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Nuclear commission overrules judge, upholds license for company to mine uranium in southwest South Dakota

Powertech wants to mine for uranium in a semi-arid area of grasslands near Edgemont, along the southwestern edge of the Black Hills. Rapid City Journal

RAPID CITY, S.D. — The U.S. Nuclear Regulatory Commission has decided to uphold a company’s license to mine for uranium near Edgemont, even though a federal judge has declared that the existence of the license without an adequate cultural resources survey is illegal.

The commission’s decision to leave the license in place does not mean mining will immediately begin. Powertech, a subsidiary of Canada-based Azarga Uranium Corp., still needs other permits from local, state and federal agencies.

The commission’s written decision was issued Thursday, Jan. 31. The decision says that because Powertech still needs other permits, “leaving the license in place for now poses no harm” to the Oglala Sioux Tribe, which is challenging the lack of an adequate survey to locate sites of historical and cultural significance that could be disturbed by mining.

As an additional precaution, the commission ordered Powertech to notify the commission’s Atomic Safety and Licensing Board 60 days in advance of conducting any activities at the site while the dispute over the cultural resources survey is pending.

The commission granted a license to Powertech in 2014 without resolving the contention over the cultural resources survey. The Oglala Sioux Tribe then filed a petition in federal court seeking a review of the commission’s action.

In July, the U.S. District Court of Appeals for the District of Columbia ruled that the NRC had violated the National Environmental Policy Act when the commission left Powertech’s license in effect without an adequate cultural resources survey.

Yet the court declined to vacate Powertech’s license, because of concerns about “disruptive consequences” — including a potential plummeting of the stock price of Powertech’s parent entity, Azarga. Rather than vacate the license, the court remanded the case back to the Nuclear Regulatory Commission for further proceedings consistent with the court’s opinion.

The NRC concluded those proceedings and decided to leave the license in effect while the parties continue to argue about the proper contractor and methodology for a cultural resources survey.

One member of the five-person NRC, Jeff Baran, filed a dissenting opinion. Baran was chagrined that the NRC staff’s practice “has been to issue materials licenses before the completion of contested hearings on environmental matters.” He wrote that the NRC should take the opportunity presented by the Powertech vs. Oglala Sioux Tribe dispute to change that practice.

Otherwise, Baran wrote, the NRC will remain “on course to repeatedly and predictably violate a core requirement of NEPA.”

Baran argued that the proper course for the NRC, instead of deciding to leave the Powertech license in place, would have been to conduct an evidentiary hearing first.

Azarga praised the NRC’s decision to uphold the company’s license.

“The NRC Commission decision not only reaffirms the standing of the NRC License, but also allows the Company to move beyond this decision and continue to work with the NRC Staff and other stakeholders to resolve the only remaining NRC License contention,” said a quote from Azarga President and CEO Blake Steele in a news release issued Tuesday.

Jeff Parsons, a Colorado-based attorney for the Oglala Sioux Tribe, did not immediately return a message.

Powertech plans to mine by a method known as “in situ,” which does not include traditional open pits or tunnels but instead uses well fields to inject a water-based solution underground, dissolve the uranium, and bring it to the surface for eventual processing into fuel for nuclear power plants.

A controversial aspect of in situ mining is the eventual injection of the treated wastewater back underground. The Environmental Protection Agency has issued draft permits for up to 4,000 production wells among 14 well fields over the life of the mining operation, but the permits have remained in draft status rather than final status since 2017.

The well fields would be 13 miles northwest of Edgemont, near the abandoned community of Burdock and the hamlet of Dewey along the southwest edge of the Black Hills.