(CN) – The 10th Circuit upheld the Nuclear Regulatory Commission’s approval of uranium mining in northwestern New Mexico, despite claims that the mining activity would endanger drinking water for thousands of Navajos.
The Denver-based appeals court ruled that the commission took the requisite “hard look” at a project that calls for leaching uranium from four sites near the Navajo communities of Church Rock and Crownpoint.
Southwest Research and Information Center, Eastern Dine Against Uranium Mining and two local ranchers filed suit against the commission for issuing a uranium mining license to Hydro Resources, claiming violations of the National Environmental Policy Act and the Atomic Energy Act.
In a 2-1 opinion, the circuit court upheld the agency’s decision that Hydro Resources’ mining emits only “negligible” airborne radiation.
The mining opponents argued that the commission failed to consider the high levels of radioactive emissions from an abandoned mining operation at the site. But the appellate panel deferred to the commission’s decision that it did not have to consider the existing amount of radiation at the proposed mining site, only the amount of radioactive emissions from the Hydro Resources project.
The project’s opponents also argued that the commission failed to quantify the cumulative effects of past mining and the proposed project.
“NEPA’s ‘hard look’ does not necessarily always require the agency to develop ‘hard data,'” Judge David Ebel wrote, quoting Ecology Ctr. Inc. v U.S. Forest Service. The court also rejected the argument that the agency mischaracterized airborne radiation as background radiation during the environmental review process.
The 10th Circuit upheld the commission’s finding that Hydro Resources would be able to restore groundwater at the well site after the mining operation. Test results “suggest restoration of the groundwater quality is eventually possible,” Ebel wrote, and the commission’s hydrologist said it was “extremely likely” that the groundwater quality would be restored after the project. Also, Hydro Resources showed it could pay for the estimated cleanup costs, the ruling states.
Although there is no record of successful restoration a leach mining site such as the Hydro Resources project, the commission “ultimately determined that Hydro Resources would be able eventually to meet the required restoration goals,” the ruling states.
“[T]he NRC did not shirk its responsibility,” Ebel wrote.
Dissenting Judge Carlos Lucero said the majority decision “compounds past injustice.” He wrote that the ruling will “unnecessarily and unjustifiably compromise the health and safety of the people who currently live within and immediately downwind.” According to Lucero, approving a license to mine the same property that the United Nuclear Corp. mined for 30 years will cause radiation levels to jump to nine to 15 times the legal limit.
“[T]he NRC has abandoned its statutory commitment to refrain from issuing licenses if doing so ‘would be inimical to … the health and safety of the public,’ and has rendered this community vulnerable to the ill effects of dangerous radiation,” Lucero wrote.
Lucero called for reinterpreting commission regulations to protect the interests of the Navajo community and local ranching families.