Churchrock Uranium Tailings SpillA federal appeals court this week moved to allow uranium mining operations in Churchrock, a Navajo community just east of Gallup, New Mexico.

The decision by the Federal 10th Circuit Court of Appeals comes at a time of increased financial incentives for uranium mining—but also intense opposition from many communities, including the Navajo Nation, which outlawed uranium mining in 2005.

“This ruling is a major breakthrough for URI and upholds the NRC [Nuclear Regulatory Commission] license that took us 10 years to obtain and as many to address in supplemental reviews and litigation,” Don Ewigleben, President and CEO of Uranium Resources, said in a statement this week. “… The ruling also demonstrates that ISR technology, including the restoration process that follows mining activity, is safe and effective.”

But the New Mexico Environmental Law Center, which represented the opposition in court, slammed the decision. In a statement, the Center explained that the three judge panel acknowledged that the license doesn’t guarantee that groundwater will be restored after mining ceases, but that for the majority that was “…good enough for Navajo communities.”

“We are very disappointed in the court’s decision,” said Eric Jantz, staff attorney of the New Mexico Environmental Law Center and lead attorney on the appeal. “The majority passed up the opportunity to protect the health and safety of the people of Crownpoint and Church Rock — because the NRC won’t.”

HRI was issued a license to mine for uranium on four sites—known as the Crownpoint Uranium Project–by the Nuclear Regulatory Commission in 1998. The permits were challenged  by a Navajo community group as well as environmental legal and advocacy organizations. The groups said the HRC license violated two federal statutes, one that required it to take a “hard look” at the environmental impact of the project, and another that lays out specific regulations that they alleged the company didn’t meet sufficiently to acquire a license.

While the HRI license covers four locations—two in Churchrock and two in Crownpoint—the decision by the appeals court addressed only the two in Churchrock.

The Churchrock locations contain a “legacy” site–the old Church Rock Mine, an underground mine that operated off and on between 1960 and 1983. In 1979 it was the site of the single largest release of liquid radioactive waste in the United States, when a tailings-pond failure sent 94 million gallons of acidic, saline, and radioactive waste rushing into the Rio Puerco.

Like legacy sites from mining activity throughout the west, the surface is littered with dust and rock mining debris that emits airborne radiation in amounts higher than NRC regulations allow.

The challengers of the HRI permit in court argued that since the site already emits more radiation than regulations allow, a license for a new operation can’t be given because any new radiation emitted, no matter how small, would compound the problem.

But the 10th Circuit upheld the NRC’s decision to not factor the existing airborne radiation from the site into its decision to issue the permit. The NRC changed its regulations in 1991, the majority decision explained, to narrow its calculations of radiation exposure to just the licensed operation. It defined the licensed operation as just the current activities taken by the company, not the existing mining debris on the site. In doing so, it considered only the radiation that will be released by future mining activity, which it concluded would be minimal due to advances in mining technology.

The Court also said that the NRC took the “hard look” required by federal statute at the amount of cumulative radiation as well as all of the factors related to groundwater contamination, which makes the license legitimate despite the fact that it’s unclear that groundwater contaminated during the mining operation will be restorable to its pre-mining status.

One Judge dissents

The decision was made on a two to one vote, with Judge Carlos F. Lucero dissenting. In his dissenting opinion, Lucero described the history of the site and the compounding effect of new mining on the existing problem with contamination.

“HRI plans to mine the site, which will result in total radiation levels nine to 15 times the permitted regulatory limit,” he said. “…My respected colleagues compound the NRC’s error by failing to adequately review the agency’s action. … Because the majority’s decision compounds past injustice by committing legal error, I respectfully dissent.”

Lucero primarily argued in his dissent that NRC’s definition of “licensed operation” was too narrow. He said that the narrow interpretation used by the NRC renders unnecessary the exclusions of other radiation sources found in the regulations for factoring emissions levels.  Common standards of judicial interpretation dictate that no words in regulations are rendered mute by an interpretation, he explained, but the narrow definition of licensed operation used in this case does just that. A broader interpretation of “licensed operation” makes the exclusions in the regulations meaningful, he argued:

The NRC interprets “licensed operation” to refer only to the licensee’s activity. However, § 20.1301(a) expressly excludes from the radiation limit on a “licensed operation” any “background radiation,” along with radiation from any “medical administration the individual has received, from exposure to individuals administered radioactive material . . ., from voluntary participation in medical research programs, and from the licensee’s disposal of radioactive material into sanitary sewerage.”

By focusing only on the licensee’s activities, the NRC’s interpretation of “licensed operation” renders these specific exclusions unnecessary…

Lucero also blasted the definition of “background material” by the NRC in it’s license for HRI to include the radioactive mining debris on the site. Background material, Lucero said, is defined in the regulations as naturally occurring, rather than technologically enhanced:

The regulations define background radiation to include “naturally occurring radioactive material” … Moreover, neither the Atomic Energy Act nor NRC regulations define NORM. The NRC concluded that NORM includes “technologically enhanced naturally occurring radioactive material” (“TENORM”), or “radioactive materials that, as a result of human activities, are no longer in their natural state,” … including mining spoil. …

The NRC’s interpretation of the regulation is yet again unreasonable. When a term is not defined by the relevant statute or regulation, we interpret it using its “ordinary, contemporary, common meaning.” … “Naturally” means “according to or by the operation of the laws of nature.” Webster’s 3d New Int’l Dictionary 1507 (1993). Thus, “naturally occurring radioactive material” is radioactive material that occurs according to or by the operation of the laws of nature. It does not include radioactive materials that are no longer in their natural state as a result of human activities.