Western Colorado Congress v. Umetco Minerals Corp., s. 94CA1839
| Decision Date | 02 May 1996 |
| Docket Number | Nos. 94CA1839,94CA1936,s. 94CA1839 |
| Citation | 919 P.2d 887 |
| Parties | Nuclear Reg. Rep. P 20,577 WESTERN COLORADO CONGRESS, Plaintiff-Appellee and Cross-Appellant, v. UMETCO MINERALS CORP. and Colorado Department of Health, Defendants-Appellants and Cross-Appellees. . V |
| Court | Colorado Court of Appeals |
Don, Hiller & Galleher, P.C., David L. Hiller, Shelley B. Don, Denver, for Plaintiff-Appellee and Cross-Appellant.
Holme Roberts & Owen LLC, Henry W. Ipsen, Denver, for Defendant-Appellant and Cross-Appellee Umetco Minerals Corp.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Jerry W. Goad, Senior Assistant Attorney General, Denver, for Defendant-Appellant and Cross-Appellee Colorado Department of Health.
Opinion by Judge TAUBMAN.
This action concerns a decision by the Colorado Department of Health (CDH) (now the Colorado Department of Public Health and Environment) to grant an amended radioactive materials license to defendant, Umetco Minerals Corp., for its Uravan facility located in Montrose County, Colorado. Umetco appeals that part of the judgment of the district court reversing the final agency action of CDH in which it issued the amended license. Plaintiff, Western Colorado Congress (WCC), an organization comprised of individuals and local citizens' groups in western Colorado, cross-appeals that part of the district court judgment implicitly approving part of the radioactive materials license amendment granted to Umetco. Because we conclude that the amended license was properly granted by CDH, we affirm in part and reverse in part.
Umetco has been operating its Uravan mill under a Colorado radioactive materials license since 1968, and that license has been amended on various occasions. In the proposed amendment that is the subject of the present dispute, Umetco sought CDH approval for construction of three new waste cells at Uravan designed to receive radioactive waste from off-site sources. In its license amendment application, Umetco sought approval to dispose of two types of materials: (1) uranium mill tailings and wastes similar to the material already authorized for disposal under Umetco's existing license, and (2) radioactive tailings or waste generated by the processing of ores other than uranium or radium.
Following Umetco's submission of its initial and revised license application, CDH's Radiation Control Division prepared a preliminary license summary and preliminary license (PLS/PL) dated January 28, 1993. In this document, CDH tentatively authorized Umetco to dispose of "516,000 dry tons (430,000 cubic yards) of 11e(2) byproduct material and 204,000 dry tons (170,000 cubic yards) of non-11e(2) by product material, from Department-approved off-site waste sources."
The two types of materials tentatively authorized for disposal by the PLS/PL described in technical shorthand the categories of waste described in Umetco's application. First, the term "11e(2) by-product material" is derived from § 11e(2) of the Atomic Energy Act (AEA), 42 U.S.C. § 2014(e)(2) (1994) and refers to uranium mill tailings or waste produced by the milling of ore for its uranium and/or thorium content.
The second category of material authorized by the PLS/PL, "non-11e(2) by-product material," consists of radioactive tailings or wastes generated by the processing of ores other than uranium or radium. An example is vanadium, a strategic metal commonly found in uranium ore.
The PLS/PL authorized the disposal of material from off-site waste sources, as noted, and defined "off-site waste" as "those radioactive materials, currently not located at the Umetco-Uravan site ... which require Department approval prior to receipt at the Umetco-Uravan site." The PLS/PL then specified that off-site waste does not include "low-level radioactive waste subject to the Rocky Mountain Low-Level Radioactive Waste Compact."
Following issuance of the PLS/PL, CDH conducted an adjudicatory hearing, and the independent hearing officer approved Umetco's license amendment request. The hearing officer found that the proposed off-site material to be accepted for disposal was substantially the same as the waste material presently located at the Uravan mill. He also concluded that the proposed license amendment comported with all applicable state regulations.
Additionally, the hearing officer rejected various arguments by WCC in opposition to the proposed license amendment. Specifically, the hearing officer found that: (1) Umetco was not required to specify in its license amendment application the source, type, volume, and regulatory characterization of any waste that might be subject to the amended license; (2) CDH had adequately evaluated alternatives to Umetco's proposed disposal; and (3) CDH could rely on Umetco's representation that the amended license would apply only to materials found within the state of Colorado, rendering unnecessary a ruling on WCC's contention that CDH could not constitutionally prohibit importation of out-of-state waste.
Thereafter, CDH's executive director affirmed the hearing officer's initial decision in all respects. WCC then appealed that final agency action to the district court.
The district court reversed in part CDH's decision approving the amended license. It concluded that CDH had improperly authorized disposal of non-11e(2) by-product material because, in its view, CDH had erroneously failed to apply Part 14 of its licensing regulations to Umetco's application. The district court also ruled that CDH's decision with respect to non-11e(2) by-product material was not factually supported.
However, the district court entered no order regarding that part of the CDH decision granting the license amendment with respect to 11e(2) by-product materials, believing that the licensing of these materials was not in dispute.
Umetco now appeals the district court's judgment which reversed that part of the CDH license amendment with respect to non-11e(2) by-product material. WCC cross-appeals, contending that the district court erroneously believed that part of the license amendment concerning 11e(2) by-product materials was not in dispute and, further, that the license amendment with respect to such materials should not have been approved.
Disposal of uranium and other radioactive materials is governed by a comprehensive federal-state statutory and regulatory scheme. Understanding this scheme is helpful to the resolution of issues before us in this case.
At the federal level, the Nuclear Regulatory Commission, the successor agency to the Atomic Energy Commission, regulates the disposal of radioactive materials pursuant to the AEA, 42 U.S.C. § 2011, et seq. (1994). Federal regulatory jurisdiction was extended in 1978 to uranium mill tailings and waste with the enactment of the Uranium Mill Tailings Radiation Control Act (UMTRCA), 42 U.S.C. §§ 7901-7942 (1988). That statute amended the definition of "by-product material" in § 11e of the Atomic Energy Act to mean:
(2) The tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material.
Accordingly, this statute provides the basis to regulate the materials described above as 11e(2) by-product material.
The AEA also provides for assignment of federal regulatory authority to states. See 42 U.S.C. § 2021 (1994). Based upon this provision, Colorado has assumed responsibility for administration of the UMTRCA program virtually since its inception. See 57 Fed.Reg. 48749, 48752 (October 28, 1992).
Additionally, Congress has provided for the regulation of certain radioactive waste disposal not governed by the AEA through the enactment of the Low-Level Radioactive Waste Policy Act. See 42 U.S.C. §§ 2021b-2021j (1994). This statute encouraged the states to enter into interstate compacts to accomplish regional storage of low-level radioactive wastes.
Those materials described as "non-11e(2) by-product materials," except for those which are low-level radioactive wastes, are therefore not subject to federal statute or regulation.
In Colorado, regulation of radioactive materials is governed primarily by the Colorado Radiation Control Act, § 25-11-101, et seq., C.R.S. (1989 Repl.Vol. 11A). This act delegates exclusive regulatory authority over radioactive materials to CDH and designates CDH as the "radiation control agency of this state," with exclusive power or authority over radioactive materials. See § 25-11-103, C.R.S. (1989 Repl.Vol. 11A). Under the Act, CDH is directed to promulgate rules and regulations and to issue licenses pertaining to radioactive materials. See §§ 25-11-103 and 25-11-104, C.R.S. (1989 Repl.Vol. 11A).
Pursuant to this statutory authority, CDH has promulgated several hundred pages of regulations pertaining to radioactive materials and radiation controls. See Department of Health Regulations, 6 Code Colo. Reg. 1007-1. As pertinent here, Part 3 contains the general licensing regulations that apply to all radioactive materials not otherwise regulated; Part 14 deals with low-level radioactive wastes; and Part 18 pertains to the disposal of 11e(2) by-product material.
Colorado also controls the distribution of certain low-level radioactive materials under the Colorado Low-Level Radioactive Waste Act (LLRWA), § 24-60-2201, et seq., C.R.S. (1988 Repl.Vol. 10B). LLRWA authorized CDH to enter into an interstate compact, the Rocky Mountain Low-Level Radioactive Waste Compact (Compact), for low-level radioactive waste disposal and provides a scheme for selection of disposal sites within Colorado.
LLRWA defines "low-level radioactive waste" as: "radioactive waste", other than:
....
(d) by-product material as defined in § 11e. (2) of the 'Atomic Energy Act of 1954' as amended on November 8, 1978; or
(e) waste from mining,...
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