Court Strikes Down Edgeville Uranium Mine Permit
Buried deep in the heart of the northern Great Plains, the pine-covered peaks of the Black Hills rise thousands of feet into the sky along the Montana, South Dakota, and Wyoming borders.
To the Lakota people, this land is sacred – the Pahá Sápa is the center of their world. As Rick Two Dogs, an Oglala Lakota medicine man, explained: “All of our origin stories go back to this place. We have a spiritual connection to the Black Hills that can’t be sold. I don’t think I could face the Creator with an open heart if I ever took money for it.”
Unfortunately for the Lakota people, the Black Hills are also home to large deposits of gold and uranium ore.
Uranium was first mined and milled in Black Hills in the 1950s, but sustained community pressure coupled with a sudden drop in the price in uranium in the 1970s resulted in a cessation of activities.
The damage, however, had already been done. No less than 169 mines were left abandoned and un-reclaimed, leaving a trail of contained land and water southwest of Mount Rushmore.
The damage was made worse by pollution from a uranium mill in Edgemont. The mill’s tailings – the radioactive waste leftover from processing – sat on the edge of a creek that feeds into the Cheyenne River, and for many decades after, leached into the region’s water supply.
“No one did any human health studies of uranium impacts in this area. But we know from research in the Southwest, that the combination of mines and tailings piles can have substantial health impacts,” said Dr. Lilias Jarding, PhD.
Without modern-day laws like the Clean Water Act or a federal environmental review process mandated by the National Environmental Policy Act (NEPA) – laws Congress did not pass until 1969 and 1972 – the uranium mines or the impacts on the environment and public health were never disclosed to the surrounding communities before the project was approved, nor was there an opportunity for the public to weigh in and voice their concerns.
If the discovery of gold by General Armstrong Custer in 1874 prompted the US government to tear up the 1868 Fort Laramie treaty and steal the Lakota people’s land, then the discovery of uranium nearly a century later similarly prompted multi-national corporations to take that stolen land and pollute it.
By the mid-2000s, the price of yellowcake (minimally-processed uranium) had jumped from a low of $7 in the 1970s to a new high of $138. No less than eleven companies had soon expressed interest in re-starting mining operations in the Black Hills.
One company, in particular, drew the ire of local communities: Powertech Uranium. The subject of pending EPA action, Powertech published plans in 2006 for its proposed Dewey-Burdock project, which would have been located on 10,580 acres at the headwaters of the Cheyenne River, 50 miles west of the Pine Ridge Indian Reservation and 12 miles north of Edgemont. The project proposed drilling 4,000 deep injection wells into an aquifer used for domestic water and livestock using 9,000 gallons of water per minute.
Grassroots opposition to uranium mining began to swell again, led by three key organizations: Defenders of the Black Hills, founded in 2002 by Sioux Nation Treaty Council spokesperson White Face; Dakota Rural Action; and Clean Water Alliance, founded several years later in 2009. All three would prove instrumental in rallying support against the dangerous mine.
The City Council of Rapid City, South Dakota State Medical Association, and all nine tribal governments in South Dakota passed resolutions in opposition to the project.
Water is life
Opponents also cited the complex geology of the Black Hills.
In situ leach mining – the only way uranium mining is done – involves drilling hundreds of small wells over top of the uranium deposit, before pumping sodium bicarbonate concentrate into the individual aquifers and across the ore bed at high pressure in order to force the uranium out of the ground. This leach solution strips the uranium out of the aquifer – along with highly toxic arsenic, selenium, and other heavy metals.
If in situ leach mining sounds like dirty business, that’s because it is – even in the best of circumstances. But in order to prevent cross-contaminating multiple aquifers, the rock layers above and below the uranium mining aquifer must be continuous and without fractures.
The geology of the porous Black Hills, by contrast, is not. Groundwater flows freely through natural fissures and cracks to feed massive underground aquifers across the entire region. To pollute one aquifer is to pollute an uncounted number of the rest.
But Powertech took it one step further, planning to pump uranium wastewater directly into another aquifer used by area residents through four deep disposal wells. All told, the project would have impacted water from three of the four major drinking water sources in the Black Hills.
We talk, you listen
When first generation uranium miners came to the Black Hills in the 1950s, modern-day environmental laws were non-existent – it would be another twenty years before the EPA was founded.
Now, things are different. Before Powertech could begin mining for uranium, it would have to undergo robust environmental review under the National Environmental Policy Act (NEPA) and secure eleven federal, state, and county permits.
Passed into law into law with broad bipartisan support in 1969, NEPA requires the federal government to engage in a review process designed to discover any potential environmental, public health, or cultural impacts before a decision is made and the relevant permits are issued.
Although NEPA isn’t the only law project sponsors have to comply with – the Clean Water Act, Endangered Species Act, and National Historic Preservation Act are other examples – it’s the glue that holds the entire process together and keeps everything on track. Without NEPA, individual permit applications would become separated and balkanized, slowing the review process down.
A key component of this NEPA review process are mandated public comment periods that provide an outlet for citizens to speak out and voice their concerns about a potential project’s impact on their community.
At least, that’s how the NEPA process is supposed to work. The NRC, EPA and other participating agencies began work to analyze Powertech’s proposed project in early 2009, but didn’t begin consulting with impacted communities – especially tribal groups – until much later.
Still, when public hearings were eventually held in August of 2014, concerned community members packed into buildings to express their outrage and voice their opposition to Powertech’s Dewey-Burdock project.
Two hearings in Hot Springs proved particularly contentious.
From the outset, many members of the public expressed concern of NRC’s choice of location and apparent unwillingness to hold the hearings closer to impacted communities.
Mayor of Edgemont Carl Shaw was particularly vocal; “I am disappointed that all regulatory agencies that have had hearings for this project have refused hold them where the people will truly be affected, and that is Edgemont. Even though we have more than one ample facility to hold the hearings.”
City attorney Joel Landeen also testified, making clear that both the Mayor and City Council of Rapid City were vehemently opposed to the project.
“Since you are probably not from the area, to put it in perspective, Rapid City is a city of approximately 70,000 people, which is the largest city in the Black Hills region…Tens of thousands of people rely on this aquifer for their water, and we are really concerned that it not be contaminated in any way and still be a viable drinking source for the city of Rapid City and the other communities and people living in the Black Hills region,” testified Landeen.
Hot Springs Councilmember DeAnn McComb made her own impassioned plea. “This is our drinking water. Our bathing water. The water we enjoy swimming in. This is a vacation area, resort area. People from all over the world come to enjoy our area.”
Local resident David Miller also expressed concerns about the project’s long-term impacts. “I don’t believe that we’re capable of mitigating long term damage of the kind that Powertech, the kind of mining they’re proposing.”
If there is a question as to whether a project will impact tribal land, federal agencies are required by law to consult with the tribe’s historic preservation office. Tribal groups were sure to voice their own concerns at three similar hearings in Rapid City.
Oglala Lakota tribal member Dennis Yellow Thunder implored the NRC to stop the project. “We are very connected to the sacred water,” he said. “It’s up to us to defend that water. When you make your decision, feel that heartbeat. Help us. Help us to survive.”
Michael Catches Enemy, the Oglala Sioux Tribal Historic Preservation Officer (THPO), stressed the federal government’s treaty obligations and public trust responsibility to protect the tribe’s cultural resources.
“I am Lakota and I am the land,” he said in his introduction. “It may sound profound or unrealistic, but if we have sovereign nations, such as we carry ourselves, regardless of our status in most American minds, we still see ourselves with treaty rights.”
The 1868 Ft. Laramie Treaty originally guaranteed “absolute and undisturbed” use of the Black Hills under the jurisdiction of the Great Sioux Nation.
Unfortunately, the NRC failed to incorporate any of this information into its Final Environmental Impact Statement (FEIS).
Indeed, the final environmental review was so egregious that Ogala Sioux Tribe President Bryan Brewer complained in a subsequent letter to the NRC that the application failed “to assess even the detailed information contained in sworn oral testimony during hearings at the early stages of the State of South Dakota permitting process.”
The letter summarily concluded that “the review prepared by Powertech failed to include any direct input from any tribal sources, whether written or oral,” urging NRC staff to “abandon its current approach of prematurely finalizing its NEPA and NHPA documents until proper steps can be taken to ensure a competent cultural resource impact review.”
Nonetheless, the NRC approved Powertech’s Environmental Impact Statement (EIS), granting it a key permit.
Court of Appeals strikes down NRC permit
The NRC’s decision to sign off on the environmental review was met with immediate skepticism. Indeed, the agency’s own Atomic Safety and Licensing Board soon after acknowledged that the EIS was inadequate and had failed to take the required “hard look” at the project’s impacts. The agency, however, decided to leave the license in place while it worked to fix the environmental review, reasoning that it wouldn’t cause irreparable harm.
That decision was immediately challenged in court and struck down by the 9th Circuit Court of Appeals (Oglala Sioux Tribe v. NRC, No. 17-1059). Siding with the Oglala Sioux Tribe, which had worried that the project would lead to the destruction of cultural, historical, and religious sites, Chief Judge Merrick Garland wrote that the law “obligates every federal agency to prepare an adequate environmental impact statement before taking any major action, which includes issuing a uranium mining license.”
Judge Garland wrote that the EIS did not just contain a “technical violation of NEPA,” but that the NRC’s failure to consider impacts on the tribe was a “significant deficiency.”
Moreover, the judge noted that the NRC’s action appeared to be part of a larger systemic pattern of abuse.
“This was not a one-off decision by the NRC… Rather, it appears to be the agency’s settled practice,” noting that the NRC had previously allowed a license for uranium projects in Wyoming and Nebraska to remain in effect despite findings that NRC staff had not complied with NEPA.
The Black Hills were again safe from the specter of uranium mining, at least for now.
NEPA under attack
When environmentalist lay claim to Powertech’s Dewey-Burdock project as a NEPA “success story,” critics will rightly point out that the NRC’s Environmental Impact Statement was found to be deficient in the extreme and did not incorporate any of the concerns voiced by members of the local community.
Nonetheless, the NEPA process still served an important role. When federal agencies fail to perform appropriate outreach to affected communities or don’t incorporate that input into their analyses, the NEPA process ensures that members of the public are able to hold the government accountable when it violates the law.
When a federal court ruled that the NRC unlawfully advanced Powertech’s uranium mining project, that’s exactly what happened.
Unfortunately, the Trump administration and members of Congress – backed by powerful special interests – have mounted an all-out assault on both NEPA and public access to the courts. In the current Congress, more than 100 pieces of legislation have been introduced over the past two years aimed at weakening the substance of environmental reviews and restricting citizens’ access to the courts.
Many of these legislative proposals aimed at weakening the substance of environmental reviews under NEPA are labeled under the deceptive headings of “streamlining” and “permitting reform.” One of the worst examples of such legislation came in 2012 when Congress passed legislation entitled “Moving Ahead for Progress in the 21st Century Act” (MAP-21).
More recent legislative attacks include the “American Energy Independence and Job Creation Act” (H.R. 49), which would open up parts of Alaska to oil and gas drilling by deeming an outdated 30-year-old environmental review to satisfy the requirements of NEPA and require all public comments be submitted within 20 days of the project’s publication. Just as controversially, the “Resilient Federal Forests Act of 2017” (H.R. 2936) would exclude up to 30,000 acres in National Forests from any environmental review or public input for activities such as logging – for context, that’s over 22,000 football fields.
“Wealthy corporations and members of Congress know that they could never outright repeal NEPA because, for many federal infrastructure projects, it is the only law that gives the public influence over what happens in their own backyards – there would be a massive public backlash,” said Raul Garcia, Senior Legislative Counsel at Earthjustice. “So instead they’ve introduced bill after bill chipping away at public input and the environmental review process. It’s a death by a thousand cuts.”
Since taking office, President Trump and the current administration has also moved to swiftly roll back NEPA. Administrative rulemaking is underway at almost every federal agency, from the Departments of Transportation and Interior all the way down to USDA’s Animal and Plant Health Inspection Service. No agency is too small.
Topping it all off, in the summer of 2018 the White House Council on Environmental Quality (CEQ) announced plans to re-examine the NEPA’s implementing procedures across the entire government.
NEPA’s regulations are among the most broadly applicable in the entire federal government and apply to every “major federal action” the government takes, but the actual law – the statute – is very short. In other words, the real substance of NEPA is largely contained in its implementing regulations,” said Garcia.
That’s where the White House CEQ comes in. A small but critically important office housed inside the White House, the Chair of CEQ is tasked with the implementation of NEPA’s implementing regulations. In other words, the Chair of CEQ has immense power to shape – and potentially severely weaken – how environmental reviews are carried out across every federal agency.
Adding to the controversy, CEQ only offered 60 days for public comment on a rulemaking process that opponents say could affect every person in the United States on a level that eclipses even tax reform. Despite the short comment period, CEQ received over 100,000 comments, the vast majority of which urged CEQ drop the rulemaking process and ensure the continued integrity of the federal environmental review process. As one commenter succinctly stated: “leave NEPA alone.”
“Supporters of reasonable protections and public engagement have been trying to fend off these attacks, but the job is only getting harder,” said Garcia. “Rich corporate interests keep couching their actions as ‘streamlining’ but the hoax is up. The public knows that what they really want is to eliminate NEPA, making the communities across the country powerless to whatever ill-conceived projects they invent behind closed doors.”