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Dewey Burdock Opinion Piece

Posted on: August 30th, 2017
by David Ganje

Powertech (USA), Inc., a wholly owned subsidiary of Azarga Uranium Corp., is a uranium company with pending applications to South Dakota, the EPA and the NRC for the development of an in situ uranium mine operation in Custer and Fall River Counties. This project, known commonly as the Dewey Burdock project, would be the most significant mining operation in the state in the last twenty years.  The project is an in situ mining operation which would use two different groundwater aquifers in the course of uranium extraction and in the subsequent disposal of process related liquid waste.  I will refer to the company as the developer.  I do not represent any of the parties in the matter.

South Dakota contains several distinguishable aquifers.  These aquifers are usually horizontal in nature.  Aquifers are separated by confinement zones of rock which prevent an aquifer’s waters from flowing to the one above it or to the aquifer below it.  The developer’s project involves a number of pending permit and licensing requirements.  In this opinion piece I discuss one aspect of the project:  the waste water injection permit which would grant the right to construct and operate injection wells for the disposal of treated waste water into the Minnelusa aquifer.  This permit application is under consideration by the EPA.  The EPA has not approved or rejected the application.

The Minnelusa is a major aquifer that encircles the Black Hills and spreads out in all directions radially for some goodly distance.  The aquifer also runs eastward under all of western South Dakota. Minnelusa groundwater near the project area is hard.  It is not used for domestic, municipal or irrigation purposes near the project area. Nevertheless in other areas numerous parties including the city of Rapid City draw upon the Minnelusa aquifer for domestic, municipal, industrial or irrigation use.

The Madison aquifer lies beneath the Minnelusa.  Aquifers are separated by confining zones.  The Madison is used for drinking water and other similar uses more often than the Minnelusa because its water qualities are better.  One issue concerning the use of the Minnelusa as an injection zone for waste water is the question of leakage between aquifers. This is also called hydraulic connection.  If a confinement zone is substantial, leaking is less possible.  If a confinement zone, or its surrounding geological features such as faults, is less substantial, leaking between aquifers is possible. The developer in its water rights application stated, based analysis of groundwater from wells and springs in the general region, that some areas’ geologic features may mean water movement between the Madison and Minnelusa aquifers.

The permit application did not provide the developer’s own studies or any hired tests for the immediate project site that address the issue of possible leakage. Unrelated government studies have been done of other geographic areas of the Minnelusa, for example in 2002 and 1985.  These studies indicate that leakage from or into the Minnelusa in those geographic areas is possible. “In the eastern part of the study area, water may be leaking from the Minelusa to both the Inyan Kara and Madison aquifers.”  -1985 USGS study.  A 2014 article in the Journal of the South Dakota Academy of Science discussing the Dewey Burdock project stated, “There is the possibility that the Madison aquifer could become contaminated with this waste.”

In a waste injection permit application an applicant is required to provide information on the mineral composition and texture of aquifer confining zones. The developer stated in its application papers that there is no evidence of communication between the Madison and Minnelusa in the vicinity of the project area based on water quality differences.   This statement is true based on generally available information, but the developer did not hire out or prepare tests for the immediate project area.
In its June 2012 Water Permit Application the developer acknowledged that there are no aquifer tests in the project site.  The developer also stated that more information will be available when the first deep wells are drilled on site and pumping tests are conducted.  The EPA record  shows no tests done by the developer regarding the confining zones and aquifers in the immediate project area.  The EPA’s pending draft permit, if granted, requires the developer to provide information about  aquifers and confining zones at the site before injection could begin.

Geologic testing and sampling are essential to a mining project.  This is technical project due diligence.  Analysis of a mine’s immediate geology and water quality are also relevant to an agency’s rules and requirements.  To determine whether estimates, other nearby geologic features or other historical data are consistent with the immediate geology and water quality within a designated project site, a developer completes sampling and secures test results from within the project site.  Perhaps one could argue it is better or more economic for a developer to ‘wait and see.’  Regulations allow for such a delay.  However, early presentation of material information to agency decision makers and to the pubic makes sense for a regulated mining project that requires public input and agency approvals. Providing material information at the application stage is more likely to overcome objections.  Providing a developer’s test results from the designated project site early would also produce fewer challenges.  Such test work was not performed by the developer before or during the waste water permit application process on the Dewey Burdock project.  All project due diligence is not required by law.  Yet even so, due diligence is used by a developer to avoid risks, to prevent harm and to substantiate a publicly regulated project.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.