President Biden’s 2021 Bipartisan Infrastructure Law included, among its many provisions, a historic investment of $3.5 billion to be allocated toward cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This investment will help in addressing the problem of legacy pollution that impacts communities across the country. Approximately $1 billion will go towards clearing the backlog of 49 previously unfunded Superfund sites and will accelerate cleanup at over 85 current Superfund sites. Remaining funds will go towards launching cleanup efforts at 25 new Superfund sites.
In a development that aligns with these broader cleanup initiatives, a significant milestone was reached in March 2024 when the Lukachukai Mountains Mining District on the Navajo reservation was listed on the National Priorities List (NPL). The Lukachukai Mining District became the first abandoned uranium mine site located on the Navajo reservation to be listed on the NPL by the U.S. Environmental Protection Agency (EPA). The NPL catalogs sites throughout the country where releases of “hazardous substances,” as defined by the statute, pose significant threats to human health and the environment and designates them as priorities for Superfund funding.
The Lukachukai NPL listing is a victory for impacted Navajo communities who, for decades, have advocated for cleanup of the 523 abandoned uranium mines on the reservation. While some progress has been made in identifying responsible parties and negotiating settlements to pay for cleanup, approximately half of the sites remain abandoned. The Lukachukai NPL listing marks a crucial step forward as the EPA uses its broad authority under CERCLA to address the abandoned mines. Doing so is consistent with EPA’s CERCLA obligations, EPA’s tribal and environmental justice policies, and the Biden administration’s Justice40 Initiative.
The legacy of uranium mining and its impacts continue to plague the Navajo people. Although mining ended on the Navajo reservation in the 1980s, at least 523 mines remain abandoned. EPA, Abandoned Mines Cleanup: Navajo Nation: Cleaning Up Abandoned Uranium Mines (2024). Many of these abandoned mines release contaminants through the air, land, and water, impacting people’s health and affecting their quality of life.
From the 1940s through the 1980s, the federal government facilitated and incentivized extensive uranium mining on the Navajo reservation. The United States needed uranium for the development of nuclear weapons and Navajo lands were rich in uranium deposits. Prospectors rushed to mine uranium on tribal lands, prompted by the federal government’s offer of a $10,000 discovery bonus for high-grade deposits of uranium. Rebecca Tsosie, Indigenous Peoples and the Ethics of Remediation: Redressing the Legacy of Radioactive Contamination for Native Peoples and Native Lands, 13 Santa Clara J. Int’l L. 211, 212 (2015). This “uranium fever” led to approximately 30 million tons of uranium ore being extracted from the Navajo reservation. The federal government actively encouraged extensive mining on Navajo lands and was the sole purchaser and beneficiary of the uranium ore. Indeed, the federal government’s role in the production of uranium has been described as “the only government-induced, government-maintained, government-controlled mining boom in this nation’s experience.” Herbert Lang, Uranium Mining and the AEC: The Birth Pangs of a New Industry, 36 Bus. Hist. Rev. 325, 325 (1962).
Uranium production was rampant not only on the Navajo reservation, but throughout the West and Southwest. The Grants Mineral District in New Mexico, including parts of Laguna Pueblo, Acoma Pueblo, and the Navajo reservation, produced more uranium than any other district in the world and accounted for more than one-third of all the uranium produced in the United States during the mining boom. When mining ended in the late 1980s, companies abruptly abandoned their mines, along with their mining equipment and waste piles. Neither mine closure plans nor remediation of sites was required, allowing contamination to spread unchecked for decades, severely impacting local communities.
As early as the 1940s, when uranium mining began on the Navajo reservation, it was known by government scientists and agency officials that high rates of cancer were associated with mining. Doug Brugge & Rob Goble, The History of Uranium Mining and the Navajo People, 92 Am. J. Pub. Health 1410, 1412 (2002). Instead of alerting mine workers to potentially dangerous conditions, federal officials actively discouraged research scientists from revealing the probable health hazards of working in uranium mines and exposure to uranium. Id. Not surprisingly, about a decade after mining began, the first cases of lung cancer began appearing in Navajo uranium miners. Some former miners were able to recover compensation under the Radiation Exposure and Compensation Act (RECA, 42 U.S.C. § 2210), but many have not been able to secure relief. Health problems among former mine workers have persisted, and former workers and their families continue to advocate for relief.
Uranium exposure has impacted not only the health of former mine workers and their families, but also communities living near and around abandoned mines. Exposure to uranium and its byproducts have correlation with significant health impacts, including kidney damage, high blood pressure, autoimmune diseases, and reproductive issues. Chris Shuey et al., Overview of the Navajo Birth Cohort Study, Univ. of N.M. Cmty. Envtl. Health Program, 1, 10–11. Other effects from exposure to uranium and its byproducts can include various cancers, including lung cancer and bone cancer. Chris Shuey, Dir., Oversight Field Hearing Before the Joint Subcomm. on Community Impacts of Proposed Uranium Mining Near Grand Canyon National Park at 5 (Mar. 28, 2008). A health study conducted on the Navajo reservation found a corresponding increase in health issues the closer a person lived to an abandoned uranium mine, including kidney disease, cardiovascular disease, diabetes, and damage to a person’s DNA. Community health surveys have documented the negative health effects transferred from mothers to their babies. Navajo Birth Cohort Study, Presentation on Navajo Birth Cohort Study, Sw. Rsch. & Info. Ctr. (Oct. 14, 2021). These health studies have shown that newborn babies on the Navajo reservation are born with elevated levels of uranium in their bodies and residents have witnessed an increase in birth defects and issues related to maternal and fetal health. Id.
After the last mine closed in the late 1980s, Navajo community members began raising awareness of health issues related to abandoned mines in their communities. For many years, these issues seemed to be ignored. But in 2008, at the request of a congressional committee, the EPA, the Bureau of Indian Affairs, the Department of Energy, the Nuclear Regulatory Commission, and the Indian Health Service began developing cleanup plans to address the issues most immediately impacting people’s health. The first few iterations of the cleanup plans were directed at assessing the extent of abandoned mines on the reservation and gaining a better understanding of current conditions. This coalition of agencies focused on assessing potentially contaminated drinking water sources, and where contamination was confirmed, they worked to provide alternative water supplies. Additionally, the agency coalition targeted housing structures with elevated indoor radon levels, either remediating or replacing homes as necessary.
Progress on the cleanup plans has been slow and vastly underfunded. Today, more than sixteen years since the development of the first cleanup plan, Congress has yet to designate funds for their implementation. Meanwhile, communities continue to wait for the goals of the plans to be realized. While federal agencies have used parts of their internal budgets to develop the plans, significant funding is needed for the comprehensive implementation of the plans.
CERCLA was passed in 1980 to address the serious environmental and health risks posed by industrial pollution. CERCLA provides broad federal authority to respond to releases or threatened releases of hazardous substances that may endanger public health or the environment. CERCLA is designed to ensure hazardous waste sites are cleaned up in a timely manner and to ensure that responsible parties pay for cleanup costs. The EPA has authority to identify potentially responsible parties (PRPs) and hold those parties liable for costs of remediation. PRPs may include owners or operators of a facility, past owners and operators, generators and arrangers who created or arranged for the movement of hazardous waste, and transporters of waste. Liability can be strict, retroactive, joint, and several.
Authority under CERCLA is broad and can be a powerful tool in ensuring the nation’s most hazardous sites receive attention and funding to ensure cleanup. Both the EPA and the Navajo Nation have successfully utilized CERCLA to hold a number of responsible parties liable for cleanup costs. Notable settlement agreements have been reached with major companies, including Kerr-McGee, Cyprus Amax, Western Nuclear, Babbitt Ranches, Burlington Northern Santa Fe Railway, Chevron, El Paso Natural Gas, EnPro Holdings, Homestake, and United Nuclear Corporation—each of which has some connection to companies that mined uranium on the Navajo reservation during the uranium boom. EPA, Abandoned Uranium Mine Settlements on or Near the Navajo Nation (Nov. 2022). The United States itself has entered into two settlement agreements with the Navajo Nation to cover cleanup costs at a limited number of mines for its role in facilitating uranium mining on the reservation. Id.
Altogether, of the 523 mines on the reservation, these settlement agreements will cover cleanup costs at nearly half of the abandoned mines. The values of the settlements are significant. The largest settlement, the Tronox Settlement, covers mines owned and abandoned by the Kerr McGee Corporation and is valued at over $1 billion. EPA, Case Summary: Settlement Agreement in Anadarko Fraud Case Results in Billions for Environmental Cleanups Across the Country (2024). Another major agreement involves two subsidiaries of Freeport-McMoRan, Inc.—Cyprus Amax Minerals Company and Western Nuclear, Inc.—which will fund cleanup at 94 mines. Consent Decree, United States v. Cyprus Amax Mins. Co. & W. Nuclear Inc., No. CV-17-00140-PHX-DLR (D. Ariz. May 22, 2017). This settlement is valued at over $600 million. Id. Additional agreements provide substantial funding for remediation, water assessments, and health studies.
Despite these considerable settlements, more than half of the abandoned mines on the reservation will remain abandoned without a dedicated source of funding for investigation and cleanup. To address this problem and bring long-overdue relief to impacted communities, more of these sites should be included on the NPL. CERCLA has been instrumental in protecting public health and the environment and has demonstrably improved the well-being of communities living near contaminated areas nationwide. Studies have shown reductions in birth defects and blood-lead levels among children in these communities following Superfund interventions. The recent NPL listing of the Lukachukai Mountains Mining District represents a significant step forward, promising to channel much-needed resources to address the abandoned mines on Navajo land. However, this listing should be seen as a beginning rather than an end, paving the way for more comprehensive action across the reservation.
The Lukachukai Mountains Mining District, spanning approximately 20 square miles, is located in the Cove, Lukachukai, and Round Rock Chapters of the Navajo Nation in northeast Arizona. The Lukachukai area was heavily mined beginning in 1949, resulting in 88 mines, over 120 waste piles, and more than 800,000 cubic yards of mine waste scattered throughout the mining district. EPA, Lukachukai Mountains Mining District 1 (2024). According to the EPA, surface and nearby groundwater sources are likely contaminated. Id. With limited options, surrounding communities continue to use the land and water for livestock, grazing, recreation, and hunting, as well as harvesting of plants for traditional medicinal and ceremonial purposes.
For a site to be eligible for placement on the NPL, the EPA uses the Hazard Ranking System (HRS), a rigid, numerically based scoring system that determines the risk potential of sites to human health or the environment. Sites become eligible for NPL listing when they accumulate a sufficient number of points under the HRS evaluation. The system allocates points based on the magnitude of harm to people through water, air, and soil pollution. Prior to the Lukachukai listing, none of the 523 abandoned uranium mines on Navajo reservation lands had been included on the NPL. This absence was not due to a lack of a substantial threat to people or the environment. Rather, it stemmed from inherent biases within the HRS that made it difficult for rural and tribal communities to accumulate enough points for listing, primarily due to their typically low and dispersed populations.
The three categories of factors considered under the HRS include (1) the likelihood of hazardous substance release (or potential release) into the environment; (2) the toxicity, waste quantity, and other characteristics of the waste; and (3) whether people or sensitive environments are affected by the release. 40 C.F.R. pt. 300 app. A (2024). The HRS assesses these factors across four pathways: groundwater migration, surface water migration, soil exposure and subsurface intrusion, and air migration. Additionally, the system considers mobility factors, sensitive environments, and food chain and recreation threats to the surface water migration pathway. If a site has a score high enough for NPL designation, it is nominated for listing in the Federal Register, followed by a public comment period.
The HRS was updated in 2007 to recognize and account for Native American cultural practices and lifeways in the NPL process. Amendments to the HRS include guidance on considering potentially sensitive areas, such as wildlife migratory pathways and feeding areas, and the unique use of resources such as medicinal plants. Additionally, the amendments address various exposure pathways, including recreational use areas. Unfortunately, the amendments did not address population concerns and the current policy continues to favor areas with more dense populations, disadvantaging the typically low and dispersed populations found in reservation communities.
The Lukachukai designation has been widely celebrated throughout the Navajo Nation. James Benally, president of the Navajo Nation Cove Chapter, stated, “This is historic for the Navajo communities of Cove, Lukachukai, and Round Rock, and the whole Navajo Nation. It’s reassuring to know the Superfund designation will expand the remediation of the abandoned uranium mine sites on our sacred mountain. We fully support the NPL listing, on behalf [of] our grandchildren, and generations to come, and the environment.” Press Release, EPA Region 9, EPA Adds Sites to the Superfund National Priorities List, Including the Lukachukai Mountains Mining District in Navajo Nation (Mar. 5, 2024).
Benally also stressed the urgency of the cleanup efforts, adding, “We would like to see these remediation activities carried out in a timely fashion, not 40 years from now.” Noel Lyn Smith, This Month’s Superfund Listing of Abandoned Uranium Mines in the Navajo Nation’s Lukachukai Mountains Is a First Step Toward Cleaning Them Up, Inside Climate News, Mar. 26, 2024. In response to these concerns, Cliff Villa, EPA Deputy Assistant Administrator for the Office of Land and Emergency Management, responded that placement on the Superfund site list is a guarantee that the site will be a national priority for the EPA. Villa stated, “It is published. It is out there. It is not going away until the job is done. It is a promise, and it’s an opportunity for resources.” Id.
While local communities are hopeful, there is more work to be done before any mine waste will be moved. Following the listing, the EPA will conduct more detailed assessments, including a remedial investigation or feasibility study. These studies help determine the extent of contamination and evaluate potential cleanup options.
The listing of the Lukachukai Mountains Mining District on the NPL is notable and can serve as a model for other abandoned mines on the reservation. Placing other mines on the NPL is supported by principles of environmental justice and EPA’s tribal policy.
The EPA has taken a broad view of the role of tribal governments in decision-making, reflected in several key policies. EPA policy requires government-to-government consultation with tribes in matters that might affect reservation environments and aims to support self-governance. In 2023, the EPA strengthened this commitment by issuing supplemental guidance on EPA’s tribal consultation policy concerning tribal treaty rights. EPA, EPA Policy on Consultation with Indian Tribes: Guidance for Discussing Tribal Treaty or Similar Rights (revised Dec. 7, 2023). This guidance builds on the foundation laid by the EPA Policy for the Administration of Environmental Programs on Indian Reservations, which recognizes the federal trust responsibility and treaty commitments owed to Tribal Nations. EPA, EPA Policy for the Administration of Environmental Programs on Indian Reservations (Nov. 8, 1984). Together, these policies aim to ensure that tribal treaty rights are protected throughout agency actions.
The Navajo Nation has two Senate-ratified treaties with the United States: the Treaty of 1849 and the Treaty of 1868. Among the various provisions, the 1868 Treaty guaranteed the Navajo Nation a “permanent home,” where they would have water resources sufficient for the purposes of the reservation, and where the tribe could live without outside interference, have livestock, and grow food. 1868 Treaty, art. XIII. A permanent homeland necessarily requires a habitable environment. Widespread uranium contamination impedes these goals and violates the federal government’s treaty obligations. The EPA can honor the tribe’s treaty rights, consistent with their policy, by remediating abandoned mines on the reservation and providing a habitable and permanent homeland for the tribe.
The Lukachukai designation also aligns with the Justice40 initiative, which aims to ensure that 40% of the overall investments from specific federal programs go towards disadvantaged communities that have been marginalized due to historical underinvestment. This initiative is a national commitment to environmental justice and is intended to confront the decades of underinvestment and the disproportionate burden of pollution that many disadvantaged communities face.
The communities within the Lukachukai Mountains Mining District exemplify the types of environmental justice communities the Justice40 initiative intends to benefit. The Lukachukai communities are environmental justice communities that have borne the brunt of extensive mining, resulting in environmental and health burdens. The EPA defines environmental justice as “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment[.]” EPA, Environmental Justice. Environmental justice is intended to ensure that people “are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers[.]” Id. The purpose of the environmental justice policy is to ensure that all people “have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices[.]” Id.
The Lukachukai listing marks a significant step in addressing long-overlooked environmental issues and advances multiple policy goals simultaneously. This designation not only honors the United States’ treaty obligations to the Navajo Nation but also aligns with principles of environmental justice, EPA’s tribal policy, and the fundamental objectives of CERCLA. The process that led to the Lukachukai Mountains Mining District’s placement on the NPL offers valuable insights for future listings of abandoned uranium mines. It demonstrates how persistent advocacy, collaboration between tribal and federal agencies, and the application of environmental justice principles can begin to overcome decades of historical neglect. This precedent strengthens the case for listing additional sites on the NPL and underscores the importance of ensuring full and expedited cleanup of uranium mines on reservation lands. Moving forward, stakeholders can draw on the Lukachukai experience to navigate the listing process more effectively, potentially accelerating remediation efforts for other contaminated sites across Indian Country.
