A Prospective on Government Regulation Reliance

Considering the issue of the lifting of the ban on uranium mining and milling in Virginia, one must ponder the outcome if that was to occur. Obviously we would have to rely on the series of Federal and States regulations and enforcement agencies to protect the health and safety of the environment and people exposed.

Importantly then is the question of whether these measures can adequately do the job. During the hearings so far by the National Academy of Sciences studying Uranium Mining in Virginia we have heard testimony to the fact that there are substantial gaps in regulation and experience in this matter. (William Von Till, U.S. Nuclear Regulatory Commission, Jim Weeks, Mine Safety and Health Administration, and Geoff Fettus, Natural Resources Defense Council, at the meeting of the Committee on Uranium Mining, Washington, D.C, Nov. 15-16 2010).

Even with proper regulations and enforcement in place by government, past history has shown the lack of ability to prevent serious acts of pollution and contamination to our waters. During the past decade for example, a citizen’s organization (Friends of the Staunton River) uncovered industrial pollution in the form of PCB’s and mercury in the river and flowing into Kerr Reservoir. It turned out the VA DEQ was aware of the problem but made no public announcement or release of fish consumption advisements until the Friends of the River group blew the whistle. The source of the pollution was identified as an industrial complex of a company long gone from the area and an advisement on the consumption of certain species of fish out of Kerr Lake still exists to this day. There are countless numbers of incidents such as this throughout the nation, whereby the damage is done before anyone realizes it and years after the polluting industry had left the area.

While it is true we can use permitting fees, bonding monies and fines to act as mitigation for these acts as well as funds for remedial activities, but in most instances the damage done cannot be resolved for many years. What good are fines when the perpetrator merely pays them and goes on doing business as usual. Some of these companies budget for, and then merely write off the cost of fines as a cost of doing business then recovering the amounts through their pricing of product. For example, look at how many mine explosions have happened after the mining companies had been cited for multiple safety violations and fined!

In my view, I don’t want more regulation and frankly, I don’t want more government. What we need is behavior by Industry to put in place only processes that will not pollute, contaminate or otherwise cause the need for remedies and recovery. Quite frankly the price is too high for them. I ask, is that too much to ask for?

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Let me digress a moment and go back a few years in time. I joined the IBM Corporation in 1955 at a location in Kingston, NY on the banks of the Hudson River. The son of the founder of the Company, Thomas J. Watson Jr. put in place a set of basic beliefs and principles by which the Company should be managed. Among these principles were guidance such as Respect for the Individual, Service to the Customer and Mangers must lead effectively. More importantly to this discussion was the following principle:

“IBM Should be a Good Corporate Citizen

We accept our responsibilities as a corporate citizen in community, national and world affairs; we serve our interests best when we serve the public interest. We believe that the immediate and long-term interest is best served by a system of competing enterprises. Therefore, we believe we should compete vigorously, but in the spirit of fair play, with respect for our competitors, and with respect for the law. In communities where IBM facilities are located we do our utmost to help create an environment in which people want to work and live. We acknowledge our obligation as a business institution to help improve the quality of the society we are a part of. We want to be on the forefront of those companies which are working to make our world a better place.”

Thomas J. Watson, Jr.

The Commonwealth of Virginia does embrace the doctrine of Riparian Rights when it comes to water. It is now acknowledged throughout the country that water is arguably the most critical resource of this century. The concept of Riparian Rights comes from the Roman tradition, which began with the idea that water should be allowed to flow as it had always flowed:

Aqua currit et debet currerer, ut currerer solebat.

“Water runs, and ought to run, as it has used to run. “ Or, a running stream should be left to flow in its natural channel, without alteration or diversion, and by implication, that water is the common and equal property of every one through whose domain it flows. This is the ancient basis of the modern public trust doctrine. Implied in the doctrine is that water can be used as a life sustaining resource and needs to be protected in not only flow but also in quality. Unfortunately Virginia although regulating water quality does not respect the principle of flow alteration or diversion since there is no distinction between permitting the withdrawal of water from a domain for use in that domain (watershed), and withdrawals of water to be diverted to another domain (Inter-Basin Transfers – IBT’s). IBT requests therefore remain a highly controversial issue often causing “water wars” and usually ending in law suits.

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In natural formation a watershed or basin is a complete system. They begin with rainfall, snow etc. at the high grounds or head waters (the input). They traverse by natural flow in rivers and through lakes within basin boundaries (the process). They end at lower plains and sounds of the basin and then to the ocean (the output). There are aspects of any system that we need to recognize. First you cannot impact or change one part of a system without altering the output of that system. Process defects are inevitable, and must be remedied or mitigated if possible, or the output will be changed. In any watershed, pollution, contamination, unnatural diversion (IBT), can only be regarded as a serious defect in the process. Fortunately some defects can be fixed, but unfortunately some can never be fixed thereby impacting the quality of the output. When the output of the system is water, it thus follows that the riparian rights of the citizens of that domain have been violated.

Since the domain of the Roanoke River Basin includes the citizens of both Virginia and North Carolina the process is further complicated by separate planning, regulation, outlook and monitoring. For the system to remain sound then it is required that these inconsistencies be resolved. This demands the States and communities work cooperatively within the basin to solve common problems through Compacts and Memorandums of Understanding and Agreements.

Within the current scheme of things it is a tall order to believe that all that needs to be done to insure a safe and healthy Basin environment that includes uranium mining and milling, will ever be accomplished. Earlier I stated that more than regulation and government is needed. What is needed is that all users of this great natural resource understand how critical it is to protect it. But alas, we live in an imperfect world where competing forces constantly demand we legislate and enforce the rules.

On the issue of whether uranium mining and milling can ever be done safely in Virginia or any basin for that matter we can merely seek advise from the best possible science available to us day. And with this advice, hope fervently that the governmental powers to be will heed it and legislate wisely and without prejudice.

The citizens of the Roanoke River Basin in both Virginia and North Carolina must demand that the task of determination assigned to scientific studies and our political leaders leave no shadow of a doubt about the impacts of uranium mining and milling before lifting any Ban on this activity in the Commonwealth of Virginia.