HRI seeks reversal of EPA ruling

By Zsombor Peter
Staff Writer

GALLUP — The 10th U.S. Circuit Court of Appeals will be hearing plenty from Hydro Resources, Inc., and the people trying to stop the Texas company from mining northwest New Mexico for uranium over the next few months.

HRI appealed a recent decision by the U.S. Environmental Protection Agency that a 160 plot it wants to mine near Church Rock is Indian country to the court last week. Its opponents appealed the federal Nuclear Regulatory Commission's decision to uphold the license it granted HRI in 1997 to mine both Church Rock and Crownpoint Feb. 12.

Given the confusing checkerboard nature of the Navajo Nation's eastern edge, Mark Pelizza, vice president of HRI's parent company, Uranium Resources, Inc., is at least glad that the EPA made a determination on the status of the Church Rock site, which the company calls Section 8.

Because its status was so contested, he said, "we had to have this decision made."

He's not happy with that decision itself, but hopes the appeals court will uphold the precedent set by the Supreme Court to defer to the title of the land rather than its "general character."

Legally, HRI owns the land. The company bought it in 1986. And as Pelizza pointed out, those particular 160 acres are neither set aside by the federal government for the tribe's use nor under federal superintendence, as they must to be considered Indian country under federal guidelines.

The EPA, however, decided that the land is, for all intents and purposes, part of the Church Rock community. And because 78 percent of the community's land is in federal trust, because 97 percent of its residents are Navajo, because most of its households speak Navajo, and because the chapter, tribe or Bureau of Indian Affairs provide most of its infrastructure, it is in effect Indian country.

The company and its opponents care about the decision because it determines who the federal government or the state must issue the underground injection control permit HRI needs to get at the site's uranium. Although the state's rules must be at least as strict as the federal government's, HRI's opponents believe the feds will pay more attention to their objections to injecting chemicals into the ground, which they believe will pose an unacceptable risk to their drinking water supplies.

If the land's Indian-county status holds up, it could also give the Navajo Nation a chance to try out its Din Natural Resources Protection Act of 2005, which bans all uranium mining on Navajoland. Because it has yet to be tested, it's hard to tell if it will hold up in court.

As for the decision by the Eastern Navajo Din Against Uranium Mining, Southwest Research and Information Center and two Pinedale residents to appeal the NRC's decision to uphold the mining license it granted HRI a decade ago, Pelizza isn't surprised.

"It would be surprising if there was no appeal," he said.

The New Mexico Environmental Law Center, representing the appellants, is technically suing the NRC for issuing several decisions related to the HRI license that allegedly violate the Atomic Energy Act, the National Environmental Policy Act, and the NRC's own regulations. According to Environmental Law Center attorney Eric Jantz, HRI won its license despite failing to prove it would protect groundwater from contamination, protect residents from radiological air emissions or post a bond big enough to ensure that the site would be cleaned up in the event that it could not on its own reclaim the land and water it had mined.

"The judge ruled that the project was safe on each and every issue," Pelizza objected.

He said that no similar mining project had ever contaminated an underground water resource in the past, and that the process releases almost no emissions. As for the bond, he said a pre-project demonstration will help determine exactly what the figure will have to be.

"Safety is the core of the issue," said URI President David Clark according to a recent company news release. "Our technology has been proven over the past three decades, and the safety of our project has been upheld."

If the company wants to start mining in Church Rock and Crownpoint, its right to do so will have to be upheld at least once more in the U.S. Circuit Court of Appeals.