Tribal opponents of Black Hills uranium mining and allies prepare to address EPA about water permits at 2017 hearing in Rapid City, South Dakota. Photo by Talli Nauman

Native Sun News Today: Oglala Sioux Tribe heads to court on uranium mining in Black Hills

OST argument to stop Black Hills uranium mining to be heard

By Talli Nauman
Native Sun News Today
Health & Environment Editor

WASHINGTON – The federal Circuit Court for the District of Colombia is set to hear arguments on March 20 in the Oglala Sioux Tribe’s lawsuit to prevent uranium mining in the underground water table of the southern Black Hills.

The tribe is suing the U.S. Nuclear Regulatory Commission staff and Azarga Uranium Corp.’s Powertech (USA) Inc. to revoke the hazardous radioactive materials license the federal agency granted the foreign-held company.

The license is one of many that would be needed to conduct South Dakota’s first-ever in situ uranium mining and yellow-cake manufacture for the nuclear industry, as proposed eight years ago on the 10,000-acre Dewey Burdock site in Custer and Fall River counties, adjacent to the Pine Ridge Indian Reservation and upstream at the headwaters of the Cheyenne River.

“The argument is likely to focus mainly on two issues,” the Oglala Sioux Tribe’s attorney, Jeffrey C. Parsons, told the Native Sun News Today: Both involve the National Environmental Policy Act, or NEPA.

The plaintiff is challenging the license being in effect, given “the agency’s own ruling that the NEPA analysis failed to comply with the law,” Parsons said. The defense is challenging the court’s jurisdiction, “because the agency is still working to complete its NEPA analysis.”

NEPA requires a survey of cultural resources impacts in compliance with the National Historic Preservation Act, as part of a project’s Environmental Impact Statement. At Dewey Burdock, the survey has not been completed to the tribe’s satisfaction.

Administrative hearings are ongoing at the NRC’s Atomic Safety and Licensing Board to reach an agreement between the tribe, the staff and company on how to proceed, while a Programmatic Agreement, or PA, to conduct surveying has fallen short of tribal expectations.

The NRC “confirmed NEPA violations for failure to competently survey or otherwise identify Lakota Sioux cultural sites, rendering the PA hollow for the as-yet unidentified resources,” the tribe argues in the lawsuit.

The tribe asks the court to remand the licensing decision to the agency “to comply with its statutory duties” due to lack of a required “reasonably complete discussion of possible mitigation measures.”

The NRC and Powertech (USA) Inc. argue that the tribe’s request is “incurably premature, and the court should dismiss it for lack of jurisdiction,” because the parties are at the Atomic Safety and Licensing Board “in active administrative litigation on that very decision.”

The tribe further argues that the NRC staff and the company have failed “to adequately analyze the storage, transportation, and disposal of radioactive wastes at White Mesa, Utah,” which is the controversial go-to dump site for uranium mines and mills.


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The suit charges that defendants have failed to “analyze the impacts and risks associated with thousands of historic abandoned bore holes and geologic faults in the project area,” and with “illegal deferral of collection and analysis of baseline water quality data to a post-license and post-NEPA review.”

The defendants counter that the Environmental Impact Statement “does analyze these impacts.”

Azarga Uranium Corp.’s business proposal is for Powertech (USA) Inc. to secure state water rights for using 8,500 gallons a minute from the Inyan Kara Aquifer and 551 gallons a minute from the Madison Aquifer over a 20­year­period. That’s almost 13 million gallons per day, more than the population center of Rapid City uses.

The company is seeking federal permission to exempt the water from Clean Drinking Water Act protection so that operators would not have to restore it to its original quality and permits to dispose of it in deeper aquifers not now in-use for human consumption.

The tribe has submitted testimony from expert witnesses in groundwater geology saying that the 4,000 boreholes left from uranium exploration, as well as porosity of the rock formation and fractures, could cause the mine water to mix with underground drinking water sources and surface water.

The NRC staff has conditioned continued licensing on plugging the boreholes.

In situ uranium mining entails extraction of groundwater, mixing it with chemicals, forcing the liquid back into the water table so it will dissolve the rock, pumping the mineral to the surface, and processing it into yellow cake, a powder concentrate that is shipped for further refinement to make nuclear fuel rods.

Contact Talli Nauman at

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