Uranium Mines, Old and New, Fuel Litigation

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By Steven M. Sellers

Hundreds of long-abandoned uranium mines dotting western states and dug in the early days of World War II have, and continue to, cost mining operators, and their successors billions in litigation-fueled cleanup costs.

Some environmental groups are also suing to stop new uranium drilling near three national parks. They predict similar toxic legacies, resulting in massive remediation costs and, like at the war-time sites, health risks posed by toxic tailings of radon, radium and thorium.

“These are high-exposure cases—we’re talking about uranium here,” Superfund litigator William Ruskin, of the William Ruskin Law Office in Rye Brook, N.Y., said of abandoned war-era mines.

But whether the new drilling proposed near Grand Canyon National Park, Bears Ears National Monument, and Grand Staircase-Escalante National Monument really poses similar risks depends on who you ask.

Aaron Paul, a staff attorney for Grand Canyon Trust, acknowledged that the regulation of uranium mining has significantly improved since the 1940s. However, he said, groundwater and other environmental contamination dangers remain.

“I don’t think it eliminates the problem,” Paul said. “Even the smallest contamination can cause a huge problem.”

The trust, a nonprofit environmental organization headquartered in Flagstaff, Ariz., was at the center of recent litigation over uranium mining near the Grand Canyon that included a partial win for green groups at the U.S. Court of Appeals for the Ninth Circuit.

Energy Fuels Resources (USA) Inc., a Lakewood, Colo.-based uranium producer sued in the Grand Canyon cases, discounts any comparison between the old and new drilling operations.

Sophisticated mining technologies and close regulation of uranium mines “ensure that the issues associated with historic mining practices cannot occur today,” company spokesman Curtis Moore said.

Navajo Nation Mines

Litigation over the war-era mines largely stems from drilling in the uranium-rich Colorado Plateau, a 240,000-square-mile geological formation that straddles the borders of Arizona, Colorado, New Mexico, and Utah.

The ore, much of it on Navajo Nation lands, met the U.S. need for domestic uranium for weapons, including the bombs dropped on Hiroshima and Nagasaki in 1945, and domestic power generation after 1970.

Mining was encouraged by the Atomic Energy Commission, charged in 1946 with “control for the production, ownership, and use of fissionable material to assure the common defense and security and to insure the broadest possible exploitation of the fields.”

“Private parties weren’t allowed to own uranium, so they got permits to mine uranium and it could only be sold to the government,” said Superfund litigator David Mandelbaum, of Greenberg Traurig’s Philadephia office. “There are hundreds and hundreds of these little uranium mine sites around the West.”

But as they pumped out uranium from 1947 to 1970, the mines left American Indian workers with lung cancer and groundwater contamination on some Navajo Nation lands.

The federal government’s central role in the mining resurfaced in Superfund litigation decades later, when drillers claimed the U.S. bore responsibility for cleaning up the toxic waste left behind.

Superfund Skirmishes

The abandoned mines, which total more than 500, have triggered scores of EPA cleanup actions against current and former mine operators and billions in Superfund settlements.

The Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund, is a federal law that governs the cleanup of, and liability for, hazardous waste releases.

Superfund liability, particularly when it involves radioactive waste, exposes companies to potentially ruinous costs if they fight the government over cleanups and lose.

“It would be a victory to say to your client that the court only allocated 20 percent of liability to the company, but that can still be a staggering sum of money,” Ruskin said. “The U.S. will survive, but a company may not.”

Administrative settlements are the norm but aren’t invariable in such cases, according to a Bloomberg Law analysis of reported settlements and consent decrees over the past several years.

One example is El Paso Natural Gas Co. v. United States, where the corporate successor of a 1950s mining company seeks to recover cleanup costs from the federal government.

The plaintiffs say the U.S. “conceived and established the domestic uranium mining industry, oversaw it, provided essential support for it, and controlled it through financial incentives, licensing, and regulation.”

That case was set for a February trial in the U.S. District Court for the District of Arizona, but it was put off in December to allow the parties to pursue mediation.

New Mines Raise Hackles

As EPA continues to press Superfund enforcement for waste from old mines, opponents of newly proposed uranium mines argue similar cleanup dangers lie ahead, and that the ore isn’t worth the risk.

They’ve had mixed results in court.

In December, the Ninth Circuit upheld a 20-year ban on uranium mining near one part of the Grand Canyon but ruled in a separate appeal that Energy Fuels Resources could proceed with another mine in a different area near the park.

The legal battles aren’t confined to mines proposed for the Colorado Plateau.

Drillers also challenged Virginia’s longstanding ban on uranium mining to excavate a site in Pittsylvania County, Virginia, which is the largest known deposit in the nation.

The U.S. Court of Appeals for the Fourth Circuit turned those challenges aside in 2017 when it rejected arguments by Virginia Uranium Inc. that the Atomic Energy Act preempted the moratorium.

The moratorium’s supporters argued that lifting the ban, which dates to 1982, would leave residents on the hook for cleaning radioactive spills if a catastrophic storm were to breach storage areas for mining wastes.

Similar concerns recently arose in Utah, where the state’s Department of Environmental Quality imposed a $50,689 fine against a waste facility for failing to apply controls to contain radioactive materials, according to a Jan. 11 Salt Lake City Tribune report.

Bears Ears, Grand Staircase

Potential mines near Bears Ears National Monument in Arizona and Grand Staircase-Escalante National Monument in Utah triggered the most recent round of litigation.

Those suits, filed Dec. 4 in the U.S. District Court for the District of Columbia, allege the Trump administration’s reduction in the protected footprint of the monuments will mean more uranium mines, damaging an environment already pock-marked by old quarries.

In Natural Resources Defense Council Inc. v. Trump, for example, environmental groups claim reductions in the size of Bears Ears “will reopen lands to uranium mining and oil and gas drilling, with devastating consequences to the wild character and scientific and cultural resources of the Monument.”

Moore, of Energy Fuels, said predictions that modern uranium drilling operations will create radioactive spills like those of crude mines dug 70 years ago are misguided.

“Vastly improved technologies and practices” separate modern uranium mines from the legacy of war-era operations, when regulations were nonexistent and “worker safety often took a back seat to production,” Moore said.

Under current regulations, “all mines are now required to post a surety bond to secure the cost of reclamation” so that “no mine can be abandoned or left un-reclaimed.”

But for Paul, of the Grand Canyon Trust, uranium mine operations still create an incentive to wait—rather than remediate waste—because drilling only occurs when prices are high.

When the drilling begins, Paul said, “the uranium industry has a pretty bad record for cleaning up these messes.”

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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