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Localities would have little control if the ban on uranium mining is lifted, Attorney General Ken Cuccinelli wrote.
Monday, October 14, 2013
RICHMOND — Local officials would have little influence over uranium mining if Virginia decided to end a decades-long prohibition , Attorney General Ken Cuccinelli concluded in an advisory opinion.
Cuccinelli issued the nonbinding opinion in response to a request by Del. Donald Merricks, who represents Pittsylvania County, home to one of the largest uranium deposits in the world.
In the lengthy opinion dense with case law citations, Cuccinelli states that Pittsylvania County would have no authority to regulate uranium mining “in any fashion” while the moratorium is in place and would have very narrow powers should the General Assembly lift the moratorium.
The opinion comes amid the continuing effort by Virginia Uranium Inc. to have the 1982 ban lifted so it can mine a 119-million-pound deposit of the radioactive ore about six miles outside of Chatham near the North Carolina state line. The company’s efforts fell short in the last session of the legislature, with supporters failing to get legislation that would end the prohibition out of committee. It is expected to come up again in the 2014 session.
Merricks, a Republican who did not seek re-election, is among a group of Southside legislators who oppose uranium mining. They believe the environmental risks of mining are not worth the jobs and tax revenues Virginia Uranium promises the new industry would bring to the economically struggling rural region.
Full-scale uranium mining has never occurred on the East Coast, and opponents argue that the wetter climate would create unacceptable threats to air and water quality. They are particularly concerned about the generations-long storage of radioactive waste rock.
Virginia Uranium has said waste would be stored in below-ground containment units to weather storms and heavy rains and that the best industry practices would be used in mining uranium.
Merricks submitted a series of questions to Cuccinelli on local powers to regulate mining, including tighter environmental standards. He also asked if local officials could impose bonds or civil penalties for the depreciation of real estate values or lost revenue for farms. The county is a center for tobacco growing and beef cattle.
Cuccinelli responded that state and federal law would dictate in every instance.
If the General Assembly ended the moratorium, Cuccinelli wrote, “a locality’s authority related to uranium mining will depend upon federal and state law in effect at that time, including the enabling legislation for uranium mining enacted by the General Assembly.
“It is further my opinion,” he added, “that a locality does not have authority under existing federal and state law to take certain of the actions about which you inquire.”
Cuccinelli cites the state’s Dillon Rule, the legal principle by which the state limits the reach of local government.
The opinion adds: “If the General Assembly chooses to establish a permitting program for uranium mining and milling operations within the Commonwealth and provides for related regulation, such legislation will affect local government authority to regulate such operations by ordinance.
“On the other hand,” he wrote, “the General Assembly could enable concurrent regulatory authority to its appropriate agencies and localities, in which case the locality could exercise such authority so long as such exercises do not conflict with federal or state law.”
Even if the legislature allowed local zoning ordinances over mining, the local ordinances could “not be drafted in such a way as to be arbitrary or capricious either in their terms as written or in their application,” Cuccinelli wrote. “Further, such zoning ordinances could not be so restrictive as to impose a ban on that otherwise legal activity.”
Regarding local powers to enact more stringent air and water quality standards, Cuccinelli wrote that Pittsylvania County lacks that authority absent state approval.
Cuccinelli also concludes that Pittsylvania County could not hold Virginia Uranium accountable for any diminishment of property values from the “stigma” of uranium mining, citing the Dillon Rule and federal law.
The same holds true for agricultural losses, he wrote in the opinion, issued Friday.
Merricks sought the advisory opinion at the behest of the Pittsylvania County Board of Supervisors.
He did not immediately respond to a request for comment.
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