MISSION: Southwest Research and Information Center is a multi-cultural organization working to promote the health of people and communities, protect natural resources, ensure citizen participation, and secure environmental and social justice now and for future generations

CENTER NOTES

A 'Seriously Defective' Decision
Judge's decision on proposed uranium mines appealed

Eastern Navajo Diné Against Uranium Mining (ENDAUM) and Southwest Research and Information Center (SRIC) are taking their case against proposed uranium solution mines on Navajo lands in northwestern New Mexico to the appeals level as a result of an administrative law judge's recent decision to approve an Albuquerque company's Nuclear Regulatory Commission (NRC) in situ leach (ISL) mining license.

In a September 3 petition for review, or appeal, to the five-member Commission, ENDAUM and SRIC charged that three rulings by NRC Licensing Board Judge Peter Bloch were "fraught with legal error and seriously defective factual findings" and suffered from "the complete failure to address large portions of the evidence" presented by ENDAUM, SRIC and two other intervenors in legal briefs, expert testimony, and supporting documentation filed earlier this year. The judge's decisions "would allow renewed uranium mining in an environmental justice community that has long suffered and continues to suffer illness and death from a shameful history of uranium history," said the groups' appeal, prepared by ENDAUM's and SRIC's attorneys with the New Mexico Environmental Law Center (NMELC) in Santa Fe and the firm of Harmon, Curran, Spielberg and Eisenberg in Washington, D.C.

ENDAUM and SRIC asked the Commission "to review -- and reverse" the judge's May 11 decision finding the mining company, Hydro Resources, Inc. (HRI), technically qualified to construct and operate the Crownpoint Uranium Project; his May 13 decision dismissing the groups' concerns that radioactive air emissions from HRI's proposed Church Rock Section 8 mine would violate NRC radiation standards in an area where high radiation levels associated with previous uranium mining and milling already exceed NRC dose limits; and his August 20 ruling dismissing the groups' concerns about groundwater protection, cumulative effects of the project, adequacy of the NRC's Final Environmental Impact Statement (FEIS), and environmental justice.

The August 20 decision affirmed "the validity of the license granted to HRI to mine its Church Rock Section 8 property" and ruled that the project "does not pose a credible threat to the environment or to human health and safety." ENDAUM and SRIC's 61-page appeal outlined nearly three dozen legal, technical and procedural reasons why these findings were wrong. Key examples concern:

Radioactive air emissions: The appeal blasted as "irrational" the judge's erecting of a "bubble" over Section 8 in order to ignore existing man-made sources of radiation at uranium-mining sites both contiguous to and in close proximity to Section 8. "The Presiding Officer is not entitled to examine Section 8 in a vacuum in order to facilitate HRI's compliance with the [NRC dose] limits."

Environmental justice: The appeal charged that the FEIS ignored critical information about the vulnerability of the local Diné population to the cumulative health impacts of the existing contamination in the Church Rock area coupled with releases from HRI's proposed mine, and said that Bloch's decision "egregiously errs when it finds that there is no 'reason to consider, in the context of a new project, the highly regrettable negative impacts of prior projects that involved uranium milling and mining.'"

Potential health risks: The appeal criticized Bloch for using his "personal misperceptions gleaned from a single visit to the Church Rock area" to conclude that "the vastness of the desert -- raises serious questions about how this project at Church Rock Section 8 would possibly have any serious adverse impact on the people of the area." The appeal noted that Bloch all but ignored the groups' expert testimony and supporting documentation (some of which was derived from a local land-use survey conducted by ENDAUM and SRIC staffs in January and February) that showed that at least 350 people live within 2.5 miles of the HRI site and between 800 and 900 live in more than 170 residences in a 5.5-mile radius, and that these families collectively graze more than 1,400 head of livestock on those lands.

Impacts of the ISL process on groundwater: The appeal charged that Bloch erred in several technical areas, including (1) accepting HRI's hydro-geological "homogeneity" model over more elaborate "heterogeneous" models proffered by the Intervenors' four groundwater experts, and that this error permeated the decision; (2) relying on an unsubstantiated theory put forth by the NRC staff and refuted by ENDAUM's and SRIC's geochemist that uranium and other contaminants would chemically reattach to the surface of the rocks if contaminated mining fluids escaped the mining zone; and (3) erroneously concluding that groundwater restoration would likely be successful despite evidence showing that restoration at a pilot scale uranium ISL mine in the Crownpoint area was not successful in the 1980s and that restoration has not been successful yet at commercial-scale ISL mines in Wyoming after more than 20 years of ISL mining experience.

The project need: The appeal said that Bloch's decision in essence ignored the Intervenors' arguments that there is no need for the project in light of the extensive uranium supplies that are available now and for the next decade or longer, and failed to address the groups' "evidence and expert testimony that -- additional uranium mining will have an adverse effect on the uranium market and national security."

ENDAUM and SRIC also charged that Bloch's procedural decisions during the course of the adjudication were biased in favor of HRI and the NRC Staff; that he illegally divided, or "bifurcated," the hearing to consider only impacts from one site (Section 8), despite the fact that HRI's NRC license authorizes ISL mining at all four proposed sites; and that he illegally placed the burden of proof on the Intervenors.

HRI Wants Sanctions Against ENDAUM, SRIC

Only four working days after Peter Bloch issued his August 20 decision affirming HRI's uranium ISL license, the company filed a "Motion for Suspension or, in the Alternative, Reprimand or Censure and Request for Attorneys Fees," alleging that ENDAUM, SRIC and their attorneys "repeatedly have engaged in disruptive, contemptuous and borderline libelous conduct" during the year-long hearing on HRI's license.

In the response filed September 20, attorneys for ENDAUM and SRIC denied the truth of the vast majority of the allegations and said that none of them rise to the level of requiring sanctions or recovery of attorneys fees. They also charged that HRI's Washington, D.C., legal counsel was attempting to thwart ENDAUM's and SRIC's rights to object to the company's plans, stating: "The real issue raised by HRI's Sanctions Motion is whether the Intervenors have a right under the Atomic Energy Act and the First Amendment of the Constitution to dispute HRI's proposal to mine uranium in Crownpoint and Church Rock. HRI and its counsel object to the Intervenors' exercise of those rights; HRI and its counsel object to what the Motion characterizes as the "wasting the time and money of HRI" In fact, it is HRI and its counsel who are wasting the time of the Intervenors and this tribunal.

— Chris Shuey