Does SD have authority to permit uranium mine?

RAPID CITY — It was during spirited discussions Wednesday afternoon about jurisdiction issues surrounding the contentious proposed uranium mining operation near Edgemont that Bruce Ellison stretched out his arms in frustration.

“I don’t think we can look at things in a vacuum here,” said Ellison, an attorney for the Clean Water Alliance during the third day of testimony before the state’s Water Management Board. “The left hand has complete authority, the right hand has none, and together, they have what?”

After opening remarks Wednesday, discussion circled back to the debate at the heart of the Dewey-Burdock mine application: With the changes to state law brought about by Senate Bill 158, who now has the authority and the jurisdiction in permitting mining operations in the state of South Dakota?

Proponents of the 2011 law say it reduced duplicity in government, but opponents say it removed local control and gave mining companies more latitude — including stripping the state of on-site monitoring.

“This board has no authority to issue a permit right now, with all due respect,” Ellison said to water board members.

Powertech has received draft permits by the Department of Environment and Natural Resources and the Nuclear Regulatory Commission to approve the 11,000-acre mine, but has faced repeated challenges in the quasi-judicial hearing by attorneys and members of the public when trying to present the documents to the board.

“This is part of the problem … no one will be able to question how this information was obtained,” Ellison said, objecting to a permit document by the NRC released by NRC staff members. “How can this be something substantive for this board to really be considering?”

Max Main, attorney for Powertech said documents from the DENR and the NRC are public documents and exempt from heresy rules.

“It is presumed to be accurate,” Main said, while vice president of engineering John Mays was on the stand for questioning. “This board doesn’t need to be shielded from what other agencies have concluded.”

Testimony was halted at one point Wednesday when board member Everett Hoyt questioned what kind of authority the board currently has, prompting the attorneys to flip through pages of state law statutes, reading and rereading sections of legal language and then disagreeing on interpretations.

“They don’t want the board to look at this as a whole,” said Wild Horse Sanctuary attorney Mike Hickey in an interview with the Pioneer. “They want them to think, ‘this is just a water permit.’”

Hickey asked chairman Rodney Freeman to halt the proceedings or postpone them until the NRC and Environmental Protection Agency issue final decisions on the applications.

“They keep saying that the staff has made recommendations, but the NRC is the only one that can give that permit and there aren’t even any hearings scheduled for that,” Hickey said.

Main has maintained that the documents, although are preliminary, are proof that the company is working through all of the steps required to obtain the appropriate permits.

Instead of stopping the proceedings to decide jurisdiction, Freeman asked all parties to submit briefs on those issues by Nov. 20, which falls before the second week of hearings scheduled for Dec. 9-13.

In an interview with the Pioneer, Main said the company has no problem spelling out the issues for why the water board has the authority to provide a permit now. When asked why the company didn’t wait for final DENR, NRC and EPA permits before applying for the water and ground permits, Main said there was no reason to wait for one agency to give the go ahead before applying to the next.

“There is no legal reason why we can’t proceed with applications of all the permits at the same time,” he said. “If we weren’t fighting this issue, it would be another one.”

The hearings continue today, with Mays on the stand for cross-examination. The final day of this week’s hearings begins Friday morning at 8:30 a.m. at the Best Western Ramkota in Rapid City and is open to the public.

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