“Basically, what we found was the State did not provide the public a chance to comment on the application, specifically the environmental review, or to allow the public request an adjudicatory hearing,” Nuclear Regulatory Commission Spokesman David McIntyre said Tuesday, something “the State is required to do… under the [Federal] Atomic Energy Act.”
As an NRC Agreement State, under the Federal Atomic Energy Act, the State of Colorado has the ultimate authority over the licensing and approval of radioactive projects. But the NRC found that the CDPHE’s regulations regarding public hearings were insufficient.
“Under the agreement, the State regulates radioactive materials, but their regulations are required to be compatible with ours,” McIntyre said. “Apparently, as I understand it, Colorado law only allows for the licensee to request a hearing. We’ve asked the State to return a written response within 30 days addressing this issue. Our staff has proposed to actions the state could take to resolve the issue.”
NRC suggestions include clarifying the State’s regulatory language for announcing opportunities for public comment and for requests for public hearings for all uranium mill licensing. In the short term the NRC said, it might work directly with Energy Fuels, Inc., “in order to provide an opportunity for a public hearing regarding the issuance of the new license of the Piñon Ridge Uranium Mill and the Environmental Impact Analysis.”
McIntyre dismissed concerns that the NRC might intervene in the mill’s approval process and “take over” as in accurate.
“We don’t intend to intervene or overturn a decision,” McIntyre said. “By not allowing public participation, they were not in compliance with their requirements. We are asking the CDPHE to put it in writing on how they intend to respond.”
Energy Fuels Responds
Energy Fuels spokesman Curtis Moore said the NRC’s finding came as a surprise, especially, he said, since licensing authority has been delegated to the State of Colorado.
“The bottom line here is the NRC doesn’t have any jurisdiction over the matter,” Moore said. “Letters like this don’t have any bearing on what’s going on in our view. The public was given ample opportunity to comment. The state followed the law. We followed the law. That is our view.”
Moore was referring to a letter sent from the NRC to the attorney of Sheep Mountain Alliance stating that their concerns about the mill’s public hearing process were substantiated.
When the NRC delegated authority to approve the mill to the State of Colorado, it “blessed Colorado’s process,” Moore said. Upon its regular four-year review of its process in 2010, Colorado passed “with flying colors.
“Frankly, it's a little disturbing,” he said, of the NRC’s reinvolving itself in the mill approval process. “I don’t think they have any jurisdiction. Any contention that there was not enough public participation in this process is laughable.”
Moore said the eight public meetings were held, in accordance with the state licensing process, as well as “probably thousands” of public comments that Energy Fuels responded to.
“There were things the CDPHE made us do that were directly responsive to public comment,” Moore said. “This was a bit of a surprise and the timing of it is a bit suspect as well.”
This week’s NRC ruling substantiates concerns of voiced by the Telluride-based environmental group Sheep Mountain Alliance, and the towns of Ophir and Telluride, that the CDPHE review of the uranium mill did not meet federal standards for fair and open review.
“We have said all along that the state needed to conduct public hearings, they did not,” said Sheep Mountain Alliance Executive Director Hilary White. “They needed to conduct a transparent application process; they did not. They piecemealed all off the things necessary to make an approval, and that approval was based on a flawed process.
“The statement from the NRC is an important acknowledgement that our concerns and basis for filing the lawsuit were both valid and significant,” White continued. “During the review process, we were denied the right to have our technical questions addressed. After the environmental review was conducted and the preliminary license was issued, members of the public were denied open and careful scrutiny of the applicant’s assertions in the federally required proceeding.
“Since the mill was first proposed in 2007, people in our region have been requesting a full and complete review of this project. We are still waiting for it.” At Tuesday’s Telluride Town Council meeting, town attorney Kevin Geiger notified members of the council of the NRC’s finding, saying it appears that council’s concerns have been substantiated by the federal government.
“They are very concerned about the public hearing components, and made a finding that the Colorado Department of Public Health and Environment did not follow the proper procedures under federal law,” Geiger said.
Geiger cautioned members of council against further speculating on what the decision might mean, but acknowledged that it could lead to the reopening of a public hearing. Further details were discussed later that day in executive session.
White, notified by the NRC of the decision Monday, said she does not yet know just how the NRC decision will affect the uranium mill permit.
Until this week, Energy Fuels’ progress toward the start of construction was moving forward. Last December, the Colorado Court of Appeals denied a legal challenge by Sheep Mountain Alliance, upholding the Montrose County Special Use Permit. In November, the mill had won approval from the U.S. Environmental Protection Agency for the mill’s tailings impoundment and evaporation pond facilities.
The Piñon Ridge Uranium Mill is the first new uranium mill proposed in the United States in three decades.
“Conducting a thorough public review is a fundamental obligation that Colorado must meet when implementing federal law as an Agreement State,” said Jeff Parsons, who represents Sheep Mountain Alliance from the Western Mining Action Project in Lyons, Colo. Parsons said intervention like this by the NRC is unusual. “NRC rarely comes down so clearly and explicitly stating that a state’s public review process was flawed. The CDPHE ignored our concerns over this; they went ahead and issued the mill license. The NRC has irrefutably substantiated our concerns.”
A spokesman reached at the CDPHE on Tuesday afternoon did not immediately know the details of the NRC finding and declined to comment on it.
While Sheep Mountain Alliance’s lawsuit against CDPHE is pending in state district court, Moore said Energy Fuels will continue to move forward on the mill.
“We are going to continue as we were before,” he said.
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PUBLISHED MARCH 13
Federal Agency’s Decision May Halt Uranium Mill’s Progress
MONTROSE COUNTY – In what seems to be a major blow to the proposed construction of Energy Fuels’ Piñon Ridge Uranium Mill in the Paradox Valley, the U.S. Nuclear Regulatory Commission has found that the Colorado Department of Public Health and Environment did not follow procedures under federal law during the mill’s approval process and may force a new approval process.
Telluride Town Attorney Kevin Geiger told members of the Telluride Town Council on Tuesday that the concerns of the town and opponents of the mill appear to be “substantiated” by the federal government.
“They are very concerned about the public hearing components and made a finding that the Colorado Department of Public Health and Environment did not follow the proper procedures under federal law,” Geiger said.
Geiger cautioned members of council on further speculating on what the decision means but said it could lead to the reopening of a public hearing. The Town of Telluride along with Ophir and the Telluride-based environmental group Sheep Mountain Alliance have challenged the licensing of the uranium mill, with the legal services of Public Justice, a national public interest law firm. The litigation challenges the state’s licensing of the Piñon Ridge Uranium Mill, which was granted in January 2011. According to Geiger and Public Justice, possible impacts were given little or no consideration by the state in its review process. Colorado is an “Agreement State” under the Federal Atomic Energy Act, which gives the state ultimate authority to license and approve radioactive projects. The NRC decision apparently concludes that the state did not follow federal guidelines.
“We have said all along that the state needed to conduct public hearings, they did not,” Sheep Mountain Alliance Executive Director Hilary White said on Tuesday. “They needed to conduct a transparent application process, they did not. They piecemealed all off the things necessary to make an approval and that approval was based on a flawed process.
“The NRC gives the authority to the state to process applications under the Atomic Energy Act,” she continued. “Colorado is an agreement state but it still has to follow the law and they didn’t.”
White said she was notified of the decision in a letter from the NRC on Monday and does not yet know what the decision means for the permit itself.
Up until this week, Energy Fuels’ progress toward the start of construction was moving forward with success. Last December the Colorado Court of Appeals denied a legal challenge by Sheep Mountain Alliance, upholding the Montrose County Special Use Permit.
Last November, the mill received approval from the U.S. Environmental Protection Agency on the mill’s tailings impoundment and evaporation pond facilities. How this latest setback will affect mill’s progress remains unclear. An Energy Fuels representative did not immediately respond to phone calls.
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