On May 25, Denver District Judge Brian Whitney rejected arguments to dismiss the conservation group’s case against Colorado Department of Public Health and Environment regulators. The complaint alleges that state regulators violated federal law when they approved a radioactive materials license to Energy Fuels, Inc. last January for its proposed uranium mill.
The ruling effectively clears the way for the legal challenge to the mill’s approval to proceed.
The lawsuit,filed in February, alleges that during their review, regulators never allowed the public to ask them or Energy Fuels representatives technical questions about the project, which Sheep Mountain Alliance contends is a violation of the federal Atomic Energy Act.
The complaint also alleges that state regulators did not follow the provisions of the Colorado Radiation Control Act, and issued the radioactive materials license before the company had posted the necessary financial warranties to cover the costs of the cleanup of the radioactive and toxic tailings and waste involved with yellowcake production.
Despite the recently passed Uranium Processing Accountability Act, prohibiting the licensing of a uranium mill where groundwater has been shown to exceed state standards, the complaint also alleges that regulators ignored data that revealed groundwater samples taken at the Piñon Ridge mill site exceeded allowable standards for both radioactive materials and heavy metals.
Travis Stills, an attorney from the Durango-based Energy Minerals Law Center representing Sheep Mountain Alliance, said both the State of Colorado and Energy Fuels argued that CDPHE radiation regulators are not subject to judicial oversight for their actions in approving a radioactive materials license for the new mill. They also argued that the court had no role in reviewing the State’s decision, and that Sheep Mountain Alliance couldn’t bring the case under Colorado law.
However, according to Stills, Whitney rejected all of Energy Fuels’ and the state’s arguments to dismiss Sheep Mountain Alliance’s case against the CDPHE, clearing the way for the legal challenge to proceed. The opinion recognized that Sheep Mountain Alliance properly asserted that its “members’ property interests, monetary interests, recreational interests, agricultural interests, and ecological interests are adversely affected by the issuance of the license.” The court recognized that these “interests are those of an organization whose members are or will be injured, not an organization with mere interest in a problem.”
“For too long, state radiation regulators and the uranium industry has had a cozy relationship that has caused long-term contamination to continue unabated here on the Western Slope and on the Front Range,” Sheep Mountain Alliance Executive Director Hilary White said in a statement released after the judge’s ruling. “That questionable relationship continues today as both Energy Fuels and the State try to argue Colorado residents have no seat at the table in trying to protect our clean air and water from uranium mining and milling. Thankfully, the court has rejected those arguments.”
For Stills, Whitney’s ruling will bring the proposed mill and its approval under the microscope.
“What we got was a shielded process where the CDPHE coddled the application along until it limped across the finish line,” Stills said. “This was an approval of something that never faced scrutiny, and with judicial review, it’s going to get that look.”
With Colorado among 37 “agreement states” to which the federal Nuclear Regulatory Commission transfers its authority to regulate uranium milling, Stills added that he hopes the ruling will lead to better and more thorough licensing practices in Colorado.
“We have had a 60-70 year open public experiment of radiation and exposure in Colorado, and the CDPHE has been at the center of an inexcusable attempt to keep it to themselves,” he said. “This lawsuit has taken us one more small step to revealing the ongoing mismanagement of uranium pollution in Colorado. At some point, we’ve got to have leadership come in at the governor’s level and the federal agency level and put people in place that have the skills and experience needed. It’s gotten worse over the past 30 years, and we have got to get some new blood in here.
“Hopefully we are making progress in that direction, even though it’s at a glacial pace.”
The lawsuit seeks the revocation of the state-issued radioactive materials license to Energy Fuels, which has stated in the past it is busy pursuing Asian investors and customers for the uranium yellowcake the mill will produce. If successful, the legal challenge would require Energy Fuels to submit a complete application before state regulators could begin a new approval process that follows the basic standards outlined in the Atomic Energy Act and complies with state law.
Efforts to reach an Energy Fuels representative for comment were unsuccessful.