By LAWRENCE HURLEY of Greenwire,
Published: January 28, 2011, New York Times, newyorktimes.com
A federal appeals court ruled today that the Department of Energy does not have to remediate two sites on Navajo Nation land that are adjacent to an old uranium mine.
The U.S. Court of Appeals for the District of Columbia ruled (pdf) against the Navajo Nation and the El Paso Natural Gas Co., the successor company to the mine operator, on technical grounds.
Under the 1978 Uranium Mill Tailings Remediation and Control Act, which was enacted to address uranium cleanups, Congress specifically stated that decisions on which sites to remediate were not subject to judicial review.
The mill itself, in Tuba City, Ariz., was one of the properties DOE initially agreed to remediate.
The Navajo Nation only became aware that the two sites nearby were also contaminated in the early 2000s.
In 2003, DOE denied a Navajo request to remediate the sites. In doing so, the government questioned whether the pollution came from the mill.
The natural gas company subsequently filed suit in 2007 over concerns it would be left to foot the bill (Greenwire, May 18, 2007).
A judge in the U.S. District Court for the District of Columbia dismissed the suit, saying the court had no jurisdiction.
Writing for a unanimous three-judge panel of the appeals court, Judge David Tatel said that was the correct outcome.
Although courts generally assume that statutes are subject to judicial review, including some instances in which Congress says it is not, the remediation law is clear on the issue, he wrote.
The lawsuit “falls squarely within” the statute’s bar on judicial review, Tatel wrote.
Click here (pdf) to read the opinion.
Copyright 2011 E&E Publishing. All Rights Reserved.