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The lawsuit, filed in the 10th U.S. Circuit Court of Appeals in Denver with oral arguments scheduled to be heard May 12, marks the first legal challenge against a license for an "in-situ" leach mine.

The New Mexico Environmental Law Center, representing Eastern Navajo Dine Against Uranium Mining (ENDAUM), a Navajo group, and the Southwest Research and Information Center (SRIC), argues that the mines, proposed for four sites near the Navajo communities of Crownpoint and Church Rock in eastern New Mexico, would contaminate water supplies and pollute the air.

The Church Rock area in New Mexico, where the Najavo Tribe and U.S. EPA are jointly cleaning up residue of uranium mining activities. Photo courtesy of EPA.

In the lawsuit, the groups contend that the Nuclear Regulatory Commission failed to require Hydro Resources Inc., the company that wants to mine the lands, to adequately protect groundwater from uranium contamination. The groups also say NRC erred in calculating the total radiation emissions for one of the sites, which encompasses an abandoned mine. Finally, they contend that Hyro Resources' proposed surety bond is insufficient to pay for cleanup of the sites if the company is unable to reclaim the land after mining is completed.

The water issue is especially contentious, said Eric Jantz, a staff attorney with the New Mexico Environmental Law Center who is representing Eastern Navajo Dine Against Uranium Mining and the Southwest Research and Information Center.

"The aquifer where they want to mine, and where NRC is allowing them to mine, is a sole source aquifer," meaning it is the only source of drinking water for the 15,000 people living in the communities, he said.

NRC granted the license to Hydro Resources -- a subsidiary of Texas-based Uranium Resources Inc. -- in 1999. The company would use a water-based in-situ type of uranium extraction that the company has said is much safer than traditional mining. In-situ leach mining involves leaving the ore where it is in the ground, and recovering the minerals from it by dissolving them and pumping the solution to the surface. The process, which is now widely used to mine uranium, generates no tailings, but operations need to be located "so that they do not contaminate ground water away from the ore body," according to the World Nuclear Association.

In the license, NRC said Hydro Resources cannot inject the potential contaminant lixiviant at the Crownpoint sites without first demonstrating it can restore groundwater at the Church Rock site. But the groups say those precautions do not go far enough to protect groundwater.

The groups challenged the commission's determinations administratively -- a fight that lasted for a decade. Failing to win their administrative case, the groups decided to take their grievances to federal court. They filed their suit in the 10th Circuit because appeals to NRC decisions are heard in federal appeals court.

David McIntyre, a spokesman for NRC, said he could not talk about the specifics of the litigation, citing agency rules. But he said that generally, "all uranium recovery licenses include provisions for groundwater restoration and reclamation once operations cease, as well as other protections for public health and safety."

Calls to Hydro Resources, which is based in Rio Rancho, near Albuquerque, N.M., were not returned.

During the administrative appeals, NRC concluded that the EIS adequately assessed the potential impacts of the mines to air and water resources. The document is "free of any clear, significant error," NRC said.

One uranium boom and another

Hydro Resources' bid to mine on and near Navajo lands is emblematic of a resurgence in interest in uranium mining, prompted by soaring prices for the heavy metal. In the past few years, the price of uranium has risen from $7 per pound to $68 per pound. Subsequently, the state of New Mexico has seen a dramatic rise in the number of exploratory permits requested by mining companies, with a dozen applications currently under review.

The U.S. largely relies on imported uranium to support its nuclear power industry. With that in mind, NRC's final EIS emphasized the need for the Hydro Resources mines to provide a new domestic source for uranium.

"The proposed project ... would have the beneficial effect of helping the United States offset this deficit in domestic production," according to the document.

But the Navajo Nation is still seeking reparations for the effects on health and the environment from the last uranium boom, which supported the U.S. nuclear weapons program. Uranium mining activity from that period has been blamed for contamination and high cancer rates in Navajo communities.

"Many of these folks lived through the last uranium mining boom. They were there when the NRC sat on the sidelines and allowed the mining industry to run roughshod over the community, and they're seeing the same thing happen again today," Jantz said. "That was the impetus for the uranium mining ban, and it was the basis for this lawsuit."

Exposure to elevated levels of radium over a long period of time may result in harmful effects including anemia, cataracts, fractured teeth and cancer, particularly bone cancer.

Soil from the reservation presented to members of Congress during a hearing of the Oversight and Government Reform Committee last October contained radiation 30 times normal levels (E&E Daily, Oct. 24, 2007).

Last spring, the agency officially removed 6,500 cubic yards of radium contaminated soils around residences near the Northeast Church Rock Mine (Land Letter, May 17, 2007). In all, the Navajo Nation EPA has identified 40 sites out of 1,300 abandoned uranium mines for priority cleanup.

Jantz said he is hoping the appeals court will set aside NRC's decisions paving the way for new mining in the area. But he acknowledges that the court may decide differently. "My suspicion is the best we can hope for is a remand back to the agency with instructions to do the things they need to do to follow the law," he said. "That would be fine. Our folks just want a shot at getting a fair hearing on all this stuff."

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