DENVER – Uranium mining, banned on the Navajo Nation, advanced closer to tribal boundaries when the U.S. Tenth Circuit Court of Appeals upheld the Nuclear Regulatory Commission’s licensing of in situ leach uranium mining at four sites near Crownpoint and Church Rock in New Mexico.

The split decision by a three-judge panel March 8 also denied a request for review of one of the sites near Church Rock where Hydro Resources, Inc., whose parent company is Uranium Resources Inc., has a joint venture with Itochu, a Tokyo-headquartered transnational, to begin producing an estimated six to nine million pounds of uranium annually from New Mexico.

Eastern Navajo Dine Against Uranium Mining, a Navajo community organization; Southwest Research and Information Center, a nonprofit environmental education organization; and two local ranchers were joined by the Navajo Nation in a friend-of-the-court brief asserting that the Nuclear Regulatory Commission violated atomic energy and environmental laws in granting the license.

Navajo residents of the Church Rock area told the federal appeals court two years ago that they were concerned about increases in airborne radiation. They were also concerned that the drinking water supply could be contaminated by the in situ leach (ISL) process, which involves the removal of uranium by pumping water and bicarbonate into the groundwater aquifer, withdrawing the solution, and removing the uranium.

The NRC cannot grant a license application if, in its opinion, the license would adversely affect the health and safety of the public.

More than 850 people live in the Church Rock area near the mining sites, and one problem is “that the debris from the prior conventional (uranium) mining operation already emits a greater amount of airborne radiation than the NRC regulations allow, even before considering the airborne radiation that the ISL mining might produce,” the court noted.

The petitioners contend that because the site already exceeds the airborne emissions allowed under law, the NRC cannot license another operation on that same site. But the NRC said its regulations required the agency only to consider the amount of airborne radiation the ISL mining it sought to license would emit “irrespective of the airborne radioactive emissions already occurring on the site.”

In an oft-repeated assertion, Senior Judge David M. Ebel and Oklahoma District Court Judge Gregory K. Frizzell, sitting by designation, said the court had to defer “to an agency’s interpretation of its own regulations,” and that deference “is especially strong where the challenged decisions involve technical or scientific matters within the agency’s area of expertise.”

Opponents of the mining operation said HRI failed to comply with the National Environmental Policy Act because it did not consider the cumulative amount of airborne radiation from prior uranium mining on the site and HRI’s proposed ISL operation, and mischaracterized it as “background radiation.”

Noting that the final environmental analysis anticipated a “negligible” impact on current airborne radiation, the court said: “The NRC staff is aware that to some members of the local community, any increase in the cumulative effect or in radioactivity, brought to the surface by any uranium mining activity, would be unacceptable,” particularly those whose health had been damaged by uranium mining in the past.

Responding to concerns about ISL mining and groundwater quality, the NRC said pre-mining conditions would be the restoration target, and, if that were not possible, the secondary goal would be to meet the Environmental Protection Agency’s secondary and primary drinking water regulations.

If HRI could not meet even the secondary water quality restoration goal, it would have to demonstrate to NRC that there “would not be a threat to public health and safety and that, on a parameter by parameter basis, water would not be significantly degraded,” the court’s opinion states.

In terms of NEPA compliance, the NRC met its obligation, the court said, noting that “NEPA requires only that the agency consider and disclose negative effects; it does not prohibit the agency’s approval of programs with negative cumulative effects.”

The court does not set aside an agency decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” it said.

Judge Carlos F. Lucero said he dissented from the majority decision because it “will unnecessarily and unjustifiably compromise the health and safety of the people who currently live within and immediately downwind” from the Church Rock area in question.

Because of radiation from abandoned mine tailings at the current site, HRI’s mine “will result in total radiation levels nine to 15 times the permitted regulatory limit,” he said.

While the petitioners should be able to rely on the NRC to correctly interpret laws and regulations, “Instead, the NRC has abandoned its statutory commitment to refrain from issuing licenses if doing so ‘would be inimical to the health and safety of the public,’” adding that as a result the NRC has “rendered this community vulnerable to the ill effects of dangerous radiation.”

Lucero also questioned the majority’s rationale for deferring to the NRC’s interpretation of its regulations concerning airborne radiation, arguing for inclusion of radioactive emissions from existing mining spoil and questioning the NRC’s definition of “background radiation.”

“Because the NRC granted HRI’s license using interpretations of its regulations that are inconsistent with the regulations themselves, I would set aside its decision and remand for the agency to reconsider its licensure of HRI,” Lucero said.

“The NRC’s erroneous decision and majority’s endorsement of that decision will expose those families (downwind of the mining operation) to levels of radiation beyond those deemed safe by the NRC’s own regulations, jeopardizing their health and safety.”

The mine sites are in an area east of Gallup where Indian trust lands are interspersed with privately held tracts in a “checkerboard” pattern that has fostered controversy over whether the area is “Indian country” as legally defined.