Bill proposing uranium mining regs up for review in Pierre

PIERRE — A South Dakota House Bill proposing uranium mining-specific environmental protection regulations reminiscent of those adopted in Colorado in 2010, when Powertech USA was actively seeking approval for a proposed in situ recovery (ISR) uranium mine in the state, comes up for review before the House Agriculture and Natural Resources Committee tomorrow.

South Dakota, like most states, currently has no regulations on the books specific to ISR uranium mining outside of a controversial act passed in 2011 that eliminated state regulation of ISR mines exclusively, relegating such duties to the Nuclear Regulatory Commission and Environmental Protection Agency.

Motivated by concerns that Powertech USA’s proposed Dewey-Burdock ISR uranium mine in the Southern Black Hills could contaminate groundwater, surface water, and soil, the authors of South Dakota House Bill 1193, Rep. Troy Heinert, D-Mission, and vocal in situ uranium mining opponents Dakota Rural Action, aim to replace South Dakota’s lost regulatory power with even stronger rules.

South Dakota House Bill 1193 proposes to:

• Prohibit ISR uranium mining if the proposed mine production area “lacks proper confining zones or contains geologic faults” that would lead to the migration of groundwater containing heightened levels of uranium and/or other radionuclides and contaminants outside the approved production zone,

• Require ISR uranium mining companies seeking mine and water permits from the state to demonstrate in practice that they can successfully restore groundwater in mined to pre-mining, or “baseline,” condition as designated by the DENR; information from this demonstration will be utilized as part of a complete restoration plan mandated by the state.

• Require ISR uranium mining permit holders to restore groundwater in mined aquifers to the baseline condition reported in the restoration plan, at minimum, when production ceases.

If adopted, the regulations proposed in HB 1193 would be the seconded strictest ISR uranium mining regulations in the nation next to Colorado’s, which Powertech argued were “arbitrary and capricious” in a lawsuit they filed against Colorado DENR Director Mike King and the Colorado Mined Land Reclamation Board (MLRB) in November of 2010, roughly two months after the MLRB voted unanimously to adopt the rules signed into law in 2008 as “The Land and Water Stewardship Act.” South Dakota HB 1193’s strongest points are almost clones of the groundwater protection provisions in Colorado’s Land and Water Stewardship Act, which:

• Require ISR uranium mine operators to restore groundwater in mined aquifers to baseline (pre-mining) conditions or state groundwater quality standards.

• Require ISR uranium mine applicants to provide a baseline site characterization and a plan for ongoing monitoring of affected land, groundwater and surface water prior to MLRB action on the application.

• Allow the MLRB to deny permits for ISR uranium mining if the applicant fails to demonstrate that it can successfully restore mined groundwater to baseline conditions or state groundwater quality standards.

Powertech argued these provisions effectively held ISR uranium mine operators “to a higher standard than any other miner would need to meet,” in its lawsuit against the Colorado MLRB and DENR Director Mike King. The company also argued that requiring the restoration of groundwater to baseline would require pumping significantly more clean groundwater from an un-mined aquifer into the mined aquifer than restoring to NRC/EPA standards would.

The U.S. Safe Drinking Water Act applies to ISR production aquifers, if an aquifer currently supplies any public water system, or contains a sufficient quantity of ground water to supply a public water system and currently supplies drinking water for human consumption or contains less than 10,000 mg/L total dissolved solids it’s considered an Underground Source of Drinking Water (USDW). Many aquifers selected for potential ISR uranium production, while not necessarily actively utilized for drinking water, meet at least one of these criteria. ISR production wells, categorized as Class 3 wells, cannot be drilled into USDWs. But if an ISR mine permit applicant can demonstrate a USDW, in whole or in part, contains enough mineable elements suitable for economically viable commercial production the NRC can exempt that aquifer, in whole or in part, from its USDW status. Once this is done the exempted formation can never again officially serve as a source of water for human consumption. The NRC requires ISR uranium producers to restore mined aquifers to include no more than either the aquifer’s pre-production background level of a list of EPA-defined constituents present in or reasonably derived from residual radioactive materials or the maximum contaminate level of those constituents, whichever is higher. If these standards prove difficult to achieve, law allows the applicant and the NRC to negotiate for mutually accepted restoration terms.

Why doesn’t the NRC require ISR uranium mining companies to restore mined groundwater to baseline requirements? No one knows if it’s even possible.

A 2009 U.S. Geological Survey study focusing on groundwater restoration efforts at ISR uranium mines in Texas found that “To date, no remediation of an ISR operation in the United States has successfully returned the aquifer to baseline conditions."

In July 2012 the Denver District Court rejected Powertech’s lawsuit against the Colorado MLRB and DENR Director Mike King, ruling that the uranium mining company’s allegations were baseless. 
One can’t help but notice that Powertech relegated permitting efforts for its proposed Centennial ISR uranium project in Colorado to the backburner to focus more intently on its proposed Dewey-Burdock ISR uranium project in South Dakota around the same time it became apparent their Colorado lawsuit was going nowhere. Did Colorado’s new laws requiring groundwater restoration to baseline levels have anything to do with this shift in focus?

Powertech officials neglected to answer any questions related to Colorado’s Land and Water Stewardship Act or the company’s subsequent lawsuit, choosing only to address its near-twin, South Dakota House Bill 1193.

“The U.S. Nuclear Regulatory Commission, the lead regulatory agency for the protection of the environment, worker safety and public health for uranium in situ recovery (ISR) in South Dakota, just issued the final Supplemental Environmental Impact Statement (SEIS) for the Dewey-Burdock Project. Following more than four years of review of Powertech’s license application along with NRC’s review of independent sources, consultation with DENR, EPA and other regulatory agencies, and consideration of the comments received on the Draft SEIS,” Powertech lobbyist and Dewey-Burdock Project Manager Mark Hollenbeck said in an e-mail to the Pioneer. “In the Safety Evaluation Report, NRC concluded that, ‘the applicant will be able to operate the ISR process in a manner that is safe for workers and the public health and safety and the environment.’ NRC has indicated that a license will be forthcoming in approximately one month.

“In the SEIS, NRC addressed comments from more than 300 individuals, organizations and agencies, which included the elements of HB 1193,” he continued. “In light of the responses by NRC and the conclusion by NRC that no environmental impacts will preclude licensing the Dewey-Burdock Project, HB 1193 is a last-ditch effort to further delay the project and ignores the vigorous, four-year review by NRC as well as reviews by DENR (which has recommended approval of the applicable permits), EPA and BLM, which participated as a cooperating agency in the preparation of the SEIS.”

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