Dewey Burdock: Will South Dakota relinquish its responsibility? - Attorney Blog | Natural Resources, Commercial Law - Attorney Blog | Natural Resources, Commercial Law

Call Our Firm:   605.385.0330

Commercial Transactions & Litigation, Environmental Law, Natural Resources Law, & Energy Law

Dewey Burdock: Will South Dakota relinquish its responsibility?

Posted on: August 24th, 2020
by David Ganje

Powertech (USA), Inc., a wholly owned subsidiary of Azarga Uranium Corp., is a uranium mining company with pending applications to several state and federal boards and agencies 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 uranium mining operation which would use local groundwater aquifers for uranium extraction, and for the subsequent disposal of process-related liquid waste. 

The mining project has been in the application stage since 2009. No final mining authorization has been granted by the various government agencies with jurisdiction over licensing, mining and water permits.  Important issues remain outstanding and undecided.  The wheels of justice, it is said, grind slowly but grind exceedingly fine.  Let us see.

Some of the government agencies with authority to issue major regulatory permit approvals necessary for this project include the Nuclear Regulatory Commission,  the Environmental Protection Agency, the Bureau of Land Management, the SD DENR,  the SD Board of Minerals and Environment, and the SD Water Management Board.  In this opinion piece I limit my comments to only part of this complicated dance of the multitudes.  This piece discusses state protection of water sources.  I treated financial and decommissioning issues and background questions regarding water resources in other opinion pieces.

When several agencies are involved in approval of a single project, a board might relinquish its responsibilities by narrowly interpreting the scope of its authority or by deciding not to exercise authority as a matter of discretion.  Complex and fragmented multiple-agency oversight of a big project runs the risk of a board’s over-reliance on the authority or expertise of different government agencies.  This is a dangerous form of decision-making.  For South Dakota boards to defer their legal obligations on significant natural resource issues to other government agency’s inclinations is an ill-advised undertaking.  He who sups with the devil must bring a long spoon.

As a result of the fragmented multiple-agency oversight, I am concerned South Dakota’s boards may limit their existing and established authority.  It is an established principal that state laws which do not directly interfere with (read preempt) the operation of federal programs or federal laws continue to be valid and enforceable by the state.

In the Powertech uranium mining procedure the SD Board of Minerals and Environment stated it has a “limited jurisdictional role in this matter especially where the principle of “dual regulation” would prevent the Board from acting.”  Powertech has argued in favor of such Board deference to other non-state agencies.  Powertech asserted the Board should consider the EPA’s actions as strong evidence that the proposed project water use is beneficial and in the public interest; and also argued the NRC’s license to Powertech is “compelling evidence” that Powertech’s proposed use of state waters is beneficial and in the public interest.  Nevertheless, South Dakota boards are required by established state policy and by statute to conserve groundwaters of the state and maintain the quality of groundwaters for present and future beneficial uses through the prevention of pollution and the control of water degradation.  These are considerations within the clear jurisdiction of South Dakota, its agencies and boards.

Let us look at some steps taken, or not taken, to protect groundwater in the area of the project.  First consider these comments by staff members of the U S Geological Survey given in 2009 paper at an international uranium symposium, “To date, no remediation of an ISR [in situ uranium mining] operation in the United States has successfully returned the aquifer to baseline conditions.”

Regionally, near the project site, four principal aquifers are used as major sources of water supply.  Several permits for use of water are pending before different agencies.  Two requested water-rights-withdrawal permits are pending before state boards.  The two water permit applications request the right to withdraw 8,500 and 551 gallons per minute. The Powertech application indicates most of the water withdrawn will be continuously reinjected as part of the mining process.  Shouldn’t the water quality of reinjected water be tested before it is reinjected?  It is unclear how much water is to be reinjected.  Should not such requirements be included before granting a permit approval? 

In its June 2012 Water Permit Application, Powertech acknowledged there are no aquifer baseline tests completed by the applicant at the project site.  Powertech argued that pre-licensing monitoring wells are not permitted until after a license is issued.  However, the NRC Licensing Board in 2012 in a separate mining application ruled that wells intended to collect background data or for background aquifer testing are permissible and are not considered the construction phase of a project.  Why should water and mining permits be granted without the benefit of the results of such tests?  As the reader will learn, South Dakota also has the authority to require this type of baseline aquifer testing before a permit is considered or granted.

The DENR recommended approval of Powertech’s general mining permit to the SD Board of Minerals and Environment.  As a part of its recommendations and conditions the DENR suggests that in the event there is a violation of ‘water quality standards’ Powertech should then be required to develop and submit a site-specific mitigation plan.  A contingency mitigation plan for possible water quality events should be a precondition to filing any large mining permit application. 

The filed Powertech water applications report that groundwater restoration or aquifer restoration will be performed under any NRC requirements.   Powertech will be required by its NRC license and federal regulations to restore groundwater quality to a) pre-operational baseline water quality, b) federal drinking water standards, or c) an alternate concentration limit approved by the NRC as protective of human health or the environment.  The NRC concluded, apparently without any baseline testing by Powertech on aquifers at the site, that the applicant’s proposed groundwater restoration methods will restore groundwater to ‘federal’ standards.  This is an indirect assurance concerning the protection of state waters.  Trusting too much to Big Brother invites one to become an agent of Big Brother.   At a minimum South Dakota should have requested baseline testing.  In addition, a legal mechanism known as an MOU (Memorandum of Understanding) allows a state such as South Dakota to take responsibility for regulation concerning groundwater protections. 

In a well-written legal brief by its attorneys, Powertech argued in 2013 that South Dakota does not have authority to regulate most aspects of uranium mining.  That position was not correct law then and is certainly in error today.  In 2019 the U S Supreme Court in a uranium mining case upheld a state mining law and ruled that federal law does not preempt state mining law.  Justice Gorsuch stated, “But Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on private lands within their borders.”  This places all the more focus on South Dakota to do the right thing. 

David Ganje practices law in the area of natural resources, environmental and commercial law with Ganje Law Office. His website is

David L Ganje
Ganje Law Offices

605 385 0330

by .

Tags: ,