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Regulators’ response ‘a far cry from transparency’

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Posted: Sunday, August 25, 2013 6:00 am

By Olga Kolotushkina

The Virginia Department of Mines, Minerals and Energy’s reaction to the Roanoke River Basin Association-commissioned report of DMME’s uranium exploration regulatory program is very disappointing, although not unexpected, considering that DMME has given very little regard to public participation and transparency so far. Instead of a detailed written response addressing each identified instance of poor oversight and non-compliance by the regulated company, Virginia Uranium Inc., DMME has simply brushed off the public’s concerns.

The appropriate response from a responsible regulator would be to immediately involve the public in addressing the issues raised in the report by initiating a rulemaking proceeding and a public hearing. Virginia law explicitly authorizes DMME to promulgate regulations for uranium exploratory drilling (Code of Virginia, Section 45.1-279) and makes uranium exploration subject to the Virginia Administrative Process Act (Code of Virginia, Section 45.1-281). Despite this explicit mandate, DMME appears to maintain it has discretion to either initiate a rulemaking proceeding under the Virginia Administrative Process Act or to develop a limited set of uranium exploration requirements in an internal process without public participation or even knowledge. While DMME chose to do the latter, it is certainly the best practice to promulgate regulations in a rulemaking proceeding, which, under the law, gives the public multiple opportunities for comment and a hearing.

DMME stated that it acted within the confines of the current law. If so, isn’t it reasonable to expect that a responsible, pro-active regulator would petition the legislature to give it more regulatory powers to address the pressing issues of public concern, rather than hide behind the outdated statute enacted 30 years ago?

The centerpiece of DMME’s "response" is that the report was based on incomplete information that was obtained through the Freedom of Information Act requests by three Virginia citizens. It may come as a surprise to DMME, but in the 21st century, regulatory agencies at the federal and state levels have long adopted the practice of publishing all documents pertaining to industry permitting and regulation in electronic databases with free public access and various search functions. Instead, DMME continues to keep all the uranium exploration documents out of public reach and requires Virginia taxpayers whose interests DMME is supposedly protecting to pay for each request of information that should be readily available free of charge. In addition, as DMME made it clear in its response, the agency does not even guarantee that it would provide complete records in response to citizens’ FOIA requests. DMME places the burden on the requesting citizens, while it is the agency’s obligation to ensure that records are accurate, complete and easily accessible by the public.

As for the documents subject to confidential treatment, the best practice would be to have a record of such documents, with a short description of what the document is, included in a publicly accessible electronic database.

The confidentiality treatment only applies to the content of documents, not to the very fact of their existence. Absent the public electronic database of uranium exploration records, the public does not even know what documents DMME has in its possession. This way DMME can always withhold any document it wishes, and those requesting documents through the FOIA process will never know if they have a complete record. DMME can always claim whenever it deems beneficial that the record provided was not complete.

This is a far cry from transparency.

Also, DMME’s response does not address the agency’s failure to ensure that Virginia Uranium Inc. notified adjacent property owners and local officials prior to drilling, despite the explicit requirement in DMME’s own permit application form.

Exploratory drilling creates pathways for contaminants to escape into groundwater, creating the risk of poisoning neighbors’ wells and spills into nearby creeks. A poisoned well renders the property unmarketable and virtually uninhabitable. That is why, it is impossible to overstate the importance of the notice to adjacent landowners prior to commencement of exploratory drilling. Neither Virginia statute nor DMME regulations require testing of neighboring wells prior to drilling. The advance notice of drilling is the landowner’s only chance to test the well water prior to drilling, to ensure that the company doing exploration can be held liable in the event of well contamination. Residents neighboring the Coles Hill site were deprived of this only chance.

What DMME’s oral response demonstrates yet again is that DMME consistently fails to adhere to principles of transparency and public participation, the two cornerstone requirements identified by the National Academy of Sciences as necessary for protection of public health and welfare in the event uranium mining is ever allowed in the Commonwealth. Can we truly entrust DMME with regulating such a risky activity as uranium mining in the wet climate of Virginia? The answer is obviously no.

Our legislators’ first priority in the 2014 legislative session should be the complete overhaul of the uranium exploration program and the enactment of a moratorium on all exploratory activities until the statute governing uranium exploration is updated to provide for appropriate regulatory authority and safeguards.

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