Rock, who worries that children are being affected by radiation contamination that is causing learning disorders. Annie Benally, Church Rock, said she has problems with arthritis she feels are linked to uranium issues; and Sharon Williams, from nearby Coyote Canyon, said her nephew had health problems, including an eye deformity.
Crownpoint residents Kelsey Henry and Theron Henderson, both 14, and Kaydon Tracy, 15, all were concerned about possible mining-related health effects on future generations.
The question of whether one section of the HRI area constitutes ''Indian country,'' and therefore requires EPA permitting,
rests on federal law that defines it as including reservation lands under U.S. jurisdiction, Indian allotments, and all ''dependent Indian communities'' in the U.S., whether in original or acquired territory.
The parcel in question is within the boundaries of Church Rock Chapter (a tribal unit established by the federal government in 1950), has a predominantly Indian population, and is largely devoted to Indian use by the federal government, it was argued.
HRI said that the site itself was not set aside by the federal government as Indian land and that HRI owns it, which would validate the state-issued permit allowing an in situ uranium leach mine.
In a related development, the NRC recently ruled that Native opponents have valid concerns about health and environmental effects from the proposed expansion of a uranium mine near the Pine Ridge Reservation in South Dakota.
''I want to stand by my brothers and sisters of the Dine' Nation and their allies who work to protect their precious water from the uranium corporations,'' said Debra White Plume, of Owe Aku/Bring Back the Way, a nonprofit Lakota organization from Pine Ridge, who was at the Denver hearing.
''Any cases that involve uranium companies and the NRC relate to our work - to not have the companies come into our area,'' she said.
''We're worried about groundwater and also radioactive emissions,'' she added. Near her residence in Wounded Knee district, ''the wind pattern carries contaminants, ranging from 15 minutes [from the uranium mining site] if it's moving rapidly to two hours if it is a slow day.''
Protesters pointed to expanded mining activity fueled by the price of uranium, which has increased to $65 per pound recently, up from $9.70 per pound in 2002. Some 43,000 new claims were filed in 2007 in Western states where uranium is mined, compared to about 4,300 filed in 2004.
Even the Grand Canyon is not spared, according to press reports; more than 1,100 mining claims have been filed on public lands within five miles of the Grand Canyon National Park, compared to 10 in 2003.