Overview of Uranium Regulation in Texas

Legal Process

Regulating uranium mining in Texas is divided between the Texas Railroad Commission (TRRC) and the Texas Commission on Environmental Quality (TCEQ). The Texas Railroad Commission has jurisdiction over exploration mining, while wells constructed for actual production and mining of uranium are subject to the jurisdiction of the TCEQ.

Exploration mining involves the placement of numerous borings within a potential production area and taking samples from the subsurface for analysis and determining concentrations of uranium. This exploration activity is accomplished by rotary drilling. The TRRC has promulgated rules for identification of an exploration area and rules for well plugging and proper handling of surface disposal of cuttings and spent mud. Despite these regulations, as a general proposition, there is no ability for affected citizens to challenge the proposed exploration permit under the rules of the TRRC.

Production mining by underground injection (e.g., in situ mining) is regulated under the federal Safe Drinking Water Act (SDWA) because it involves the injection of fluids into a well. The SDWA is a federal law that is primarily implemented by the states. If the state chooses not to regulate underground injection, then the federal government is required to enforce the SDWA, including issuing permits for injection wells. However, the State of Texas has established an Underground Injection Control (UIC) program, approved by the United States Environmental Protection Agency (EPA), which regulates the underground injection of fluids for in situ mining and implements the federal rules and SDWA.

Under the SDWA and the corresponding TCEQ rules, a permit must be obtained before underground injection may occur. A permit application for an injection field must be filed with the TCEQ, which then issues a public notice of the application and of the opportunity for “affected persons” to request a contested case hearing. If a contested case hearing is granted, the factual issues regarding whether or not the application complies with all applicable rules are heard by an Administrative Law Judge who makes a Proposal for Decision to the TCEQ commissioners who have the ultimate authority to either issue or deny the permit. This decision is based upon the rules that are adopted by the TCEQ and implemented by the commissioners.

Under the SDWA statutory language and rules, no injection well permit may be issued that causes contamination of an underground source of drinking water (USDW). This is a tricky situation for in situ mining because the underground deposition of uranium often occurs in freshwater aquifers that are suitable for use as drinking water. In order to address this potential dilemma, the statute and the rules provide for a process to exempt aquifers from the protection of the SDWA – the so-called aquifer exemption process. Essentially, mining operators ask the TCEQ for permission to allow mining in a portion of an aquifer that is allegedly not suitable for drinking, even though other portions of that aquifer may supply drinking water. An aquifer exemption must first be granted by the TCEQ as an addition to Texas’s UIC program. Texas then submits the addition to its UIC program to the EPA which must then approve the aquifer exemption as an amended UIC program. Generally, both the decisions by the TCEQ and the EPA are subject to public notice and contested case hearings upon proper request.

In the most recent legislature, the process of regulation of underground mining became more complex due to the division of the USDW permitting process. First, a master mining permit application is filed with the TCEQ that, if approved, gives permission to mine within the specified area in the application. However, production area authorization requires a separate permit application that may not be subject to contested case hearings. Under this process, the larger issues of site suitability and restoration areas are determined in a master permit process and then specifics of the production process are set out in the production area authorizations issued by the TCEQ. Additionally, permit proceedings for surface facilities associated with the mining exist as well as even more potential permit proceedings associated with additional injection well applications necessary for waste disposal from the mining operation. All of these additional permit applications are within the jurisdiction of TCEQ.

Issues of Concern with the Current Process

There are several problems with the process identified above, but none is more important or more significant than the problem with the determination of a water quality baseline. Baseline data describes the existing water quality in the aquifer, which serves as the level to which the aquifer is to be restored after the completion of mining activity. Unfortunately, of the 76 production area authorizations for uranium mining issued by the State of Texas, 51 have had original restoration levels amended to allow higher concentrations of various constituents; e.g. arsenic, radium-226, uranium, sulfate. No request by a mining operator for amending restoration levels has ever been rejected by the TCEQ, or its predecessor, the Texas Natural Resource Conservation Commission. Similarly, the baseline data is also used for the determination of whether the aquifer should qualify for exemption. However, although the TCEQ requires the submission of data regarding baseline as part of the permit application, there is no requirement that such data be collected prior to the initiation of exploration drilling. If exploration drilling disturbs the subsurface and introduces contaminants, the decrease in water quality caused by such exploration activity will not be accounted for under current procedures for defining the baseline water quality.

Another major problem is the division of responsibility and the burden that is placed upon citizens and governments wishing to oppose these permits. It is not possible to participate in one contested case hearing and address key issues across all of these permits. For example, if issues exist about the use of the aquifer for drinking water, concerns about flooding affecting the site, air pollution issues from radioactive releases and concerns about the injection of waste materials containing heavy metals, at least three different contested case hearings would be required to address these issues. That is a heavy burden given that contested case hearings are similar to court cases and include expert testimony and cross examination of witnesses.

In summary, there is a regulatory process over uranium mining, but it is a piecemeal process. To date, those opposing uranium permits have not been successful in convincing the TCEQ (or its predecessor agencies) not to issue these permits. Additionally, the TCEQ has granted virtually every request to relax the restoration levels after mining is complete. Texas needs a tighter uranium regulatory program and it needs it now.