By Talli Nauman
Native Sun News
Health & Environment Editor PINE RIDGE — Oglala Sioux Tribal President Bryan Brewer refused to sign an accord slated for finalization Feb. 21, that aimed to expedite the federal licensing process at South Dakota’s first proposed in-situ leach mine and mill. The accord would allow the Nuclear Regulatory Commission (NRC) to finish its environmental impact statement about Powertech USA Inc.’s Dewey-Burdock Project, located on more than 10,000 acres of Oceti Sakowin ancestral and treaty territory in the Black Hills of South Dakota. “The Oglala Sioux Tribe, as part of the Great Sioux Nation, continues to have serious unresolved concerns with the proposed project and cannot concur in the programmatic agreement as drafted,” Brewer said in a letter to the NRC. The programmatic agreement, or PA, is an accord that stipulates terms for government-to-government consultation and handling of sacred sites and cultural resources with respect for the National Historic Preservation Act (NHPA) and the National Environmental Protection Act (NEPA). Brewer claims tribes have been excluded from the consultation process and misrepresented in the language of the draft accord. “The PA is not a document the tribe is comfortable signing at this stage,” he said in the letter submitted Feb. 5. ‘We continue to express our interest in fully engaging in the cultural resource analysis and protection processes related to this project and ask that NRC staff abandon its current approach of prematurely finalizing its NEPA and NHPA documents until the proper steps can be taken to insure a competent cultural resource impact review, as well as consideration for environmental concerns,” he stated. The NRC asserts that it is an independent regulatory agency and, as such, exempt from the NHPA Sec. 106 mandate for government-to-government consultation under a November 2000 presidential decree. Nevertheless, the agency notes, it has tried since 2010 to involve the following parties in the consultation and agreement: 23 Northern Plains tribal governments, federal and state historic preservation officers, the Bureau of Land Management, the EPA, and Powertech. NRC has sought the concurrence of all the tribes on the programmatic agreement, which would be attached to Powertech’s license to develop a new radioactive source materials facility. In addition to the license, Powertech is applying for a number of other state and federal permits, including a grant of 9,000 gallons per minute of South Dakota water rights, approval for underground and surface waste water disposal, and exemption from the federal Safe Drinking Water Act. The water would be used in the in-situ leach process to pressure wash uranium, vanadium and other heavy metals out of their ore bed in the Inyan Kara Aquifer and pump them to a surface facility for refining, treatment and disposition. The installation is envisioned to have enough capacity for processing deliveries of similar materials from proposed future South Dakota uranium mining expansion and for veins currently mined in the neighboring states of Nebraska and Wyoming. In a Feb. 12 prehearing conference on the licensing, Powertech counsel Chris Pugsley informed an NRC Atomic Safety and Licensing Board panel that the company wants to be “free to move forward with operations” once it receives an NRC permit, even if it has not received the other permits it seeks. He said the steps the company wants to take immediately upon NRC licensing are “construction, other types of activities, up and including operating a facility.” Regulations allow an applicant to begin operations as soon as five days after a license is issued unless a stay of issuance is ordered in anticipation of other permit decisions. Panel Chair William Froelich promised to give consideration to Pugsley’s opposition to a stay. The panel has slated public hearings leading to the NRC licensing decision for August in Western South Dakota, pursuant to administrative complaints filed by the Oglala Sioux Tribe, Native American non-profit organizations and other area water users. In the meantime, Brewer is requesting the NRC staff to go back to the drawing board and “revisit its NEPA and NHPA compliance on this proposed project in order to provide meaningful opportunities for the Oglala Sioux Historical Preservation Office participation.” He objects to the fact that the basis for the PA is a cultural resource evaluation conducted by the Archaeology Laboratory of Augustana College, without tribal involvement, and on only part of the site. He says that “principal among the tribe’s concerns are those raised previously regarding the lack of a credible cultural resources survey that includes the entire project area of 10,580 acres.” The draft accord states that the tribe “has participated in the preparation of this PA.” Brewer characterizes that as “incorrect” and claims the NRC staff prepared the agreement without Oglala tribal input. The NRC notes that seven tribes were involved in a cultural resources field survey process in addition to Augustana’s. Brewer counters that the Oglala Sioux Tribe has not been provided the results of their participation. The NRC has “determined a phased process for compliance with Section 106 of the NHPA is appropriate for this undertaking,” according to the draft. Brewer disagrees, criticizing “the PA’s reliance on future analysis of the project area for cultural resources impacts and potential mitigation measures.” He notes that “unspecified promises for Powertech to ‘provide funding to tribal representatives’ to participate in future surveys is precisely the type of tactic that is partly to blame for the current problems.” The NRC avers that more than 250 historic properties have been identified on the site and says it has determined that “there will be adverse effects” to those where ground disturbance occurs. In the 20-page draft, it offers: “Native American human remains, funerary objects, sacred objects, or items of cultural patrimony should be treated with dignity and respect,” and in accord with state and the federal Native American Graves Protection Act, where applicable. The 23 tribes initially invited to take part in consultation, field surveys and accord drafting due to the project site’s religious and cultural significance are the Cheyenne and Arapaho Tribes of Oklahoma, the Cheyenne River Sioux Tribe, the Crow Nation, the Crow Creek Sioux Tribe, the Eastern Shoshone Tribe, the Flandreau Santee Sioux Tribe, the Fort Peck Assiniboine and Sioux Tribes, the Lower Brule Sioux Tribe, the Lower Sioux Indian Community, the Northern Arapaho Tribe, the Northern Cheyenne Tribe, the Oglala Sioux Tribe, the Omaha Tribe of Nebraska, the Pawnee Nation of Oklahoma, the Ponca Tribe of Nebraska, the Rosebud Sioux Tribe, the Santee Sioux Tribe of Nebraska, the Sisseton-Wahpeton Oyate, the Spirit Lake Sioux Tribe, the Standing Rock Sioux Tribe, the Three Affiliated Tribes (Mandan, Hidatsa & Arikara Nations), the Turtle Mountain Band of Chippewa Indians, and the Yankton Sioux Tribe. They all took part in the consultation initially, and their responses have been diverse. The Three Affiliated Tribes responded that the project posed “no adverse effects on historic or cultural resources important to the Mandan, Hidatsa, and Arikara Nations.” The Oglala Sioux Tribal Historic Preservation Office (THPO) stated that the proposed Dewey-Burdock Project represents “a substantial potential threat to the preservation of cultural and historic resources.” The Oglala THPO stated that the proposed project site is located within an area about which not only the Sioux tribes, but also the Cheyenne, Arapahoe, Crow, and Arikara tribes, “possess intimate cultural knowledge.” The area is adjacent to Wyoming in the southern Black Hills, spanning parts of Custer and Fall River County, adjacent to the Pine Ridge Indian Reservation. The Black Hills belongs to the Oceti Sakowin, or Great Sioux Nation, as recognized by the 1868 Ft. Laramie Treaty and subsequent federal decisions leading to a monetary award for the failure to respect treaty boundaries. The tribes won’t take the money. (Contact Talli Nauman, NSN Health and Environment Editor at talli.nauman@gmail.com)
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