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Judge advises tribal cultural fieldwork at proposed radioactive mine

Water sources could be contaminated by proposed uranium operations


The Atomic Safety and Licensing Board gave the Nuclear Regulatory Commission a chance to carry on with historic preservation surveying in a case brought by the Oglala Sioux Tribe to prevent uranium mining from destroying sacred cultural sites at the pictured Dewey Burdock location in the Southern Black Hills.

The Atomic Safety and Licensing Board gave the Nuclear Regulatory Commission a chance to carry on with historic preservation surveying in a case brought by the Oglala Sioux Tribe to prevent uranium mining from destroying sacred cultural sites at the pictured Dewey Burdock location in the Southern Black Hills.

ROCKVILLE, Maryland – The judges in the Oglala Sioux Tribe’s administrative lawsuit regarding proposed uranium mining in the southern Black Hills have given a federal agency until Nov. 30 to opt to either carry on with cultural resource fieldwork or submit to an evidentiary hearing.

The Oct. 30 ultimatum of the Atomic Safety and Licensing Board is the aftermath of a breakdown in plans for historic preservation surveys at the 10,000- acre Dewey Burdock project site located on unceded 1868 Ft. Laramie Treaty land in Custer and Fall River counties adjacent to the Pine Ridge Indian Reservation.

“It is my hope they will use the 30 days provided by the board’s schedule to explore seriously whether that information-gathering process can be resumed and completed,” Judge G. Paul Bollwerk said in a supplementary opinion to the order and agenda filed Oct. 30.

The agenda calls for a Feb. 26, 2019 evidentiary hearing start-date, if Nuclear Regulatory Commission staff decides to go that route in the contested permit process revolving around what could become South Dakota’s first-ever in situ recovery of uranium — or water-table leach extraction and processing of the radioactive toxic heavy metal.

The hearing would attempt to resolve a dispute between the tribe and the agency over implementation of a cultural resources survey required by the National Environmental Policy Act in the granting of a license to handle radioactive materials and contaminated by-products.

The tribe and staff met in June to advance implementation of the survey plan that staff submitted in March to satisfy the board, which is an independent judicial branch of the Nuclear Regulatory Commission, headquartered in Rockville, Maryland.

After years of squabbling, the parties had nominally agreed to work together on it with the project proponent Powertech (USA) Inc., a wholly-owned subsidiary of the foreign multinational Azarga Uranium Corp., based in British Columbia, Canada.

However, the fieldwork stalled out, with each side filing for summary judgement that the other was to blame. In the Oct. 30 order, the judges said neither side established its claim.

Bollwerk added: “Given what has transpired, the parties may be inclined to ‘let the lawyers deal with it’ in an evidentiary hearing rather than trying to move forward with collecting and recording additional tribal cultural resources information as was contemplated in the staff’s March 2018 approach.”

However, he stressed, “It is hard to imagine that the goals of the National Environmental Policy Act, as well as the public interest generally, are best served by expending board and party resources litigating the events of June 2018 that halted the cultural resources information-gathering process, as compared to devoting those resources to undertaking and completing that process so as to endeavor to fulfill the staff’s NEPA responsibilities.”

The tribe, tribal members, and other area residents have been fighting the project since 2007, when the treaty rights organization Defenders of the Black Hills filed a lawsuit to stop uranium exploratory drilling the state permitted in the Dewey Burdock area.

The court ruled against the claim, for lack of proof that environmental harm would occur as a result.

The Nuclear Regulatory Commission staff initially tried to block the tribe’s intervention in the permitting process, beginning in 2010 at an ASLB hearing in Custer. However, the board admitted the tribal government’s participation shortly thereafter and agreed to consider its objections on cultural and water issues.

The staff also recommended excluding the other intervenors contesting the project: Theodore P. Ebert, David Frankel, Gary Heckenlaible, Susan Henderson, Dayton Hyde, Lilias C. Jones Jarding, Clean Water Alliance, and Aligning for Responsible Mining.

The ASLB admitted them after they argued they should have standing because their water sources will be affected and could be contaminated or reduced by the proposed uranium operations.

(Contact Talli Nauman at talli.nauman@gmail.com)

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