Story and Photos by ERIC SHULTZ
The Navajo Nation extends from northwestern New Mexico into Arizona. So does contamination from a cluster of uranium waste sites some 10 miles northeast of Church Rock. In this age of global awareness, it would be fashionable to call this part of America’s uranium legacy a problem for humanity. If that is so, then good for the rest of us that those most directly confronting this problem are communities of the Navajo people, the Diné.
Two of the Church Rock waste sites command particular attention. One is the Northeast Church Rock uranium mine operated by United Nuclear Corporation from the late 1960s to the early ’80s. It had two shafts, the deepest descending 1,800 feet, and an extensive network of tunnels. The Jackpile uranium mine near Laguna Pueblo, largest in the United States, was an open pit. NECR, as the Northeast Church Rock Mine is abbreviated, was the nation’s largest underground uranium mine. In 2005, Navajo Nation EPA placed it at the top of its priorities list and asked U.S. EPA to lead in a cleanup involving an estimated 1.3 million tons of radioactive waste.
The other is United Nuclear’s former uranium mill where the ore’s uranium oxide was concentrated into yellowcake. Situated across the highway from the mine, the mill’s tailings piles are today a Superfund site, but one with an extraordinary history. On July 16, 1979 a dam collapsed at one of the mill’s tailings ponds. This sent 95,000,000 gallons of acid (pH ~1.5), slurrying some 1,100 tons of toxic and radioactive solids, into the Rio Puerco wash and through the town of Church Rock and the city of Gallup (pop.~20,000) and on into Arizona, comprising the largest radioactive release in U.S. history. Today the site contains some 3.5 million tons of radioactive waste in three earthen “cells” or “receptacles” that are capped on top but have no liner underneath.
As environmental problems go, these sites on the Navajo Nation are huge. But an all-too-common calculus discounts their grievousness because the nearby population is sparse. On the one hand, one could counter that these are only two of some 520 uranium waste sites distributed among nearly a quarter million Navajo Nation residents, thus part of a bigger problem directly affecting a much larger number of people. And as the 1979 spill should have brought starkly into focus, these sites are connected by the Pipeline Arroyo, the Rio Puerco, the Little Colorado and the Colorado River to major population centers and the U.S. food supply. On the other hand, under the American system, justice theoretically accrues even to a single person. But the question of American justice has a long history for the Navajos.
To the extent that our mainstream culture acknowledges the Long Walk as a signal injustice, too often it glosses over the “war” for which relocation to Bosque Redondo was the “peace.” The Union Army’s savage 1863 onslaught not only killed many Navajos by bullet and blade. After running the Diné into the hills and canyons of their homeland, Colonel Kit Carson directed his troops methodically to destroy every food source – crops, livestock and stores. In the fall and winter of 1863-64, uncounted Navajo multitudes starved and froze to death according to plan. To Carson’s credible and already partially accomplished threat of annihilation, the survivors surrendered submitting to relocation. We would do well to see the Long Walk as epilogue, not to detract from its horrors, but to keep sight of the signal injustice that preceded it. Our historical narratives, however, too often ignore what went before. An analogy might be for Japan to acknowledge the Bataan Death March as sadly typical of wartime excesses, if in so doing it avoided the matter of Pearl Harbor altogether. But such an analogy is hardly adequate: in neither instance did Japan credibly threaten to annihilate the American people. It would be for the U.S. government to pose such a threat to Japan with the development of atomic weapons. Which brings us to a more recent injustice against the Diné.
In it’s rush to acquire uranium, first to build a nuclear arsenal and later to develop atomic energy, the U.S. government found it in abundance in the Colorado Plateau region of the Southwest. Many early mines were developed in Navajo Country. The uranium rush coincided with a dark time in U.S.-Native American relations, a period characterized by what was officially called Termination Policy. What the policy intended to terminate was the government’s “custodial” responsibility toward the Tribes. The way to get Indians to assimilate into the greater society, termination’s theorists argued with certain belief in the goodness of that goal, was simply to abrogate the thousands of treaties and policies that obligated the government to defend the tribes, their cultures and their lands from social conflict and commercial interests. By ending the custodial relationship, the theory promised, the Indian would be liberated and dispersed among the rest of society, free at last to take part in the American dream. The opening of tribal lands to uranium production both advanced the termination agenda and at the same time worked against it.
For many Navajo, uranium mining offered the chance to work for wages close to home, an attractive alternative to termination’s goal of dispersal. And for the Navajo Nation, mining royalties (lowball though they were) offered a revenue stream with which Tribal interests could be advanced and defended. But beyond some up-front benefits lay uranium’s hidden dangers. Industry knew the health risks posed by uranium mining and resisted the cost of simple but effective precautions such as ventilation systems and respirators. And the U.S. government knew plenty about the dangers of radiation. From its beginning, the Atomic Energy Commission’s safety regulations and procedures for its own professionals and technicians, though inadequate by today’s standards, can only reveal the complete lack of protections for uranium miners as an especially egregious injustice. Most unjust and insulting of all, neither their employers nor the government officials entrusted with the Navajos’ protection even warned uranium miners and mill workers about radiological hazards. To the contrary, as Navajo uranium mill worker Roger Lewis testified at the August 29 meeting in Pinedale, “They told us we could stand in that uranium. They said it’s OK, at the safety school, for UNC.” Referring to his father, his mother and a sister, he said: “They’re not here. They had cancer.”
Even with the proliferation of lung cancer deaths among uranium miners beginning in the 1960s, the struggle for remedy was long and hard, denied by the courts, and finally but inadequately provided by Congress as the 1990 Radiation Exposure Compensation Act, or RECA. And while the occupational health impacts of uranium mining and milling have at least partially been addressed, community impacts from environmental exposures are only beginning to be studied and understood, let alone treated in a comprehensive manner. Which brings us back to the present.
On July 20 of this year, the EPA issued its proposed plan for the NECR cleanup. On August 29, officials of EPA and other agencies held a public meeting at the Pinedale Chapter House near Church Rock to explain the plan to members of the nearby communities, answer questions and receive comments. For an hour before the meeting, the federal agency personnel offered an informational “open house” attended almost entirely by themselves. But by meeting time, the community members arrived. And by the second or third PowerPoint slide, the questions started:
Tony Hood: “Can you guarantee the mine waste will not contaminate ground water in the future?”
Frances Price: “You say you are working with Navajo Nation. What about with this community?”
Annie Benally: “For us, cost effective is [to have] the land for our children and grandchildren. What is your definition of cost effective?”
Teracita Keyanna: “You’re talking about cost effective. How much is a human life?”
Nora Jones: “This is a proposed plan. After hearing us [object], will you just go ahead?”
Hearing the officials’ often evasive responses, the sense in the community seemed to be that although EPA promised various protections, eliminating the problem was not an option. Justice was not being served. In the contemporary vernacular, justice was getting served.
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The Plan presented at last Wednesday’s meeting was EPA’s “preferred alternative” from among five basic options analyzed in a 2009 Engineering Evaluation and Cost Analysis, or EE/CA (referred to as the “eek-a”). Option 1 is to take no action. This is included for discussion purposes only, since contamination levels at NECR by law require the EPA to take action. Alternative 2 is to haul the waste away: in the EE/CA’s hypothetical scenario, the US Ecology facility in Grandview, Idaho would be the final resting place. Alternatives 3 and 4 would both keep the waste at the mine site, 3 merely covering it with a clay “cap” and 4, placing it in a “repository” with a clay liner underneath and the usual cap on top. EPA’s “preferred alternative” is 5: trucking the waste across Highway 566 to the UNC Mill Site where it would either be piled on top of existing waste cells (with liner and cap) or placed in a newly built repository. Alternatives 3, 4 and 5 all allow “A” and “B” variations. In their “A” versions, the most highly radioactive “principal threat wastes” would be separated and taken to an off site facility, whereas under a type-B plan the “hottest” parts would be buried with the rest. So to be precise, EPA’s preferred alternative is 5A. Cost estimates for consolidating and covering the waste on site (3A and 3B) run in the high $20s of millions; a lined repository (4A and 4B) would be in the low to mid $30s of millions; the “preferred alternative” variations placing the mine waste on the UNC Mill Site bring the price tag into the low to mid $40s of millions. The EE/CA estimate for actual waste removal (Alternative 2) is almost $300 million.
The Navajo Nation EPA (NNEPA) and Department of Justice (NNDOJ) responded to the EE/CA with trenchant comments. According to NNEPA, that EPA had dismissed off-site removal without due consideration was apparent at a meeting at Church Rock Chapter House: rather than discuss actual impacts of transporting the waste long distance, presenters employed dismissive rhetoric and let it suffice to say that with Alternative 2, total trucking miles would equal so many trips to the moon. Both NNEPA and NNDOJ faulted the EPA for failing to perform hydrological studies at the mine site regarding waste contamination of ground water, despite previous Navajo Nation requests. EPA had justified option 3 (unlined on-site capping) saying there was no evidence of waste leaching into the ground water, evidence that could only be found by the studies that haven’t been done. As the Tribe’s lawyers aptly point out, “the absence of evidence is not evidence of absence.” The comments also reject as inadequate the EPA’s assessment of new contamination to local residents caused by the cleanup activities themselves. Inevitably, such activities will generate runoff and dust, and the Diné government requested that new homes be provided for the most impacted residents, at some distance from the site.
Southwest Research and Information Center (SRIC) public health advisor Chris Shuey, whose work on uranium impacts among the Navajo spans three decades, began his written comments by thanking EPA for help with detecting and measuring contamination in residential areas around the NECR mine site. As a result, in 2007 EPA required UNC (now a subsidiary of GE) to perform emergency soil removal of some 6,000 cubic yards of radium-contaminated dirt surrounding five local homes. But regarding technical points of the EE/CA, Shuey found deficiencies. For one thing, all of the EPA proposals involve contaminated soil volume estimates based on contested assumptions about the depth of contamination.
Shuey questioned as unsupported EPA’s assertion that Alternative 5A – placing 1.3 million tons of mine waste on top of existing mill tailings cells – would “enhance and improve” their stability. No doubt Shuey had in mind how the 1979 UNC dam failure resulted largely from uneven settling, an eventuality the forewarned UNC engineers chose to ignore. But an even greater absurdity of stacking one hazardous waste pile on top of another – the Big Mac model – emerged during the July 9, 2009 public meeting: because the mill tailings are processed nuclear waste, they fall under Nuclear Regulatory Commission jurisdiction. Mine waste is an EPA matter. EPA can implement Alternative 5 and place its mine waste on the NRC-managed mill site, if and only if the mine waste is “incorporated” into the mill waste, in which case it becomes an NRC responsibility, and it can be passed along with the mill waste to the Department of Energy’s long-term Legacy Management Program. According to Elizabeth Adams, then Assistant Director of EPA’s Region 9 Superfund Division, if the mine waste were not “incorporated” into the mill waste, its long-term custodian would be UNC. However chilling that prospect may be, a more chilling fact remains: the genus Alternative 5 species Big Mac plan by design solves a jurisdictional problem. To argue that it makes engineering sense – one is forced to suspect – can only be justification after the fact.
In his written comments, Shuey cited a recent studies (Stoller) at DOE facilities that undermine EPA’s promise of waste covers lasting up to 1,000 – but not less than 200 – years. In any case, he reminds us, these time spans are “but a small fraction of the duration of the radiological hazards present in the tailings.”
Regarding the bigger picture, Shuey quoted Red Water Pond Road resident Edith Hood, who testified before the U.S. House Committee on Oversight and Government Reform (Rep. Henry Waxman, chairman) in October of 2007: “The uranium contamination and mining waste at my home continues to disrupt hózhọ,” the Navajo concept for “balance, beauty and harmony between man and nature….” Hood called on Washington to help “clean up the mess that the mining companies and the U.S. government have burdened us with. We need to restore hózhọ so that we can live in balance and harmony with each other and nature as Navajo people, as Diné.” Suggesting that statements such as Ms. Hood’s should “serve as a guidepost to EPA,” Shuey noted that “Alternative 2, total removal of all mine waste from the NERC mine site to a disposal facility located outside the Navajo Nation, has been identified by community members as their preferred alternative, and by the Navajo Nation as its preferred alternative.” Seconding the NNEPA’s comments, Shuey considered the EE/CA analysis of Alternative 2 “so deficient that it suggests the EPA staff did not treat it with the serious rigor it deserves.” But in his comments at the July 7, 2009 public meeting, Shuey put the EE/CA into perspective: even its most ambitious alternative – removing the waste to a distant location – was a woefully inadequate half-measure, if the community’s long-term health and safety really were the goal. This is because Alternative 2, if carried out, would still leave in place the Mill Site and the Kerr-McGee waste under protections whose present effectiveness is doubtful (more on Navajo Uranium health effects here) and whose eventual failure is a certainty. According to Shuey, containment experts have yet to “think outside the box.”
The interested reader will find abundant written comments on the EE/CA by numerous community members, concerned NGOs and other government agencies on the EPA website here. In the majority, the comments implore the EPA to live up to its at least rhetorical commitment to environmental justice for the Navajo people. Among the documents is the transcript by court reporter of the July 9, 2009 Pinedale Chapter House public meeting: despite occasional transcription errors, the novella-length text provides an excellent introduction both to issues and personalities, and it crescendoes into outstanding articulations of environmental justice from Native American perspectives. But one set of comments ignores concern for environmental justice altogether. On behalf of UNC, owner General Electric submitted 147 pages in defense of its bottom line. While from a public health perspective the GE comments do not deserve the dignity of repetition, in the interest of public information they reveal much about its corporate culture.
Having acquired UNC, GE owns its assets and its liabilities, including UNC’s responsibility for cleanup after profiting from the extraction uranium oxide near Church Rock. And on point after point, GE found corners to cut to save money. If the waste is capped, why put it on a liner? This the corporate lawyers ask as if the matter had no more moment than the redundancy of wearing a belt with suspenders.
UNM community health specialist Dr. Johnnye Lewis pointed out in her comments on the EE/CA that as a general trend, the amounts of contaminants health regulations allow to remain (in drinking water, was her example) decrease by around an order of magnitude every decade. But GE argued the EPA’s “action standard” for the NECR cleanup was too stringent, because it required removing soil containing half the level of contamination than had been allowed to remain in the ground at nearby sites in the past. Needless to say, the issue for GE is cost, not health. As for leaving the waste on the mine site, GE argued that “industry standards” – what scoundrels like itself have done in the past – should guide the cleanup planning. GE correctly pointed out that the EE/CA deems alternatives 3 through 5 as equally protective. When various alternatives offer equal levels of health and environmental protection, EPA guidelines call for choosing the least costly option, an approach GE heartily endorses.
General Electric’s efforts to remove Alternative 2 from consideration were truly spectacular. Besides a general scoffing tone mixed with approval for EPA’s apparent rejection of that option, GE attacked Alternative 2 for its carbon footprint: if EPA was truly committed to “greening” its own projects, long-haul trucking the waste away from affected communities had to be taken off the table. On behalf of the planet, GE concluded that Alternative 2’s “disproportionate impacts… would overwhelm the perceived environmental benefits of this remedy” [emphasis added]. This from the world’s leading producer of jet engines, devices that function directly by forcing greenhouse gases into the atmosphere; from a company unequaled in resisting and delaying cleanup: according to the Natural Resource Defense Council, its foot-dragging on Hudson River PCB remediation included “a media blitz to spread disinformation about the usefulness of the cleanup, claiming that dredging the river would actually stir up PCBs,” a book from which its NECR arguments take more than a page; and as reported by the Center for Public Integrity citing EPA documents (according to Wikipedia), only the U.S. government, Honeywell and Chevron have produced more Superfund sites than GE.
Showing that it spares no expense in its mission to cut costs, GE filed suit against the United States of America in April of 2010. In its complaint, the mega-corporation argued that the United States was responsible for all the costs of the NECR cleanup because it was the landowner and because, being the only legal purchaser of uranium before 1971 and an active promoter of its production for military and energy purposes, the government had “arranged” for UNC to mine uranium and dispose of the waste just the way it did. GE admits that UNC produced uranium from NECR almost exclusively between 1972 and ’82, uranium it “sold to nuclear power plant operators for domestic energy production,” which hardly represents direct government involvement except, the complaint alleges, insofar as this was “as the AEC had intended.” Whatever the merits of the complaint, the government quickly settled by agreeing to pay a third of UNC/GE’s cleanup costs at NECR. This ample subsidy brings the cost EPA’s preferred Alternative 5A down into the range of UNC/GE’s preferred (and nakedly lowball) Alternative 3B (on-site capping, no liner, no separate disposal of “principle threat wastes”).
On page two of the EE/CA, the authors discuss the U.S. government’s “trust responsibility” toward Indian Tribes. Citing EPA’s 1984 Policy for the Administration of Environmental Programs on Indian Reservations, they reaffirm the Agency’s commitment “to give special consideration to Tribal interests in making Agency policy, and to insure the close involvement of Tribal Governments in making decisions and managing programs affecting reservation lands.” As they further note, the “Navajo National has made clear its opposition to any removal alternative that retains nuclear waste in or near Indian Country, and has articulated several cultural, historical and legal concerns in support of this position” [emphasis added]. By preferring Alternative 5A, EPA proposes placing the NECR waste on a section of private land surrounded on four sides by Navajo Reservation and Navajo Trust lands, thus giving its “special consideration” to the Navajo Nation’s clear opposition to retaining the waste “in or near Indian Country” [emphasis added again]. In its September 2011 Action Memorandum adopting Alternative 5A as its preference, EPA confirms its dismissal of Tribal concerns by announcing straightaway to have “selected the least expensive alternative that removed waste from Tribal Lands.”
But EPA’s disregard for Navajo Nation and local community preferences doesn’t go far enough for the National Mining Association. In its comments on the EE/CA, the NMA complains that the Agency appears “to grant undue weight to the community acceptance factor, which EPA seems to have elevated above primary and balancing threshold factors in selecting the preferred remedy.” Arguing that only on-site containment meets EPA requirements for safeguarding health and the environment because even Alternative 5A would “expose the Navajo Nation to additional risks,” it is NMA’s deep concern that the Agency “not disregard its fundamental objective based on community acceptance alone” and get hoodwinked into an expensive error. Leaving aside how the NMA’s inclusive use of the word “community” diminishes the Navajo Nation government to the status of a neighborhood association, the gist of its comment is clear: the mining lobby knows what’s best for the Navajo people.
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At the August 29 meeting in Pinedale , EPA Region 9 Remedial Project Manager Sara Jacobs pushed the Preferred Alternative with a note of urgency: “This is something we can do now.”
The Action Memorandum seems to anticipate rejection of the Preferred Alternative when it warns that “actual or threatened releases of hazardous substances from the Mine Site, if not addressed by implementing the response actions selected in this Action Memorandum, may present an imminent and substantial endangerment to the public health or welfare or the environment.” The warning seems to apply both to UNC/GE and to the Navajos: accept our plan or be responsible (if not liable) for the consequences of your delay or inaction. But with its lawsuit-occasioned subsidy, UNC/GE has little reason to complain and there is nothing comparable to sweeten the deal for the Navajos.
When local resident Wes Becente asked Region 6 Remedial Project Manager Katrina Higgins-Coltrain whether EPA had asked GE to double its contribution so the waste could be moved away, laughter rippled through the crowd. GE representatives sat near the back of the room, two young men who stared at the floor in front of them with the untroubled countenance of jock school frat boys at a disciplinary hearing. In a soft voice, Higgins-Coltrain said, “It has come up.”
Teracita Keyanna and Kee Keyanna, Jr., Red Water Pond Road residents and parents of school-age children, kindly toured me around their community and shared their abundant knowledge about the place and the situation. Among many other things, they showed me where their corn fields used to be, abandoned as unsafe. They showed me the small flock of sheep that they and their family still keep: they can use or sell the wool, Teracita thinks, but the meat they won’t use. To have your sheep and not eat them, too, is a Red Water Pond Road conundrum.
As their neighbor Teddy Nez complained at the meeting the night before, when contamination prevents their use of local medicinal herbs, it prevents them from practicing their religion and he invoked the First Amendment. Some in their community will have to leave their homes for another round of contaminated soil removal. EPA has made reservations for them at a motel in Gallup some 25 miles away, a short walk by historical standards, but the hurly-burly of that rough-and-tumble town is antithetical to Navajo life and they may be stuck there for months. A stay in Gallup may seem a small sacrifice given the scale of other issues they face, but it is one more sacrifice imposed on them by America’s uranium legacy.
The mainstream of American society understands that mobility is a hallmark of our modernity. The idea of simply packing up and moving to a cleaner, healthier place may come easily. For many, it would seem not only feasible, but attractive. But mobility can also mean uprootedness. Tony Hood summed up the community members’ relationship to their homeland: “Our umbilical cords are buried here.” And Bertha Nez stated the community’s “action standard” for the cleanup: “We want our children to have a place to come home.” La Jicarita will continue to report on their situation.