WESTERN SAN JUANS – The legal disputes between Energy Fuels, Inc., the Colorado Department of Public Health and Environment and two environmental groups over the proposed Piñon Ridge Uranium Mill will continue after a district court judge struck down a motion to dismiss a lawsuit, effectively allowing another legal challenge to proceed.
On Monday, Denver District Court Judge Robert McGahey, Jr. struck down a motion put forth by Energy Fuels and the CDPHE to dismiss a legal challenge by Sheep Mountain Alliance and Rocky Mountain Wild that alleges that neither the CDPHE nor the hearing officer, Judge Richard Dana, addressed substantial concerns raised in last year’s public hearing in Nucla.
According to SMA, extensive expert and public testimony was presented at the six-day public hearing held in November 2012, identifying problems with water, shallow hydrogeology, air pollution, tailings design, economic impacts, safety and environmental protections. These concerns, SMA alleges, were not addressed by Dana or the state in their decision to reissue the license in April.
“We remain confident in our claims that CDPHE failed to follow state and federal law, and the previous court ruling,” said Travis Stills, an attorney at the Energy & Conservation Law and Western Mining Action Project. The organization is representing the environmental groups in the legal challenge.
“The litigation will move forward, Stills added, “but we remain hopeful that CDPHE – which is under new leadership – will stop using Colorado resources to defend a license that was issued without first conforming to modern health and environmental protections.”
SMA and Rocky Mountain Wild have laid out six claims in arguing that the mill’s radioactive materials license should be invalidated. First, SMA believes the CDPHE deprived the organization of an “initial decision” following the public hearing. Instead, according to Stills, Dana passed the decision along to the CDPHE for it to make a decision following the public hearing. The plaintiffs also allege that Dana failed to determine and adhere to an explicit burden of proof as required by Part 18 of the Colorado Radiation Control Act and that he did not apply the substantive protections of that act to his decision making process.
“This is a big one,” Stills said. “Energy Fuels seems to believe that this doesn’t apply to them somehow, because of timing provisions. Somehow they get a free pass and the hearing officer didn’t need to see whether or not they satisfied any of them. It brings us back to the question as to having an independent judge rule on the application instead of the people who prepared it.”
The environmental groups also allege that the CDPHE arbitrarily relied on an unlawful Environmental Impact Analysis and cumulatively, CDPHE’s reissuance of the radioactive materials license violated a host of radioactive regulations.
“We are very pleased with this decision and are confident that we will prevail with our legal case,” SMA Executive Director Hilary Cooper said. “Even more crucial to many of us involved with this issue over the years is that the communities who find themselves dependent on false promises from the uranium industry and who are facing a legacy of immense economic and environmental destruction, find alternative economic opportunities to move on and create a less toxic more resilient future.”
Energy Fuels spokesman Curtis Moore said on Tuesday that he’s not surprised at McGahey’s decision and that Energy Fuels intends to move forward in fighting for the mill.
“The judge denied our motion to dismiss. It wasn’t unexpected,” Moore said. “They are tough to get granted and it wasn’t unexpected. From here, we will press forward.”