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Environmental health regulation of uranium mining and milling

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Title:
Environmental health regulation of uranium mining and milling a regulatory race to the bottom?
Uncontrolled:
Regulatory race to the bottom?
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Hamby, Rachael ( author )
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English
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1 electronic file (95 pages) : ;

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Subjects / Keywords:
Uranium industry ( lcsh )
Uranium -- Safety measures ( lcsh )
Uranium industry ( fast )
Uranium -- Safety measures ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Review:
Mining and milling of uranium, the source fuel for nuclear power, pose significant threats to environmental health. Many developed countries rely on nuclear as a substantial portion of their energy mix, driving demand for uranium. In recent decades, developed countries have strengthened occupational and environmental health regulations. Less developed countries, on the other hand, have focused on economic development. In less developed countries with significant resources such as uranium, the tension between the need for economic development and the need to protect human and environmental health can pose challenges when it comes to designing and enforcing a regulatory structure for occupational and environmental health. The absence of an international regulatory body for mining or environmental health protection means there are no minimum standards to create an international floor for environmental health regulations.
Review:
This paper explores whether evidence exists to build the hypothesis that a regulatory race to the bottom is occurring in the global uranium industry with respect to environmental health regulations in uranium-producing developing countries. Taking Namibia as a case study, the paper reviews Namibia’s mining and environmental health laws and regulations, compares them to trends in uranium development and production, and examines the relationship between the Namibian government and the uranium mining industry, in particular in terms of enforcement of environmental health regulations.
Review:
While this paper does not find strong evidence for or against the possibility of a race to the bottom between less developed countries, there may be evidence to support a hypothesis of a race to the bottom between developed and less developed countries when it comes to environmental health regulation and natural resource extraction. In addition, regulatory capture is a real possibility especially in a structure that tasks a regulatory body with conflicting mandates to both promote and regulate a particular industry.
Review:
Possible strategies to mitigate these problems include establishing a strong international regulatory body for mining or environmental health, providing funding and political support for enforcement of existing environmental health regulations, and encouraging alternative industries such as tourism that provide countries with a path towards economic development without the temptation to destroy the environment.
Thesis:
Thesis (M.P.A.)-University of Colorado Denver.
Bibliography:
Includes bibliographic references
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System requirements: Adobe Reader
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by Rachael Hamby.

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University of Florida
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All applicable rights reserved by the source institution and holding location.
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ocn953802622
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LD1193.P86 2016m H36 ( lcc )

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Full Text
ENVIRONMENTAL HEALTH REGULATION OF URANIUM MINING AND
MILLING: A REGULATORY RACE TO THE BOTTOM?
by
RACHAEL HAMBY
B.A., Williams College, 2005
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado in partial fulfillment
of the requirements for the degree of
Master of Public Administration
Public Administration Program
2016


This thesis for the Master of Public Administration degree by
Rachael Hamby
has been approved for the
Public Administration Program
by
Lloyd Burton, Chair
Denise Scheberle
Deborah Thomas
April 22, 2016
11


Hamby, Rachael, B.A.
Environmental Health Regulation of Uranium Mining and Milling: A Regulatory Race to
the Bottom?
Thesis directed by Professor Lloyd Burton
ABSTRACT
Mining and milling of uranium, the source fuel for nuclear power, pose significant
threats to environmental health. Many developed countries rely on nuclear as a
substantial portion of their energy mix, driving demand for uranium. In recent decades,
developed countries have strengthened occupational and environmental health
regulations. Less developed countries, on the other hand, have focused on economic
development. In less developed countries with significant resources such as uranium, the
tension between the need for economic development and the need to protect human and
environmental health can pose challenges when it comes to designing and enforcing a
regulatory structure for occupational and environmental health. The absence of an
international regulatory body for mining or environmental health protection means there
are no minimum standards to create an international floor for environmental health
regulations.
This paper explores whether evidence exists to build the hypothesis that a regulatory
race to the bottom is occurring in the global uranium industry with respect to
environmental health regulations in uranium-producing developing countries. Taking
Namibia as a case study, the paper reviews Namibias mining and environmental health
laws and regulations, compares them to trends in uranium development and production,
and examines the relationship between the Namibian government and the uranium
iii


mining industry, in particular in terms of enforcement of environmental health
regulations.
While this paper does not find strong evidence for or against the possibility of a race
to the bottom between less developed countries, there may be evidence to support a
hypothesis of a race to the bottom between developed and less developed countries when
it comes to environmental health regulation and natural resource extraction. In addition,
regulatory capture is a real possibility especially in a structure that tasks a regulatory
body with conflicting mandates to both promote and regulate a particular industry.
Possible strategies to mitigate these problems include establishing a strong
international regulatory body for mining or environmental health, providing funding and
political support for enforcement of existing environmental health regulations, and
encouraging alternative industries such as tourism that provide countries with a path
towards economic development without the temptation to destroy the environment.
The form and content of this abstract are approved. I recommend its publication.
Approved: Lloyd Burton
IV


TABLE OF CONTENTS
CHAPTER
I. INTRODUCTION 1
The Role of Uranium in the Global Energy Supply 1
The Benefits and Costs of Nuclear Power 2
The Nuclear Power Process 3
Uranium Mining and Milling 4
The Global Uranium Market 8
International Regulation 12
A Regulatory Race to the Bottom? 14
The Phenomenon of Regulatory Capture 15
Hypothesis 16
Selection of the Case Study 19
Organization of the Thesis 20
II. REVIEW OF THE LITERATURE 22
Theoretical Framework Institutional Analysis and Design 22
Technical Analysis and Documentation of Environmental Impacts 23
Historical Perspectives 23
Differences and Shifts in Attitudes 24
Legal and Regulatory Challenges 25
Race-to-the-Bottom and Regulatory Capture Theory 27
Summary 27
v


III. CASE STUDY NAMIBIA 29
Background and Political Context 29
Legal and Regulatory Framework 31
Uranium Exploration and Development in Namibia 42
Recent Uranium Production in Namibia 45
Notable Events in Namibian Uranium Production 47
Impacts on Namibias Environment 55
Analysis Trends in Namibian Uranium Production 65
IAD Framework Analysis of Namibias Uranium Industry 66
IV. CONCLUSION 72
Review of the Hypothesis and Predictions 72
Assessing the Predictions and Answering the Research Questions 73
Conclusions 76
REFERENCES 81
vi


LIST OF TABLES
TABLE
1.1 Top Ten Uranium Producing Countries in 2014, in Tons Produced 8
1.2 Top Ten Consumers of Uranium in 2014, in Terrawatt-hours of 9
Electricity Generated from Nuclear
3.1 Namibias Strategic Environmental Management Plan Environmental 39
Quality Objectives and Overall Aims
3.2 Countries and Companies Active in Namibia 41
3.3 Uranium Production in Namibia 2002-2013 44
vii


LIST OF FIGURES
FIGURE
1.1 Uranium Production Worldwide, in Tons Produced per Year 8
1.2 Top Ten Uranium Producing Countries in 2014, in Tons Produced 9
1.3 Top Ten Uranium Consuming Countries in 2014, in Terrawatt-hours of 10
Electricity Generated from Nuclear
3.1 Uranium Production in Namibia 2002-2013 45
3.2 Current Mining and Prospecting Licenses in Namibia 54
3.3 Mines in Namibia 55
3.4 National Parks and Other Protected Areas in Namibia 56
viii


LIST OF ABBREVIATIONS
BEE Black Economic Empowerment
EQO Environmental Quality Objective
EMA Environmental Management Act (Namibia)
EPA Environmental Protection Agency (United States)
IAD Institutional Analysis and Design
IAEA International Atomic Energy Agency
MET Ministry of Environment and Tourism (Namibia)
MME Ministry of Mines and Energy (Namibia)
MPMA Minerals (Prospecting and Mining) Act (Namibia)
MPN Minerals Policy of Namibia
NRC Nuclear Regulatory Commission (United States)
SDAC Sustainable Development Advisory Council (Namibia)
SEMP Strategic Environmental Management Plan (Namibia)
SWAPO South West Africa Peoples Organization
UMTRCA Uranium Mill Tailings Radiation Control Act (United States)
UK United Kingdom
UN United Nations
UNEO United Nations Environment Organization
UNEP United Nations Environment Program
US United States


CHAPTER I
INTRODUCTION
The Role of Uranium in the Global Energy Supply
Uranium, a naturally-occurring radioactive element, is the fuel for nuclear power.
Nuclear power is an important and significant component of the global energy supply;
11.5% of the worlds electricity is generated from nuclear power (World Nuclear
Association, 2015). Many of the worlds biggest consumers of energy draw a significant
percentage of their energy consumption from nuclear power (see Table 1.2 later in this
chapter), and the scale of the energy consumption of those largest consumers magnifies
the effect of the percentage of that energy which is derived from nuclear (see Table 1.2
and Figure 1.3 later in this chapter).
In China, which recently passed the United States to become the worlds largest
consumer of energy, nuclear is second only to coal as a source of energy (Yergin, 2012).
The United States, now the worlds second-largest consumer of energy, relies on nuclear
power for around 20% of its overall energy supply (World Nuclear Association, 2015).
The countries of the European Union are also significant consumers of energy
overall, and of nuclear power specifically, drawing a greater percentage of their energy
from nuclear than the United States does, though still less than the United States in
absolute terms (see Table 1.2 and Figure 1.3 later in this chapter). In France, nuclear
power provides almost 80% of the countrys energy (World Nuclear Association, 2015).
Germany has historically been another significant consumer of nuclear power, though in
recent years it has shifted away from nuclear and towards renewables such as wind and
solar (World Nuclear Association, 2015).
1


Japan relied heavily on nuclear before the Fukushima disaster of 2011. India, while
not a significant historical consumer of nuclear power, has recently shown a strong
interest in increasing its use of nuclear power to meet the increasing energy demands of
its population (World Nuclear Association, 2015).
For the most part, these uranium consumers are in the global North, the wealthiest
and most developed nations. (China and India have not historically been included in the
global North from a wealth or development standpoint, but their enormous populations
put them in the group of the worlds largest energy consumers.) However, for the most
part these uranium consumers do not produce enough of their own uranium domestically
to meet their nuclear power demands, or do not produce any uranium at all, and must rely
on importing uranium from uranium-producing countries (see Tables 1.1 and 1.2 and
Figures 1.2 and 1.3 below; World Nuclear Association, 2015).
Many of the worlds uranium reserves are in countries in the global South, less
wealthy and less developed nations that do not consume as much energy as the global
North countries. (Canada and Australia do not fit this pattern as they are both significant
consumers and significant producers of uranium.) (See Tables 1.1 and 1.2 and Figures 1.2
and 1.3 below; World Nuclear Association, 2015).
The Benefits and Costs of Nuclear Power
Compared to fossil fuels, nuclear power does offer some intriguing benefits, such as
the long-term durability of reactors once built, and the consistency and reliability of
nuclear power compared with renewables, which can be intermittent and require backup
from a more stable source such as nuclear, coal or natural gas.
2


One frequently-mentioned benefit of nuclear power is that nuclear reactors do not
emit any carbon dioxide; some proponents of nuclear power use this fact to argue that
nuclear power is carbon-neutral, or emissions-free (Scheele, 2011; Sovacool and Cooper,
2008). However, this argument becomes problematic when the full life cycle of nuclear
power is taken into consideration. Mining and milling of uranium, the source fuel for
nuclear reactors, not only contribute to carbon emissions, but also require large amounts
of water and can cause serious damage to human health and to the environment.
In addition to energy and water consumption and carbon emissions, uranium mining
and milling have other serious environmental health impacts, especially if performed in a
country with weak or inadequate environmental health protection laws and regulations.
Open-pit mines and milling operations destroy land and ecosystems. Underground
leaching, described later in this chapter, can contaminate groundwater. Both surface and
underground mining and milling can contaminate soil. The damage to environmental
health can last for decades. Finally, uranium is a finite and nonrenewable source fuel
(Abdelouas, 2006; Scheele, 2011; Sovacool & Cooper, 2008).
The Nuclear Power Process
The first step in the nuclear power process is uranium prospecting and exploration.
Once a deposit of uranium-bearing ore has been discovered, the next step is to extract the
ore through mining (discussed in greater detail below). Once ore has been removed from
the earth, the uranium must be separated from the other materials and concentrated. This
process is called milling (discussed in greater detail below). Once the uranium has been
concentrated into a yellow powder called yellowcake, it is transported to a fuel cycle
facility, where it is enriched and converted into fuel for nuclear reactors.
3


Once the fuel in a nuclear reactor has been fully spent, the fuel rods must be carefully
cooled in large tanks of water for two to three years. Then, the cooled rods are stored in
dry casks until they can be transported to more permanent storage. At the moment,
there is no permanent nuclear waste storage facility in the US to accept these cooled rods.
While the issues surrounding nuclear waste handling and storage are significant, they are
outside the scope of this paper and will not be addressed in detail here.
Clearly there is more to the process of producing nuclear energy than simply using
fuel rods to power a reactor. As outlined above, the steps needed to gather the materials
to produce the fuel for the rods, and the steps needed to handle the spent rods, involve
considerable human health risk, energy and material input, and environmental health
damage. If the full life cycle of the fuel is considered, this casts doubt on assertions that
nuclear power is a carbon-free energy source, or a sustainable long-term solution to the
problem of growing global energy demand.
Uranium Mining and Milling
The extraction and processing of uranium, the source material for fuel for nuclear
reactors, pose serious environmental health risks. Soil, water and air can all be
contaminated by radioactive waste from uranium mining and milling. The process, and
potential environmental harms, are described in greater detail below.
Uranium Mining
Mining is the process of extracting uranium-bearing ore from the earth. Worldwide,
ten mines in six countries produce 85% of mined uranium (World Nuclear Association,
2015). These top six producing countries are Kazakhstan, Canada, Australia, Niger,
Namibia and Russia. Other countries, including the US, either are producing uranium or
4


have known recoverable reserves (see Table 1.1 and Figure 1.2 below; World Nuclear
Association, 2015).
Currently there are two methods of uranium mining. One is conventional mining, in
which uranium-bearing ore is removed from the earth and taken elsewhere to be
processed. Conventional uranium mines can be shallow open pits or deep underground
shafts. This is similar to the mining of any hardrock mineral, and is what we usually think
of when we think of mining.
The other method of uranium mining can also be thought of as a method of uranium
milling, since it essentially combines mining and milling into one step. This is called in
situ recovery, or in situ leaching. In this process, wells are drilled into a uranium-bearing
formation and a solution of water, oxygen, hydrogen peroxide and sodium bicarbonate is
injected via the wells into the formation, where it dissolves uranium out of the formation.
The uranium-bearing solution is then pumped to the surface and the solution is dried,
leaving behind the dissolved uranium. This process creates a large amount of liquid waste
that must be transported and stored carefully in licensed wells or evaporation ponds
(Rosa Luxemburg Foundation, 2014; Scheele, 2011).
Uranium Milling
Milling is the process of extracting uranium from mined ore and concentrating it into
a powder that can be enriched. Currently there are three methods of uranium milling.
One, discussed above as a combined mining/milling method, is in situ recovery. The
second is heap leach milling. In this process, pieces of uranium-bearing ore are collected
into large piles and an acidic solution is poured or sprayed over the pile to dissolve and
separate the uranium from the other materials. As the uranium-bearing solution drains
5


down to the bottom of the pile into pipes, it is collected and dried, leaving behind more
highly concentrated uranium. The third is conventional milling, in which ore is crushed
and the uranium is dissolved and concentrated using a sulfuric acid solution. The uranium
is then separated from the solution and dried. Heap leach and conventional milling
produce a large amount of tailings, which are piles of radioactive, sand-like material left
behind by the milling process once the uranium has been extracted (Abdelouas, 2006;
Scheele, 2011).
Tailings produce the highest volume of radioactive waste across the entire cycle
(Abdelouas, 2006), so tailings and other waste must be stored carefully to prevent air
pollution and contamination of soil and groundwater. The US Environmental Protection
Agency (EPA) has identified four exposure pathways from uranium mill tailings. The
first is diffusion of radon gas into indoor air; this is a particular hazard in situations where
tailings have been used as construction material or backfill. The second is diffusion of
radon gas into the atmosphere from an uncovered tailings pile. The third is the release of
gamma radiation. The fourth is dispersal of radioactive materials into surface or
groundwater by wind, water or leaching (EPA, 2013). Toxic heavy metals can also leach
into surface water or groundwater, and groundwater acidification can occur (Abdelouas,
2006). Improper waste disposal is the usual cause of exposure. Dispersal or erosion are
the most common, but other failures can also occur, such as chronic or catastrophic
failure of containment structures; instability or breach of dams; contamination from in
situ leaching; and the use of tailings for construction, or even building structures on top
of tailings piles (Abdelouas, 2006).
6


It takes about 2000 pounds of mined uranium-bearing ore to produce one to five
pounds of fuel-grade uranium {El Paso Natural Gas Company v. U.S., 2011). As higher-
grade ores are mined and milled, mining companies will have to pursue lower-grade ores
and mine and mill the lower-grade ores in greater quantities in order to produce a
comparable amount of uranium. While alternative sources of uranium exist, such as
recovery from nuclear weapons or recycling of spent fuel rods, these sources are not
currently able to keep pace with the increasing demand for uranium (Abdelouas, 2006).
Environmental Health Impacts
As described above, uranium milling is a significant source of radioactive waste, and
uranium mill tailings can cause a variety of harms to the environment. Two common
causes of environmental harms by uranium mill tailings are: seepage of contaminated
waste water into the soil or groundwater when tailings pits are not adequately lined; and
dam failure, in which the containment structure for a tailings pit breaks, allowing
contaminated waste to spill out into the surroundings. Air quality can also be impacted
over great distances when tailings are not properly covered and radioactive dust and
particles are carried by the wind (Abdelouas, 2006; Scheele, 2011).
In addition to the radiation and other contamination dangers from tailings, uranium
mining and milling pose several other threats to environmental health. Open-pit mines
cause dramatic landscape and habitat disturbance, with reclamation back to the original
state of the landscape being almost impossible. Construction of buildings, milling
facilities, tailings piles or ponds, roads to serve the mine, and pipelines for water
contribute further to landscape destruction. The amount of water required by mining and
milling operations put strains on fresh water supplies. Finally, the energy required, both
7


in electricity for the mine and fuel for trucks, is a significant source of carbon emissions
(Scheele, 2011; Stanford Law School & Legal Assistance Center of Namibia, 2009).
The Global Uranium Market
Overview
Global uranium production has slowly and steadily increased over the past ten years
(see Figure 1.1 below; World Nuclear Association, 2015). The global uranium market
consists of a small group of major uranium consumers, a small group of major uranium
producers, and a very small number of countries falling into both the consumer and
producer categories (see Tables 1.1 and 1.2 and Figures 1.2 and 1.3 below).
70000
60000
50000
40000
30000
20000
10000
0
Uranium Production Worldwide
2006 2007 2008 2009 2010 2011 2012 2013
Year
Figure 1.1: Uranium Production Worldwide, in Tons Produced per Year
Data Source: World Nuclear Association, 2015. Figure prepared by Rachael Hamby.
8


Producer Countries
According to data compiled by the World Nuclear Association (2015), the top ten
uranium producers in 2014 are outlined in Table 1.1 and illustrated in Figure 1.2 below.
Table 1.1: Top Ten Uranium Producing Countries in 2014, in Tons Produced
Global rank Country Tons of uranium produced in 2014
1 Kazakhstan 23,127
2 Canada 9,134
3 Australia 5,001
4 Niger 4,057
5 Namibia 3,255
6 Russia 2,990
7 Uzbekistan 2,400
8 United States 1,919
9 China 1,500
10 Ukraine 962
Data Source: World Nuclear Association, 2015. Table prepared by Rachael Hamby.
Top Ten Uranium Producing Countries in 2014
Figure 1.2: Top Ten Uranium Producing Countries in 2014, in Tons Produced
Data Source: World Nuclear Association, 2015. Figure prepared by Rachael Hamby.
9


Consumer Countries
The amount of electricity generated from nuclear power can be used as a proxy to
approximate uranium consumption. According to data compiled by the World Nuclear
Association (2015), the top ten generators of nuclear power in 2014 are outlined in Table
1.2 and illustrated in Figure 1.3 below.
Table 1.2: Top Ten Consumers of Uranium in 2014, in Terrawatt-hours of
Electricity Generated from Nuclear
Global rank Country Terrawatt-hours of electricity generated from nuclear in 2014 Percentage of total electricity
1 United States 798.6 19.5
2 France 418.0 76.9
3 Russia 169.1 18.6
4 South Korea 149.2 30.4
5 China 142.7 2.4
6 Canada 98.6 16.8
7 Germany 91.8 15.8
8 Ukraine 83.1 49.4
9 Sweden 62.3 41.5
10 Spain 54.9 20.4
Data Source: World Nuclear Association, 2015. Table prepared by Rachael Hamby.
10


Top Ten Uranium Consuming Countries in 2014
Figure 1.3: Top Ten Uranium Consuming Countries in 2014, in Terrawatt-hours of
Electricity Generated from Nuclear
Data Source: World Nuclear Association, 2015. Table prepared by Rachael Hamby.
Notably absent from this list is Japan, which generated between 25 and 30% of its
electricity from nuclear in the years leading up to the disaster at Japans Fukushima
nuclear power plant following the tsunami of March 2011, but has produced very little
electricity from nuclear since then (World Nuclear Association, 2015).
The Fukushima disaster had a significant impact on the global uranium market as
Japan temporarily shut down all its nuclear reactors and several other countries took the
opportunity to reevaluate the role of nuclear power in their energy mixes. This led to a
sharp decrease in uranium prices (Hayashi & Hughes, 2013), which in turn led many
mining companies to suspend operations or close projects entirely, and to recalculate the
viability of beginning new projects (Els, 2012). A slight dip in worldwide uranium
production can be seen for the year 2011 in Figure 1.1 above.


In the years following the Fukushima disaster, uranium prices have slowly recovered
as Japan and others have returned to the use of nuclear power, but have yet to return to
pre-2011 levels. Surging demand from China, in particular, as well as more modest
increases in demand from the United States and Russia, may have helped to mitigate the
impact of Fukushima on global demand for uranium overall (World Nuclear Association,
2015).
In general, uranium mining and milling development respond to the global uranium
spot price. As we will see in Chapter III, mining companies regularly mothball facilities
if uranium prices are not high enough for the project to be profitable, and wait until the
price rises to resume operations (Els, 2012). Chinese companies seem to be the exception
to this; with Chinas tremendous energy demand and ambitious pace of construction of
new nuclear reactors, Chinese companies have been willing to continue operations at
times when other companies have chosen to wait for prices to recover. The Husab mine
in Namibia, discussed in Chapter III, is one example of a mine that has continued to
operate at times when other mines were suspending operations (Jamasmie, 2015).
International Regulation
Currently, there is no international regulatory body that governs mining in general
(Kachale, 2011). The International Atomic Energy Agency (IAEA), an agency of the
United Nations, is the international regulatory body for nuclear energy. This includes
uranium mining and milling as part of the nuclear fuel cycle. Environmental health
appears in the IAEAs mission only in the context of protecting human and
environmental health from radiation, as opposed to environmental damage from mining
and milling writ large (IAEA, 2015). One of the questions to be explored in Chapter IV is
12


whether the IAEA is positioned to effectively regulate environmental health, or if another
regulatory body may be needed.
Uranium production is discussed as part of both the Nuclear Energy and Technical
Cooperation programs. Within Nuclear Energy, the IAEA has a Nuclear Fuel Cycle and
Material Section, whose overall goal is to contribute to the sustainable development of
nuclear power.. .by helping Member States to increase sustainable uranium production
[and] better utilize uranium resources (IAEA, 2015). The Technical Cooperation
program is organized by geographical region as opposed to by issue area. Through this
program, the IAEA works with Member States to provide technical assistance in the
states identified areas of greatest need (IAEA, 2015).
International regulation of environmental health in general shows a similar lack of
focus. There is a United Nations Environment Programme (UNEP) but it faces a variety
of challenges. First, the designation as a programme, as opposed to a separate agency
such as the World Trade Organization, means that UNEP does not have an independent
autonomous governing body, and therefore has limited authority to develop and
implement a strategic vision. Internal structural and governance issues have also
hampered the organizations ineffectiveness. Second, funding for UNEP is dependent on
voluntary contributions from UN member states, as opposed to the mandatory
assessments that fund other UN agencies. These voluntary contributions have been falling
over the past twenty years. Third, the UNEP headquarters were placed in Nairobi, Kenya,
isolating it from the rest of the UN and situating it far away from global centers of
environmental work. These factors combined have led to calls for the creation of a
13


stronger United Nations Environment Organization that would address many of these
issues (Ivanova, 2005).
A Regulatory Race to the Bottom?
According to Engel (1997), a regulatory race to the bottom is a relaxation of state
environmental standards, spurred by interstate competition to attract industry (p. 274).
Put another way by Konisky (2007), states will
attempt to reduce the cost of doing business in the state in order to maintain
current industrial production within the state and attract new production. One way
of reducing production costs may lie in minimizing regulatory burdens, thereby
sparking a potential [race to the bottom] in areas like environmental.. .regulation,
(p. 175).
Though it continues to be debated in the literature, many scholars argue that
environmental health regulation in the United States has been the victim of a regulatory
race to the bottom in the past (Engel, 1997; Konisky, 2007; Woods, 2006). Before the
passage of national environmental legislation including the Clean Air Act and the Clean
Water Act, individual states created their own air and water quality regulations. As
companies considered in which state to site new facilities, state governments competed
with each other to attract facilities and the associated jobs. States with more stringent
environmental health regulations were at a disadvantage because the costs of compliance
with their regulations were sometimes higher than in neighboring states. In order to
remain competitive, states were pressured to loosen their regulations in order to attract
businesses and jobs. Eventually, as a result of this downward pressure, environmental
health regulations became so ineffective that Congress passed a series of environmental
14


laws to establish a national floor for environmental health regulation. This minimum
level of regulation across all states removed the economic incentive for state governments
to weaken their environmental health regulations (Engel, 1997; Konisky, 2007; Woods,
2006).
One question to be explored is whether a regulatory race to the bottom is occurring at
a global scale in environmental health regulation of uranium mining and milling.
Uranium consumers have some choice in where they obtain their uranium, though that
choice is somewhat limited by the fact that uranium is found in specific locations on earth
and is a stationary resource until it is removed from the ground. Still, there are many
uranium producers from which consumers can choose (see Table 1.1 and Figure 1.2
earlier in this chapter), and price may be a strong driver in that choice. To compete for
buyers, are uranium-producing countries weakening their environmental health and other
regulations to help keep regulatory compliance costs as low as possible for uranium
producers and help them compete in the global uranium market?
The Phenomenon of Regulatory Capture
Regulatory capture is a phenomenon in which the regulators end up being controlled
by the regulated industry; in other words, the regulatory agency becomes an instrument of
the industry or a rubber stamp for the industrys desired policies, decisions and outcomes.
Regulatory capture can occur in a variety of ways, including: industry participation in
drafting regulations; dilution of existing regulations; and weakening enforcement of
existing regulations (Etzioni, 2009). As with a regulatory race to the bottom, regulatory
capture can seriously undermine a states regulatory regime by resulting in a regulatory
structure that is favorable to industry, or an environment of non-enforcement of existing
15


regulations. I would argue that regulatory capture could become more likely when an
agency is charged with a dual mandate, for example to both regulate and promote an
industry, or when national priorities demand that promotion of an industry take
precedence over regulating it.
Hypothesis
The purpose of the thesis is to explore a hypothesis that uranium-producing countries,
especially those with less-developed economies, may be engaging in a regulatory race to
the bottom, as described above, in uranium mining and milling, in particular in
environmental health protection. In other words, less developed countries may be
choosing to not establish, or not enforce, occupational and environmental health
protection laws and regulations, so that companies can mine and mill uranium more
cheaply and easily, from a legal and regulatory standpoint, than in competitor countries
or countries with more robust environmental health legal and regulatory structures.
As a corollary, uranium-consuming countries may be inadvertently encouraging
environmental destruction abroad by seeking the cheapest possible uranium from
developing countries that can produce uranium more cheaply than other producer
countries, or than those consumer countries could domestically, due to differences in the
environmental health legal and regulatory structures between countries.
Related to both these ideas is the possibility of regulatory capture, described above -
that the agencies and officials charged with regulating uranium mining and milling are in
fact acting more in the service of the industry than of citizens and the environment.
Agencies may be under-enforcing environmental health regulations, turning a blind eye,
16


or enabling destructive behavior by industry because these officials are siding with
industry rather than with the environment and citizens.
The null hypothesis is that no evidence exists to support the hypothesis that such a
race is occurring in uranium production.
To build this hypothesis, I have framed my analysis in comparison to the well-
understood and well-documented phenomenon of the regulatory race to the bottom in
American environmental policy and law, as outlined earlier in this chapter. The specific
hypothesis to be explored through this research is that this same race to the bottom
phenomenon in environmental health protection may occurring with uranium production
globally. Developing nations under tremendous pressure to deliver economic growth to
their populations may be sacrificing environmental health protection in order to attract
development capital by providing an attractive regulatory environment and low costs and
prices. Furthermore, this may be creating a disparity between advanced, industrialized
nations with strong environmental protections in place, and developing nations which are
willing to take much greater environmental risks in pursuit of economic development.
If the evidence does not exist to support this hypothesis, does the evidence point
instead to other factors? These factors may include differences in political or economic
conditions, differences in geology or technology, historical differences, or the influence
of individual actors.
This paper utilizes one case study of the environmental health legal and regulatory
framework in one specific less developed uranium-producing country, Namibia,
compared with an analysis of global uranium production and environmental health
17


protection trends, to explore whether there may be evidence to build and support this
hypothesis.
In addition to providing an updated overview of uranium mining and milling and
environmental health laws and regulations in the case study of Namibia, this research
may indicate whether or not further research into the race to the bottom or regulatory
capture phenomena in environmental health regulation of uranium mining and milling is
warranted. If evidence exists to build and support the hypothesis, this may highlight
particular areas where more study is needed to further develop and test the hypothesis. If
evidence does not exist, perhaps this research will indicate other factors that are leading
to legal and regulatory differences, and indicate the direction in which further research
should proceed. Finally, this project may point to opportunities to slow or halt the
regulatory race to the bottom or regulatory capture through developing a stronger
international legal and regulatory structure or through strengthening existing structures.
Research Question
Using Namibia as a case study, is there evidence to support building a hypothesis that
a regulatory race to the bottom may be occurring in environmental health regulation of
uranium mining and milling worldwide? Using Namibia as a case study, is there evidence
to support building a hypothesis that regulatory capture is occurring in governments of
uranium-producing countries when it comes to environmental health protection?
Prediction
At the beginning of this project, I predicted that a regulatory race to the bottom is
most likely occurring, but that the situation is more complex and that other factors are
influencing uranium mining and milling in addition. The fixed location and immobility of
18


uranium resources may remove some level of international competition. Unlike in the
American example described above, where companies could choose where to site their
facilities according to which regulatory environments were the most favorable, mining
companies cannot choose where the uranium will be, though they can choose which of
the existing deposits to pursue and may take into account the regulatory environment of
the host country as a factor in that decision.
I also predicted that regulatory capture will prove to be common and pervasive in the
less-developed uranium-producing countries, including in the case study country
Namibia.
Selection of the Case Study
Based on Yin (2011), I selected the case study method for two main reasons. The first
is the methods emphasis on the importance of in-depth understanding of a phenomenon
within a complex context. The second is the methods suitability to descriptive or
exploratory research questions.
To explore the issues raised above in greater depth, I selected Namibia as an example
country to examine as a case study in Chapter III. Namibia is the fifth largest producer of
uranium worldwide, and the second largest producer of uranium in Africa after Niger
(World Nuclear Association, 2015). Compared to Niger, Namibia was a more accessible
case study because English is the official language, eliminating the need for, and risks
inherent in, translation of Namibias environmental health laws and regulations.
Namibias relative political stability, especially compared to Niger, also eliminated a set
of potentially complicating variables, such as terrorism or frequent changes in power.
19


Namibia is actively seeking to attract investment in its mining sector and increase
uranium production and exports in the coming years (Ministry of Mines and Energy,
2003; KPMG, 2015). It is also one of the few countries in the world that has included
natural resource conservation and protection in its constitution (Republic of Namibia,
1990). Mining is a large sector of the economy, but tourism, in particular game hunting
and ecotourism, is a growing sector of Namibias economy as well, Given this, it would
seem that Namibia should have an interest in protecting its natural resources in order to
continue to attract tourists and related economic development.
Organization of the Thesis
This introductory chapter has provided background and context for the topic of this
paper, presented the hypothesis, and explained the rationale for the selected case study.
Next, Chapter II will provide a review of the literature, focusing in particular on: a
theoretical framework for the research and analysis; technical background and analysis of
uranium mining and milling; historical perspectives on resource extraction in developing
countries; differences and shifts in attitudes towards the value of environmental health
protection in developing countries; the legal and regulatory challenges developing
countries face as they strive to balance economic development to provide for their
citizens now, with environmental protection to provide for their citizens in the future; and
development and testing of the race-to-the-bottom and regulatory capture theories.
Following the review of the literature, Chapter III contains a case study of
environmental health regulation of uranium mining and milling in Namibia, including an
analysis of regulations on the books as compared to practice on the ground. Finally,
Chapter IV provides an analysis of the research presented in the first three chapters,
20


draws conclusions as to the validity of the hypothesis laid out in Chapter I, and offers
possible solutions at the international and national levels as well as suggestions for future
research.
21


CHAPTER II
REVIEW OF THE LITERATURE
Theoretical Framework Institutional Analysis and Design
The Institutional Analysis and Design framework developed by Ostrom provides a
theoretical basis for this research. The three key elements that IAD helps scholars to
focus on are institutions, incentives, and outcomes. There are multiple levels of
institutions and rules, and therefore there can be multiple levels of analysis. The IAD
framework provides a structure to help scholars identify and analyze a variety of factors
and variables. Using the IAD framework, one can identify the action arena and rules-in-
use within formal and informal institutions; identify and analyze incentives, patterns of
interactions, and outcomes; and evaluate those outcomes against a set of criteria and
suggest institutional changes that might modify those outcomes (Sabatier, 2007).
Andersson (2006) provides a helpful example of how to apply the IAD framework in
a real-world situation. For Andersson, the IAD framework is helpful in studying how
variations in institutional arrangements influence natural resource governance.
Examining decentralized forest governance in Bolivia, Andersson walks through each
step of the IAD framework: who are the actors? What are the physical conditions? What
are the socioeconomic conditions? What are the rules-in-use of local institutional
arrangements? What are the patterns of interactions and conditions for learning? By
walking through these steps, Andersson was able to identify the key variables that
contribute to cases of successful governance.
22


Technical Analysis and Documentation of Environmental Impacts
Several articles provide a helpful technical overview of the uranium mining and
milling process and the technical and environmental challenges. Abdelouas (2006)
outlines the major health and environmental health risks posed by uranium mill tailings.
Waggitt (1994) provides an overview of historical practices in several countries,
including Namibia. Mudd and Diesendorf (2008) review the state of global uranium
exploration and mining prospects and highlight the technical and environmental
challenges the industry will face in the coming years and decades.
Sovacool and Cooper (2008) provide a helpful overview of the impacts of uranium
mining and milling on the environment, situating these impacts in the larger context of
the nuclear fuel cycle. Scheele (2011) also offers a helpful overview of the human and
environmental health risks posed by uranium mining and milling, with a focus on
Namibia and other African countries.
Historical Perspectives
Hecht (2012) traces the history of the development of the uranium industry in Africa
and the relationships between African uranium industries and European nuclear
industries. A central part of her thesis is that European nuclear powers made conscious
efforts to exclude uranium mining and milling from the nuclear process, so that they
could more easily control the uranium industry and avoid the development of an
international regulatory structure for uranium. According to Hechts historical research,
many of the regulations that were put in place in individual countries were largely shaped
by the mining companies, since they were often the only sources of expertise in the
country at the time. Hecht also shows that tension between economic development,
23


public health, and environmental protection has existed since the earliest days of uranium
mining in Africa. The challenge has been, and continues to be, how to balance todays
economic development needs with tomorrows public and environmental health
protection.
Bush (2008) explores the resource curse the inverse relationship between
resource availability and economic performance. The evidence suggests that resource
wealth does not translate into wealth for the general population. Bush suggests that a
system of neo-mercantilism may be emerging in which developed nations source their
raw materials from less developed nations, but the more advanced and lucrative
processing of those materials is done in the developed countries, thus keeping poor
countries poor despite their raw material wealth. Many countries assume that resource
wealth will enable them to meet the development needs of their populations, despite
historical examples of this not happening as hoped in other countries in the past.
Similarly, Jike (2004) argues that the livelihood of the general population is generally
not improved by the discovery and exploitation of natural resources, resulting in a
development enigma in which resource-rich countries tend to be poorer and less
developed despite their natural resource wealth. In the absence of binding international
standards, the current system of natural resource exploitation as an all-comers game is
certain to have serious environmental consequences.
Differences and Shifts in Attitudes
Walter and Ugelow (1979) provide a review of the different pressures countries face
that may lead different countries to assign different social weights to the same factors, as
a result of different circumstances and pressures. Walter and Ugelow write that
24


environmental quality is income-sensitive and therefore that societies may differ as to
what is an acceptable level of environmental quality depending on their income levels.
Few pressures exist to encourage or discourage more stringent environmental standards;
therefore, countries will respond to the most immediate development needs of their
populations first before turning their attention to environmental protection.
Bridge (2004) argues that the definition of environment has broadened, and that
compliance with existing regulations is no longer sufficient to satisfy societys
heightened expectations. Bridge also touches on the resource curse and the treasure
chest theory of resource extraction as a starting point for economic development.
According to Bridge, this theory has been disproven in multiple cases in which mining
has failed to perform as a development agent across a variety of regime types. States
usually share the same interests as mining companies namely, to generate revenue -
and fail in their duty to protect their populations and environments. Mining companies
rely on the authority of the state to confer legitimacy on their mining operations, but
Bridge also points to some opportunities for mining companies to act independently of
states. Bridge argues that the production of mining waste signals inefficiency in mining
operations and therefore presents an incentive for companies to find ways to increase the
efficiency of their mining operations, thereby increasing their own profits while
simultaneously delivering an environmental health benefit to the states in which they
operate.
Legal and Regulatory Challenges
du Rand (2008) points out two aspects of the uranium mining industry in Africa that
make the continent particularly attractive to mining companies. The first, a more
25


technical point, is that uranium deposits are closer to the surface than on other continents.
This means that the timetable from discovery to extraction is shortened relative to mines
elsewhere, and the extraction process is less technically challenging. A shorter timetable
translates into greater profits for the mining company. The second aspect of uranium
mining in Africa that makes the continent attractive to industry is that many countries
where uranium is found do not have comprehensive regulatory processes in place
governing mining. Obtaining the necessary government approval or permits is, therefore,
simpler and less expensive than it would be in a country that has a more comprehensive
regulatory structure in place.
Kachale (2011) both provides an excellent model for a case study and also highlights
some of the existing legal and regulatory challenges in the international uranium industry.
The existing structure involves a patchwork of international conventions and treaties that
govern uranium mining only tangentially (i.e. agreements deal with environmental health
protection, human rights, or radiation, but no agreement deals specifically with mining)
and different states are signatories to different combinations of treaties and conventions.
The result is that there is no system of minimum international standards for mining. The
primary challenge, according to Kachale, is that the principle of state sovereignty over
natural resources is internationally accepted and ingrained, making it difficult for an
international body to impose regulations on what individual states do with whatever
natural resources they have. A secondary challenge is that even if states were to accept
regulation at the international level, regulations will have to be crafted carefully to be
outcome-oriented and to ensure accountability. Kachale argues for a binding international
26


instalment with minimum standards that would create a level playing field for all nation
states.
Race-to-the-Bottom and Regulatory Capture Theory
In analyzing the history of environmental regulation in the United States, some
scholars have offered the theory that the absence of a comprehensive nationwide
regulatory regime for environmental protection created an atmosphere in which industry
was able to influence states to loosen their environmental regulations in order to create a
more attractive regulatory compliance climate for business and industry. This theory is
summarized and developed well by Engel (1997), Konisky (2007) and Woods (2006),
among others.
The phenomenon of regulatory capture is often explored in the context of the
financial industry, but can be applied to other economic sectors as well. Etzioni (2009)
provides a summary of regulatory capture theory and the different forms regulatory
capture can take. Most relevant to this paper are: industry participation in drafting
regulations; dilution of existing regulations; and weakening of enforcement of existing
regulations.
Summary
From reviewing the literature, a few themes emerged that have guided my approach
to answering the research questions in Chapter I and drawing conclusions from my
analysis. Overall, the IAD framework provided a template for identifying key factors and
variables, organizing the analysis of the case study findings, and proposing solutions to
address the institutional and incentive problems that emerged from the analysis.
27


Clearly, uranium mining and milling pose significant threats to human health and to
the environment, which should be taken into consideration as the world considers the role
of nuclear in the global energy mix (Scheele, 2011; Sovacool and Cooper, 2008). In less-
developed countries, these environmental harms may be just one of a set of legitimate
and serious problems faced by citizens as they strive towards the development levels and
quality of life taken for granted by citizens of developed countries (Walter & Ugelow,
1979).
While economic development and environmental protection are sometimes presented
as two mutually exclusive ideals, my conclusion from reviewing the literature is that this
is a false choice. Resource extraction has failed to be the guaranteed economic driver that
many countries have hoped for, and in fact sometimes natural resources can be a curse
that locks a country in to dependence on the simple step of extracting raw materials, only
to see those materials exported for more lucrative processing elsewhere (Bridge, 2004;
Bush, 2008; Jike, 2004). My suggestion is that environmental protection, on the other
hand, may be a way for developing countries to invest in a sustainable resource that could
allow them to develop their economies in other directions such as tourism.
For reasons that are complex, international regulation has so far been unsuccessful in
safeguarding against environmental damage from natural resource extraction (Hecht,
2012; Kachele, 2011). This lack of regulation may be enabling, or contributing to, a
regulatory race to the bottom (Engel, 1997; Konisky, 2007; Woods, 2006). Clearly, there
remains a need for a strong and comprehensive regulatory structure to create an
international floor that would level the playing field for developing countries (Kachale,
2011).
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CHAPTER III
CASE STUDY NAMIBIA
Background and Political Context
Namibia spent much of the 20th century as a colony, first as a colony of Germany
starting in World War I and then as a colony of South Africa following World War II.
After a 25-year guerrilla war led by the South West Africa Peoples Organization
(SWAPO), Namibia gained independence from South Africa in 1990. Since gaining
independence, Namibia has enjoyed relative stability, especially compared to other
African regions. The government is a multiparty parliamentary democracy (though
SWAPO has won every election since independence). Former President Hifikepunye
Pohamba, who stepped down in 2015 after serving two terms, was the recipient of the
2015 Mo Ibrahim prize for African leadership. Current President Hage Geingob has
previously served as Prime Minister and as Minister of Trade and Industry (BBC, 2015).
Ministries
Of the Namibian governments ministries, two are key players in uranium mining and
environmental health regulation: the Ministry of Environment and Tourism, and the
Ministry of Mines and Energy.
The Ministry of Environment and Tourism has as its mission to maintain and
rehabilitate essential ecological processes and life-support systems, to conserve biological
diversity and to ensure that the utilization of natural resources is sustainable for the
benefit of all Namibians, both present and future, as well as the international community,
as provided for in the Constitution (Ministry of Environment and Tourism, 2015).
Current Minister Pohamba Shifeta is an attorney and political scientist who previously
29


served as Deputy Minister, and before that was Deputy Minister of Youth, National
Service, Sport and Culture. Shifeta attracted media attention in the summer of 2015 for
allowing the trophy killing of a black rhinoceros (a species that is critically endangered
due in part to poaching). Citing the Namibian Constitutions support for sustainable use
of Namibias natural resources, he defended the decision by pointing out that the rhino
that was allowed to be hunted was an old male that was likely to kill rhino calves (New
Era, 2015).
The Ministry of Mines and Energy has two main responsibilities. One is to promote
and facilitate resource exploration and development, including attracting private
investment, providing geoscientific information support, and managing a title system.
The other is to regulate and monitor Namibias extractive industry including collecting
royalties and ensuring that safety, health and environmental standards are consistent with
laws and regulations (Ministry of Mines and Energy, 2015). Namibias current Minister
of Mines and Energy, Obeth Kandjoze, has a background in the petroleum industry,
including serving as Managing Director of the National Petroleum Corporation of
Namibia. Namibias current Mining Commissioner, Erasmus Shivolo, has a background
in engineering. He currently serves on the board of directors of Rossing Uranium Limited
(Rio Tinto, 2016).
The dual mandate of promote and facilitate but also regulate and monitor may be
problematic, as it is sometimes difficult for these two functions to coexist effectively.
Given the governments overall prioritization of economic development (described in
further detail below), successful promotion and facilitation of resource development
aligns better with this focus than effective regulation and monitoring, especially when
30


regulation comes into conflict with promotion. This may be a significant contributing
factor to the possible regulatory capture in Namibias mining industry.
Vision 2030
In 2004, the Namibian government finalized Vision 2030, a 25-year plan that outlines
the governments vision and priorities for Namibias development. Vision 2030 identifies
eight themes that drive the nations planning objectives, all within the context of
economic development:
Inequality and social welfare;
Peace and political stability;
Human resources development and institutional capacity building;
Macro-economic issues;
Population, health and development;
Natural resources and environment;
Knowledge, information and technology;
External environment factors (Government of Namibia, 2004).
Legal and Regulatory Framework
The Namibian Constitution
Namibia gained independence from South Africa in 1990 and ratified its new
constitution that same year.
Chapter 11, Principles of State Policy, Article 95, Promotion of the Welfare of the
People, states that
[t]he State shall actively promote and maintain the welfare of the people by adopting,
inter alia, policies aimed at.. .maintenance of ecosystems, essential ecological
31


processes and biological diversity of Namibia and utilization of living natural
resources on a sustainable basis for the benefit of all Namibians, both present and
future (Government of Namibia, 1990).
Chapter 10 establishes an Ombudsman whose functions, outlined in Article 91, include,
among others,
the duty to investigate complaints concerning the over-utilization of living natural
resources, the irrational exploitation of non-renewable resources, the degradation and
destruction of ecosystems and failure to protect the beauty and character of Namibia
(Government of Namibia, 1990).
Minerals (Prospecting and Mining) Act of 1992
The Minerals (Prospecting and Mining) Act (MPMA), #33 of 1992, covers the
reconnaissance, prospecting, mining, disposal and control of minerals in Namibia. The
MPMA mainly deals with processes such as pegging claims and obtaining various levels
of licenses. Because uranium is a controlled mineral, some of these provisions do not
apply to uranium mining. However, some provisions in the MPMA do touch on
environmental health issues and apply to all mining, including uranium.
The MPMA establishes a Minerals Board of Namibia, which serves an advisory
function to the Mining Commissioner. The Chamber of Mines of Namibia is given two
nominations to the Board; in contrast, there is no requirement that environmental interests
be represented on the Board. The Board must keep records of its proceedings, but is not
required to make those records public.
In general, the application process for prospecting or mining licenses includes an
environmental protection provision. Section VIII, Mineral Licenses, outlines the
32


requirements for environmental impact assessments and environmental management
plans. This section mentions that the Minister of Mines and Energy may give directions
regarding environmental protection, at his or her discretion. Section XVII, General
Provisions, covers liability for environmental damage. According to this section, any
spills, pollution, or other damage must be reported, and the polluter must remedy the
damage at the polluters own cost and in accordance with good practices (which are not
defined in the legislation). As with Mineral Licenses, the Minister of Mines and Energy
has the discretion to give directions or to undertake a remedy he or she feels is
appropriate and go to court to recoup the costs from the polluter (Government of
Namibia, 1992).
Minerals Policy of Namibia (2003)
The Minerals Policy of Namibia (MPN) was released by the Ministry of Mines and
Energy in 2003. It predates the Environmental Management Act, described below, which
was passed in 2007 and went into effect in 2012. The goal of the MPN was to create a
conducive and enabling legislative, fiscal and institutional environment to attract private
sector driven exploration. The topics covered include: an overview of the mining
industry; value addition; marketing and investment promotion; the mining industry and
the environment; human resources; research, development and technology; governance of
the sector; and regional integration.
Part 5 of the MPN covers mining and the environment. According to the MPN, as of
2003 [t]here is little effective environmental management within the Namibian mining
industry. The Ministry of Mines and Energy views Namibias lack of environmental
regulations as a deterrent to investment because of the risk of publicity for poor
33


environmental practices. Specifically, the MPN cites the need to bring Namibias
environmental regulations in line with those of the Southern African Development
Community and with those required by the World Bank, as a way to make Namibias
mining industry more appealing to international investors.
The MPN sets the following objective for Part 5: Government will ensure that the
development of Namibias mining industry proceeds on an environmentally sustainable
basis. The MPN does not include a definitions section, so environmentally
sustainable is left undefined by this document. However, the MPN also calls for
legislation to regulate the mining industry that is benchmarked against environmental
global best practice.
Despite these admirable goals, the MPN as a whole makes it clear that the
government is to prioritize the creation of a friendly and inviting environment for
investment in its mining industry; the environmental regulation measures are included as
a means to make the investment climate more appealing (Ministry of Mines and Energy,
2003).
Environmental Management Act of 2007
The Environmental Management Act (EMA), #7 of 2007, was passed in December
2007, but did not take effect until February 2012, just over four years after being passed.
This implementation timeline actually is the result of a fast-tracking of the
implementation in response to reports of significant pollution from the Tsumeb copper
smelter (Goitom, 2012).
The stated goal of the EMA is to promote sustainable management of the
environment and use of natural resources, and to establish principles for decision-making.
34


Among other things the law creates a Sustainable Development Advisory Council, as
well as an Environmental Minister, Environmental Commissioner and Deputy
Commissioner, and lays out the requirements and process for environmental assessments
and control of activities with significant effects on the environment.
Part I of the EMA provides definitions of several key terms. A few notable definitions
include:
environment: the complex of natural and anthropogenic favors and elements that
are mutually interrelated and affect the ecological equilibrium and the quality of
life;
significant effect: having, or likely to have, a consequential qualitative or
quantitative impact on the environment, including changes in ecological,
aesthetic, cultural, historic, economic and social factors;
sustainable development: human use of a natural resource, whether renewable or
non-renewable, or the environment, in such a manner that it may equitably yield
the greatest benefit to present generations while maintaining its potential to meet
the needs and aspirations of future generations including the maintenance and
improvement of the capacity of the environment to produce renewable resources
and the natural capacity for regeneration of such resources.
Part I also states the laws three main objectives: 1) that significant effects on the
environment be considered carefully and in a timely manner; 2) that interested and
affected parties be able to participate in the environmental assessment process in a timely
manner; and 3) that the findings of any environmental assessment be taken into account
before a decision is made.
35


Part II of the EMA establishes Namibias principles of environmental management.
These principles are to guide implementation of the EMA and any other environmental
protection law, serve as a framework for environmental plans, and provide guidelines for
any decision made in terms of the EMA or any other environmental protection laws. The
list of principles is long and broad, and includes the following:
Renewable resources used on a sustainable basis;
Community involvement in management and sharing of benefits;
Participation of all interested and affected parties, with their input being taken
into account in any decision-making;
Equitable access to natural resources, and integrity of ecosystems to ensure
sustainability and prevent harm;
Assessment required for any activities with significant effects on the
environment (as defined in Part I);
Promotion of sustainable development;
Protection of cultural and natural heritage, including biological diversity;
Adoption of the option that causes the most benefit or the least damage to the
environment, at an acceptable cost to society;
Reduction of waste and pollution;
Costs of environmental damage must be paid by whomever caused the damage
(polluter pays principle);
Lack of scientific certainty is not an excuse for inaction;
Reduction, limitation and control of activities that cause environmental damage.
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Part III of the EMA outlines the functions and powers of the Environmental Minister.
These include:
determining, preparing and publishing policies, objectives and standards;
coordinating environmental management at the national level;
monitoring and ensuring compliance with the EMA.
Part IV of the EMA establishes the Sustainable Development Advisory Council
(SDAC). The purpose of the SDAC is to promote cooperation and coordination and to
advise the Minister of Environment on a variety of topics, including:
development of policy and strategy;
conservation of biological diversity;
sustainable development;
monitoring compliance with environmental management principles;
new legislation.
Part V of the EMA outlines the functions and powers of the Environmental
Commissioner and other environmental officers that the Commissioner may appoint. The
selection criterion for the Environmental Commissioner is someone suitably qualified
and experienced in environmental matters. The duties of the Environmental
Commissioner include:
advising the Minister of Environment on environmental plans;
receiving and recording applications for environmental clearance certificates, and
issuing certificates;
determining whether an environmental assessment is required, and determining
the scope, procedure and methods for environmental assessments;
37


reviewing the environmental assessment reports;
maintaining records of environmental assessments and certificates;
conducting inspections to monitor compliance.
This section also covers the Commissioners powers regarding inspections. In general,
reasonable grounds for inspection must be shown and a warrant must be obtained from
Namibias High Court or from a magistrate, though there are some exceptions to this
policy.
Part VI of the EMA covers environmental plans. The objectives of environmental
plans are to harmonize among different agencies to minimize duplication and promote
consistency, and to enable monitoring. The Minister of Environment determines which
government agencies must prepare environmental plans. The Environmental
Commissioner reviews plans and either recommends approval or lists changes needed.
The Commissioner also monitors compliance with the plans. Agencies must report to the
Environmental Commissioner on the implementation of their environmental plans.
Part VII of the EMA introduces environmental assessments. The Minister of
Environment determines which activities require an environmental clearance, and may
grant exemptions. Interestingly, the minister of a government agency may approve
his/her own agencys environmental clearance application. Part VIII provides more detail
about the environmental assessment process. As mentioned in Part V, the Environmental
Commissioner determines whether an assessment is required, as well as the scope,
procedures and methods for the assessment. Environmental assessments are conducted at
the expense of the applicant. The assessment process includes a requirement that the
38


public be notified of the assessment and given the opportunity to comment; the
Commissioner may also require a public hearing.
Once the assessment has been completed, the Commissioner reviews it and either
grants or denies an environmental clearance. Clearances are valid for up to three years.
There is a process for amending an environmental clearance, which either the applicant or
the government may initiate. Clearance holders may apply to transfer clearances to
another party. The Environmental Commissioner has the power to suspend or cancel
environmental clearances, and to reinstate clearances.
Finally, Part IX and Part X cover special and general provisions. One of these is that
the Minister of Environment may introduce legislation or promulgate regulations
regarding any international environmental agreements to which Namibia is a party, and
this includes assigning responsibilities to other agencies. These sections also outline the
appeals process for decisions: decisions made by the Environmental Commissioner may
be appealed to the Minister of Environment, and decisions made by the Minister of
Environment may be appealed to the High Court of Namibia (Government of Namibia,
2007).
Overall, the EMA is built upon well-intentioned and admirable principles of
environmental management. However, the vague nature of some of the sections and the
discretion afforded the environmental officers may reduce the efficacy of the law.
Furthermore, other elements of Namibias legal and regulatory regime such as the
MPMA and MPN, both described above, call for the prioritization of economic
development, particularly as relates to mining and minerals development. These
conflicting mandates are likely to force choices between environmental protection on the
39


one hand, and economic development on the other. Despite Namibias clear good
intentions regarding environmental protection, in the short term it seems likely that
economic development will take priority.
Strategic Environmental Assessment and Management Plan 2011-2012
In 2009, the Geological Survey of Namibia (part of the Ministry of Mines and
Energy) embarked on a strategic environmental assessment and management plan process
for the Uranium Rush, the sudden uptick in interest in Namibias uranium resources
beginning in 2006 as global uranium prices began to increase. A permanent Strategic
Environmental Management Plan (SEMP) Office and Steering Committee were
established to produce the plan, and to monitor and report on compliance with the plan
and progress towards goals. The first SEMP was released in 2011; the first SEMP report
on progress towards the outcomes and indicators laid out in the SEMP was published in
February 2013 (Geological Survey of Namibia, 2013).
The SEMP identifies twelve Environmental Quality Objectives (EQO). For each
objective, the SEMP lays out overall aims and desired outcomes, then targets and
indicators. Some of the EQOs are only indirectly related to environmental health. Table
3.1 below presents a list of the EQOs, in the order in which they appear in the SEMP; for
those directly related to environmental health, the overall aim is included.
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Table 3.1 Namibias Strategic Environmental Management Plan Environmental
Quality Objectives and Overall Aims
Environmental Quality Objective Overall Aim (if directly related to environmental health)
Socioeconomic development
Employment
Infrastructure
Water To ensure that the public have the same or better access to water in future [sic] as they have currently, and that the integrity of all aquifers remains consistent with the existing natural and operational conditions (baseline). This requires that both the quantity and quality of groundwater are not adversely affected by prospecting and mining activities.
Air quality and radiation N/A discussed in relation to worker and public health, but not environmental health
Health N/A discussed in relation to worker and public health, but not environmental health
Effect on tourism The natural beauty of the desert and its sense of place are not compromised unduly by the Uranium Rush; and to identify ways of avoiding conflicts between the tourism industry and prospecting/mining, so that both industries can coexist in the Central Namib.
Ecological integrity The ecological integrity and diversity of fauna and flora of the Central Namib is [sic] not compromised by the Uranium Rush. Integrity in this case means that ecological processes are maintained, key habitats are protected, rare and endangered and endemic species are not threatened. All efforts are taken to avoid impacts to the Namib and where this is not possible, disturbed areas are rehabilitated and restored to function after mining/development.
Education
Governance
Heritage and future
Mine closure and future land use To maximize the sustainable contribution mines can make post closure to society and the region, and to minimize the social, economic and biophysical impacts of mine closure.
Data Source: Geological Survey of Namibia, 2013. Table prepared by Rachael Hamby
41


While the SEMP is an important step forward, it does have some troubling aspects.
First, the majority of data collected during the reporting process was provided by the
mining companies or by the Uranium Institute, an arm of the Namibian Uranium
Association which is an industry advocacy group. Independent verification of data, if it
occurred, was not discussed in the SEMP report (Geological Survey of Namibia, 2013).
Second, the wording of many of the objectives seems sufficiently vague, with enough
loopholes, that the indicators may be either easy to meet, or hard to prove that they were
not met, or both.
In essence, the SEMP reporting process asked mining companies questions along the
lines of, Did you make every practicable effort, within reason, to safeguard the
environment? to which the mining companies responded along the lines of, Yes, we made
every practicable effort, within reason, to safeguard the environment. Based on this
exchange, the SEMP report would then declare that this indicator had been met.
The self-reporting process and the vague language of the SEMP would appear to
make enforcement more difficult. It is often impossible to prove a negative, and it seems
that it would be difficult for the SEMP office to prove that a mining company did not
meet requirements such as the requirement to consider environmental concerns during
its decision-making process.
Uranium Exploration and Development in Namibia
Countries and Companies Active in Namibia
Table 3.2 summarizes countries with major active uranium exploration and/or
uranium development and production projects in Namibia.
42


Table 3.2 Countries and Companies Active in Namibia
Country Uranium Projects in Namibia
Namibia In 2011, the Namibian government declared that uranium is one of the strategic minerals of Namibia. Furthermore, the government decreed that the state mining company, Epangelo Mining, must be a partner in all uranium development projects. Following an outcry from the mining industry, the government clarified that this policy applied only to new projects, and did not retroactively apply to existing projects. Still, the Namibian government is a partner in many of the countrys current uranium projects. Private Namibian companies have partnered with other companies on exploratory projects.
Australia Paladin Energy, based in Australia, owns one of Namibias three producing uranium mines, Langer Heinrich. (Rossing, owned by British company Rio Tinto, and Husab, owned by Chinese company Taurus Minerals, are the others.) Australian companies also own several smaller exploratory projects.
UK London-based Rio Tinto owns the majority of Rossing, one of Namibias three producing uranium mines and the first uranium mine developed in Namibia.
China Taurus Minerals, a subsidiary of China General Nuclear Uranium Resources, is the 90% owner of the Husab project. A subsidiary of the Chinese National Nuclear Corporation holds a 25% stake in Australian company Paladins Langer Heinrich project; another subsidiary is developing an exploratory project in partnership with a Namibian company.
France French company Areva is the owner of the Trekkopje project. The project is beyond the exploratory stage and has received a permit for mining to begin, but Areva continues to delay the start of production due to low uranium prices; the project is mothballed until prices make production economically viable.
South Africa South Africa holds a 10% stake in Rio Tintos Rossing mine.
Iran The Iranian Foreign Investment Company owns a 15% stake in Rio Tintos Rossing mine. The Namibian government negotiated with the Iranian government to hold Irans share in trust while United Nations sanctions against Iran are in force.
Canada Two exploratory projects are being developed by Canadian companies.
Data Source: World Nuclear Association, 2015. Table prepared by Rachael Hamby
43


Current Uranium Projects in Namibia
Namibia is home to a few major uranium projects and several other smaller,
exploratory ones. Namibias major uranium projects are some of the largest in the world.
Three mines are producing uranium currently: Rossing, Langer Heinrich, and Husab.
Rossing and Langer Heinrich combined are capable of producing 10% of the worlds
uranium. The Trekkopje mine has been mothballed until international uranium prices are
higher. The rest of the projects are exploratory (World Nuclear Association, 2015).
Namibias current uranium projects include:
Rossing Mine, Rio Tinto (UK, Iran, South Africa, Namibia)
Langer Heinrich Mine, Paladin Energy (Australia, China)
Husab Mine, Taurus Minerals (China)
Trekkopje Mine, Areva (France)
Exploratory projects, not yet producing any uranium, include:
o Omahola and Tubas projects, Deep Yellow (Australia)
o Etango project, Bannerman Resources (Australia)
o Marenica project, Marenica Energy (Australia), Areva (France) and
Hanlong (China)
o Zhonghe project, Zhonghe Resources (China, Namibia)
o Norasa project, Forsys Metals (Canada)
o Cape Cross project, Xemplar Energy (Canada) (World Nuclear
Association, 2015.)
Informal mining, in which individuals or small groups will attempt to recover
additional minerals from tailings, occurs in Namibia. In many cases, these small-scale or
44


informal miners operate illegally without any mining licenses or environmental permits.
For some, the process is too difficult and complex; others are simply unaware that a
process exists. Either way, these activities cause additional harms to the environment, use
water and energy, and pose serious threats to the health of small-scale and informal
miners. These operations are even more difficult to monitor than the large-scale industrial
mines that the Namibian government is already struggling to monitor (Angula, 2007).
Recent Uranium Production in Namibia
Table 3.3 and Figure 3.1 below summarize uranium production in Namibia from 2002
to 2013, and highlight any notable events that correlate with significant increases or
decreases in production in a given year.
45


Table 3.3: Uranium Production in Namibia 2002-2013
Year Production (tU) Change from previous year (tU) Notable events
2002 2233
2003 2036 -197
2004 3038 +1002 Minerals Policy of Namibia was finalized in 2003.
2005 3147 +109
2006 3077 -70
2007 2879 -198
2008 4366 +1487 Production increases in response to rising uranium prices starting in 2006.
2009 4626 +260
2010 4496 -130
2011 3258 -1238 Uranium declared a strategic mineral of Namibia; however, strikes at Rossing contribute to a significant dip in production; Fukushima disaster contributes to decline in uranium prices; Black Economic Empowerment (BEE) legislation and a mining tax increased were proposed, then abandoned following an outcry from industry.
2012 4495 +1237 Uranium prices remain low, but no major strikes, allowing industry to recover from the previous year; abandonment of BEE and tax increase provides certainty to the industry.
2013 4315 -180
Total change in production from 2002-201; : +2082 tU
Data Source: World Nuclear Association, 2015. Table prepared by Rachael Hamby.
46


Uranium Production in Namibia
5000
4500
4000
3500
3000
2 2500
2000
1500
1000
500
0
2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
Year
Figure 3.1: Uranium Production in Namibia 2002-2013
Data Source: World Nuclear Association, 2015. Figure prepared by Rachael Hamby.
Notable Events in Namibian Uranium Production
Early Exploration and Production
Uranium was first discovered in Namibia in 1928, but official organized exploration
did not begin until 1966 when Rio Tinto began its exploration of the Rossing deposit.
This led the development of the Rossing mine which began production in 1976
(Jamasmie, 2015). Since then, further exploration and estimates have determined that
Namibia contains 5% of the worlds total uranium resources, and is capable of 10% of
global uranium production. This makes Namibia the fifth largest producer of uranium in
the world and the second largest producer of uranium in Africa after Niger (World
Nuclear Association, 2015). It has been predicted that uranium will eventually overtake
diamonds as Namibias top foreign currency-earning commodity (Mining.com, 2011),
though this prediction was made in 2011 when uranium prices were still high; whether
this prediction comes true or not will depend largely on the international market price for
47


uranium. Namibia became a member of the International Atomic Energy Association
(IAEA), the international governing body for nuclear energy, in 1983. Namibia has set a
goal of supplying its own nuclear electricity by 2018, which if achieved would allow
Namibia to decrease its dependence on South Africa for electricity generation (World
Nuclear Association, 2016).
2004 Minerals Policy of Namibia Is Finalized
In 2003, the Namibian government finalized the Minerals Policy of Namibia (MPN),
discussed earlier in this chapter. The MPN establishes increased mineral development as
a clear priority for the country. The policy emphasizes the need to create an inviting
economic and political climate that will attract foreign investment in Namibias mining
sector. Environmental health regulation is mentioned in the context of improving
Namibias investment climate; according to the MPN, poor environmental management
has the potential to draw negative publicity, which would be a deterrent to investment.
Environmental health protection is presented as a tool to improve the attractiveness of the
investment climate in Namibia. Minerals development, however, is the primary end goal
of the Namibian government (Ministry of Mines and Energy, 2003).
2008-2011 Production Increases; BEE and Tax Increase Proposed, then Abandoned
Uranium production in Namibia increased significantly from 2007 to 2008, and
production remained high through 2010. In addition to continued production at existing
projects, important new developments included the announcement of French nuclear
company Arevas new Trekkopje project, and an announcement by Russia of $1 billion in
planned investments in uranium exploration in Namibia to fuel a nuclear reactor being
built in Turkey (Mineweb, 2010).
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Recognizing the opportunity presented by significantly increased uranium production,
the Namibian government declared uranium to be a strategic mineral of Namibia. The
government also proposed three policy changes that proved to be highly controversial and
provoked an outcry from the mining industry. In response to the mining industrys
complaints, all three policies were reversed, altered, or abandoned (World Nuclear News,
2011).
The first was Black Economic Empowerment (BEE) legislation for the mining
industry. Introduced in Namibia in 2009, the legislation required that mining companies
set aside 25% of shares for black investors. Mining companies asserted that there were
not enough black investors with enough assets to meet this standard, and that the policy
would cause mining in Namibia to grind to a halt (Flak, 2009). Due in part to the mining
industrys opposition, the legislation was not passed. In 2011 the government proposed a
similar policy, the New Equitable Economic Empowerment Framework, which drew a
similar reaction from the mining industry. That policy was also not adopted (Finweek,
2013).
The second was an increase in the tax rate for the mining industry. Citing a need to
increase the countrys revenues, in July 2011 the Ministry of Finance proposed to
increase the mining tax from 37.5% to 44%, with only diamonds being excluded from the
tax increase. Other tax reforms and new taxes were also proposed (Mineweb, 2011). In
addition to the tax rate increase, mines would also have to pay a 15% value-added tax and
a 5% export duty. Namibias mining industry quickly came out against the tax, asserting
that the industry was already heavily taxed and that any additional taxes would stifle
growth during what the industry described as a sensitive period for Namibias mining
49


sector (Styan, 2011). The Namibian government was quick to respond to the mining
industrys concerns in August 2011, just a month after being introduced, the tax plan
was withdrawn (Els, 2011).
The third announced policy change was that the Namibian governments state-owned
mining company, Epangelo Mining, would be required to be a partner in any uranium
development projects. This was met by stiff opposition from companies with existing
projects in Namibia that had already negotiated partnerships for those projects. In
response to industry opposition, the government clarified that this policy would only
apply to new projects, not existing ones (World Nuclear News, 2011).
2011 Dip in Production
Trouble for Namibias uranium industry began with the disaster at Japans Fukushima
facility in March 2011, which had a ripple effect throughout the global uranium and
nuclear industries. Importantly, the disaster caused a significant drop in global uranium
prices, and prices remained low for the rest of 2011 and for the next few years (Hayashi
& Hughes, 2013).
In April 2011, Namibias Minister of Mines and Energy, Isak Katali, announced that
Namibias Cabinet planned to declare several minerals, including uranium, to be
strategic minerals of Namibia, and that the state mining company Epangelo Mining
would have exclusive rights to these strategic minerals. In addition to uranium, other
strategic minerals included gold, copper, coal, diamonds and rare earth metals (World
Nuclear News, 2011). Understandably, this caused exploration and mining companies to
panic and share prices to plummet. In response, Katali clarified in a news conference that
the policy would not apply to existing exclusive prospecting, mining, or mineral deposit
50


retention licenses (Keen, 2011). This meant that many planned projects, such as Husab,
could go forward as planned (Mineweb, 2011). For new licenses, Epangelo Mining will
be required to be a partner.
Serious trouble continued for Namibias uranium mining industry that same month,
when workers went on strike at British company Rio Tintos Rossing mine (15% owned
by the Iranian government). The mine, which accounts for about 5% of global uranium
production and is the worlds third largest producer, had already been losing money due
to the low uranium price of $55 per pound at the time. Then on July 12, 2011,
approximately 500 of the mines approximately 1,600 workers went on strike, bringing
production at the mine to a halt. The workers reason for striking was to demand an
increase in their production incentives (Els, 2011; Reuters, 2011).
A few months later, workers walked out for a second time, again demanding
increases in production incentives. This brought production at the mine to a halt for the
second time in 2011 (Cropley, 2011; Els, 2011).
While Rio Tinto did not reveal exactly how much production suffered during the July
and September 2011 strikes, Namibias annual uranium production data show that the
countrys industry as a whole suffered from a significant dip in production in 2011
(World Nuclear Association, 2015).
Production at Paladins Langer Heinrich also lagged due to both expected and
unexpected maintenance, as well as the persistently low spot price of uranium (McCrae,
2011). Paladins Langer Heinrich and Rio Tintos Rossing are the top two uranium mines
in Namibia, so a dip in production at both mines in the same year resulted in a significant
impact on the countrys uranium output. This was likely a combination of the strikes at
51


Rossing and the low uranium spot price for most of 2011 following the Fukushima
disaster (Hayashi & Hughes, 2013) and uncertainty around the strategic minerals policy
(World Nuclear News, 2012).
The year was not without positive news for the uranium mining industry. In July
2011, Australian mining company Marenica Energy issued a progress report for the
Marenica Uranium Project. The update confirmed the high grade of uranium found in the
mine, which is just north of French company Arevas Trekkopje mine and exploits the
same geological formation (Mineweb, 2011). Australian mining company Deep Yellow
also announced it had discovered high-grade deposits at its Ongolo and MS7 projects
(McCrae, 2011).
Important progress was also made on the Husab project. After six years of
development, Extract Resources and Kalahari filed for a mining license in December
2010 (Mining.com, 2011). The Namibian Ministry of Environment and Tourism
approved the environmental impact assessment for the mine in January 2011. In July
2011, the final environmental review for the projects linear infrastructure was also
approved (World Nuclear News, 2011). A mining license was granted in December 2011.
With the license, Husab was allowed to move forward into production. Touted as the
largest uranium deposit in Namibia, the mine was expected to become one of the top
three uranium mines in the world behind Canadas McArthur River and Cigar Lake
mines (Mining.com, 2011), and the top-producing uranium mine in Namibia.
Despite this promise and the procedural progress over the course of 2011, continued
low spot prices in the wake of the Fukushima disaster forced Extract (Australia) and
Kalahari (Britain) to accept a bid from the Chinese state-owned Guangdong Nuclear
52


Plant Corporation to buy out their stake in Husab in December 2011 (Topf, 2011). The
sale was completed for $1.9 billion. This resulted in China holding a 90% stake in the
Husab project, and the Namibian state-owned Epangelo Mining holding the remaining
10% stake (Basov, 2013).
2012-2015 Production Remains Suppressed
Low uranium spot prices in the wake of the Fukushima disaster in March 2011
continued to affect the Namibian uranium mining industry into 2012 and 2013. In August
2012, French company Areva stopped production at the Trekkopje mine, citing poor
market conditions, and put the mine on care and maintenance status while waiting for
uranium market prices to improve (Els, 2012).
Australian company Paladins Namibian operations also struggled in 2012 and 2013.
The company sought but failed to find a buyer for a minority stake in its Langer Heinrich
mine in Namibia (Els, 2013).
Struggles also continued at Rio Tintos Rossing mine. In December 2013, a failure in
one of the leaching tanks resulted in a spill of radioactive slurry; workers were treated for
minor injuries and Rio Tinto claimed that the spill did not cause any environmental
damage (Jamasmie, 2013). Then in June 2014, Rio Tinto laid off 23% of its workers at
Rossing and reduced production from seven days per week to five, citing the continued
low spot price of uranium.
The Husab mine, however, remained a bright spot in Namibian uranium mining
despite troubles elsewhere. After approval of the environmental assessments and the
granting of a mining license at the end of 2011, construction on the Husab mine began
with a groundbreaking ceremony in April 2013. At the time of the groundbreaking, it was
53


expected that construction would be completed in 2014, and that production would begin
by 2015 and continue for up to 20 years. Husab is expected to be one of the largest fuel
sources for Chinas growing nuclear energy program (Basov, 2013). As of June 2015,
construction at Husab was slightly behind this timeline but still progressing, with
operations scheduled to begin later in 2015 and production to begin by February 2016
(Jamasmie, 2015). Husabs production schedule is in striking contrast to other projects,
which have paused production or gone into care and maintenance status while waiting for
uranium prices to improve.
Summary
In sum, Namibias uranium industry has encountered difficulties in recent years with
labor disputes, spills, worker illnesses and deaths, and the persistent low spot price for
uranium on the international market. Despite these difficulties, both the Namibian
government and observers of the international uranium market profess a positive outlook
for Namibias uranium industry. The Fraser Institute, in its Annual Survey of Mining
Companies 2014, named Namibia as having the greatest mineral potential among
African countries, and listed Namibia as one of four African countries considered low
risk for investment from a political and security standpoint (Jackson & Green, 2015).
Analysts describe uranium as the spearhead of Namibian mining, based in part on high
expectations for the Husab project, which will provide a boost to Namibias uranium
production numbers (KPMG, 2015).
For mining companies, the regulatory environment is favorable and the Namibian
government is more than responsive to industry concerns. This means, however, that
environmental health and other regulation may be taking a back seat to economic
54


development, and may be compromised in the interest of attracting investment in
Namibias uranium mining industry.
Impacts of Uranium Mining and Milling on Namibias Environment
Key Issues
Namibias environment, ecology and landscapes are unique in the world. Large areas
of spectacular landscape and important biodiversity have been designated as national
parks. The pride Namibians take in these treasured landscapes is clear from their
Constitution. In addition, these areas serve an important role in Namibias economy as
destinations for tourists from all over the world (Stanford Law School & Legal
Assistance Center of Namibia, 2009). However, uranium mining and milling have
already compromised Namibias environment, and threaten to continue to do so. This
section examines some of the specific harms and threats to Namibias environmental
health posed by the uranium industry.
Damages and Threats to Environmental Health
Many of the environmental impacts of uranium mining and milling outlined in
Chapter I are present in Namibia, including the serious potential for water and soil
contamination from inadequately secured tailings (seepage and/or dam failure) and the
risk of airborne radioactive dust from improperly covered tailings being carried to other
areas (Scheele, 2011). Small-scale and informal mining operations further exacerbate the
risks posed by improper handling of tailings and waste (Angula, 2007). In addition, of
particular concern in Namibia, given the unique characteristics of the landscape, are the
impacts on biodiversity and ecosystems, enduring damage to the landscape, and the
amount of water and energy required for uranium mining and milling.
55


Namibia is dominated by desert, and fresh water is scarce. Uranium mining and
milling operations require huge quantities of fresh water. Companies must either
purchase water from Namibias drinking water provider, meaning they are competing
with local populations who need that water for drinking, or obtain desalinated seawater
from a desalination plant on the coast and have that water piped inland (Scheele, 2011;
Stanford Law School & Legal Assistance Center of Namibia, 2009). Similarly, uranium
mines require large amounts of energy to operate, both electricity for the mines as well as
diesel fuel for trucks hauling ore out of open-pit mines.
Namibias unique landscapes and ecosystems present two further areas of concern.
First, Namibias desert ecosystems host unique plant and animal communities with
important biodiversity. Second, the desert nature of the landscapes means that ecosystems
are easily damaged, and take much longer to recover (Stanford Law School & Legal
Assistance Center of Namibia, 2009). Damage to these priceless resources would be
long-lasting, or even permanent and irreparable. While industrial-scale mines cause the
most significant damage to landscapes, small-scale and informal mining also contributes
as these operators are unlikely to be aware of or adhere to environmental protection and
reclamation regulations and best practices (Angula, 2007).
Uranium Mining and Milling in Protected Areas
Namibias spectacular national parks and other protected areas include large areas of
unique landscapes, fragile ecosystems, and irreplaceable biodiversity. However,
incredibly, mining is not prohibited in national parks or other protected areas (Stanford
Law School & Legal Assistance Center of Namibia, 2009). Of Namibias three active
producing uranium mines, two Langer Heinrich (Paladin/Australia) and Husab
56


(Taurus/China) are within the Namib-Naukluft National Park, and the third Rossing
(Rio Tinto/UK) is very close to the park. Additional prospecting projects have been
permitted within the park, including Trekkopje (Areva/Franee).
This is not unique to uranium; prospecting and mining for other minerals is allowed,
and ongoing, in protected areas throughout Namibia. Figure 3.2 below shows the
locations of all prospecting and mining licenses in Namibia as of July 2015. Figure 3.3
below shows the locations of active mines; numbers 7, 8 and 10 are the uranium mines.
Figure 3.4 below shows the locations of Namibias national parks and other protected
areas. As these figures show, there is substantial overlap between minerals prospecting
and exploration, active mines, and national parks and other protected areas.
The Legend in Figure 3.2 below refers to the following terms. EPL refers to
Exclusive Prospecting License, which grants exclusive rights to the land but prospecting
can be only for the mineral specified in the license; this means that multiple entities can
hold EPLs for the same land but for different minerals. ML refers to Mining License,
which grants exclusive rights to mine an area for up to 25 years plus a 15-year renewal,
as well as the right to approve the development of other mines in the same area. MC
refers to Mining Claim, an option available only to Namibian citizens and intended for
small-scale operators with limited financial resources; prospecting and mining under a
Mining Claim enjoy minimal restrictions. ERL refers to Exploration Reconnaissance
License and RL refers to Reconnaissance License; ERLs and RLs allow aerial and
remote-sensing exploration but no physical exploration. MDRL refers to Mineral Deposit
Retention License, which allows a company to retain rights to a deposit that it has
discovered, but cannot extract at the time of discovery for technical or financial reasons
57


(Ministry of Mines and Energy, 2015; Stanford Law School and Legal Assistance Center
of Namibia, 2009).
58


Current Namibian Licences
(Ministry of Mines and Energy)
Date: 29/07/2015

Legend | | EPL Application | | ERL-Application Withdrawn Area
EPL- Active ERL-Active Environmentally Sensitive Areas
| | ML Application j | RL Application | | District
ML-Active RL-Active Region
| | MC Application | | MDRL Application | | Division
MC Active MDRL Active
Projection: Albers Conic Equal Area
Spheroid: Bessel 1841
Central Meridian: 17 Deg. E
Grid: Geographic Coordinates (Degrees)
1:2,000,000
N
E
S
Figure 3.2: Current Mining and Prospecting Licenses in Namibia
Source: Ministry of Mines and Energy of Namibia, 2015.
59


MINES IN NAMIBIA
1. Tschudi
2. Ohorongo
3. Otjikoto
4. Otjozondu
5. Navachab
6. The Salt Company
7. Rossing
8. Husab
9. Salt & Chemicals
10. Langer Heinrich
11. Matchless
12. Otjihase
13. Swartmoder
14. Namdeb Northern Coastal Mines
15. Debmarine Namibia
16. Skorpion
17. Rosh Pinah Zinc Corporation
18. Namdeb Southern Coastal Mines
19. Namdeb Orange River Mines
Figure 3.3: Mines in Namibia (note: mines 7, 8 and 10 are uranium mines)
Source: Chamber of Mines of Namibia, 2015.
60


MINISTRY OF ENVIRONMENT AND TOURISM
Namibias Protected Area Network
Katima Mulilo .
Figure 3.4: National Parks and Other Protected Areas in Namibia
Source: Ministry of Environment and Tourism of Namibia, 2013.
61


The fact that minerals exploration and production are allowed in national parks and
other protected areas is a serious loophole in Namibias environmental health regulatory
structure, and there are no indications that this loophole will be closed any time soon. In
1999 the Ministry of Environment and Tourism drafted a document titled Policy for
Prospecting and Mining in Protected Areas and National Monuments but the document
never advanced far enough to become official Namibian government policy. Even if it
had been adopted, this policy still would not have prohibited prospecting and mining in
protected areas (Fig, 2008; Stanford Law School & Legal Assistance Center of Namibia,
2009).
In fact, the Namibian government has continued to show strong support for
Namibias mining industry, even for operations within national parks. The official
opening ceremony of the Langer Heinrich mine, in 2007, was attended by Namibian
then-President Hifikepunye Pohamba, who used the event as an opportunity to reiterate
the Namibian governments support of the mining industry (Fig, 2008).
Challenges in Enforcement of Existing Laws and Regulations
Despite some significant deficiencies, Namibia does have some good laws and
regulations in place. However, challenges arise in enforcing these laws and regulations,
due to inconsistent government priorities and lack of resources.
While Namibias Constitution and other government policies discuss the importance
of the environment and landscape to Namibia, the government is also eager to pursue
economic development and sources of revenue. Not including the Namibian government
itself, the mining sector is the largest contributor to Namibias economy (Stanford Law
School and Legal Assistance Center of Namibia, 2009), and the government makes an
62


effort to attract and encourage mining investment and activity. This is exemplified by
events such as President Pohambas attendance at the opening of Langer Heinrich.
Structurally, as explored earlier in this chapter, the Ministry of Mines and Energy and the
Ministry of Environment and Tourism are tasked with mandates that are likely to come
into conflict, and the legal structure does not put the MET in a strong enough position
when it comes to minerals policy and economic development. Indeed, former Trade and
Industry Minister Andrew Ndishishi made the comment that when the environment and
mining come into conflict, it is the environment which will have to be sacrificed (Fig,
2008). It is likely that this view is held by others throughout the Namibian government.
In practice, this policy preference plays out in the lack of resources and capacity to
properly evaluate environmental impact assessments or carry out environmental
monitoring at mines. According to a review of Namibias mining industry conducted by
the Stanford Law School and the Legal Assistance Center of Namibia (2009) and
research by Fig (2008), the following serious problems are occurring in the enforcement
of Namibias environmental health regulation of the mining industry:
Companies granted permits and allowed to begin operations before the
permitting process was completed;
Companies granted permits and allowed to begin operations even though their
environmental plans were determined to be inadequate;
Concerns regarding environmental plans are raised, but ignored;
Environmental plans knowingly based on false information;
MET officials refusing to review environmental plans as a form of protest;
63


Companies hire consultants to write environmental plans; due to
understaffing, the MET hires consultants, sometimes the same consultants
who wrote the plans, to review the environmental plans;
Companies bypassing the official process and taking advantage of corrupt
officials and/or personal connections;
Companies taking advantage of the slow-moving bureaucracy to proceed as
they wish while waiting for review of their environmental plans;
MET understaffed and unable to monitor or patrol protected areas;
Companies operating without any permits at all (Fig, 2008; Stanford Law
School and Legal Assistance Center of Namibia, 2009).
In addition to these issues at the industrial scale, small-scale or informal mining takes
place almost entirely outside of the existing regulatory structure. Many small-scale and
informal miners do not obtain any permits at all, do not obtain environmental clearances,
and do not follow environmental health regulations. Given the governments lack of
capacity to monitor industrial-scale operations, it is essentially impossible for the
government to monitor small-scale and informal operations. While industrial-scale mines
should bear the majority of the responsibility for environmental damages, small-scale and
informal mines also contribute (Angula, 2007). The enforcement lapses identified by
these studies raise doubts as to the utility of the existing legal and regulatory structure. At
best, uneven enforcement is resulting in diminished environmental health protections in
Namibia.
64


Summary
Between legal and regulatory loopholes and inadequate enforcement of existing laws
and regulations, environmental health in Namibia is at risk of serious and irreparable
damage. Namibias government is letting its citizens down by compromising the ideals,
enshrined in the Constitution, of protecting Namibias unique environment for the
enjoyment and benefit of current and future generations of Namibians. Perhaps the
government feels it has no choice, and that this compromise must be made in order to
offer jobs and economic opportunity for its citizens. The potential for the development of
a landscape-based tourism industry, however, provides an alternate path forward for
Namibia that can offer sustainable economic development while living up to Namibias
foundational ideals.
Analysis Trends in Namibian Uranium Production
Since 2002, uranium production levels in Namibia seem to respond to three key
variables: international demand for uranium; the spot price of uranium on the
international market; and strikes by mine workers.
Government policy and regulation regarding uranium mining seem to be driven by
the mining industry and its reaction to government policy changes and proposed changes,
suggesting that the Namibian government is a victim of regulatory capture at least as far
as its mining industry and policies are concerned. One example, described above, is the
governments abrupt about-face on the related issues of BEE policies and tax increases,
as well as on the issue of Epangelos partnership in uranium projects. A second example
is the governments reliance, during the SEMP process described earlier, on industry self-
reported answers to questions about efforts to protect environmental health. To its credit,
65


with unemployment around 50%, the Namibian government is looking for ways to ensure
that its citizens are benefiting from Namibias resource wealth. However, Namibia has
struggled to identify policies that are both effective at keeping mineral wealth in
Namibia, and acceptable to the mining industry.
IAD Framework Analysis of Namibias Uranium Industry
This section provides an analysis of Namibias uranium industry using the
institutional analysis and design (IAD) framework developed by Ostrom (2007),
described earlier in Chapter II. This analysis follows the example of application of the
IAD framework to a real-world situation provided by Andersson (2006), also described
earlier in Chapter II.
What is the Action Arena?
Uranium mining in Namibia plays out in two arenas: the international uranium
market, and in the Namibian national government, specifically the Ministry of Mines and
Energy and the Ministry of Environment and Tourism.
Who are the Actors?
In the international uranium market arena, several large and powerful actors influence
decisions and outcomes in Namibias uranium mining industry:
Countries such as the US, Japan, France and China that rely on nuclear power and
thereby drive demand for uranium as fuel for nuclear reactors;
Multinational mining companies that explore for, mine, upgrade and sell uranium.
In the national government arena, a variety of actors influence uranium mining policy
and production in Namibia:
Key figures in the Namibian national government, including:
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o President (Hage Geingob);
o Minister of Mines and Energy (Obeth Kandj oze);
o Mining Commissioner (Erasmus Shivolo);
o Minister of Environment and Tourism (Pohamba Shifeta);
o Environmental Commissioner (Teofilus Nghitila);
Multinational mining companies that explore for, mine, upgrade and sell uranium;
The Chamber of Mines of Namibia;
Workers in Namibias large uranium mines;
Domestic and international journalism outlets.
What is the Nature of the Good and the Environment?
The physical conditions of uranium in Namibia drive the decision-making of actors in
both the international and national arenas. Uranium is where it is; humans do not have
control over where uranium deposits are found or the grade of the ore. In other words,
where uranium exists dictates where and how it must be mined. That being said, Namibia
is not the only country that hosts uranium deposits, so uranium consumers do have some
choice, though limited, in where they choose to pursue existing uranium deposits. As
more and more of the worlds uranium is mined and reserves are depleted, these choices
will likely over time become more and more narrow.
The fixed nature of the resource also means that recovering the resource is necessarily
large-scale, long-term, and expensive. The expense of recovering uranium compared to
the price it can fetch on the international market seems to be a factor affecting the
uranium industry in Namibia and internationally. While labor costs can vary between
countries, the capital costs and time commitment are likely to be significant no matter
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where a company chooses to locate its operations. Companies will only continue to
develop uranium resources if the profits will outweigh the costs, and this is determined in
part by the uranium spot price on the international market at any given time.
Another challenge with uranium development is the danger it poses to human and
environmental health due to radioactivity of both the uranium itself but also the tailings
left behind by milling (Abdelouas, 2006; Scheele, 2011). Unlike with many other
minerals, radiation danger adds a layer of complexity to both human and environmental
health protection when recovering and processing the resource. Exposure to radiation
during mining and milling can have serious long-term health impacts on workers that
often are not apparent until years, or even decades, after the exposure (Hecht, 2012;
Scheele, 2011). Similarly, radioactive contamination of water and soil, as well as
radioactive particles in the air, can persist for years or decades, impacting broad areas and
ecosystems as radioactive materials are dispersed through natural processes (Abdelouas,
2006; Scheele, 2011).
How Do Actors Associate?
Namibia aspires to move from the developing country category into the developed
country category but it is not there yet. In order to achieve its development goals as
outlined in Vision 2030 described earlier in this chapter, Namibia is eager to attract
international investment in industries where it has a comparative advantage, and mining
presents one of Namibias best opportunities to achieve this goal due to the fixed-location
nature of mineral resources described in the previous section. Mining companies do have
some choice, though it is limited, in where to invest in development of uranium and other
mineral resources. This puts Namibia in the position of competing to attract business to
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its mining industry, and mining companies in the position of being able to drive the
bargain they want with host countries who are desperate for investment.
On the regulatory level, actors associate through the permit and environmental
assessment process, which is inadequate and has serious problems. In theory, companies
apply for mining licenses and submit environmental management plans; the Namibian
government, through its agencies, issues licenses and approves environmental
management plans. In practice, due to significant understaffing and lack of resources and
capacity, companies proceed without permits or with inadequate environmental plans, as
described earlier in this chapter (Fig, 2008; Stanford Law School and Legal Assistance
Center of Namibia, 2009). It is unusual for these licenses and plans to be denied, and this
may be because denial of a mining license or an environmental management plan would
hinder Namibias development goals.
What are the Rules-in-Use of Institutional Arrangements?
The rules-in-use are the norms that are accepted and adhered to by participants, which
may or may not be the same as those that exist in writing (Andersson, 2006). For
Namibias uranium mining industry, it seems that accepted norms could be grouped into
two broad categories.
1) Government policies respond to complaints from industry.
Given the central role that the mining industry plays in Namibias economic
development, mining companies hold significant political sway in Namibia, and as such
do not hesitate to vocally criticize government policies that they disagree with or dislike.
The Namibian government, in turn, has shown a willingness to accept this input and
adjusts policies to accommodate the mining industrys interests. The withdrawal of the
69


BEE legislation, the withdrawal of the increased tax rate on mining, and the backpedaling
on Epangelo ownership of existing mines, all described earlier in this chapter, are the
prime examples of this norm in practice.
2) As long as companies go through the process, they can expect permits and plans
to be approved.
On paper, Namibia has extensive permitting, environmental assessment and
environmental planning processes. But as long as companies complete these processes,
they can expect the results to be approved with minimal scrutiny. The SEMP process,
described earlier in this chapter, is an illustration of this norm in practice: an industry
self-reported yes/no survey formed the basis of the governments planning for the
countrys uranium mining sector.
What are the Patterns of Interactions and Conditions for Learning?
The rules-in-use described above contribute to a pattern in which government
agencies respond to the mining industrys demands, instead of the other way around. The
informal institutional incentives encourage mining companies to demand the policies they
want, and encourage the government to provide the policies that the mining companies
want. These incentives are self-reinforcing, as mining companies learn from their
successes in pushing back on government policies.
Conclusions from IAD Analysis
The IAD framework analysis is helpful in highlighting the ways in which regulatory
capture may be compromising the intentions laid out in Namibias Constitution and other
environmental protection laws. Based on this analysis of the events and sources cited
earlier in this chapter, my conclusion is that it is likely that regulatory capture is
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occurring and is driving the manner in which Namibias environmental health laws and
regulations are developed and enforced. In particular, looking at the ways in which actors
associate, the rules-in-use of institutional arrangements, and the patterns of interactions
and conditions for learning as explored throughout this chapter, it seems that the
Namibian government is responsive to the desires of the mining industry at the expense
of rigorous environmental protection. This leads me to conclude that evidence exists to
support the hypothesis that regulatory capture may be occurring in Namibia. The question
remains whether this is driven by a larger race to the bottom between Namibia and other
less-developed countries, between developed and less-developed countries, or whether a
race to the bottom is not a factor in the global uranium industry as far as environmental
health regulation is concerned. This question will require further study, as I suggest in
Chapter IV.
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CHAPTER IV
CONCLUSION
Review of the Hypothesis and Predictions
In Chapter I, I offered the hypothesis that that uranium-producing countries,
especially those with less-developed economies, may be engaging in a regulatory race to
the bottom in environmental health regulation of uranium mining and milling. This
hypothesis had two corollaries. The first was the possibility that uranium-consuming
countries may be inadvertently encouraging environmental destruction abroad by seeking
the cheapest possible uranium from developing countries that can produce uranium more
cheaply than other producer countries, or than those consumer countries could
domestically, due to differences in the environmental health legal and regulatory
structures between countries. The second was the possibility of regulatory capture, that
the agencies and officials charged with regulating uranium mining and milling are in fact
acting more in the service of the industry than of citizens and the environment.
The research presented in this paper has been guided by the following two research
questions: 1) Using Namibia as a case study, is there evidence to support building a
hypothesis that a regulatory race to the bottom may be occurring in environmental health
regulation of uranium mining and milling worldwide? And 2) Using Namibia as a case
study, is there evidence to support building a hypothesis that regulatory capture is
occurring in governments of uranium-producing countries when it comes to
environmental health protection?
In Chapter I, I predicted that a regulatory race to the bottom is most likely occurring,
but that the situation is more complex and that other factors are influencing uranium
72


mining and milling in addition. I also predicted that regulatory capture will prove to be
common and pervasive in the less-developed uranium-producing countries, especially in
the case study country Namibia.
The remainder of this chapter will: assess the accuracy of those predictions; evaluate
progress made towards answering the research questions and building evidence to
support the hypothesis; offer ideas for solutions to the problems identified by the
research; and suggest directions in which to take future research.
Assessing the Predictions and Answering the Research Questions
A Regulatory Race to the Bottom?
Given that this project was limited in scope to only one case study, I did not find
strong evidence either way for Namibias participation in a regulatory race to the bottom
among less developed countries. If anything, my research actually suggests the opposite -
that Namibia sees environmental protection as a way to make itself appear more
developed, and thus more attractive to investors. The Minerals Policy of Namibia
specifically mentions that to enhance its legitimacy, Namibia must rise to meet increasing
international expectations in the area of environmental protection (Ministry of Mines and
Energy, 2003).
It would appear, then, that in order to provide an attractive investment environment
for the international mining industry, Namibias focus has been on building stability and
consistency in its economy, as well as its political and regulatory environment, rather
than on offering looser regulations than other developing countries. Competition with
other less developed uranium-producing countries does not appear to be a strong driver in
the governments decision-making.
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Providing regulatory certainty, on the other hand, has been an apparent priority of the
Namibian government when it comes to regulating the mining industry. Examples
described in Chapter III such as the governments adjustment of the strategic minerals
policy, the assurances provided to the mining industry in the MPN, and the relative
certainty around the environmental permit process all contribute to a stable and attractive
climate for the mining industry as it evaluates making long-term commitments in
uranium development projects in Namibia and elsewhere.
However, when drawing comparisons between developed countries as a group and
less developed countries as a group, I believe that the concept of a regulatory race to the
bottom at that scale continues to have merit and deserves further study. The US, the
worlds largest consumer of uranium as measured by amount of nuclear energy produced,
has decreased domestic uranium production in the decades following the introduction of
the Uranium Mill Tailings Radiation Control Act and other strong environmental
protection laws in the 1970s, as described in Chapters I and II. Yet reliance on nuclear
power has not decreased (World Nuclear Association, 2015). This suggests that the US
has shifted from domestic uranium production to foreign uranium purchasing to meet its
uranium needs. So in this sense, tighter domestic regulations may have driven the United
States, and possibly other developed countries, to seek out uranium from countries with
looser regulations as opposed to sourcing uranium domestically or from fellow developed
countries. What I have not yet found compelling evidence for is the idea that less
developed countries are using loose environmental regulations as a tool to compete with
each other to attract uranium customers from the developed world. This may be due to
the fact that this project was limited to a single case study, which eliminated the
74


opportunity to compare two or more case studies to each other. Future research could
take on additional case studies to perform this comparative analysis and see if evidence
emerges to support the race-to-the-bottom hypothesis.
Future research is also needed to explore whether the race-to-the-bottom applies to
companies as opposed to countries. Are there differences in internal standards between
mining companies that are factoring into their decisions as to where to pursue uranium
development? For example, a company such as Rio Tinto, based in the UK and with
internal environmental standards developed over decades of experience, may be more
interested in a stable regulatory environment. This may different for, for example, a
newly-formed Chinese company with relatively little experience in developing internal
environmental standards and for whom regulatory stability may be a relatively minor
concern. A future comparative analysis project could explore whether differences in
environmental health regulatory regimes are driving differences between companies in
terms of both their own environmental standards, and in which countries they prefer to
operate.
Regulatory Capture?
There is strong evidence, presented in Chapter III, to suggest that regulatory capture
may be occurring in the environmental health regulation of Namibias uranium mining
sector. This is most apparent in the Ministry of Mines and Energy, which is responsible
for both promoting and facilitating but also regulating and monitoring the mining
industry (Ministry of Mines and Energy, 2015). The Namibian government is focused,
not unreasonably, on developing its economy and improving the livelihoods and
economic prospects of its citizens. The mining industry plays a key role in Namibias
75


economic development (Ministry of Mines and Energy, 2003). This necessarily fosters a
connection between providing a favorable environment for the mining industry, and
providing jobs and economic development for Namibian citizens. When forced to choose
between providing economic development for citizens and protecting the environment,
the Namibian government in recent years has tended towards prioritizing economic
development.
However, the fact that Namibia does have environmental laws on the books such as
the EMA, and mentions the environment in its Constitution, as described in Chapter III,
is reason for hope. While the mining industry is an important part of the Namibian
economy, tourism, and in particular eco-tourism, is another important contributor. If
Namibias tourism industry continues to grow, the tourism industrys environmental
protection concerns may eventually outweigh the mining industrys concerns.
Conclusions
Solutions at the International Level
It may be helpful and effective to create an international floor for environmental
health regulation minimum standards that all countries must meet. These regulations
would need to be initiated by an institution with considerable legitimacy, such as the
United Nations or the IAEA, so that countries would be compelled to adhere to them or
risk marginalizing themselves. Such regulations would also need to be accompanied by
real and serious enforcement.
To this end, one avenue may be to support the replacement of the United Nations
Environment Programme (UNEP) with the proposed stronger United Nations
Environment Organization (UNEO). As mentioned in Chapter I, the existing UNEP has
76


struggled due to its status as a programme rather than an organization, a funding structure
that makes it dependent on voluntary contributions (which have been falling), and its
location away from the rest of the UN governance structure. Giving this body
organization status (comparable to the World Trade Organization or the World Health
Organization) with greater independence and authority may help increase the
effectiveness of this body in developing and implementing an international regulatory
structure for environmental health protection (Ivanova, 2005). Changing the funding from
voluntary to mandatory will be crucial to the success of the mission of the proposed
UNEO. Without adequate funding to carry out needed studies and to enforce any new
regulations, environmental health protections will remain on paper only. Stronger funding
for a UN agency may also be helpful in leveraging additional interest and funding from
the international philanthropic community for environmental health research and
programs.
An additional international-level solution may be to launch a broad public-awareness
campaign to highlight for consumers the damaging environmental practices of some
mining companies and urge consumers to demand a transition away from nuclear in favor
of renewable energy sources such as wind and solar. This strategy has been used before
to improve treatment of manufacturing workers. While a campaign around nuclear power
would require the additional educational step of educating consumers on their current use
of nuclear power and its impacts on human and environmental health, this element could
then be linked to existing campaigns around renewable energy, which already enjoy
broad public favor.
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Solutions at the National Level
In my opinion, Namibia suffers from a problem of conflicting mandates in its
regulatory regime. The national government has laid out both economic development and
environmental protection as important national values. In practice, economic
development seems to take precedence. The Ministry of Mines and Energy is tasked with
both promoting and regulating the mining industry, tasks that are difficult to perform
simultaneously with integrity. A possible solution may be for Namibia to separate the
promote and regulate functions, perhaps by moving the regulatory function into the
Ministry of Environment and Tourism.
The US can offer two examples of making this type of structural change. One is the
establishment of the Nuclear Regulatory Commission. In 1946, the US established the
Atomic Energy Commission and charged it with both promoting the use of nuclear
energy and regulating its safe use. When this proved to be ineffective, especially on the
regulation side, Congress abolished the Atomic Energy Commission and replaced it with
the Nuclear Regulatory Commission in 1974. The Nuclear Regulatory Commission is
focused solely on regulating nuclear energy for safety, and is not charged with promoting
nuclear energy (Nuclear Regulatory Commission, 2015).
A second example from the US is the reorganization of the Minerals Management
Service in the wake of the BP Deepwater Horizon disaster in 2010. As was the case with
the Atomic Energy Commission, the Minerals Management Service was charged with
both promoting offshore drilling in order to collect royalties, and also with safety and
environmental regulation. A reorganization process resulted in the creation in 2011 of
two new, separate agencies: the Bureau of Ocean Energy Management, and the Bureau of
78


Safety and Environmental Enforcement. This reorganization was intended to separate
resource management from safety and environmental oversight (Bureau of Ocean Energy
Management, 2016). An analysis of the lessons learned during both of these
reorganizations may be helpful to Namibia or any other countries considering
reorganizing their regulatory structures for industries they also wish to promote.
Another problem that I believe exists in the regulation of Namibias mining industry
is the gap between existing laws and regulations, and their enforcement. As highlighted
by the SEMP example in Chapter III, an environmentally conscious process on paper
means nothing without rigorous enforcement and questioning of industry by regulators.
This is where the problems associated with the possibility of regulatory capture can
become quite apparent. Reviewing Namibias SEMP process left me with the impression
that the government is failing in its duty to push back on industries that may be damaging
the countrys environmental resources. Solving this problem will require, again, the
separation of the promotion and regulation functions, but also sufficient funding and
political support for rigorous enforcement of environmental regulations, even when
enforcement proves unpopular with industry.
Critical to the implementation of these and any other recommendations is a plan to
support Namibia in building capacity across government agencies and nonprofit
organizations that work on mining and on environmental health. Namibias professionals
have been handicapped in their efforts by a lack of funding and political support from
their government, as well as a lack of interest on the part of the international
philanthropic community in environmental health issues compared to issues such as
infectious diseases. Investment is needed in supporting Namibians as they continue to
79


build their institutions and increase their capacity on environmental health regulation,
monitoring and enforcement.
Encouraging the development and growth of Namibias ecotourism industry may be
another strategy to rearrange the incentive framework that currently exists in the country.
In the end, uranium is a finite and nonrenewable resource that will one day cease to
contribute to the Namibian economy. Namibias landscapes and wildlife, on the other
hand, can be an infinite resource if they are protected soon. Economic development
assistance to Namibia that focuses on developing a sustainable ecotourism industry
would help Namibia trust that environmental protection is the smart economic
development move in the long run.
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ENVIRONMENTAL HEALTH REGULATION OF URANIUM MINING AND MILLING: A REGULATORY RACE TO THE BOTTOM? by RACHAEL HAMBY B.A., Williams College, 2005 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillme nt of the requirements for the degree of Master of Public Administration Public Administration Program 2016

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ii This thesis for the Master of Public Administration degree by Rachael Hamby has been approved for the Public Administration Program by Lloy d Burton, Chair Denise Scheberle Deborah Thomas April 22 2016

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iii Hamby, Rachael, B.A. Environmental Health Regulation of Uranium Mining and Milling: A Regulatory Race to the Bottom? Thesis directed by Professor Lloyd Burton ABSTRACT Mining and milling of uranium, the source fuel for nuclear power, pose significant threats to environmental health. Many developed countries rely on nuclear as a substantial portion of their energy mix, driving demand for uranium. In recent decades, developed countries have st rengthened occupational and environmental health regulations. Less developed countries, on the other hand, have focused on economic development. In less developed countries with significant resources such as uranium, the tension between the need for econom ic development and the need to protect human and environmental health can pose challenges when it comes to designing and enforcing a regulatory structure for occupational and environmental health. The absence of an international regulatory body for mining or environmental health protection means there are no minimum standards to create an international floor for environmental health regulations. This paper explores whether evidence exists to build the hypothesis that a regulatory race to the bottom is occu rring in the global uranium industry with respect to environmental health regulations in uranium producing developing countries. Taking mining and environmental health laws and regulations, compares them to trends in uranium development and production, and examines the relationship between the Namibian government and the uranium

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iv mining industry, in particular in terms of enforcement of environmental health regulations. While this paper does not find stro ng evidence for or against the possibility of a race to the bottom between less developed countries, there may be evidence to support a hypothesis of a race to the bottom between developed and less developed countries when it comes to environmental health regulation and natural resource extraction. In addition, regulatory capture is a real possibility especially in a structure that tasks a regulatory body with conflicting mandates to both promote and regulate a particular industry. Possible strategies to m itigate these problems include establishing a strong international regulatory body for mining or environmental health, providing funding and political support for enforcement of existing environmental health regulations, and encouraging alternative industr ies such as tourism that provide countries with a path towards economic development without the temptation to destroy the environment. The form and content of this abstract are approved. I recommend its publication. Approved: Lloyd Burton

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v TABLE OF CONTE NTS CHAPTER I. INTRODUCTION 1 The Role of Uranium in the Global Energy Supply 1 The Benefits and Costs of Nuclear Power 2 The Nuclear Power Process 3 Uranium Mining and Milling 4 The Global Uranium Market 8 International Regulation 12 A Regulatory Race to the Bottom? 14 The Phenomenon of Regulatory Capture 15 Hypothesis 16 Selection of the Case Study 19 Organization of the Thesis 20 II. REVIEW OF THE LITERATURE 2 2 Theoretical Framework Institutional Analysis and Design 22 Technical Analysis and Doc umentation of Environmental Impacts 23 Historical Perspectives 23 Differences and Shifts in Attitudes 24 Legal and Regulatory Challenges 25 Race to the Bottom and Regulatory Capture Theory 27 Summary 27

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vi III. CASE STUDY NAMIBIA 29 Background and Politi cal Context 29 Legal and Regulatory Framework 31 Uranium Exploration and Development in Namibia 4 2 Recent Uranium Production in Namibia 45 Notable Events in Namibian Uranium Production 47 55 Analysis Trends in Namib ian Uranium Production 65 66 IV. CONCLUSION 72 Review of the Hypothesis and Predictions 72 Assessing the Predictions and Answering the Research Questions 73 Conclusions 76 REFERENCES 81

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vii LI ST OF TABLES TABLE 1.1 Top Ten Uranium Producing Countries in 2014, in Tons Produced 8 1.2 Top Ten Consumers of Uranium in 2014, in Terrawatt hours of Electricity Generated from Nuclear 9 3.1 Environmental Quality Objectives and Overall Aims 39 3.2 Countries and Companies Active in Namibia 41 3.3 Uranium Production in Namibia 2002 2013 44

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viii LIST OF FIGURES FIGURE 1.1 Uranium Production Worldwide, in Tons Produced per Year 8 1.2 Top Ten Uranium Producing Countries in 2014, in Tons Produced 9 1.3 Top Ten Uranium Consuming Countries in 2014, in Terrawatt hours of Electricity Generated from Nuclear 10 3.1 Uranium Production in Namibia 2002 2013 45 3.2 Current Mining and Prospecting Licenses in Namibia 54 3.3 Mines in Namibia 55 3.4 National Par ks and Other Protected Areas in Namibia 56

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ix LIST OF ABBREVIATIONS BEE Black Economic Empowerment EQO Environmental Quality Objective EMA Environmental Management Act (Namibia) EPA Environmental Protection Agency (United States) IAD Institutional Anal ysis and Design IAEA International Atomic Energy Agency MET Ministry of Environment and Tourism (Namibia) MME Ministry of Mines and Energy (Namibia) MPMA Minerals (Prospecting and Mining) Act (Namibia) MPN Minerals Policy of Namibia NRC Nuclear Regul atory Commission (United States) SDAC Sustainable Development Advisory Council (Namibia) SEMP Strategic Environmental Management Plan (Namibia) SWAPO UMTRCA Uranium Mill Tailings Radiation Control Act (United Sta tes) UK United Kingdom UN United Nations UNEO United Nations Environment Organization UNEP United Nations Environment Program US United States

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1 CHAPTER I INTRODUCTION The Role of Uranium in the Global Energy Supply Uranium, a naturally occurrin g radioactive element, is the fuel for nuclear power. Nuclear power is an important and significant component of the global energy supply; Association, 2015). Many of the world percentage of their energy consumption from nuclear power (see Table 1.2 later in this chapter), and the scale of the energy consumption of those largest consumers magnifies the effect of the percentage of that energy which is derived from nuclear (see Table 1.2 and Figure 1.3 later in this chapter). consumer of energy, nuclear is second only to coal as a source of energy (Yergi n, 2012). largest consumer of energy, relies on nuclear power for around 20% of its overall energy supply (World Nuclear Association, 2015). The countries of the European Union are also significant consumers of ene rgy overall, and of nuclear power specifically, drawing a greater percentage of their energy from nuclear than the United States does, though still less than the United States in absolute terms (see Table 1.2 and Figure 1.3 later in this chapter). In Franc e, nuclear Germany has historically been another significant consumer of nuclear power, though in recent years it has shifted away from nuclear and towards renewables such as wind and solar (World Nuclear Association, 2015)

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2 Japan relied heavily on nuclear before the Fukushima disaster of 2011. India, while not a significant historical consumer of nuclear power, has recently shown a strong interest in increasing its use of nuclear power to meet the increasing energy demands of its population (World Nuclear Association, 2015) and most developed nations. (China and India have not historical ly been included in the global North from a wealth or development standpoint, but their enormous populations part these uranium consumers do not produce enough of their o wn uranium domestically to meet their nuclear power demands, or do not produce any uranium at all, and must rely on importing uranium from ur anium producing countries (see T able s 1.1 and 1.2 and F igure s 1.2 and 1.3 below; World Nuclear Association, 2015 ). wealthy and less developed nations that do not consume as much energy as the global North countries. (Canada and Australia do not fit this pattern as they are both significa nt consumers and significant producers of uranium.) ( See Tables 1.1 and 1.2 and Figures 1.2 and 1.3 below; World Nuclear Association, 2015 ) The Benefits and Costs of Nuclear Power Compared to fossil fuels, nuclear power does offer some intriguing benefits such as the long term durability of reactors once built, and the consistency and reliability of nuclear power compared with renewables, which can be intermittent and require backup from a more stable source such as nuclear, coal or natural gas.

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3 One freq uently mentioned benefit of nuclear power is that nuclear reactors do not emit any carbon dioxide; some proponents of nuclear power use this fact to argue that nuclear power is carbon neutral, or emissions free ( Scheele, 2011; Sovacool and Cooper, 2008). H owever, this argument becomes problematic when the full life cycle of nuclear power is taken into consideration. Mining and milling of uranium, the source fuel for nuclea r reactors, not only contribute to car bon emissions, but also require large amounts of water and can cause serious damage to human health and to the environment. In addition to energy and water consumption and carbon emissions, uranium mining and milling have other serious environmental health impacts especially if performed in a country w ith weak or inadequate environmental health protection laws and regulations Open pit mines and milling operations destroy land and ecosystems. Underground leaching, described later in this chapter, can contaminate groundwater. Both surface and underground mining and milling can contaminate soil The damage to environmental health can last for decades. Finally, uranium is a finite and nonrenewable source fuel (Abdelouas, 2006; Scheele, 2011; Sovacool & Cooper, 2008) The Nuclear Power Process The first step in the nuclear power process is uranium prospecting and exploration. Once a deposit of uranium bearing ore has been discovered, the next step is to extract the ore through mining (discussed in greater detail below). Once ore has been removed from the eart h, the uranium must be separated from the other materials and concentrated. This process is called milling (discussed in greater detail below). Once the uranium has been le facility, where it is enriched and converted into fuel for nuclear reactors.

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4 Once the fuel in a nuclear reactor has been fully spent, the fuel rods must be carefully cooled in large tanks of water for two to three years. Then, the cooled rods are store d in there is no permanent nuclear waste storage facility in the US to accept these cooled rods. While the issues surrounding nuclear waste handling and storage are signifi cant, they are outside the scope of this paper and will not be addressed in detail here. Clearly there is more to the process of producing nuclear energy than simply using fuel rods to power a reactor. As outlined above, t he steps needed to gather the mate rials to produce the fuel for the rods, and the steps needed to handle the spent rods, involve considerable human health risk, energy and material input, and environmental health damage If the full life cycle of the fuel is considered, this casts doubt on assertions that nuclear power is a carbon free energy source, or a sustainable long term solution to the problem of growing global energy demand. Uranium Mining and Milling The extraction and processing of uranium, the source material for fuel for nuclea r reactors, pose serious environmental health risks. Soil, water and air can all be contaminated by radioactive waste from uranium mining and milling. The process, and potential environmental harms, are described in greater detail below. Uranium Mining M ining is the process of extracting uranium bearing ore from the earth. Worldwide, ten mines in six countries produce 85% of mined uranium (World Nuclear Association, 2015 ). These top six producing countries are Kazakhstan, Canada, Australia, Niger, Namibia and Russia Other countries, including the US, either are producing uranium or

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5 have known recoverable reserves ( see Table 1.1 and Figure 1.2 below; World Nuclear Association, 2015 ). Currently there are two methods of uranium mining. One is conventional m ining, in which uranium bearing ore is removed from the earth and taken elsewhere to be processed. Conventional uranium mines can be shallow open pits or deep underground shafts. This is similar to the mining of any hardrock mineral, and is what we usually think of when we think of mining. The other method of uranium mining can also be thought of as a method of uranium milling, since it essentially combines mining and milling into one step. This is called in situ recovery, or in situ leaching. In this proc ess, wells are drilled into a uranium bearing formation and a solution of water, oxygen, hydrogen peroxide and sodium bicarbonate is injected via the wells into the formation, where it dissolves uranium out of the formation. The uranium bearing solution is then pumped to the surface and the solution is dried, leaving behind the dissolved uranium. This process creates a large amount of liquid waste that must be transported and stored carefully in licen sed wells or evaporation ponds ( Rosa Luxemburg Foundation 2014; Scheele, 2011). Uranium Milling Milling is the process of extracting uranium from mined ore and concentrating it into a powder that can be enriched. Currently there are three methods of uranium milling. One, discussed above as a combined mining/mi lling method, is in situ recovery. The second is heap leach milling. In this process, pieces of uranium bearing ore are collected into large piles and an acidic solution is poured or sprayed over the pile to dissolve and separate the uranium from the other materials. As the uranium bearing solution drains

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6 down to the bottom of the pile into pipes, it is collected and dried, leaving behind more highly concentrated uranium. The third is conventional milling, in which ore is crushed and the uranium is dissolve d and concentrated using a sulfuric acid solution. The uranium is then separated from the solution and dried. Heap leach and conventional milling produce a large amount of tailings, which are piles of radioactive, sand like material left behind by the mill ing process once the uranium has been extracted (Abdelouas, 2006; Scheele, 2011) Tailings produce the highest volume of radioactive waste across the entire cycle (Abdelouas, 2006), so tailings and other waste must be stored carefully to prevent air pollu tion and contamination of soil and groundwater. The US Environmental Protection first is diffusion of radon gas into indoor air; this is a particular hazard in situations where tailings have been used as construction material or backfill. The second is diffusion of radon gas into the atmosphere from an uncovered tailings pile. The third is the release of gamma radiation. The fourth is dispersal of radioactive materials into surface or groundwater by wind water or leaching (EPA, 2013). T oxic heavy metals can also leach into surface water or groundwater, and groundwater acidification can occur (Abdelouas, 2006). Improper waste disposal is the usual cause of exposure. Dispersa l or erosion are the most common, but other failures can also occur, such as chronic or catastrophic failure of containment structures; instability or breach of dams; contamination from in situ leaching; and the use of tailings for construction, or even bu ilding structures on top of tailings piles (Abdelouas, 2006).

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7 It takes about 2000 pounds of mined uranium bearing ore to produce one to five pounds of fuel grade uranium ( El Paso Natural Gas Company v. U.S., 2011). As higher grade ores are mined and mille d, mining companies will have to pursue lower grade ores and mine and mill the lower grade ores in greater quantities in order to produce a comparable amount of uranium. While alternative sources of uranium exist, such as recovery from nuclear weapons or r ecycling of spent fuel rods, these sources are not currently able to keep pace with the increasing demand for uranium (Abdelouas, 2006). Environmental Health Impacts As described above, uranium milling is a significant source of radioactive waste, and ura nium mill tailings can cause a variety of harms to the environment Two common causes of environmental harms by uranium mill tailings are: seepage of contaminated waste water into the soil or groundwater when tailings pits are not adequately lined; and dam failure, in which the containment structure for a tailings pit breaks, allowing contaminated waste to spill out into the surroundings Air quality can also be impacted over great distances when tailings are not properly covered and radioactive dust and pa rticles are carried by the wind (Abdelouas, 2006; Scheele, 2011). In addition to the radiation and other contamination dangers from tailings uranium mining and milling pose several other threats to environmental health. Open pit mines cause dramatic lands cape and habitat disturbance, with reclamation back to the original state of the landscape being almost impossible. Construction of buildings, milling facilities, tailings piles or ponds, roads to serve the mine, and pipelines for water contribute further to landscape destruction. The amount of water required by mining and milling operations put strains on fresh water supplies. Finally, the energy required, both

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8 in electricity for the mine and fuel for trucks, is a significant source of carbon emissions (Sc heele, 2011 ; Stanford Law School & Legal Assistance Center of Namibia, 2009 ). The Global Uranium Market Overview Global uranium production has slowly and steadily increased over the past ten years (see Figure 1.1 below; World Nuclear Association, 2015). T he global uranium market consists of a small group of major uranium consumers, a small group of major uranium producers, and a very small number of countries falling into both the consumer and producer categories (see Tables 1.1 and 1.2 and Figures 1.2 and 1.3 below). Figure 1.1: Uranium Production Worldwide, in Tons Produced per Year Data Source: World Nuclear Association, 2015. Figure prepared by Rachael Hamby. 0 10000 20000 30000 40000 50000 60000 70000 2006 2007 2008 2009 2010 2011 2012 2013 tU Year Uranium Production Worldwide

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9 Producer C ountries According to data compiled by the World Nuclear Association (2015), the to p ten uranium producers in 2014 are outlined in Table 1.1 and illustrated in Figure 1.2 below. Table 1.1: Top Ten Uranium Producing Countries in 2014, in Tons Produced Global rank Country Tons of uranium produced in 2014 1 Kazakhstan 23,127 2 Canada 9, 134 3 Australia 5,001 4 Niger 4,057 5 Namibia 3,255 6 Russia 2,990 7 Uzbekistan 2,400 8 United States 1,919 9 China 1,500 10 Ukraine 962 Data Source: World Nuclear Association, 2015. Table prepared by Rachael Hamby. Figure 1.2: Top Ten Uranium Producing Countries in 2014, in Tons Produced Data Source: World Nuclear Association, 2015. Fi gure prepared by Rachael Hamby. Kazakhstan Canada Australia Niger Namibia Russia Uzbekistan United States China Ukraine Top Ten Uranium Producing Countries in 2014

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10 Consumer C ountries The amount of electricity generated from nuclear power can be used as a proxy to approximate uranium consum ption. According to data compiled by the World Nuclear Association (2015) the top ten generators of nuclear power in 2014 are outlined in Table 1.2 and illustrated in Figure 1.3 below. Table 1.2: Top Ten Consumers of Uranium in 2014, in Terrawatt hours of Electricity Generated from Nuclear Global rank Country Terrawatt hours of electricity generated from nuclear in 2014 Percentage of total electricity 1 United States 798.6 19.5 2 France 418.0 76.9 3 Russia 169.1 18.6 4 South Korea 149.2 30.4 5 China 1 42.7 2.4 6 Canada 98.6 16.8 7 Germany 91.8 15.8 8 Ukraine 83.1 49.4 9 Sweden 62.3 41.5 10 Spain 54.9 20.4 Data Source: World Nuclear Association, 2015. T able prepared by Rachael Hamby.

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11 Figure 1.3: Top Ten Uranium Consuming Countries in 2014, in Te rrawatt hours of Electricity Generated from Nu clear Data Source: World Nuclear Association, 2015. Table prepared by Rachael Hamby. Notably absent from this list is Japan, which generated between 25 and 30% of its electricity from nuclear in the years lead nuclear power plant following the tsunami of March 2011, but has produced very little electricity from nuclear since then (World Nuclear Association, 2015 ) The Fukushima disaster had a significant impact on the global uranium market as Japan temporarily shut down all its nuclear reactors and several other countries took the opportunity to reevaluate the role of nuclear power in their energy mixes. This led to a sharp decrease in uranium prices (Hayashi & Hughes, 2013) which in turn led many mining companies to suspend operations or close projects entirely, and to recalculate the viability of beginning new projects (Els, 2012) A slight dip in worldwide uranium production can be seen for the year 2011 in Figure 1 .1 above United States France Russia South Korea China Canada Germany Ukraine Sweden Spain Top Ten Uranium Consuming Countries in 2014

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12 In the years following the Fukushima disaster, uranium prices have slowly recovered as Japan and others have returned to the use of nuclear power, but have yet to return to pre 2011 levels. Surging demand from China, in particular, as well as mo re modest increases in demand from the United States and Russia, may have helped to mitigate the impact of Fukushima on global demand for uranium overall (World Nuclear Association, 2015) In general, uranium mining and milling development respond to the global uranium spot price. As we will see in Chapter III, m ining companies regularly mothball facilities if uranium prices are not high enough for the project to be profitable, and wait until the price rises to resume operations (Els, 2012) Chinese compan ies seem to be the exception new nuclear reactors, Chinese companies have been willing to continue operations at times when other companies have chosen to wait for prices to recover. The Husab mine in Namibia, discussed in Chapter III, is one example of a mine that has continued to operate at times when other mines were suspending operations (Jamasmie, 2015) International Regulation Currently, there is no international re gulatory body that governs mining in general ( Kachale 2011). The International Atomic Energy Agency (IAEA), an agency of the United Nations, is the international regulatory body for nuclear energy. This includes uranium mining and milling as part of the n uclear fuel cycle. Environmental health environmental health from radiation, as opposed to environmental damage from mining and milling writ large (IAEA, 2015). One of the questions to be explored in Chapter IV is

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13 whether the IAEA is positioned to effectively regulate environmental health, or if another regulatory body may be needed. ams. Within Nuclear Energy, the IAEA has a Nuclear Fuel Cycle and [and] b etter utiliz e uranium resources (IAEA, 2015). The Technical Cooperation program is organized by geographical region as opposed to by issue area. Through this program, the IAEA works with Member States to provide technical assistance in the greatest need (IAEA, 2015). International regulation of environmental health in general shows a similar lack of focus. There is a United Nations Environment Programme (UNEP) but it faces a variety s opposed to a separate agency such as the World Trade Organization, means that UNEP does not have an independent autonomous governing body, and therefore has limited authority to develop and implement a strategic vision. Internal structural and governance issues have also Second, funding for UNEP is dependent on voluntary contributions from UN member states, as opposed to the mandatory assessments that fund other UN agencies. These voluntary contributions have b een falling over the past twenty years. Third, the UNEP headquarters were placed in Nairobi, Kenya, isolating it from the rest of the UN and situating it far away from global centers of en vironmental work These factors combined have led to calls for the c reation of a

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14 stronger United Nations Environment Organization that would address many of these issues (Ivanova, 2005). A Regulatory Race to the Bottom? environmental stan Put another way by Konisky (2007), states will attempt to reduce the cost of doing business in the state in order to maintain current industrial production within the state and attract new production. One way of reducing production costs may lie in minimizing regulatory burdens, thereby (p. 175). Though it continues to be debated in the literature, many sc holars argue that environmental health regulation in the United States has been the victim of a regulatory race to the bottom in the past (Engel, 1997; Konisky, 2007; Woods, 2006) Before the passage of national environmental legislation including the Clea n Air Act and the Clean Water Act, individual states created their own air and water quality regulations. As companies considered in which state to site new facilities, state governments competed with each other to attract facilities and the associated j obs. States with more stringent environmental health regulations were at a disadvantage because the costs of compliance with their regulations were sometimes higher than in neighboring states. In order to remain competitive, states were pressured to loosen their regulations in order to attract businesses and jobs. Eventually, as a result of this downward pressure, environmental health regulations became so ineffective that Congress passed a series of environmental

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15 laws to establish a national floor for envi ronmental health regulation. This minimum level of regulation across all states removed the economic incentive for state governments to weaken their environmental health regulations (Engel, 1997; Konisky, 2007; Woods, 2006). One question to be explored is whether a regulatory race to the bottom is occurring at a global scale in environmental health regulation of uranium mining and milling Uranium consumers have some choice in where they obtain their uranium, though that choice is somewhat limite d by the fact that uranium is found in specific locations on earth and is a stationary resource until it is removed from the ground. Still, there are many uranium producers from which consumers can choose (see Table 1.1 and Figure 1.2 earlier in this chapt er) and price may be a strong driver in that choice. To compete for buyers, are uranium producing countries weakening their environmental health and other regulations to help keep regulatory compliance costs as low as possible for uranium producers and he lp them compete in the global uranium market? The Phenomenon of Regulatory Capture Regulatory capture is a phenomenon in which the regulators end up being controlled by the regulated industry; in other words, the regulatory agency becomes an instrument of Regulatory capture can occur in a variety of ways, including: industry participation in drafting regulations; dilution of existing regulations; and weakening enfor cement of existing regulations (Etzioni, 2009) As with a regulatory race to the bottom, regulatory structure that is favorable to industry, or an environment of non e nforcement of existing

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16 regulations. I would argue that r egulatory capture could become more likely when an agency is charged with a dual mandate, for example to both regulate and promote an industry, or when national priorities demand that promotion of an industry take precedence over regulating it. Hypothesis The purpose of the thesis is to explore a hypothesis that uranium producing countries, especially those with less the bottom as describ ed above, in uranium mining and milling in particular in environmental health protection In other words, less developed countries may be choosing to not establish, or not enforce, occupational and environmental health protection laws and regulations, so that companies can mine and mill uranium more cheaply and easily, from a legal and regulatory standpoint, than in competitor countries or countries with more robust environmental health legal and regulatory structures. As a corollary, uranium consuming cou ntries may be inadvertently encouraging environmental destruction abroad by seeking the cheapest possible uranium from developing countries that can produce uranium more cheaply than other producer countries, or than those consumer countries could domestic ally, due to differences in the environmental health legal and regulatory structures between countries. Related to both these ideas is the possibility of regulatory capture, described above that the agencies and officials charged with regulating uranium mining and milling are in fact acting more in the service of the industry tha n of citizens and the environment Agencies may be under enforcing environmental health regulations, turning a blind eye,

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17 or enabling destructive behavior by industry because these officials are siding with industry rather than with the environment and citizens. The null hypothesis is that no evidence exists to support the hypothesis that such a race is occurring in uranium production. To build this hypothesis, I have framed my analysis in comparison to the well understood and well documented phenomenon of the regulatory race to the bottom in American environmental policy and law as outlined earlier in this chapter The specific hypothesis to be explored through this r esearch is that this same race to the bottom phenomenon in environmental health protection may occurring with uranium production globally. Developing nations under tremendous pressure to deliver economic growth to their populations may be sacrificing envir onmental health protection in order to attract development capital by providing an attractive regulatory environment and low costs and prices. Furthermore, this may be creating a disparity between advanced, industrialized nations with strong environmental protections in place, and developing nations which are willing to take much greater environmental risks in pursuit of economic development. If the evidence does not exist to support this hypothesis, does the evidence point instead to other factors? These factors may include differences in political or economic conditions, differences in geology or technology, historical differences, or the influence of individual actors. This paper utilizes one case study of the environmental health legal and regulatory f ramework in one specific less developed uranium producing country, Namibia, compared with an analysis of global uranium production and environmental health

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18 protection trends, to explore whether there may be evidence to build and support this hypothesis. In addition to providing an updated overview of uranium mining and milling and environmental health laws and regulations in the case study of Namibia this research may indicate whether or not further research into the race to the bottom or regulatory captur e phenomena in environmental health regulation of uranium mining and milling is warranted. If evidence exists to build and support the hypothesis, this may highlight particular areas where more study is needed to further develop and test the hypothesis. If evi dence does not exist, perhaps this research will indicate other factors that are leading to legal and regulatory differences, and indicate the direction in which further research should proceed. Finally, this project may point to opportunities to slow or halt the regulatory race to the bottom or regulatory capture through developing a stronger international legal and regulatory structure or through strengthening existing structures. Research Question Using Namibia as a case study, i s there evidence to s upport building a hypothesis that a regulatory race to the bottom may be occurring in environmental health regulation of uranium mining and milling worldwide? Using Namibia as a case study, i s there evidence to support building a hypothesis that regulatory capture is occurring in governments of uranium producing countries when it comes to environmental health protection ? Prediction At the beginning of this project, I predicted that a regulatory race to the bottom is most likely occurring, but that the situa tion is more complex and that other factors are influencing uranium mining and milling in addition. The fixed location and immobility of

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19 uranium resources may remove some lev el of international competition. U nlike in the American example described above w here companies could choose where to site their facilities according to which regulatory environments were the most favorable, mining companies cannot choose where the uranium will be, though they can choose which of the existing deposits to pursue and may take into account the regulatory environment of the host country as a factor in that decision. I also predicted that regulatory capture will prove to be common and pervasive in the less developed uranium producing countries, including in th e case study c ountry Namibia. Selection of the Case Study Based on Yin (2011), I selected the case study method for two main reasons. The first depth understanding of a phenomenon within a complex context. The second is exploratory research questions. To explore the issues raised above in greater depth, I selected Namibia as an example country to examine as a case study in Chapter III Namibia is the fifth largest producer of u ranium worldwide, and the second largest producer of uranium in Africa after Niger (World Nuclear Association, 2015) Compared to Niger, Namibia was a more accessible case study because English is the official language, eliminating the need for, and risks of potentially complicating variables such as terrorism or frequent changes in pow er

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20 Namibia is actively seeking to attract investment in its mining sector and increase uranium production and exports in the coming years ( Ministry of Mines and Energy 2003 ; KPMG, 2015 ). It is also one of the few countries in the world that has included natural resource conservation and protection in its constitution (Republic of Namibia, 1990) Mining is a large sector of the economy, but tourism, in particular game hunting and ecotourism, is a growing sector of Given this, it would seem that Namibia should have an interest in protecting its natural resources in order to continue to attract tourists and related economic development. Organization of the Thesis This introductory chapter has provided background and context for th e topic of this paper, presented the hypothesis, and explained the rationale for the selected case study. Next, Chapter II will provide a review of the literature, focusing in particular on: a theoretical framework for the research and analysis; technical background and analysis of uranium mining and milling; historical perspectives on resource extraction in developing countries; differences and shifts in attitudes towards the value of environmental health protection in developing countries; the legal and r egulatory challenges developing countries face as they strive to balance economic development to provide for their citizens now, with environmental protection to provide f or their citizens in the future; and development and testing of the race to the botto m and regulatory capture theories. Following the review of the literature, Chapter III contains a case study of environmental health regulation of uranium mining and milling in Namibia, including an Chapter IV provides an analysis of the research presented in the first three chapters,

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21 draws conclusions as to the validity of the hypothesis laid out in Chapter I, and offers possible solutions at the international and nat ional levels as well as suggestions for future research.

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22 CHAPTER II REVIEW OF THE LITERATURE Theoretical Framework Institutional Analysis and Design The Institutional Analysis and Design framework developed by Ostrom provides a theoretical b asis for this research. The three key elements that IAD helps scholars to focus on are institutions, incentives, and outcomes. There are multiple levels of institutions and rules, and therefore there can be multiple levels of analysis. The IAD framework pr ovides a structure to help scholars identify and analyze a variety of factors and variables. Using the IAD framework, one can identify the action arena and rules in use within formal and informal institutions; identify and analyze incentives, patterns of i nteractions, and outcomes; and evaluate those outcomes against a set of criteria and suggest institutional changes that might modify those outcomes (Sabatier, 2007) Andersson (2006) provides a helpful example of how to apply the IAD framework in a real world situation. For Andersson, the IAD framework is helpful in studying how variations in institutional arrangements influence natural resource governance. Examining decentralized forest governance in Bolivia, Andersson walks through each step of the IAD framework: who are the actors? What are the physical conditions? What are the socioeconomic conditions? What are the rules in u se of local institutional arrangements? What are the patterns of interactions and conditions for learning? By walking through these steps, Andersson was able to identify the key variables that contribute to cases of successful governance

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23 Technical Analysis and Documentation of Environmental Impacts Several articles provide a helpful technical overview of the uranium mining and milling process and the technical and environmental challenges. Abdelouas (2 006) outlines the major health and environmental health risks posed by uranium mill tailings. Waggitt (1994) provides an overview of historical practices in several countries, incl uding Namibia. Mudd and Diesendorf (2008) review the state of global uranium exploration and mining prospects and highlight the technical an d environmental challenges the industry will face in the coming years and decades. Sovacool and Cooper (2008) provide a helpful overview of the impacts of uranium mining and milling on the environment, situating these impacts in the larger context of the nuclear fuel cycle. Scheele (2011) also offers a helpful overview of the human and environmental health risks posed by uranium mining and milling, with a focus on Namibia and other African countries. Historical Perspectives Hecht (2012) traces the history of the development of the uranium industry in Africa and the relationships between African uranium industries and European nuclear industries. A central part of her thesis is that Europ ean nuclear powers made conscious efforts to exclude uranium mining and milling from the nuclear process, so that they could more easily control the uranium industry and avoid the development of an international regulatory structure for uranium. According many of the regulations that were put in place in individual countries were largely shaped by the mining companies, since they were often the only sources of expertise in the country at the time. Hecht also shows that tensio n between economic development,

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24 public health, and environmental protection has existed since the earliest days of uranium ic and environmental health protection Bush (2008) the inverse relationship between resource availability and economi c performance. The evidence suggests that resource wealth does not translate into wealth for the general population. Bush suggests that a system of neo mercantilism may be emerging in which developed nations source their raw materials from less developed n ations, but the more advanced and lucrative processing of those materials is done in the developed countries, thus keeping poor countries poor despite their raw material wealth. Many countries assume that resource wealth will enable them to meet the develo pment needs of their populations, despite historical examples of this not happening as hoped in other countries in the past Similarly, Jike (2004) argues that the livelihood of the general population is generally not improved by the discovery and exploitation of natural resources, resulting in a rich countries tend to be poorer and less developed despite their natural resource wealth. In the absence of binding international certain to have serious environmental consequences Differences and Shifts in Attitudes Walter and Ugelow (1979) provide a review of the different pressures countries face that may lead different countries to assign different soci al weights to the same factors, as a result of different circumstances and pressures. Walter and Ugelow write that

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25 environmental quality is income sensitive and therefore that societies may differ as to what is an acceptable level of environmental quality depending on their income levels. Few pressures exist to encourage or discourage more stringent environmental standards; therefore, countries will respond to the most immediate development needs of their populations first before turning their attention to environmental protection Bridge (2004) argues that the definition of environment has broadened, and that compliance with existing regulations According to Bridge this theory has been disproven in multiple cases in which mining has failed to perform as a development agent across a variety of regime types. States usually share the same interests as mining companies namely, to generate revenue and fail in their duty to protect their populations and environments. Mining companies rely on the authority of the state to confer legitimacy on their mining operations, but Bridge also points to some opportunities for mining companies to act independently of states. Bridge argues that the prod uction of mining waste signals inefficiency in mining operations and therefore presents an incentive for companies to find ways to increase the efficiency of their mining operations, thereby increasing their own profits while simultaneously delivering an e nvironmental health benefit to the states in which they operate Legal and Regulatory Challenges du Rand (2008) points out two aspects of the uranium mining industry in Af rica that make the continent particularly attractive to mining companies. The first, a more

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26 technical point, is that uranium deposits are closer to the surface than on other continents. This means that the timetable from discovery to extraction is shortene d relative to mines elsewhere and the extraction process is less technically challenging A shorter timetable translates into greater profits for the mining company. The second aspect of uranium mining in Africa that makes the continent attractive to indu stry is that many countries governing mining. Obtaining the necessary government approval or permits is, therefore, simpler and less expensive than it would be in a country th at has a more comprehensive regulatory structure in place Kachale (2011) both provides an excellent model for a case study an d also highlights some of the existing legal and regulatory challenges in the international uranium industry. The existing structure involves a patchwork of international conventions and treaties that govern uranium mining only tangentially (i.e. agreement s deal with environmental health protection, human rights, or radiation, but no agreement deals specifically with mining) and different states are signatories to different combinations of treaties and conventions. The result is that there is no system of m inimum international standards for mining. The primary challenge, according to Kachale is that the principle of state sovereignty over natural resources is internationally accepted and ingrained, making it difficult for an international body to imp ose regulations on what individual states do with whatever natural resources they have. A secondary challenge is that even if states were to accept regulation at the international level, regulations will have to be crafted carefully to be outcome oriented and to ensure accountability. Kachale argues for a binding international

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27 instrument with minimum standards that would create a level playing field for all nation states Race to the Bottom and Regulatory Capture Theory In analyzing the hist ory of environmental regulation in the United States, some scholars have offered the theory that the absence of a comprehensive nationwide regulatory regime for environmental protection created an atmosphere in which industry was able to influence states t o loosen their environmental regulations in order to create a more attractive regulatory compliance climate for business and industry. This theory is summarized and developed well by Engel (1997), Konisky (2007) and Woods (2006), among others. The phenomen on of regulatory capture is often explored in the context of the financial industry, but can be applied to other economic sectors as well. Etzioni (2009) provides a summary of regulatory capture theory and the different forms regulatory capture can take. M ost relevant to this paper are: industry participation in drafting regulations; dilution of existing regulations; and weakening of enforcement of existing regulations Summary From reviewing the literature, a few themes emerged that have gu ided my approach to answering the research questions in Chapter I and drawing conclusions from my analysis. Overall, the IAD framework provided a template for identifying key factors and variables organizing the analysis of the case study findings and pr oposing solutions to address the institutional and incentive problems that emerged from the analysis.

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28 Clearly, uranium mining and milling pose significant threats to human health and to the environment, which should be taken into consideration as the worl d considers the role of nuclear in the global energy mix (Scheele, 2011; Sovacool and Cooper, 2008) In less developed countries, these environmental harms may be just one of a set of legitimate and serious problems faced by citizens as they strive towards the development levels and quality of life taken for granted by citizens of developed countries (Walter & Ugelow, 1979) While economic development and environmental protection are sometimes presented as two mutually exclusive ideals, my conclusion from reviewing the literature is that this is a false choice. Resource extraction has failed to be the guaranteed economic driver that that locks a country in to dependence on the simple step of extracting raw materials, only to see those materials exported for more lucrative processing elsewhere (Bridge, 2004; Bush, 2008; Jike, 2004). My suggestion is that environmental protection, on the other hand, may be a way for develop ing countries to invest in a sustainable resource that could allow them to develop their economies in other directions such as tourism. For reasons that are complex, international regulation has so far been unsuccessful in safeguarding against environment al damage from natural resource extraction (Hecht, 2012; Kachele, 2011). This lack of regulation may be enabling, or contributing to, a regulatory race to the bottom (Engel, 1997; Konisky, 2007; Woods, 2006). Clearly, there remains a need for a strong and comprehensive regulatory structure to create an international floor that would level the playing field for developing countries ( Kachale 2011).

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29 CHAPTER III CASE STUDY NAMIBIA Background and Political Context Namibia spent much of the 20 th centu ry as a colony, first as a colony of Germany starting in World War I and then as a colony of South Africa following World War II. After a 25 (SWAPO), Namibia gained independence from Sou th Africa in 1990. Since gaining independence, Namibia has enjoyed relative stability, especially compared to other African regions. The government is a multiparty parliamentary democracy (though SWAPO has won every election since independence). Former Pre sident Hifikepunye Pohamba, who stepped down in 2015 after serving two terms, was the recipient of the 2015 Mo Ibrahim prize for African leadership. Current President Hage Geingob has previously served as Prime Minister and as Minister of Trade and Industr y (BBC, 2015) Ministries environmental health regulation: the Ministry of Environment and Tourism, and the Ministry of Mines and Energy. The Ministry of Environment and rehabilitate essential ecological processes and life support systems, to conserve biological diversity and to ensure that the utilization of natural resources is sustainable for the benefit of all Namibians, both present and future, as well as the international community, (Ministry of Environment and Tourism, 2015 ) Current Minister Pohamba Shifeta is an attorney and political scientist who previously

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30 served as Deputy Minister, and before that was Deputy Minister of Youth, National Service, Sport and Culture. Shifeta attracted media attention in the summer of 2015 for allowing the trophy killing of a black rhinoceros (a species that is critically endangered due in part to poachi that was allowed to be hunted was an old male that was likely to kill rhino calves (New Era, 2015) The Ministry of Mines and Energy has two main responsibilities. One is to promote and facilitate resource exploration and development, including attracting private investment providing geoscientific information support and managing a title system. royalties and ensuring that safety, health and environmental standards are consistent with laws and regulations (Ministry of Mines and Energy, 2015) Minister of Mines and Energy, Obeth Kandjoze, has a background in the petroleum industry, including serving as Managing Director of the National Petroleum Corporation of s a background in e ngineering. H e currently serves on the board of directors of Rossing Uranium Limited (Rio Tinto, 2016) problematic, as it is sometimes difficult for these two functions t o coexist effectively. further detail below), successful promotion and facilitation of resource development aligns better with this focus than effective regulation and moni toring, especially when

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3 1 regulation comes into conflict with promotion. This may be a significant contributing Vision 2030 In 2004, the Namibian government finalized Vision 2030, a 25 year plan that outlines economic development: Inequality and social welfare; Peace and political stability; Human resources development and institutional capacity building; Macro economic issues; Population, health and development; Natural resources and environment ; Knowledge, information and technology; External environment factors (Gov ernment of Namibia, 2004) Legal and Regulatory Framework The Namibian Constitution Namibia gained independence from South Africa in 1990 and ratified its new constitution that same year. Chapter 11, Principles of State Policy, Article 95, Promotion of th e Wel fare of the People, states that [t]he State shall actively promote and maintain the welfare of the people by adopting, inter alia,

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32 processes and biological diversity of Namibia and uti lization of living natural resources on a sustainable basis for the benefit of all Namibians, both present and future (Government of Namibia, 1990). Chapter 10 establishes an Ombudsman whose functions, outlined in Ar ticle 91, include, among others the dut y to investigate complaints concerning the over utilization of living natural resources, the irrational exploitation of non renewable resources, the degradation and destruction of ecosystems and failure to protect the beauty and character of Namibia (Gover nment of Namibia, 1990). Minerals (Prospecting and Mining) Act of 1992 The Minerals (Prospecting and Mining) Act (MPMA), #33 of 1992, covers the reconnaissance, prospecting, mining, disposal and control of minerals in Namibia. The MPMA mainly deals with pr ocesses such as pegging claims and obtaining various levels apply to uranium mining. However, some provisions in the MPMA do touch on environmental health issues and ap ply to all mining, including uranium. The MPMA establishes a Minerals Board of Namibia, which serves an advisory function to the Mining Commissioner. The Chamber of Mines of Namibia is given two nominations to the Board; in contrast, there is no requireme nt that environmental interests be represented on the Board. The Board must keep records of its proceedings, but is not required to make those records public. In general, the application process for prospecting or mining licenses includes an environmental protection provision. Section VIII, Mineral Licenses, outlines the

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33 requirements for environmental impact assessments and environmental management regarding environmen tal protection, at his or her discretion. Section XVII, General Provisions, covers liability for environmental damage. According to this section, any spills, pollution, or other damage must be reported, and the polluter must remedy the damage at the pollut defined in the legislation). As with Mineral Licenses, the Minister of Mines and Energy appropriate and go to court to recoup the costs from the polluter (Government of Namibia, 1992) Minerals Policy of Namibia (2003) The Minerals Policy of Namibia (MPN) was released by the Ministry of Mines and Energy in 2003. It predates the Environmental Management Act, described below, which was passed in 2007 and went into effect in 2012. The goal of the MPN was to create a : an overview of the mining industry; value addition; marketing and investment promotion; the mining industry and the environment; human resources; research, development and technology; governance of the sector; and regional integration. Part 5 of the MPN covers mining and the environment. According to the MPN, as of regulations as a deterre nt to investment because of the risk of publicity for poor

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34 environmental regulations in line with those of the Southern African Development Community and with those required b mining industry more appealing to international investors. ly sustainable ntal Despite these admirable goals, the MPN as a whole makes it clear that the government is to prioritize the creation of a friendly and inviting environment for investment in its mining industry; the environmental regulation measu res are included as a means to make the investment climate more appealing (Ministry of Mines and Energy, 2003) Environmental Management Act of 2007 The Envi ronmental Management Act (EMA) #7 of 2007, was passed in December 2007, but did not take effect until February 2012, just over four years after being passed. implementation in response to reports of significant pollution from the Tsumeb copper smelter (Goitom, 2012) Th e stated goal of the EMA is to promote sustainable management of the environment and use of natural resources, and to establish principles for decision making.

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35 Among other things the law creates a Sustainable Development Advisory Council, as well as an Env ironmental Minister, Environmental Commissioner and Deputy Commissioner, and lays out the requirements and process for environmental assessments Part I of the EMA provides definitio ns of several key terms. A few notable definitions include: are mutually interrelated and affect the ecological equilibrium and the quality of ng, or likely to have, a consequential qualitative or quantitative impact on the environment, including changes in ecological, enewable or non renewable, or the environment, in such a manner that it may equitably yield the greatest benefit to present generations while maintaining its potential to meet the needs and aspirations of future generations including the maintenance and im provement of the capacity of the environment to produce renewable resources environment be considered ca refully and in a timely manner; 2) that interested and affected parties be able to participate in the environmental assessment process in a timely manner; and 3) that the findings of any environmental assessment be taken into account before a decision is m ade.

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36 These principles are to guide implementation of the EMA and any other environmental protection law, serve as a framework for environmental plans, and provide guidelines for any decision made in terms of the EMA or any other environmental protection laws. The list of principles is long and broad, and includes the following: Renewable resources used on a sustainable basis; Community involvement in management and sharing of benefits; Participation of all interested and affected parties, with their input being taken into account in any decision making; Equitable access to natural resources, and integrity of ecosystems to ensure sustainability and prevent harm; Assessment requ environment (as defined in Part I); Promotion of sustainable development; Protection of cultural and natural heritage, including biological diversity; Adoption of the option that causes the most ben efit or the least damage to the environment, at an acceptable cost to society; Reduction of waste and pollution; Costs of environmental damage must be paid by whomever caused the damage Lack of scientific certainty is not an ex cuse for inaction; Reduction, limitation and control of activities that cause environmental damage.

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37 Part III of the EMA outlines the functions and powers of the Environmental Minister. These include: determining, preparing and publishing policies, objecti ves and standards; coordinating environmental management at the national level; monitoring and ensuring compliance with the EMA. Part IV of the EMA establishes the Sustainable Development Advisory Council (SDAC). The purpose of the SDAC is to promote coope ration and coordination and to advise the Minister of Environment on a variety of topics, including: development of policy and strategy; conservation of biological diversity; sustainable development; monitoring compliance with environmental management principles; new legislation. Part V of the EMA outlines the functions and powers of the Environmental Commissioner and other environmental officers that the Commissioner may appoint. The suitably qualified Commissioner include: advising the Minister of Environment on environmental plans; receiving and recording applications for environmental clearance certificates, and issuing certificates; determining whether an environmental assessment is required, and determining the scope, procedure and methods for environmental assessments;

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38 reviewing the environmental assessment reports; maintaining records of environmental ass essments and certificates; conducting inspections to monitor compliance. This section also covers the Commissioner s powers regarding inspections. In general, reasonable grounds for inspection must be shown and a warrant must be obtained from h Court or from a magistrate, though there are some exceptions to this policy. Part VI of the EMA covers environmental plans. The objectives of environmental plans are to harmonize among different agencies to minimize duplication and promote consistency, and to enable monitoring. The Minister of Environment determines which government agencies must prepare environmental plans. The Environmental Commissioner reviews plans and either recommends approval or lists changes needed. The Commissioner also monitor s compliance with the plans. Agencies must report to the Environmental Commissioner on the implementation of their environmental plans. Part VII of the EMA introduces environmental assessments. The Minister of Environment determines which activities requ ire an environmental clearance, and may grant exemptions. Interestingly, the minister of a government agency may approve about the environmental assessment process. As mentioned in Part V, the Environmental Commissioner determines whether an assessment is required, as well as the scope, procedures and methods for the assessment. Environmental assessments are conducted at the expense of the applicant. The assessment proc ess includes a requirement that the

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39 public be notified of the assessment and given the opportunity to comment; the Commissioner may also require a public hearing. Once the assessment has been completed, the Commissioner reviews it and either grants or de nies an environmental clearance. Clearances are valid for up to three years. There is a process for amending an environmental clearance, which either the applicant or the government may initiate. Clearance holders may apply to transfer clearances to anothe r party. The Environmental Commissioner has the power to suspend or cancel environmental clearances, and to reinstate clearances. Finally, Part IX and Part X cover special and general provisions. One of these is that the Minister of Environment may intro duce legislation or promulgate regulations regarding any international environmental agreements to which Namibia is a party, and this includes assigning responsibilities to other agencies. These sections also outline the appeals process for decisions: deci sions made by the Environmental Commissioner may be appealed to the Minister of Environment, and decisions made by the Minister of Environment may be appealed to the High Court of Namibia (Government of Namibia, 2007) Overall, the EMA is built upon well intentioned and admirable principles of environmental management. However, the vague nature of some of the sections and the discretion afforded the environmental officers may reduce the efficacy of the law. nd regulatory regime such as the MPMA and MPN, both described above, call for the prioritization of economic development, particularly as relates to mining and minerals development. These conflicting mandates are likely to force choices between environment al protection on the

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40 intentions regarding environmental protection, in the short term it seems likely that economic development will take priority. Strategic Environmental Asses sment and Management Plan 2011 2012 In 2009, the Geological Survey of Namibia (part of the Ministry of Mines and Energy) embarked on a strategic environmental assessment and management plan process beginning in 2006 as global uranium price s began to increase A permanent Strategic Environmental Management Plan (SEMP) Office and Steering Committee were established to produce the plan, and to monitor and report on compliance with the plan and progress towards goals. The first SEMP was released in 2011; the first SEMP report on progress towards the outcomes and indicators laid out in the SEMP was published in February 2013 (Geological Survey of Namibia, 2013) The SEMP identif objective, the SEMP lays out overall aims and desired outcomes, then targets and indicators. Some of the EQOs are only indirectly related to environmental health. Table 3.1 below presents a list of the EQOs, in the order in which they appear in the SEMP; for those directly related to environmental health, the overall aim is included.

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41 Table 3.1 Environmental Quality Objectives and Overal l Aims Environmental Quality Objective Overall Aim (if directly related to environmental health) Socioeconomic development Employment Infrastructure Water To ensure that the public have the same or better access to water in future [sic] as they have currently, and that the integrity of all aquifers remains consistent with the existing natural and operational conditions (baseline). This requires that both the quantity and quality of groundwater are not adversely affected by prospecting and mining acti vities. Air quality and radiation N/A discussed in relation to worker and public health, but not environmental health Health N/A discussed in relation to worker and public health, but not environmental health Effect on tourism The natural beauty of the desert and its sense of place are not compromised unduly by the Uranium Rush; and to identify ways of avoiding conflicts between the tourism industry and prospecting/mining, so that both industries can coexist in the Central Namib. Ecological integri ty The ecological integrity and diversity of fauna and flora of the Central Namib is [sic] not compromised by the Uranium Rush. Integrity in this case means that ecological processes are maintained, key habitats are protected, rare and endangered and endem ic species are not threatened. All efforts are taken to avoid impacts to the Namib and where this is not possible, disturbed areas are rehabilitated and restored to function after mining/development. Education Governance Heritage and future Mine clo sure and future land use To maximize the sustainable contribution mines can make post closure to society and the region, and to minimize the social, economic and biophysical impacts of mine closure. Data Source: Geological Survey of Namibia, 2013 Table prepared by Rachael Hamby.

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42 While the SEMP is an important step forward, it does have some troubling aspects. mining companies or by the Uranium Institute, an arm of t he Namibian Uranium Association which is an industry advocacy group. Independent verification of data, if it occurred, was not discussed in the SEMP report (Geological Survey of Namibia, 2013) Second, the word ing of many of the objectives seems sufficient ly vague, with enough loopholes, that the indicators may be either easy to meet, or hard to prove that they were not met, or both. In essence, the SEMP reporting process asked mining companies questions along the lines of, Did you make every practicable e ffort, within reason to safeguard the environment? to which the mining companies responded along the lines of, Yes, we made every practicable effort, within reason, t o safeguard the environment. Based on this exchange the SEMP report would then declare t The self reporting process and the vague language of the SEMP would appear to make enforcement more difficult. It is often impossible to prove a negative, and it seems that it would be difficult for the SEMP office to pro ve that a mining company did not g its decision making process. Uranium Exploration and Development in Namibia Countries and Companies Active in Namibia Table 3.2 summariz es countries with major active uranium exploration and/or uranium development and production projects in Namibia.

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43 Table 3.2 Countries and Companies Active in Namibia Country Uranium Projects in Namibia Namibia In 2011, the Namibian government declared that uranium is government decreed that the state mining company, Epangelo Mining, must be a partner in all uranium development projects. Following an outcry from the mining industry, the governm ent clarified that this policy applied only to new projects, and did not retroactively apply to existing projects. Still, the Namibian uranium projects. Private Namibian companies have partnered with other companies on exploratory projects. Australia three producing uranium mines, Langer Heinrich (Rossing, owned by British company Rio Tinto, and Husab, owned by Chinese company Taurus Minerals are the others .) Australian companies also own several smaller exploratory projects. UK London based Rio Tinto owns the majority of Rossing, one of uranium mine developed in Namibia. China Taurus M inerals, a subsidiar y of China General Nuclear Uranium Resources, is the 90% owner of the Husab project A subsidiary of the Chinese National Nuclear Corporat ion holds a 25% stake in Australian company Pa ladin project; a nother subsidiary is developing an exploratory project in partnership with a Namibian company. France French company Areva is the owner of the Trekkopje project. The project is beyond the exploratory stage and has received a p ermit for mining to begin, but Areva continues to delay the start of production due to low uranium prices; the project is mothballed until prices make production economically viable. South Africa Iran The Iranian Foreign Investment Company owns a 15% stake in trust while United Nations sanctions against Iran are in force. Canada Two e xploratory projects are being developed by Canadian companies. Data Source: World Nuclear Association, 2015 T able prepared by Rachael Hamby.

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44 Current Uranium Projects in Namibia Namibia is home to a few major uranium projects and several other smaller, Three mines are producing uranium currently: Rossing, Langer Heinrich, and Husab. ura nium. The Trekkopje mine has been mothballed until international uranium prices are higher. The rest of the projects are exploratory (World Nuclear Association, 2015 ) Rossing Mine, Rio Tinto (UK, Iran, South Afr ica, Namibia) Langer Heinrich Mine, Paladin Energy (Australia, China) Husab Mine, Taurus Minerals (China) Trekkopje M ine Areva (France) Exploratory projects, not yet producing any uranium, include: o Omahola and Tubas projects, Deep Yellow (Australia) o Etango project, Bannerman Resources (Australia) o Marenica project, Marenica Energy (Australia), Areva (France) and Hanlong (China) o Zhonghe project, Zhonghe Resources (China, Namibia) o Norasa project, Forsys Metals (Canada) o Cape Cross project, Xemplar Energy (Canada) (World Nuclear Association, 2015.) Informal mining, in which individuals or small groups will attempt to recover additional minerals from tailings, occurs in Namibia. In many cases, these s mall scale or

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45 informal mi ners operate illegally without an y mining licenses or environmental permits. For some, the process is too difficult and complex; others are simply unaware that a process exists. Either way, these activities cause additional harms to the environment use water and energy and pose serious threats to the health of small scale and informal miners These operations are even more difficult to monitor than the large scale industrial mines that the Namibian government is already struggling to monitor ( Angula, 2007). Recent Uranium Production in N amibia Table 3.3 and Figure 3.1 below summarize uranium production in Namibia from 2002 to 2013, and highlight any notable events that correlate with significant increases or decreases in production in a given year.

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46 Table 3.3: Uranium Production in Namibi a 2002 2013 Year Production (tU) Change from previous year (tU) Notable events 2002 2233 2003 2036 197 2004 3038 +1002 Minerals Policy of Namibia was finalized in 2003. 2005 3147 +109 2006 3077 70 2007 2879 198 2008 4366 +1487 Production in creases in response to rising uranium prices starting in 2006 2009 4626 +260 2010 4496 130 2011 3258 1238 Namibia; however, strikes at Rossing contribute to a significant dip in production; Fukushima disast er contributes to decline in uranium price s ; Black Economic Empowerment (BEE) legislation and a mining tax increased were proposed, then abandoned following an outcry from industry 2012 4495 +1237 Uranium prices remain low, but no major strikes, allowing industry to recover from the previous year; abandonment of BEE and tax increase provides certainty to the industry. 2013 4315 180 Total change in prod uction from 200 2 2013: +2082 tU Data Source: World Nuclear Association 2015 T able prepared by Racha el Hamby.

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47 Figure 3.1: Uranium Production in Namibia 2002 2013 Data Source: World Nuclear Association 2015 Figu re prepared by Rachael Hamby. Notable Events in Namibian Uranium Production Early Exploration and Production Uranium was first discovered in Namibia in 1928, but official organized exploration did not begin until 1966 when Rio Tinto began its exploration of the Rossing deposit. This led the development of the Rossing mine which began production in 1976 (Jamasmie, 2015). Since then, further expl oration and estimates have determined that global uranium production. This makes Namibia the fifth largest producer of uranium in the world and the second largest producer of uranium in Africa after Niger (World Nuclear Association, 2015 ). It has been predicted that uranium will eventually overtake earning commodity ( Mining.com, 2011), though this prediction was made in 2011 when u ranium prices were still high; whether this prediction comes true or not will depend largely on the international market price for 0 500 1000 1500 2000 2500 3000 3500 4000 4500 5000 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 tU Year Uranium Production in Namibia

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48 uranium. Namibia became a member of the International Atomic Energy Association (IAEA) the international governing body for nuclear energy, in 1983. Namibia has set a goal of supplying its own nuclear electricity by 2018, which if achieved would allow Namibia to decrease its dependence on South Africa for electricity generation (World Nuclear Association, 2016) 2004 Mineral s Policy of Namibia Is Finalized In 2003, the Namibian government finalized the Minerals Policy of Namibia (MPN), discussed earlier in this chapter The MPN establishes increased mineral development as a clear priority for the country. The policy emphasize s the need to create an inviting sector. Environmental health regulation is mentioned in the context of improving or environmental management has the potential to draw negative publicity, which would be a deterrent to investment. Environmental health protection is presented as a tool to improve the attractiveness of the investment climate in Namibia. Minerals developm ent, however, is the primary end g oal of the Namibian government (Ministry of Mines and Energy, 2003). 2008 2011 Production Increases; BEE and Tax Increase Proposed then Abandoned Uranium production in Namibia increased significantly from 2007 to 2008, and production remained high through 2010. In addition to continued production at existing projects, important new developments included the announcement of French nuclear in planned investments in uranium exploration in Namibia to fuel a nuclear reactor being built in Turkey (Mineweb, 2010).

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49 Recognizing the opportunity presented by significantly increased uranium production, the Namibian government declared uranium to be government also proposed three policy changes that proved to be highly controversial and complaints, all three policies were reversed, a ltered, or abandoned (World Nuclear News, 2011) The first was Black Economic Empowerment (BEE) legislation for the mining industry. Introduced in Namibia i n 2009, the legislation required that mining companies set aside 25% of shares for black investors. Mining companies asserted th at there were not enough black investors with enough assets to meet this standard, and that the policy would cause mining in Namibia to grind to a halt (Flak, 2009). Due in part to the mining on was not passed. In 2011 the government proposed a similar policy, the New Equitable Economic Empowerment Framework, which drew a similar reaction from the mining industry. That policy was also not adopted (Finweek, 2013). The second was an increase in the tax rate for the mining industry. Citing a need to increase the mining tax from 37.5% to 44%, with only diamonds being excluded from the tax increase. Other tax reforms a nd new taxes were also proposed (Mineweb, 2011). In addition to the tax rate increase, mines would also have to pay a 15% value added tax and that the industry was alre ady heavily taxed and that any additional taxes would stifle

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50 sector (Styan, 2011). The Namibian government was quick to respond to the mining in Au gust 2011, just a month after being introduced, the tax plan was withdrawn (Els, 2011). owned mining company, Epangelo Mining, would be required to be a partner in any uranium devel opment projects. This was met by stiff opposition from companies with existing projects in Namibia that had already negotiated partnerships for those projects. In apply to new projects, not existing ones (World Nuclear News, 2011) 2011 Dip in Production facility in March 2011, which had a ripple effect throughout the global uranium an d nuclear industries. Importantly, the disaster caused a significant drop in global uranium price s and price s remained low for the rest of 2011 and for the next few years (Hayashi & Hughes, 2013 ) ak Katali, announced that would have exclusive rights to these strategic minerals In additio n to uranium, other strategic minerals included gold, copper, coal, d iamonds and rare earth metals (World Nuclear News, 2011). Understandably, this caused exploration and mining companies to panic and share prices to plummet. In response, Katali clarified in a news conference that the policy would not apply to existing exclusive prospecting, mining, or mineral deposit

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51 retention licenses (Keen, 2011). This meant that many planned projects, such as Husab, could go forward as planned ( Mineweb, 2011). For new licenses, Epangelo Mining will be required to be a partner. Serious trouble continued by the Iranian government). The mine, which accounts for about 5% of global uranium to the low uranium price of $55 per pound at the time. Then on July 12, 2011, imately 1,600 workers went on strike, bringing increase in their pr oduction incentives (Els, 2011; Reuters, 2011). A few months later, workers walked out for a second time again demanding increases in production incentives. This brought production at the mine to a halt for the secon d time in 2011 (Cropley, 2011; Els, 2011). While Rio Tinto did not reveal exactly how much production suffered during the July and September 2 011 strikes (World Nuclear Association, 2015) cted and unexpected maintenance, as well as the persistently low spot price of uranium (McCrae, in Namibia, so a dip in production at both mines in the same year resulte d in a significant This was likely a combination of the strikes at

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52 Rossing and the low uraniu m spot price for most of 2011 following the Fukushima disaster (Hayashi & Hughes, 2013) and uncertainty around the strategi c minerals policy (World Nuclear News, 2012). The year was not without positive news for the uranium mining industry. In July 2011, Australian mining company Marenica Energy issued a progress report for the Marenica Uranium Project. The update confirmed t he high grade of uranium found in the same geological formation ( Mineweb, 2011). Australian mining company Deep Yellow also announced it had discovered high grade deposits at its Ongolo and MS7 projects (McCrae, 2011). Important progress was also made on the Husab project. After six years of development, Extract Resources and Kalahari filed for a mining license in December 2010 ( Mining.com, 2011). The Namibian Ministry of E nvironment and Tourism approved the environmental impact assessment for the mine in January 2011. In July approved ( World Nuclear News, 2011). A mining license was grante d in December 2011. With the license, Husab was allowed to move forward into production. Touted as the largest uranium deposit in Namibia, the mine was expected to become one of the top gar Lake mines ( Mining.com, 2011), and the top producing uranium mine in Namibia. Despite this promise and the procedural progress over the course of 2011, continued low spot prices in the wake of the Fukushima disaster forced Extract (Australia) and Kalah ari (Britain) to accept a bid from the Chinese state owned Guangdong Nuclear

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53 Plant Corporation to buy out their stake in Husab in December 2011 (Topf, 2011). The sale was completed for $1.9 billion. This resulted in China holding a 90% stake in the Husab p roject, and the Namibian state owned Epangelo Mining holding the remaining 10% stake (Basov, 2013). 2012 2015 Production Remains Suppressed Low uranium spot prices in the wake of the Fukushima disaster in March 2011 continued to affect the Namibian uraniu m mining industry into 2012 and 2013. In August 2012, French company Areva stopped production at the Trekkopje mine, citing poor uranium market prices to improve (Els, 2 012). The company sought but failed to find a buyer for a minority stake in its Langer Heinrich mine in Namibia (Els, 2013). mine. In December 2013, a failure in one of the leaching tanks resulted in a spill of radioactive slurry; workers were treated for damage (Jamasmie, 2013). Then in June 2 014, Rio Tinto laid off 23% of its workers at Rossing and reduced production from seven days per week to five, citing the continued low spot price of uranium. The Husab mine, however, remained a bright spot in Namibian uranium mining despite troubles elsew here. After approval of the environmental assessments and the granting of a mining license at the end of 2011, construction on the Husab mine began with a groundbreaking ceremony in April 2013. At the time of the groundbreaking, it was

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54 expected that constr uction would be completed in 2014, and that production would begin by 2015 and continue for up to 20 years. Husab is expected to be one of the largest fuel construction at H usab was slightly behind this timeline but still progressing, with operations scheduled to begin later in 2015 and production to begin by February 2016 which have paus ed production or gone into care and maintenance status while waiting for uranium prices to improve. Summary labor disputes, spills, worker illnesses and deaths, and the p ersistent low spot price for uranium on the international market. Despite these difficulties, both the Namibian government and observers of the international uranium market profess a positive outlook litical and security standpoint (Jackson & Green, 2015). expectation s production numbers (KPMG, 2015). For mining companies, the regulatory environment is favorable and the Namibian government is more than responsive to industry concerns. This means, however, that environmental health and other regulation may be taking a back seat to economic

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55 development, and may be compromised in the interest of attracting investment in Nami Key Issues of spectacular landsca pe and important biodiversity have been designated as national parks. The pride Namibians take in these treasured landscapes is clear from their Constitution. destinations for tourist s from all over the world (Stanford Law School & Legal Assistance Center of Namibia, 2009) However, uranium mining and milling have s environment, and threaten to continue to do so. This section examines some of the specific ha health posed by the uranium industry. Damages and Threats to Environmental Health Many of the environmental impacts of uranium mining and milling outlined in Chapter I are present in Namibia including the serious potential for water and soil contamination from inadequately secured tailings (seepage and/or dam failure) and the risk of airborne radioactive dust from improperly covered tailings being carried to other areas (Scheele, 2011) Small scale and informal mi ning operations further exacerbate the risks posed by improper handling of tailings and waste (Angula, 2007). In addition, of particular concern in Namibia, given the unique characteristics of the landscape, are the impacts on biodiversity and ecosystems, enduring damage to the landscape, and the amount of water and energy required for uranium mining and milling.

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56 Namibia is dominated by desert and fresh water is scarce. Uranium mining and milling operations require huge quantities of fresh water. Companies must either s drinking water provider, meaning they are competing with local populations who need that water for drinking, or obtain desalinated seawater from a desalination plant on the coast and have that water piped inland ( Scheele, 2011; Stanford Law School & Legal Assistance Center of Namibia, 2009 ) Similarly, uranium mines require large amounts of energy to operate, both electricity for the mines as well as diesel fuel for trucks hauling ore out of open pit mines. Namibia important biodiversity. Second, the desert nature of the landscapes means that ecosystems are easily damaged, and take much longer to recover (Stanford Law School & Legal Assistance Center of Namibia, 2009). Damage to these priceless resources would be long lasting, or even permanent and irreparable. While industrial scale mines cause the most significant damage to landscapes, small scale and informal mining also contributes as these operators are unlikely to be aware of or adhere to environmental protection and reclamation regulations and best practices (Angula, 2007). Uranium Mining and Milling in Protec ted Areas unique landscapes, fragile ecosystems, and irreplaceable biodiversity. However, incredibly, mining is not prohibited in national parks o r other protected areas (Stanford Law School & Legal Assistance Center of Namibia, 2009 ). producing uranium mines, two Langer Heinrich (Paladin/Australia) and Husab

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57 (Taurus/China) are within the Namib Naukluft National Park, and the third Rossing ( Rio Tinto/UK) is very close to the park. Additional prospecting projects have been permitted within the park, including Trekkopje (Areva/France) This is not unique to uranium; prospecting and mining for other minerals is allowed, and ongoing, in protec ted areas throughout Namibia. Figure 3.2 below shows the locations of all prospecting and mining licenses in Namibia as of July 2015. Figure 3.3 below shows the locations of active mines; numbers 7, 8 and 10 are the uranium mines. Figure 3.4 below shows th areas. As these figures show, there is substantial overlap between minerals prospecting and exploration, active mines, and national parks and other protected areas. The Legend in Figure 3.2 below refers to the following terms. EPL refers to Exclusive Prospecting License, which grants exclusive rights to the land but prospecting can be only for the mineral specified in the license; this means that multiple entities can hold EPLs for the same land b ut for different minerals. ML refers to Mining License, which grants exclusive rights to mine an area for up to 25 years plus a 15 year renewal, as well as the right to approve the development of other mines in the same area. MC refers to Mining Claim, an option available only to Namibian citizens and intended for small scale operators with limited financial resources; prospecting and mining under a Mining Claim enjoy minimal restrictions. ERL refers to Exploration Reconnaissance License and RL refers to Re connaissance License; ERLs and RLs allow aerial and remote sensing exploration but no physical exploration. MDRL refers to Mineral Deposit Retention License, which allows a company to retain rights to a deposit that it has discovered, but cannot extract at the time of discovery for technical or financial reasons

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58 (Ministry of Mines and Energy, 2015; Stanford Law School and Legal Assistance Center of Namibia, 2009).

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59 Figure 3.2: Current Mining and Prospecting Licenses in Namibia Source: Ministry of Mines and Energy of Namibia, 2015.

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60 Figure 3.3: Mines in Namibia (note: mines 7, 8 and 10 are uranium mines) Source: Chamber of Mines of Namibia, 2015.

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61 Figure 3.4: National Parks and Other Protected Areas in Namibia Source: Ministry of Environment and Touri sm of Namibia, 2013.

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62 The fact that minerals exploration and production are allowed in national parks and structure, and there are no indications that this loophole wil l be closed any time soon. In never advanced far enough to become official Namibian govern ment policy. Even if it had been adopted, this policy still would not have prohibited prospecting and mining in protected areas (Fig, 2008; Stanford Law School & Legal Assistance Center of Namibia, 2009). In fact, the Namibian government has continued to show strong support for opening ceremony of the Langer Heinrich mine, in 2007, was attended by Namibian then President Hifikepunye Pohamba, who used the event as an opportun ity to reiterate Challenges in Enforcement of Existing Laws and Regulations Despite some significant deficiencies, Namibia does have some good laws and regulations in place. However, cha llenges arise in enforcing these laws and regulations, due to inconsistent government priorities and lack of resources. of the environment and landscape to Namibia, the gover nment is also eager to pursue economic development and sources of revenue. Not including the Namibian government School and Legal Assistance Center of Namibia, 2009), a nd the government makes an

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63 effort to attract and encourage mining investment and activity. This is exemplified by Structurally, as explored earlier in this chapter, the Minist ry of Mines and Energy and the Ministry of Environment and Tourism are tasked with mandates that are likely to come into conflict, and the legal structure does not put the MET in a strong enough position when it comes to minerals policy and economic develo pment. Indeed, former Trade and Industry Minister Andrew Ndishishi made the comment that when the environment and 2008). It is likely that this view is held by others throughout the Namibian government. In practice, this policy preference plays out in the lack of resources and capacity to properly evaluate environmental impact assessments or carry out environmental monitoring at mines. s mining industry conducted by the Stanford Law School and the Legal Assistance Center of Namibia (2009) and research by Fig (2008), the following serious problems are occurring in the enforcement industry: Companies granted permits and allowed to begin operations before the permitting process was completed; Companies granted permits and allowed to begin operations even though their environmental plans were determined to be inadequate; Concerns rega rding environmental plans are raised, but ignored; Environmental plans knowingly based on false information; MET officials refusing to review environmental plans as a form of protest;

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64 Companies hire consultants to write environmental plans; due to understa ffing, the MET hires consultants, sometimes the same consultants who wrote the plans, to review the environmental plans; Companies bypassing the official process and taking advantage of corrupt officials and/or personal connections; Companies taking advant age of the slow moving bureaucracy to proceed as MET understaffed and unable to monitor or patrol protected areas; Companies operating without any permits at all (Fig, 2008; Stanford Law Sc hool and Legal Assistance Center of Namibia, 2009). In addition to these issues at the industrial scale, small scale or informal mining takes place almost entirely outside of the existing regulatory structure. Many small scale and informal miners do not ob tain any permits at all, do not obtain environmental clearances, and do not follow environmental health regulations. Given the government capacity to monitor industrial scale operations, it is essentially impossible for the government to monitor small scale and informal operations. While industrial scale mines should bear the majority of the responsibility for environmental damages, small scale and informal mines also contribute (Angula, 2007). The enforcement lapses identified by these studies ra ise doubts as to the utility of the existing legal and regulatory structure. At best, uneven enforcement is resulting in diminished environmental health protections in Namibia.

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65 Summary Between legal and regulatory loopholes and inadequate enforcement of ex isting laws and regulations, environmental health in Namibia is at risk of serious and irreparable damage. nt for the enjoyment and benefit of current and future generations of Namibians. Perhaps the government feels it has no choice, and that this compromise must be made in order to offer jobs and economic opportunity for its citizens. The potential for the develo pment of a landscape based tourism industry, however, provides an alternate path forward for Namibia foundational ideals. Analysis Trends in Namibian Uranium Production Since 20 02, uranium pr oduction levels in Namibia seem to respond to three key variables: international demand for uranium; the spot price of uranium on the international market; and strikes by mine workers. Government policy and regulatio n regarding uranium minin g seem to be driven by the mining industry and its reaction to government policy changes and proposed changes, suggesting that the Namibian government is a victim of regulatory capture at least as far as its mining industry and policies are concerned. One example described above, is the face on the related issues of BEE policies and tax increases, A second example rocess described earlier, on industry self reported answers to questions about efforts to protect environmental health. To its credit,

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66 with unemployment around 50%, the Namibian government is looking for ways to ensure that its citizens are benefiting from struggled to identify policies that are both effective at keeping mineral wealth in Namibia, and acce ptable to the mining industry. This section provides institutional analysis and design (IAD) framework developed by Ostrom (2007), described earlier in Chapter II. This analysis follows the example of application of the IAD framework to a real world situation provided by Andersson (2006), also described earlier in Chapter II. What is the Action A rena? Uranium mining in Namibia plays out in two arenas: the international uranium market, and in the Namibian national government specificall y the Ministry of Mines and Energy and the Ministry of Environment and Tourism Who are the A ctors? In the international uranium market arena, several large and powerful actors influence Countri es such as the US, Japan, France and China that rely on nuclear power and thereby drive demand for uranium as fuel for nuclear reactors; Multinational mining companies that explore for, mine, upgrade and sell uranium. In the national government arena, a va riety of actors influence uranium mining policy and production in Namibia: Key figures in the Namibian national government, including:

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67 o President (Hage Geingob); o Minister of Mines and Energy (Obeth Kandjoze); o Mining Commissioner (Erasmus Shivolo); o Minister of Environment and Tourism (Pohamba Shifeta) ; o Environmental Commissioner (Teofilus Nghitila) ; Multinational mining companies that explore for, mine, upgrade and sell uranium; The Chamber of Mines of Namibia; Domest ic and international journalism outlets. What is the Nature of the Good and the E nvironment? The physical conditions of uranium in Namibia drive the decision making of actors in both the international and national arenas. Uranium is where it is; humans do not have control over where uranium deposits are found or the grade of the ore. In other words, where uranium exists dictates where and how it must be mined. That being said, Namibia is not the only country that hosts uranium deposits, so uranium consumer s do have some choice, though limited, in where they choose to pursue existing uranium deposits. As will likely over time become more and more narrow. The fixed nature of the resource also means that recovering the resource is necessarily large scale, long term, and expensive. The expense of recovering uranium compared to the price it can fetc h on the international market seems to be a factor affecting the uranium indust ry in Namibia and internationally. While labor costs can vary between countries, the capital costs and time commitment are likely to be significant no matter

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68 where a company chooses to locate its operations. Companies will only continue to develop uranium resources if the profits will outweigh the costs, and this is determined in part by the uranium spot price on the international market at any given time. Another challenge with uranium development is the danger it poses to human and environmental health d ue to radioactivity of both the uranium itself but also the tailings left behind by milling (Abdelouas, 2006; Scheele, 2011) Unlike with many other minerals, radiation danger adds a layer of complexity to both human and environmental health protection whe n recovering and processing the resource. Exposure to radiation during mining and milling can have serious long term health impacts on workers that often are not apparent until years, or even decades, after the exposure (Hecht, 2012; Scheele, 2011) Simila rly, radioactive contamination of water and soil, as well as radioactive particles in the air, can persist for years or decades, impacting broad areas and ecosystems as radioactive materials are dispersed through natural processes (Abdelouas, 2006; Scheele 2011) How Do Actors A ssociate? outlined in Vision 2030 described earlier in this chapter Namibia is eager to attract international investment in industries where it has a comparative advantage, and mining location nature o f mineral resources described in the previous section. Mining companies do have some choice, though it is limited, in where to invest in development of uranium and other mineral resources. This puts Namibia in the position of competing to attract business to

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69 its mining industry, and mining companies in the position of being able to drive the bargain they want with host countries who are desperate for investment. On the regulatory level, actors associate through the permit and environmental assessment proce ss which is inadequate and has serious problems In theory, c ompanies apply for mining licenses and submit environmental management plans; the Namibian government, through its agencies, issues licenses and approves environmental management plans. In pract ice, due to significant understaffing and lack of resources and capacity, companies proceed without permits or with inadequate environmental plans, as described earlier in this chapter (Fig, 2008; Stanford Law School and Legal Assistance Center of Namibia, 2009). I t is unusual for these licenses and plans to be denie d, and this may be b ecause denial of a mining license or an environmental management plan would hin What are the Rules in Use of Institutional A rrangements? The rules in use are the norms that are accepted and adhered to by participants, which may or may not be the same as those that exist in writing (Andersson, 2006). For it seems that accepted norms could be grouped into two br oad categories. 1) Government policies respond to complaints from industry. development, mining companies hold significant political sway in Namibia, and as such do not hesitate to vo cally criticize government policies that they disagree with or dislike. The Namibian government, in turn, has shown a willingness to accept this input and

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70 BEE legislatio n, the withdrawal of the increased tax rate on mining, and the backpedaling on Epangelo ownership of existing mines all described earlier in this chapter, are the prime examples of this norm in practice. 2) As long as companies go through the process, they can expect permits and plans to be approved. On paper, Namibia has extensive permitting, environmental assessment and environmental planning processes. But as long as companies complete these processes, they can expect the results to be approved with minim al scrutiny. The SEMP process described earlier in this chapter, is an illustration of this norm in practice: an industry self reported yes/no survey What are the Pat terns of Interactions and Conditions for L earning? The rules in use described above contribute to a pattern in which government informal institutional incentives encour age mining companies to demand the policies they want, and encourage the government to provide the policies that the mining companies want. These incentives are self reinforcing, as mining companies learn from their successes in pushing back on government policies. Conclusions from IAD Analysis The IAD framework analysis is helpful in highlighting the ways in which regulatory environmental protection laws. Based on this analysis of the events and sources cited earlier in this chapter my conclusion is that it is likely that regulatory capture is

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71 regulations are developed and enforced. In particular, looking at the ways in which actors associate, the rules in use of institutional arrangements, and the patterns of interactions and conditions for learning as explored throughout this chapter it seems that the Namibian government is responsiv e to the desires of the mining industry at the expense of rigorous environmental protection. This leads me to conclude that evidence exists to support the hypothesis that regulatory capture may be occurring in Namibia. The question remains whether this is driven by a larger race to the bottom between Namibia and other less developed countries, between developed and less developed countries, or whether a race to the bottom is not a factor in the global uranium industry as far as environmental health regulati on is concerned. This question will require further study, as I suggest in Chapter IV.

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72 CHAPTER IV CONCLUSION Review of the Hypothesis and Predictions In Chapter I, I offered the hypothesis that that uranium producing countries, especially those with less environmental health regulation of uranium mining and milling. This hypothesis had two corollaries. The first was the possibility that uranium consuming countries may be inadvert ently encouraging environmental destruction abroad by seeking the cheapest possible uranium from developing countries that can produce uranium more cheaply than other producer countries, or than those consumer countries could domestically, due to differenc es in the environmental health legal and regulatory structures between countries. The second was the possibility of regulatory capture, that the agencies and officials charged with regulating uranium mining and milling are in fact acting more in the servic e of the industry than of citizens and the environment The research presented in this paper has been guided by the following two research questions: 1) Using Namibia as a case study, i s there evidence to support building a hypothesis that a reg ulatory race to the bottom may be occurring in environmental health regulation of uranium mining and milling worldwide? And 2) Using Namibia as a case study, i s there evidence to support building a hypothesis that regulatory capture is occurring in govern ments of uranium producing countries when it comes to environmental health protection ? In Chapter I, I predicted that a regulatory race to the bottom is most likely occurring, but that the situation is more complex and that other factors are influencing ur anium

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73 mining and milling in addition. I also predicted that regulatory capture will prove to be common and pervasive in the less developed uranium producing countries, especially in the case study country Namibia. The remainder of this chapter will: assess the accuracy of those predictions; evaluate progress made towards answering the research questions and building evidence to support the hypothesis; offer ideas for solutions to the problems identified by the research; and suggest directions in which to ta ke fut ure research. Assessing the Predictions and Answering the Research Questions A Regulatory Race to the Bottom? Given that this project was limited in scope to only one case study, I did not find n a regulatory race to the bottom among less developed countries. If anything, my research actually suggests the opposite that Namibia sees environmental protection as a way to make itself appear more developed, and thus more attractive to investors. The Minerals Policy of Namibia specifically mentions that to enhance its legitimacy, Namibia must rise to meet increasing international expectations in the area of environmental protection (Ministry of Mines and Energy, 2003) It would appear, then, that in order to provide an attractive investment environment consistency in its economy, as well as its political and regulatory environment, rather than on offering looser regulations than other developing countries. Competition with other less developed uranium producing countries does not appear to be a strong driver in making.

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74 Providing regulatory certainty, on the other hand, has been an appare nt priority of the Namibian government when it comes to regulating the mining industry. Examples policy, the assurances provided to the mining industry in the MPN, and t he relative certainty around the environmental permit process all contribute to a stable and attractive climate for the mining industry as it evaluates making long term commitments in uranium development projects in Namibia and elsewhere. However, when dr awing comparisons between developed countries as a group and less developed countries as a group, I believe that the concept of a regulatory race to the bottom at that scale continues to have merit and deserves further study The US the world has decreased domestic uranium production in the decades following the introduction of the Uranium Mill Tailings Radiation Control Act and other strong environmental protectio n laws in the 1970s as described in Chapters I and II Yet reliance on nuclear power has not decreased (World Nuclear Association, 2015) This suggests that the US has shifted from domestic uranium production to foreign uranium purchasing to meet its uranium needs. So in this sense, tighter domestic regulations may have driven the United States and possibly other developed countries, to seek out uranium from countries with looser regulations as opposed to sourcing uranium domestically or from fellow developed countries What I have not yet foun d compelling evidence for is the idea that less developed countries are using loose environmental regulations as a tool to compete with each other to attract uranium customers from the developed world T his may be due to the fact that this project was limited to a single case study, which eliminated the

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75 opportunity to compare two or more case studies to each other. Future research could take on additional case studies to perform this comparative analysis and see if evidence emerges to support the race to the bottom hypothesis. Future research is also needed to explore whether the race to the bottom applies to companies as opposed to countries. Are there differences in internal standards between mining com panies that are factoring into their decisions as to where to pursue uranium development? For example, a company such as Rio Tinto based in the UK and with internal environmental standards developed over decades of experience may be more interested in a stable regulatory environment This may different for, for example a newly formed Chinese company with relatively little experience in developing internal environmental standards and for whom regulatory stability may be a relatively minor concern. A futu re comparative analysis project could explore whether differences in environmental health regulatory regimes are driving differences between companies in terms of both their own environmental standards, and in which countries they prefer to operate. Regul atory Capture? There is strong evidence, presented in Chapter III, to suggest that regulatory capture may be occurring in the environmental health regulation of Namibia sector This is most apparent in the Ministry of Mines and Energy, whi ch is responsible industry (Ministry of Mines and Energy, 2015) The Namibian government is focused, not unreasonably, on developing its economy and improving the livelih oods and

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76 economic development (Ministry of Mines and Energy, 2003) This necessarily fosters a connection between providing a favorable environment for the mining industr y, and providing jobs and economic development for Namibian citizens. When forced to choose between providing economic development for citizens and protecting the environment, the Namibian government in recent years has tended towards prioritizing economic development. However, the fact that Namibia does have environmental laws on the books such as the EMA and m entions the environment in its C onstitution, as described in Chapter III, is reason for hope. While the mining industry is an important part of th e Namibian economy, tourism, and in particular eco tourism, is another important contributor. If Conclusions Solutions at the International Level health regulation minimum standards that all countries must meet. These regulations would need to be initiated by an i nstitution with considerable legitimacy, such as the United Nations or the IAEA, so that countries would be compelled to adhere to them or risk marginalizing themselves. Such regulations would also need to be accompanied by real and serious enforcement. T o this end, one avenue may be to support the replacement of the United Nations Environment Programme (UNEP) with the proposed stronger United Nations Environment Organization (UNEO). As mentioned in Chapter I, the existing UNEP has

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77 struggled due to its sta tus as a programme rather than an organization a funding structure that makes it dependent on voluntary contributions (which have been falling), and its location away from the rest of the UN governance structure. Giving this body organization status ( comp arable to the World Trade Organization or the World Health Organization ) with grea ter independence and authority may help increase the effectiveness of this body in developing and implementing an international regulatory structure for environmental health protection (Ivanova, 2005). Changing the funding from voluntary to mandatory will be crucial to the success of the mission of the proposed UNEO. Without adequate funding to carry out needed studies and to enforce any new regulations, environmental health p rotections will remain on paper only. Stronger funding for a UN agency may also be helpful in leveraging additional interest and funding from the international philanthropic community for environmental health research and programs. An additional internatio nal level solution may be to launch a broad public awareness campaign to high light for consumers the damaging environmental practices of some mining companies and urge consumers to demand a transition away from nuclear in favor of renewable energy sources such as wind and solar. This strategy has been used before to improve treatment of manufacturing workers. While a campaign around nuclear power would require the additional educational step of educating consumers on their current use of nuclear power and i ts impacts on human and environmental health, this element could then be linked to existing campaigns around renewable energy, which already enjoy broad public favor.

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78 Solutions at the National Level In my opinion, Namibia suffers from a problem of conflic ting mandates in its regulatory regime. The national government has laid out both economic development and environmental protection as important national values. In practice, economic development seems to take precedence. The Ministry of Mines and Energy i s tasked with both promoting and regulating the mining industry, tasks that are difficult to perform simultaneously with integrity. A possible solution may be for Namibia to separate the function into the Ministry of Environment and Tourism. The US can offer two examples of making this type of structural change. One is the establishment of the Nuclear Regulatory Commission. In 1946, the US established the Atomic Energy Commission and charg ed it with both promoting the use of nuclear energy and regulating its safe use. When this proved to be ineffe ctive, especially on the regulation side, Congress abolished the Atomic Energy Commission and replaced it with the Nuclear Regulatory Commission i n 1974. The Nuclear Regulatory Commission is focused solely on regulating nuclear energy for safety, and is not charged with promoting nuclear energy (Nuclear Regulatory Commission, 2015) A second example from the US is the reorganization of the Minerals Management Service in the wake of the BP Deepwater Horizon disaster in 2010. As was the case with the Atomic Energy Commission, the Minerals Management Service was charged with both promoting offshore drilling in order to collect royalties, and also with safety and environmental regulation. A re organization process resulted in the creation i n 2011 of two new, separate agencies: the Bureau of Ocean Energy Management, and the Bureau of

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79 Safety and Environmental Enforcement This reorganization was intended to separate resource management from safety and environmental oversight (Bureau of Ocean Energy Management, 2016). An analysis of the lessons learned during both of these reorganizations may be helpful to Namibia or any other countries considering reorganizi ng their regulatory structures for industries they also wish to promote. is the gap between existing laws and regulations, and their enforcement. As highlighted by the SE MP example in Chapter III, an environmentally conscious process on paper means nothing without rigorous enforcement and questioning of industry by regulators. This is where the problems associated with the possibility of regulatory capture can become quite that the government is failing in its duty to push back on industries that may be damaging separati political support for rigorous enforcement of environmental regulations, even when enforcement proves unpopular with industry. C ritical to the implementation of these and an y other recommendations is a plan to support Namibia in building capacity across government agencies and nonprofit organizations that work on mining and on environmental health. Namibia have been handicapped in their efforts by a lack of fu nding and political support from their government, as well as a lack of interest on the part of the international philanthropic community in environmental health issues compared to issues such as infectious diseases. Investment is needed in supporting Nami bians as they continue to

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80 build their institutions and increase their capacity on environmental health regulation, monitoring and enforcement. another strategy to rearrange the incentive framework that currently exists in the country. In the end, uranium is a finite and nonrenewable resource that will one day cease to hand, can be an infinite res ource if they are protected soon. Economic development assistance to Namibia that focuses on developing a sustainable ecotourism industry would help Namibia trust that environmental protection is the smart economic development move in the long run.

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