An environmental lawsuit against the White Mesa uranium mill in southeast Utah has been dismissed by Utah District Court judge.
In April 2014, Grand Canyon Trust sued the mill’s owner, Energy Fuels, claiming that a waste tailings cell violated the Clean Air Act and the mill had too many waste storage cells allowed by the law.
The suit cited the company’s own state report that radon emissions from tailings Cell No. 2 had exceeded the legal limit of 20 picocuries in 2012 and 2013. The mill reported the violation to the Utah Department of Environmental Radiation Control, triggering state-ordered compliance actions.
Containment layers were added to the cell, and the radon levels have been brought under the legal limit.
The Grand Canyon Trust’s lawsuit sought fines and an accelerated time frame for final closing of the waste cell in order to protect nearby communities from radon, a radioactive health hazard linked to lung cancer.
The mill is 5 miles north of the Ute Mountain Ute reservation of White Mesa, where tribal members have protested against the mill and testified in the lawsuit.
But in a 50-page ruling Sept. 15, U.S. District Judge Clark Waddoups dismissed the case, agreeing with the company that state regulators applied incorrect standards in citing Clean Air Act violations, and that the Grand Canyon Trust misinterpreted federal regulations in its claim of too many waste cells.
The court concluded that Clean Air Act’s Subpart W regulations for radon emissions are for “operating” waste cells, and since the mill’s waste cell was in the closure process they did not apply. The spikes in radon were due to the dewatering of the cell as part of cell’s reclamation procedures.
In response to the lawsuit, the mill advocated to Utah regulators that Cell 2 was officially closed since it was full and had stopped receiving tailings by 2008.
On July 2014, the Utah Department of Air Quality agreed that the cell was closed and therefore it did not apply to Subpart W radon regulations, reversing an earlier indication that it did apply.
The state decision, made as the lawsuit progressed, effectively negated the Grand Canyon Trust’s claims of Clean Air Act violations and created a loss in legal standing that led to the dismissal.
“The court agrees (with) mill claims (that) Subpart W does not apply to impoundments that are closed and that, as a result, it did not apply to Cell 2 after 2008,” according to the ruling.
Regarding the Trust’s claim the mill had more than two waste cells allowed by law, the court said they misinterpreted the law by including evaporation ponds.
Utah regulators interpret tailing impoundments to “those containing solids, not evaporation ponds. It is consistent with past EPA interpretation of phased disposal work practice,” for uranium mills, the court said. It defers to Utah regulator “expertise” in the matter.
Curtis Moore, a spokesman for Energy Fuels, which owns the White Mesa Mill, said in an email statement that the company is “obviously very pleased that the District Court, after careful consideration, found in our favor.”
“It has been our position from the very beginning that the White Mesa Mill operates in compliance with the law, and the Court confirmed our position in their decision,” he said. “We also believe this was a victory for the State of Utah, and their ability to regulate the mill in an effective manner that is protective of public health and the environment.”
Grand Canyon Trust attorney Aaron Paul, said the dismissal was “disappointing” and was based on a combination of technicalities, statutes of limitations and interpretation of federal environmental law. They don’t plan to appeal.
“After the lawsuit notice was filed, the company and the state regulators took another look at the law and concluded the they had mistakenly reported violations on a closed cell,” he said. “In our view, the violations were not a mistake. But the court deferred to state regulators, and that drove a lot of the reasoning.”
Paul believes that as a result of the lawsuit, the mill closed and cleaned up a smaller retention basin with radioactive wastes called Roberts Pond.
He said the Grand Canyon Trust will continue to push for the mill to speed up reclamation plans for closed waste tailing cells as part of the mill’s pending operation license renewal.
jmimiaga@the-journal.com