Rocky Mountain Peace & Justice Ctr. v. U.S. Fish & Wildlife Serv.
| Decision Date | 09 July 2021 |
| Docket Number | Civil Action No. 18-cv-01017-PAB |
| Citation | 548 F.Supp.3d 1042 |
| Parties | ROCKY MOUNTAIN PEACE & JUSTICE CENTER, Candelas Glows/Rocky Flats Glows, Rocky Flats Right to Know, Rocky Flats Neighborhood Association, and Environmental Information Network (EIN) Inc., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, Martha Williams, in her official capacity as Principal Deputy Director, U.S. Fish and Wildlife Service, Debra Haaland, in her official capacity as Secretary of the Interior, David Lucas, in his official capacity as Project Leader, Region 6, U.S. Fish and Wildlife Service, United States Federal Highway Administration, Stephanie Pollack, in her official capacity as Acting Administrator of the United States Federal Highway Administration, and Peter Buttigieg, in his official capacity as Secretary of Transportation, Defendants. |
| Court | U.S. District Court — District of Colorado |
Andrew Gibson Ogden, Andrew G. Ogden, Attorney at Law, Randall M. Weiner, Randall M. Weiner, P.C., Law Offices of, Boulder, CO, for Plaintiffs.
Jessica Michelle Held, U.S. Department of Justice, Washington, DC, Kate Lynn Williams-Shuck, U.S. Dept. of the Interior, Office of the Solicitor-Lakewood, Lakewood, CO, Lesley Karen Lawrence-Hammer, U.S. Department of Justice-Denver-ENRS Environment & Natural Resources Section, Denver, CO, for Defendants United States Fish and Wildlife Service, Greg Sheehan, Ryan Zinke, David Lucas.
Jack Foster Gilbert, Federal Highway Administration, Lakewood, CO, Jessica Michelle Held, U.S. Department of Justice, Washington, DC, Lesley Karen Lawrence-Hammer, U.S. Department of Justice-Denver-ENRS Environment & Natural Resources Section, Denver, CO, for Defendants United States Federal Highway Administration, Brandye Hendrickson, Elaine Chao.
PHILIP A. BRIMMER, Chief United States District Judge This matter is before the Court on plaintiffs’ Complaint for Declaratory and Injunctive Relief [Docket No. 1] and Plaintiffs’ Opening Brief [Docket No. 45]. Plaintiffs challenge defendants’ March 23, 2018 decision to modify the location of certain planned multi-use trails at the Rocky Flats National Wildlife Refuge (the "Refuge"). Docket No. 45 at 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702.
This is an appeal of administrative actions taken by the United States Fish and Wildlife Service (the "FWS") and the United States Federal Highway Administration (the "Highway Administration") that, in the course of opening the Refuge to visitors from the general public beyond guided tours, reroute sections of trails planned for construction in the Refuge.
The Refuge is located in Jefferson County, Colorado on land surrounding the decommissioned nuclear processing facility at Rocky Flats. The so-called "industrial area," where the processing facilities were located, and the land immediately surrounding it are still administered by the United States Department of Energy ("DOE") and are not at issue in this litigation, except insofar as the facility was the source of plutonium contamination affecting the Refuge.
In 2001, Congress passed the Rocky Flats National Wildlife Refuge Act, Pub. L. No. 107-107, 115 Stat. 1012 (2001) (the "Refuge Act"). Congress determined that the "national interest requires that the ongoing cleanup and closure of the entire site be completed safely, effectively, and without unnecessary delay and that the site thereafter be retained by the United States and managed so as to preserve the value of the site for open space and wildlife habitat." Id. , § 3172(a)(4). Congress also found that the "Rocky Flats site provides habitat for many wildlife species, including a number of threatened and endangered species," and that "[e]stablishing the site as a unit of the National Wildlife Refuge System will promote the preservation and enhancement of those resources for present and future generations." Id. , § 3172(a)(5).
On September 16, 2004, during the ongoing cleanup efforts at Rocky Flats, the FWS issued the Rocky Flats National Wildlife Refuge Final Comprehensive Conservation Plan and Environmental Impact Statement (the "2004 CCP"). R. at 1327.3 The 2004 CCP noted that the DOE was responsible for the ongoing cleanup of Rocky Flats, with oversight from the Environmental Protection Agency ("EPA") and the Colorado Department of Public Health and Environment ("CDPHE"). R. at 1361. Upon certification by the EPA that the cleanup was complete, the Rocky Flats site would be divided into two jurisdictions. Id. The DOE would retain jurisdiction over the industrial area and its immediate surroundings to "protect cleanup facilities and monitoring systems." Id. The FWS would assume responsibility for the other portions of the Rocky Flats site, with these transferred portions forming the Refuge. Id . The 2004 CCP contemplated that, following the creation of the Refuge, multi-use trails would be created in the Refuge that would be accessible to the public. Id. at 1368 ( ). The 2004 CCP authorized the multi-use trails through "compatibility determinations," which provided that the use of the refuge for environmental education, multi-use trails, and wildlife observation and photography were compatible recreational uses of the Refuge. Id. at 1603-17.
The 2004 CCP stated that the FWS "believe[d] that the health risk from working on or visiting Refuge lands would be low." R. at 1363. Under EPA regulations, "[f]or known or suspected carcinogens, acceptable exposure levels are generally concentration levels that represent an excess upper bound lifetime cancer
risk to an individual of between 10 and 10 using information on the relationship between dose and response." 40 C.F.R. § 300.430(e)(i)(A)(2). The 2004 CCP anticipated that areas with soil plutonium concentrations of 7-50 pCi/g would be retained by the DOE while areas with soil plutonium concentrations below 7 pCi/g would become Refuge lands.4
See R. at 1362. It further stated that "the estimated increased cancer risk from exposure to residual [plutonium] soil contamination of 7 pCi/g is 1 in 1 million for the Refuge worker, and 0.6 in 1 million (or 6 in 10 million) for the Refuge visitor." R. at 1363. These values were calculated based on the added radiation exposure of a Refuge worker spending "4 hours indoors and 4 hours outside for 250 days a year for 18.7 years" and of a Refuge visitor spending "2.5 hours outside for 100 days a year for 6 years (child) or 24 years (adult)." Id . The 2004 CCP also noted that "the majority of the public use facilities would be located in areas where the residual contamination is much lower (less than 1 pCi/g)." Id.
On February 16, 2005, the FWS issued a record of decision ("2005 ROD") adopting the 2004 CCP for the Refuge. R. at 1312-26. The 2005 ROD included a map of the approved trail system for the Refuge:
R. at 1319 (trail map from 2005 ROD).
On May 25, 2007, the EPA published a notice in the Federal Register certifying that the portion of the Refuge site that would be transferred to the Department of Interior to form the Refuge "poses no significant threat to public health or the environment and, therefore, no further remedial measures pursuant to CERCLA are appropriate." R. at 5515, National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List, 72 Fed. Reg. 29276 (May 25, 2007) ; see also R. at 5508 (); R. at 5511 (June 11, 2007 EPA certification letter). "CERCLA" refers to the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as the "Superfund," enacted on December 11, 1980 and codified at 42 U.S.C. § 9601 et seq. See also Superfund Amendments and Re-authorization Act, Pub. L. No. 99-499, 100 Stat. 1613 (Oct. 17, 1986). Under this law, the EPA established standards and procedures for cleanup of radioactive materials at Superfund sites like Rocky Flats. See 42 U.S.C. § 9602 ; 40 C.F.R. Ch. I, Subch. J, Pt. 300.
After the Refuge came under the supervision of the FWS in 2007, the FWS acquired additional land at the southwest corner of the Refuge, which had not previously been part of Rocky Flats and which was not subject to prior cleanup efforts. See Docket No. 14 at 16; R. at 4. This parcel of land is referred to by the parties as the "Section 16 Parcel" and contains an old coal and clay mine. Id. ; R. at 1044. Before the land was acquired, the FWS conduced a survey of the area, finding "no known or observable environmental contaminants issues." R. at 1038. The August 11, 2011 survey report did note the presence of debris in the area, including a "rusted storage barrel at the water's edge" near the old mine that "appear[ed] to be empty." R. at 1048. The report recommended removing the barrel and other refuse from the Section 16 Parcel. R. at 1038. In the process of adding the Section 16 Parcel to the Refuge, the FWS issued a "finding of no significant impact" (a "FONSI"), concluding that a supplemental EIS need not be prepared. R. at 1000-04. In reaching that decision, the FWS determined that the proposed action "would pose minimal risk to public health and safety," as "the EPA has designated that the [Section 16 Parcel is] suitable for unlimited use and unrestricted exposure." R. at 1002.
On September 21, 2011, the EPA and CDPHE sent a letter in response to the FWS's questions requesting "additional information regarding residual risk" at the Refuge. The letter stated that the health risks at the Refuge "are within or below the acceptable CERCLA risk range (10 to 10 risk of excess cancer
incidence) and that radiation doses are below State standards." R. at 5487. The...
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