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PESHLAKAI v. DUNCAN

September 5, 1979

Walter Peshlakai, Sr., et al., Plaintiffs,
v.
Charles W. Duncan, Jr., et al., Defendants



The opinion of the court was delivered by: GREENE

This action seeks to halt federal approvals for uranium mining and milling activities in the San Juan Basin *fn1" which accounts for nearly half of the nation's production of uranium and almost three-fifths of its uranium reserves. The activities in question are designed to permit the production of uranium concentrate, commonly called yellowcake, *fn2" and it is claimed by plaintiffs that they may not be allowed to continue absent the preparation of certain environmental impact statements (EIS). The motion for preliminary injunction presently before the Court directly concerns only one project, the so-called in situ leaching project at Crownpoint, New Mexico. *fn3" However, several of the theories upon which plaintiffs base their claim for relief on the motion have far broader implications.

Plaintiffs *fn4" argue that the federal defendants *fn5" have violated or are about to violate the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., in three major respects. It is claimed, first, that approval of the mining plan for the Mobil *fn6" in situ project would violate NEPA because such approval would be a major federal action significantly affecting the quality of the human environment on which no EIS has been prepared. Plaintiffs contend, second, that the lease sale underlying the proposed project violated NEPA because neither an EIS nor an environmental assessment (EA) was prepared on that sale. And third, it is argued that approval of the project is part of a number of actions in the San Juan Basin region for which a regional EIS should have been, but was not, prepared. These contentions will be considered seriatim.

 I

 Mobil's in situ project, located on five acres of land in the Crownpoint area, is a pilot project *fn7" which has as its purpose the determination whether uranium leaching (also known as solution mining) is feasible in New Mexico. *fn8" Traditional mining for uranium is carried on underground. Solution mining, most simply described, involves the circulation of water and a chemical solution called leachate *fn9" to underground areas where the uranium is located by means of a system of injection and production wells. The uranium is oxidized and dissolved underground and brought to the surface as part of a fluid. That fluid is then pumped to an ion exchange column where the uranium is deposited on resin beads through an anion exchange process. The remaining fluid, which no longer contains uranium, is then pumped back underground through the injection wells, with the chemical solution added, in a continuous cycle.

 A ten-year lease to the land underlying the proposed in situ project was sold to Mobil by the Bureau of Indian Affairs (BIA) *fn10" in February 1972. Thereafter, Mobil received approval from the U.S. Geological Survey (USGS) for exploration plans involving the site. Between 1973 and 1977, Mobil drilled 124 exploration holes in the area, and in May 1978, it applied for approval of a mining and reclamation plan (25 C.F.R. § 177.7). The USGS prepared an environmental assessment, some 164 pages in length, with an appendix consisting of 70 pages. After several layers of review within the Department of the Interior, and based upon that EA, the Department ultimately concluded that a full-fledged environmental impact statement was not required because the pilot project would not have significant environmental impacts. On June 21, 1979, the Secretary of the Interior approved Mobil's mining plan. The motion for preliminary injunction challenges that determination and seeks to halt Mobil's implementation of the permit it received from the government. *fn11"

 II

 NEPA requires the preparation of an EIS for every major federal action which may have a significant impact on the quality of the human environment. See Scientists' Institute for Public Information v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 404-05, 481 F.2d 1079, 1088-89 (D.C.Cir.1973). Plaintiffs contend that the in situ project is such an action, and they rely on several factors in support of that contention. Before discussing these specific factors, it may be useful to state briefly the standard of review that must be applied by the Court.

 The responsibility for making a threshold determination as to whether an EIS is required by NEPA for a particular project lies with the federal agency involved. Metlakatla Indian Community v. Adams, 427 F. Supp. 871, 874 (D.D.C.1977); Hanly v. Mitchell, 460 F.2d 640, 645 (2nd Cir. 1972). The burden is on plaintiffs to establish that a decision not to require an EIS constitutes a violation of NEPA. Sierra Club v. Lynn, 502 F.2d 43, 52 (5th Cir. 1974); Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 426 (5th Cir. 1973). Such a decision will be reversed by a court only if it is unreasonable ( Wyoming Outdoor Coordination Council v. Butz, 484 F.2d 1244 (10th Cir. 1973)) or arbitrary and capricious. Hanly v. Kleindienst, 471 F.2d 823, 829 (2d Cir. 1972). *fn12"

 The Supreme Court in two recent decisions has more explicitly defined the role of a reviewing court and the conclusion that emerges from these decisions is that such a court "(must) insure that the agency has taken a "hard look' at environmental consequences," and that, if it has done so, the agency determination may be reversed only if it is arbitrary. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S. Ct. 2718, 2730 n.21, 49 L. Ed. 2d 576 (1976); Vermont Yankee Nuclear Power Co. v. National Resources Defense Council, 435 U.S. 519, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978); see also, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1970).

 Plaintiffs do not, however, have the burden of demonstrating that a particular federal action will necessarily affect the human environment to a significant extent. They need merely show that such action may have such an effect. City of Davis v. Coleman, 521 F.2d 661, 674 n.16 (9th Cir. 1975); Maryland National Capital Park and Planning Commission v. U. S. Postal Service, 159 U.S.App.D.C. 158, 168, 487 F.2d 1029, 1039 (D.C.Cir.1973); 40 C.F.R. § 1500.6(a); 36 Fed.Reg. 19344. But see, note 24 Infra.

 It is with these general principles in mind that the particular claims of plaintiffs must be examined.

 Water Quality. Plaintiffs contend that "excursions" may occur, that is, water may escape from the in situ project site to contaminate the Westwater Canyon aquifer (by horizontal release of fluid) or the Dakota aquifer (by vertical release). However, the record shows that, for a number of reasons, such an event, while it is not impossible, is so unlikely that the probability of its occurring is infinitesimal.

 First, more fluid is constantly pumped out of the system than is injected into it. *fn13" This creates a net inflow of surrounding groundwater into the area and thus has a tendency to confine the leachate to the production zone. Second, hydrology tests simulating the operation of the system conducted by Mobil indicate that the leachate can be confined to that zone. Mobil has performed computer modeling studies for the pilot test, which simulated its underground leachate flow patterns, with the same result. Third, Mobil has had prior experience with the in situ leaching technology in South Texas for a four-year period, and it has never experienced an excursion there. Fourth, six monitor wells will ring the site and samples will be taken periodically to determine whether any leachate might have escaped despite these precautions. The likelihood of detecting an excursion by this method is nearly one hundred per cent, and appropriate remedial action, which has been considered in exhaustive detail, can be taken. Fifth, the water supply of Crownpoint would be unaffected even if all these safety measures failed because the groundwater flow is away from the town rather than toward it. Moreover, according to one study, if the leachate were somehow carried toward Crownpoint, it would take 1,300 years to arrive there *fn14" and would be rendered harmless long before then.

 Plaintiffs argue next in regard to the water quality issue that Mobil will not restore that quality to its former levels after the termination of the test project. The EA has noted that following the 14-month production period, Mobil will be required to restore the aquifer within eight months to the levels set by the New Mexico Water Quality Control Commission regulations, *fn15" and Mobil will, in fact, do so. This task will be accomplished by a "flushing" operation in which leachate is no longer reinjected underground; water is pumped from the production wells to the surface; it is there treated and purified until it meets the restoration standards; and it is then reinjected into the Westwater formation. The EA has concluded that by this method all the chemicals can be completely removed and the water restored to appropriate levels. Indeed, Mobil has used this same flushing method in its South Texas operation, and the Texas Department of Water Resources considered the restoration there to have been a success. *fn16" Laboratory tests likewise indicate that the aquifer can be restored to the New Mexico standards, and their results are strengthened by the fact that the inflow of groundwater surrounding the production zone will aid in restoring the aquifer beyond the data those tests were able to take into account.

 It is not without significance in this regard that the water in the Westwater formation aquifer is by no means pure crystalline drinking water, but, largely because of the presence of uranium, it even now fails to meet the community water system standards set by the Environmental Protection Agency under the Safe Drinking Water Act. 42 U.S.C. § 300f et seq. The average gross alpha values and combined total radium-226 and -228 values in that portion of the aquifer underlying the project site are five times the maximum safe limits, and any further deterioration should it occur, contrary to every rational expectation could hardly be regarded as having a significant impact on the human environment. Finally, it is worth noting that the total amount of water that will be recirculated during the pilot test is one one-hundred millionth of the estimated total water in the Westwater Canyon aquifer, and the amount of water that will be actually withdrawn is one-billionth of the water in the aquifer.

 Radon Gas. Plaintiffs contend that uranium mining and milling increases the exposure of workers and of the public to potentially harmful radiation. While several possible sources of radiation are mentioned, plaintiffs emphasize especially the emission of radon gas, a decay product of uranium. That contention appears at first blush to be the most serious of those made by plaintiffs. However, upon examination, the radiation threat, too, is realistically nonexistent. According to the interim mining plan, "the maximum . . . additional exposure which might be received from facility operations will . . . add less than one hundredth of one per cent of the ambient radiation background." Or, as that plan also states it, any radon gas from the project "will be undetectable and at no location should exceed one per cent of normal background levels," that is, levels which exist in the atmosphere in any event. *fn17" Indeed, "the radon . . . (would be) less than one per cent of what could be expected from a conventional uranium mine." *fn18"

 Cultural, Religious, and Socioeconomic Impacts. Plaintiffs next argue that yellowcake production in the area will "wreak havoc" with the culture and religion of the Navajo Indians residing there. Thus, it is said, the Navajo believe that man should maintain proper harmony with the natural world; that mining in the area would destroy places where Navajos pray and the plants they use to heal the sick; and that the plants themselves, in Navajo religious belief, have living spirits. In a somewhat different vein, plaintiffs argue that uranium mining in the area will create thousands of additional jobs and thus will attract ...


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