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Atomic Safety Licensing Board

The U.S. Atomic Safety and Licensing Board conducts a hearing Wednesday at the Hotel Alex Johnson in Rapid City. The hearing pertained to the proposed Powertech uranium mine near Edgemont.

Cultural resource specialist Jerry Spangler’s testimony on Wednesday in Rapid City summarized the problem that has caused the permitting process for a proposed uranium mine to grind nearly to a halt.

“You can’t protect what you don’t know is there,” Spangler said.

He was talking about Native American cultural resources such as burials, artifacts or other items and places of significance that might lie within a natural area that has been targeted for development.

In this case, the development is a uranium mine proposed by Powertech, a subsidiary of Canada-based Azarga Uranium. The location is 13 miles northwest of Edgemont, on the southwestern edge of the Black Hills. The uranium would be used as fuel for nuclear power plants.

Powertech obtained a license from the U.S. Nuclear Regulatory Commission in 2014 (one of many licenses and permits needed for the project, some of which are yet to be obtained), even though the NRC acknowledged the lack of an adequate survey of cultural resources. Such a survey, or at least a reasonable attempt to obtain the information that a survey might reveal, has been deemed necessary to comply with the National Environmental Policy Act.

Since 2014, the NRC has tried and failed to agree with the Oglala Sioux Tribe on a methodology for the survey. The tribe is among the many Sioux and other tribes that consider the Black Hills a sacred part of their spirituality, and the former Great Sioux Reservation encompassed the proposed mine location. The tribe’s current Pine Ridge Reservation is about 50 miles east of the proposed mine.

In lieu of a methodology agreement with the tribe, the staff of the NRC has asked the Atomic Safety and Licensing Board to resolve the contention. Three of the board’s administrative judges convened a hearing for that purpose at 10 a.m. Wednesday in the Hotel Alex Johnson, with a plan to continue until 6 p.m. and reconvene at 9 o’clock in the morning.

The hearing could continue on Friday, although the involved parties all expressed a desire to wrap it up before then. A decision from the board is scheduled to be issued in November.

On Wednesday, the hearing brought a small army to the Alex Johnson’s ballroom. Approximately 10 tables were set up at one end of the room for the judges, clerks, witnesses and lawyers. Multiple cameras were used to beam video of the participants onto a projector screen.

Although some past hearings on the controversial Powertech project have been unruly, this one was sedate, in part because participation was limited to the involved parties. The public was allowed only to observe, and attendance peaked at about 40 people — including some members of the Black Hills Clean Water Alliance who wore bright T-shirts emblazoned with anti-uranium-mining slogans.

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The hearing began with brief opening statements from lawyers representing the NRC, Powertech, the tribe, and a lawyer who spoke for a group of consolidated intervenors that includes rancher Susan Henderson; the late Dayton Hyde, who founded the Black Hills Wild Horse Sanctuary; and a group called Aligning for Responsible Mining.

The opening statements restated long-held positions of the various parties. The NRC and Powertech asserted that the NRC has done everything it can to cooperate with the tribe on a cultural resources survey, but the tribe has been unwilling to agree on a methodology. Powertech has alleged that the tribe’s unwillingness to engage in the survey process is a tactic to stall the mining project.

The tribe’s lawyer contended that the tribe is willing to work with the NRC on a survey methodology, but said the NRC has not tried hard enough to formulate a methodology that would be acceptable to the tribe.

Amid the hundreds of pages of documents filed ahead of the hearing were examples of some disagreements between the NRC and tribe. The NRC has said a mutually agreeable methodology was formulated in March 2018 that included hiring a contractor, involving other Lakota Sioux tribes, conducting meetings and interviews with tribal elders, conducting walking surveys of the site, and paying honoraria for up to three representatives of each participating tribe.

Then, in June 2018, according to the NRC, the tribe submitted an alternative methodology, and the two sides reached such an impasse that the NRC gave up trying for a compromise.

One reason for the impasse was financial. Records show the NRC contracted with a cultural-resource management firm for up to $214,176, but according to NRC testimony, the tribe estimated its methodology could cost upwards of $2 million to carry out.

Thus, the envisioned cultural resources survey has not been conducted, although some related work has been done, including a review of existing historical and archaeological research related to the proposed mine site.

After the opening statements Wednesday, the hearing bogged down in long hours of witness-questioning by the administrative judges, much of which focused on minute details.

One of the witnesses was Spangler, who works with a firm the NRC hired for the planned cultural resources survey. The other witnesses were Diana Diaz-Toro, who is managing Powertech activities for the NRC; Kyle White, former director of the Oglala Sioux Tribe Natural Resources Regulatory Agency; Kelly Morgan, a consultant and former tribal archaeologist for the Standing Rock Sioux Tribe; and Craig Howe, of the Center for American Indian Research and Native Studies.

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Contact Seth Tupper at seth.tupper@rapidcityjournal.com

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