Virginia’s 36-year-old uranium mining ban is on the Supreme Court’s docket today

By: - November 5, 2018 6:09 am

The United States Supreme Court building in Washington, D.C. (CCO Creative Commons via Pixabay)

For 36 years, uranium mining in Virginia has been banned.

The practice, which has usually been isolated to the western part of the country, produces uranium that can power nuclear reactors, like those at Dominion Energy’s Surry and North Anna nuclear power plants, which produce roughly 31 percent of the state’s power.

Pittsylvania County landowner Walter Coles wants the state to allow uranium mining so he can uncover an estimated 119 million pounds of uranium — a stockpile that could breath new life into Southside Virginia’s economy, his attorneys wrote in court documents.

For almost two decades, Coles has tried to persuade Virginia lawmakers to reverse the ban. It hasn’t worked, and now Coles is challenging Virginia’s authority to institute a uranium mining ban.

He’s taking his argument to the Supreme Court, which will hear the case today.

Where does this case come from? 

In the late 1970s, surveyors found what court filings contend is the single largest natural deposit of uranium in the United States and one of the largest in the world in Coles Hill, an unincorporated community in Pittsylvania County.

Virginia instituted a statewide ban on uranium mining applications in 1982, a few years after radioactive releases during a partial meltdown at Three Mile Island in Pennsylvania.

According to the Nuclear Regulatory Commission, the accident “had no detectable health effects on plant workers or the public,” but did bring about “sweeping changes involving emergency response planning, reactor operator training, human factors engineering, radiation protection and many other areas of nuclear power plant operations.”

In 1983, Virginia extended the ban and commissioned a study about the effects of uranium mining. A preliminary study found mining operations could limit the use of land, said Cale Jaffe, director of the Environmental and Regulatory Law Clinic at the University of Virginia School of Law.

“In other words they didn’t extend the ban for environmental or public health issues,” said Jaffe, who authored a brief in the case on behalf of lawmakers and chambers of commerce supporting the ban.

Meanwhile, the owner of the land, Walter Coles, formed Virginia Uranium to lobby lawmakers to loosen the rules and let him mine his land. There was no immediacy, since uranium prices fell after the Chernobyl disaster in 1986.

By 2015, Coles had changed strategy and focused on litigation instead of lobbying for permission.

What’s being argued?

Virginia Uranium claims Virginia is superseding federal law by instituting a uranium mining moratorium, or ban, based on environmental and public health concerns stemming from uranium processing.

Under the 1954 Atomic Energy Act, states can regulate mining but the federal Nuclear Regulatory Commission oversees everything else, including the processing of any mined nuclear material, like uranium.

The first step in turning uranium ore into fuel is called milling. Chemicals extract the uranium and make yellowcake, the powder that is processed into fuel, according to the Nuclear Regulatory Commission. That process produces mill tailings, a sandy waste containing heavy metals and radioactive radium. The waste and how it is stored is regulated by the commission.

So, attorneys for Virginia Uranium argue, Virginia can’t base its ban on concerns that come from the processing of mined materials.

But supporters of the ban are arguing that’s not the basis of the ban — it’s an issue of the economic impact a mining operation could have on Southside Virginia (although they do mention potential health and environmental risks, too).

How did this case get to the Supreme Court?

Before Virginia Uranium pursued legal action, the company worked on a decades-long lobbying campaign to try to convince lawmakers to lift the ban.

In 2008 there was legislation introduced to study uranium mining that languished in a House committee. In 2012, Gov. Bob McDonnell formed the Uranium Working Group to study whether the ban on uranium mining should be lifted and if so, how to do it.

It didn’t change lawmakers’ minds. In 2015, Virginia Uranium filed suit in federal court, saying Virginia’s ban couldn’t stand because it was based on potential radiological impacts that come from the part of uranium processing that is regulated by the Nuclear Regulatory Commission.

That court threw the case out and Virginia Uranium appealed it. The lower decision was upheld with a dissenting opinion from Judge William Traxler, who sided with the company.

Virginia Uranium then filed an appeal with the Supreme Court in 2017.

Who’s opposed to a mining operation?

Environmentalists and local leaders who have worked to rebuild Southside’s economy are concerned a mine could upend their efforts. 

Southside Virginia has invested in creating an economy based on agriculture, tourism, motorsports and education, a brief filed over the summer by Jaffe on behalf of Southside’s state lawmakers and commerce organizations.

Former Republican state Del. Manoli Loupassi of Richmond cited the unpredictable economic nature of a mine in that brief: “The operation of uranium mining is price-dependent,” Loupassi wrote. “When prices are high, mines flourish. When prices drop, uranium mines close and uranium miners lose their jobs.”

Gov. Ralph Northam and Attorney General Mark Herring, both Democrats, are also opposed.

Virginia Uranium, according to filings Jaffe studied, has said uranium would need to sell for $64 a pound for the Coles Hill property to be economically viable. In October, uranium prices hovered around $27 per pound.

But it’s not all economic. The Southern Environmental Law Center has concerns about lifting the ban too, and it comes from the mining of uranium, not processing, said SELC attorney Mark Sabath.

Radioactive waste is discarded on the mining site, Sabath said. Plus, any mining operation poses dangers because it requires digging and blasting the ground.

“All of those activities presents real risk to the communities,” Sabath said. Other critics have noted that most U.S. uranium mining is conducted in arid western states and that Coles, which would be the only such operation on the Eastern Seaboard, would be a bad fit in wet and hurricane-prone Virginia.

Virginia Beach, 215 miles from the Coles Hill property, also has concerns about uranium mining, as do lawmakers in North Carolina.

Virginia Beach commissioned a study in 2011 to study how a mine could affect downstream waters, including Lake Gaston on the North Carolina-Virginia border, from which Virginia Beach gets its water.

“Depending on weather conditions, it could take two months to two years to completely flush radioactive contaminants out of Lake Gaston,” a summary of the study stated.

Who’s pushing for it?

Virginia Uranium has several federal lawmakers and organizations on its side.

For its part, Virginia Uranium thinks a mining operation will help Pittsylvania County.

“Jobs for Virginia,” its website proclaims. “Fuel for America.”

Attorneys for Coles wrote in a court filing that a uranium mining operation could create 1,000 jobs, which is enticing for an area that struggled to rebound as the tobacco and textile industries faded away. They also estimate a uranium mine would generate $5 billion in local revenue.

The company’s efforts have earned the backing of the U.S. Chamber of Commerce and Republican Sens. Tom Cotton of Arkansas, Jim Inhofe of Oklahoma and Ted Cruz of Texas.

The senators’ filing focused on the legal issue of whether the state has power to supersede the federal Atomic Energy Act, saying in this case, Virginia’s “subversion of an important national policy” is dangerous because the domestic production of uranium is critical to national security.

“The danger here is particularly acute here given the public penchant to stigmatize localities hosting nuclear facilities or to otherwise perceive the development of nuclear energy as unsafe, all out of fear regarding radiological hazards emanating from nuclear waste,” an attorney for the senators wrote.

That fear is what has kept Virginia’s ban in place, the senators argued.

The U.S. Chamber of Commerce wrote uranium mining was a key part of national energy policy, pointing out nuclear energy fuels most emissions-free power generation in the country.

“As a result of the nearly historical low domestic production of uranium, the continued viability of nuclear energy in the United States — responsible for one-fifth of the nation’s electricity supply — is presently almost entirely dependent on imports from foreign countries, with a large percentage coming from countries in the former Soviet Union,” attorneys for the chamber wrote.

Does a decision in favor of Virginia Uranium mean mining could begin?

Probably not right away — Virginia doesn’t have a full process in place to get uranium mining operations off the ground.

“At present, there are gaps in legal and regulatory coverage for activities involved in uranium mining, processing, reclamation and long-term stewardship,” a 2011 study from the National Academies of Sciences found. “Some of these gaps have results from the moratorium on uranium mining that Virginia has in place; others are gaps in current laws or regulations.”

Sabath said he’s not aware of other property owners in Virginia looking to pursue a mining operation.

“But if the ban weren’t in place, it would certainly open up the possibility of uranium mining everywhere,” Sabath said.

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Mechelle Hankerson
Mechelle Hankerson

Mechelle, born and raised in Virginia Beach, is a graduate of Virginia Commonwealth University with a degree in mass communications and a concentration in print journalism. She covered the General Assembly for the university’s Capital News Service and was among 12 student journalists in swing states selected by the Washington Post to cover the 2012 presidential election. For the past five years, she has covered local government, crime, housing, infrastructure and other issues at the Raleigh News & Observer and The Virginian-Pilot, where she most recently covered the state’s biggest city, Virginia Beach. Mechelle was with the Virginia Mercury until January 3rd, 2019.