CHAPTER 5 STATE GROUNDWATER AND RECLAMATION PERMITTING REGIMES AND THEIR APPLICATION TO URANIUM EXPLORATION AND MINING
| Jurisdiction | United States |
(Apr 2006)
STATE GROUNDWATER AND RECLAMATION PERMITTING REGIMES AND THEIR APPLICATION TO URANIUM EXPLORATION AND MINING
Attorney
Cheyenne, Wyoming
EDWARD W. HARRIS
Ed Harris is an attorney in Cheyenne Wyoming. His practice focuses on environmental law, with particular emphasis on mine permitting and reclamation, air quality, and hazardous waste management. In 2005, after more than twenty years with the firm of Holland & Hart, LLP, Ed decided it was time to make some changes in his life. He is currently involved in some free-lance legal projects, volunteer work, teaching saxophone lessons, and pursuing a different professional position about which he is very excited.
I. Introduction.
According to the Nuclear Energy Institute, most of this country's uranium reserves are found in only eight states. They are Arizona, Colorado, Nebraska, New Mexico, Texas, Utah, Washington and Wyoming.1 Uranium is produced through conventional mining, either underground or open pit, or by in situ leaching. In the United States in 2004, three underground mines and six in situ mines were in production -- twice as many in situ facilities as conventional.2 In Wyoming, all of the uranium produced for the past several years has been from in situ operations.3
In the in situ process, fluid is injected underground through wells drilled into the uranium ore body. The fluid dissolves the uranium, and is then brought back to the surface through recovery wells. Carbonated water and acid solutions are commonly used as leaching fluids.4 Because of these injections, the main environmental concern with in situ uranium mining is the potential for the leaching fluid to contaminate groundwater, either in the production zone itself, or in other nearby aquifers.
For these reasons, this paper focuses on the regulation and permitting of in situ uranium facilities, with particular attention paid to groundwater. The approach will be to hit the highlights of the federal program, then sample from the regulatory program for Wyoming. Wyoming was chosen because it is one of the states producing the most uranium, because the variations between the Wyoming program and the federal model provide good illustrations of some of the interesting issues, and frankly, because the author practices law in Wyoming.
II. The Federal Program.
The previous paper probably reviewed the applicable federal regulatory programs in detail. Still, it will be helpful to begin with a quick review of the federal groundwater protection program as a background for examining the state program.
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There is no comprehensive federal statute protecting groundwater. The Clean Water Act is aimed primarily at protecting surface water.5 However, under the provisions of the Safe Drinking Water Act, the Environmental Protection Agency (EPA) does regulate underground injections that may contaminate underground sources of drinking water.6 The EPA calls this its Underground Injection Control (UIC) program.
The protections of the UIC program are aimed only at underground sources of drinking water, and do not apply generally to all groundwater.7 The regulations define an underground source of drinking water (USDW) as an aquifer or portion of an aquifer that: (1) currently supplies a public water system; (2) that contains a sufficient quantity of water to supply a public water system and currently supplies water for human consumption; or (3) that contains a sufficient quantity of water to supply a public water system and contains less than 10,000 mg/1 of Total Dissolved Solids (TDS).8 Groundwater that does not meet one of these definitions is simply not covered by the UIC program.9
The UIC program generally prohibits underground injections that could contaminate a USDW.10 An underground injection is defined as "the subsurface emplacement of fluids by well injection.11 The term well is defined broadly to include any manmade hole with a depth greater than its largest surface dimension.12 Clearly, in situ uranium mining falls within the scope of the UIC program.
Despite the general prohibition, injections may be authorized by permit or rule into a USDW that the EPA designates as "exempt."13 An aquifer may be exempted if it does not currently serve as a source of drinking water,14 and cannot now and will not in the future serve as a source of drinking water because: (1) it is currently producing minerals, or can be shown to contain minerals that, due to their quantity and location, are expected to be commercially producible; (2) it is situated at a depth or location that makes recovery of water for drinking purposes economically or technologically impractical; or (3) it is so contaminated that it would be economically or technologically impractical to render the water fit for human consumption.15 An aquifer may also be exempted if it had TDS concentrations between 3,000 and 10,000 mg/l of TDS, and is not reasonably expected to supply a public water system in the future.16
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The EPA has defined five different classes of underground injection wells. Class III wells are those injecting fluids for the purpose of mineral extraction.17 The list of Class III wells explicitly includes in situ uranium mining wells.18 Class III wells may be authorized by permit,19 but a permit can be issued on an area basis.20 This gives in situ uranium operations the flexibility to abandon old wells and drill new ones within a permit area without having to go through the permitting process for each individual well.
The UIC program includes detailed standards and requirements for Class III wells. These include construction and operating specifications,21 and monitoring and reporting requirements.22 They also include specifications for the mechanical integrity of the wells,23 and requirements for plugging and abandoning wells.24 The UIC program also imposes corrective action requirements for wells that are improperly operated sealed, completed, or abandoned.25 A corrective action plan must be developed by the operator, or imposed by the agency, for the purpose of preventing or correcting the movement of fluid into USDW.26
Like many federal environmental regulatory programs, the UIC allows states to assume the primary regulatory role.27 Of the eight states with significant uranium reserves, six have approved state programs. These are Nebraska, New Mexico, Texas, Utah, Washington and Wyoming.28 Arizona has not taken primacy, so the UIC program in that state is administered by the EPA.29 In Colorado, the state regulates wells relating to oil and gas production, but has not taken primacy over Class III wells.30 Accordingly, wells associated with in situ uranium mining are regulated by the federal program.
III. Wyoming.
Because groundwater impacts are the most likely environmental impact from in situ mining, it might be expected that in situ uranium operations would be regulated by the agency charged with protecting water quality, that is, the Water Quality Division (WQD) of the Wyoming Department of Environmental Quality (DEQ). However, the state treats in situ mining like other mining operations, meaning that in situ uranium mining falls under the regulatory and permitting regime of the DEQ's Land Quality
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Division (LQD).31 But while the LQD is the regulating agency, its regulations for in situ mining32 often refer to the regulations and standards of the WQD.
As noted above, Wyoming has assumed the primary regulatory role in the UIC program, and the permitting regime for in situ mining incorporates the required provisions of the UIC program. For the most part, the Wyoming program mirrors the federal model, and those aspects are overviewed below. Then the subject shifts to three topics on which the Wyoming program has interesting variations from the federal program: (1) the scope of groundwater protected; (2) the consequences of excursions; and (3) groundwater restoration standards.
1. Overview of Wyoming regulatory program.
The Wyoming Environmental Quality Act provides that "No in situ mining operation shall be commenced or conducted unless a valid mining permit has been issued to the operator."33 The Act defines in situ mining as "a method of in-place surface mining in which limited quantities of overburden are disturbed to install a conduit or well and the mineral is mined by injecting or recovering a liquid, solid, sludge or gas that causes the leaching, dissolution, gasification, liquefaction or extraction of the mineral."34 Note that, despite the general permit requirement, the agency may also grant a special license to conduct research and development testing, which authorizes limited operations, including the construction and operation of some wells, prior to the issuance of a mining permit.35 The regulations reflect that in situ mining is prohibited unless the operator has either a mining permit or a research and development license.36
The statutes set forth general requirements for the application for an in situ mining permit.37 With regard to potential groundwater impacts, the permit application must characterize the aquifer or aquifers in the proposed production zone and any other aquifers that may be affected by the mining operation. Not surprisingly, the regulations require detailed information about the geology and hydrology, including potentiometric surface contour maps for each aquifer that may be affected, aquifer characteristics (aquifer thickness, velocity and direction of groundwater movement, storage coefficients
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or specific yields, transmissivity or hydraulic conductivity, etc.), and extensive sampling and analyses of background water quality.38
The application must contain a mine plan. The statutes require this plan to include an assessment of impacts to water resources, a listing of steps to be taken to mitigate the impacts, and plans and procedures for detecting...
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