CHAPTER 11 FEDERAL AND STATE PERMITS REQUIRED TO OPEN A NEW URANIUM MINE WITH COMMENTS ON URANIUM DEVELOPMENT ON INDIAN RESERVATIONS

• Jurisdiction: United States

Uranium Exploration and Development
(Nov 1976)
CHAPTER 11
FEDERAL AND STATE PERMITS REQUIRED TO OPEN A NEW URANIUM MINE WITH COMMENTS ON URANIUM DEVELOPMENT ON INDIAN RESERVATIONS
Thomas E. Root
Energy Fuels Corporation
Denver, Colorado
J. Steven Whisler
Denver, Colorado

I. Introduction

It is our understanding that the purpose of this special institute on uranium development is two-fold: First: For the benefit of those unfamiliar with the technical and legal difficulties associated with mineral development in the Western United States, this institute will provide a basic review of Western mining, water, and environmental law and technology; Second: For those who are familiar with the above, this institute will refresh our recollection of these problems as they bear specifically on uranium development.

In light of this two-fold purpose, this paper will be divided into three major divisions. The first division will touch lightly on three problems to be found in the federal realm; specifically, the EIS, water discharge permits, and the question of access. The second division will be more detailed, offering a cookbook approach to the permitting process as it exists in four Western states. The third division will deal with the question of jurisdiction, using a "case study" approach to illustrate how jurisdiction bears on uranium development on Indian reservations. The formal divisions of this paper are as follows:

I. Introduction

II. Three Federally Related Problems

A. The Environmental Impact Statement

B. Water Discharge Permits

C. Access

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III. State Permits — Four Selected States

A. Wyoming

1. Introduction

2. Land Use Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

3. Air Quality Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

4. Water Quality Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

B. Utah

1. Introduction

2. Land Use Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

3. Air Quality Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

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4. Water Quality Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

C. New Mexico

1. Introduction

2. Land Use Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

3. Air Quality Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

4. Water Quality Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

D. Arizona

1. Introduction

2. Land Use Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

3. Air Quality Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

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4. Water Quality Permits

a. Permits Required

b. Contents of Permit Application

c. Procedure for Obtaining Permit

IV. The Issue of Jurisdiction as it Relates to Development on Indian Reservations

A. Civil Jurisdiction on Indian Reservations

B. Civil Jurisdiction & Public Law 280

C. Civil Jurisdiction & Non-Indian Activity

D. Civil Jurisdiction & Congressional Delegation

E. State Civil Jurisdiction & 25 U.S.C. § 231

F. Summary

G. The U.S.G.S. Operating Plan

V. Summary

II. Three Federally Related Problems

A. The Environmental Impact Statement

The National Environmental Policy Act¹ requires that an environmental impact statement (EIS) be prepared if "major federal action significantly affecting the quality of the human environment"² is involved.

An EIS is an inter-disciplinary document which gives the federal decision maker a grasp of the effect his decision will have on the environment. Such a statement is generally divided as follows:

1. Project Description. (This section will include the location of the proposed mine, mining methods to be utilized, and reclamation procedures to be implemented after mining ceases. It will also include a description of access roads, power supply corridors, and other support facilities.)

2. Description of the Environment. (This section should describe the setting of the mine, in detail. This would include geology, hydrology, meteorology, terrestrial and aquatic biota and wildlife, socio-economic studies and the like.)

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3. Effect of the project on the environment. (This section takes the information found in 2 above and indicates the impact of 1 above upon it.)

4. Mitigation Measures. (This section is one really concerned with design. It attempts to show how modification of the proposal (1) will have less impact (3) on the environment (2).

5. Relationship Between Local Short-Term Uses and Long-Term Productivity.

6. Irretrievable Commitments of Resources. (This section is an inventory of depletable resources if the mine should operate. For example, "1 million pounds of U₃O₈ will be extracted.")

As one can see, an EIS is a formidable document and can be quite expensive. A good rule of thumb is that such a procedure will take 3 years to complete. The breakdown of time is as follows:

1. Gathering of baseline data — 1 year.

2. Drafting — 6 months

3. Circulation of draft for comments — 6 months.

4. Issuance and approval of final EIS — 2 months

You will note that 1-4 do not add up to 3 years. One should count on substantial delay as the EIS works its way through the federal bureaucracy.

As to cost, it is anybody's guess. $400,000 — $600,000 is a ballpark figure.

You will note thus far that no reference has been made to the considerable law surrounding NEPA. This was deliberate so that the reader could get a feel for what an EIS is, what it does, what it costs, and how long it takes to prepare. A partial bibliography dealing with legal issues raised by the Act is found in the footnotes.³

B. Water Discharge Permits

The question of water discharge from mines and mills is treated elsewhere in the proceedings of this institute. The question is raised because mine water treatment and discharge are a constant headache to the mining industry in general and the uranium segment of that industry in particular.

The basic federal law governing surface water pollution is the Federal Water Pollution Control Act.⁴ The FWPCA prohibits discharge of pollutants into waters of the United States⁵ unless a National Pollution Discharge Elimination System (NPDES) permit is obtained. The permit will contain effluent standards tailored to the discharges. Effluent standards are limitations upon the quantity of pollutants which may be discharged.

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In November of 1975, the EPA proposed effluent guidelines and standards for the ore mining and dressing point source catagory.⁶ On February 2, 1976, the American Mining Congress, the Anaconda Company, Gulf Oil Corporation, Kerr-McGee Nuclear Corporation, and Union Carbide Corporation filed a petition for review of these guidelines related to the uranium subcategory in the Tenth Circuit Court of Appeals.⁷ On May 24, 1976, EPA suspended the regulations until November 6, 1976.⁸ As of November 6, 1976, no new regulations have been published. The wary practitioner will watch for both publication of the regulations and the outcome of the review.

C. Access

Access is also a constant problem for the mining industry. As Art Biddle of AMAX so precisely put it, an access road is the lifeline of a miner to his claim. To do justice to the question of access would require a paper in itself. The footnotes contain a partial bibliography focused upon this issue.⁹ With the generous assistance of John D. Erdmann, Esq., Legal Assistant, Bureau of Land Management, Cheyenne, Wyoming, the footnotes also list the general access statutes.¹⁰

III. State Permits — Four Selected States

A. Wyoming

1. Introduction

Environmental quality in Wyoming is regulated through a comprehensive Environmental Quality Act.¹¹ The Act includes three specific articles, each dealing with air, land and water quality.¹² Administration of the Act is through the Environmental Quality Council, with is made up in part by separate administrative divisions for air, land and water.¹³

2. Land Use Permits

The opening of a uranium mine requires that the following permits or approvals be obtained:

1. Permit to mine including a reclamation plan;

2. License to mine; and

3. Surety bond for reclamation.

The statute sets forth the contents of the application for a permit to mine,¹⁴ the accompanying reclamation plan,¹⁵ and the application for a license to mine.¹⁶ A surety bond in a statutory amount must also be posted.¹⁷

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The application for a permit to mine and a license to mine may be submitted together. Proper notice to a variety of parties is required by the statute and should not be overlooked.¹⁸ The applicant should be aware of the fact that while the statutory maximum time for approval is approximately a month, the process in practice is much longer.¹⁹ Review, both administrative²⁰ and judicial,²¹ is available should the permit application be denied.

3. Air Quality Permits

Air quality permits are required prior to commencing operation.²² Applicable permits are:

1. Construction permit; and

2. Operating permit.

The regulations set forth the contents of both the construction and the operating permit.²³

The construction permit must be obtained before any actual work is begun on the mine.²⁴ The regulations require approval or denial in 60 days,²⁵ but additional delays may be encountered.²⁶ After a short start-up period, an operating...