Grand Canyon Trust v. Energy Fuels Res. (U.S.A.) Inc.

• Decision Date: 15 September 2017
• Docket Number: Case No. 2:14–cv–243
• Citation: 269 F.Supp.3d 1173
• Parties: GRAND CANYON TRUST, Plaintiff, v. ENERGY FUELS RESOURCES (U.S.A.) INC., EFR White Mesa LLC, Energy Fuels Inc., and Energy Fuels Holding Corp., Defendants.
• Court: U.S. District Court — District of Utah

269 F.Supp.3d 1173

GRAND CANYON TRUST, Plaintiff,

v.ENERGY FUELS RESOURCES (U.S.A.) INC., EFR White Mesa LLC, Energy Fuels Inc., and Energy Fuels Holding Corp., Defendants.

Case No. 2:14–cv–243

United States District Court, D. Utah.

Signed September 15, 2017

Aaron M. Paul, Pro Hac Vice, Neil Levine, Pro Hac Vice, Grand Canyon Trust, Denver, CO, Anne Mariah Tapp, Pro Hac Vice, Grand Canyon Trust, Flagstaff, AZ, Joro Walker, Salt Lake City, UT, Travis E. Stills, Pro Hac Vice, Energy & Conservation Law, Durango, CO, for Plaintiff.

Jacob A. Santini, Michael A. Zody, Parsons Behle & Latimer, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER

Clark Waddoups, United States District JudgeBefore the court are cross-motions for summary judgment filed by Plaintiff Grand Canyon Trust (the Trust) and Defendants EFR White Mesa LLC and Energy Fuels Resources (U.S.A.) Inc.¹ (collectively, the Mill). (Dkt. Nos. 67 & 60.) The motions seek resolution of the five claims the Trust set forth in its Amended Complaint, which seek declaratory and injunctive relief as well as civil penalties for the Mill's alleged violations of the EPA's radon emission regulations. (Dkt. No. 29.) The court heard oral argument on the motions on November 17, 2016. (Dkt. No. 89.) After carefully considering the arguments presented in the briefing and oral argument and reviewing the numerous exhibits and declarations each party presented, the court now GRANTS the Mill's motion, DISMISSES those claims with prejudice, and DENIES the Trust's motion.

BACKGROUND

At issue is whether the Mill complied with radon emission regulations and, even if it did not, if the Trust's enforcement action is proper under the Clean Air Act's citizen-suit provision and Article III of the Constitution. The following identifies the parties, provides an overview of the relevant regulatory scheme, describes the conduct that the Trust contends violated those regulations, and details the purported effects those violations have had on Trust members.

1. The Parties

a. The Mill

White Mesa Mill is a conventional uranium mill located six miles south of Blanding, Utah near the Ute Mountain Ute tribal community of White Mesa on the Colorado Plateau. (Dkt. No. 63 Ex. 14 EFR 457–58; Dkt. No. 68 Ex. 38 ¶ 6 & Ex. 40 ¶¶ 1–2.) The Mill was first constructed in 1979 and operations commenced there in 1980. (Dkt. No. 61 ¶ 5; Dkt. No. 63 Ex. 14 EFR 459.) The Mill applies conventional grinding and leaching processes to mined ore and byproduct material in order to extract uranium and vanadium in the forms of yellowcake and black flake, respectively. (Dkt. No. 61 ¶ 5; Dkt. No. 63 Ex. 11 EFR 306–07.) Production of yellowcake and black flake results in a waste stream that contains tailings solids and processing solutions. (Dkt. No. 61 ¶ 8; Dkt. No. 68 Ex. 5 & Ex. 12 pp.19–20.) That waste then enters the tailings management system, which separates liquid and solid waste. (Dkt. No. 61 ¶¶ 6–10; Dkt. No. 63 Ex. 15 EFR 650.) Any liquids that may still contain some ore-bearing solids are returned to the milling process. (Dkt. No. 61 ¶¶ 6–10; Dkt. No. 63 Ex. 15 EFR 650.)

The Mill was originally licensed under the Atomic Energy Act of 1954, as amended by the Uranium Mill Tailings Radiation Control Act of 1978, by the Nuclear Regulatory Commission. Energy Fuels Resources (USA) Inc. , Utah Department of Environmental Quality, https://deq.utah.gov/businesses/E/energyfuels/whitemesamill.htm (last visited Sept. 15, 2017). In 2004, Utah became an Agreement State, and oversight of the Mill transferred to the Utah Division of Radiation Control that is now a part of the Utah Division of Waste Management and Radiation Control (UDWMRC). Id. The Mill also operates under a Groundwater Discharge Permit, which UDWMRC oversees. Id. The Mill's radon emissions are governed by the Clean Air Act and regulations the Environmental Protection Agency (EPA) set and that Utah's Department of Air Quality (DAQ) administers. Id.

b. The Trust

The Grand Canyon Trust is a nonprofit advocacy organization with over 3,000 members. (Dkt. No. 68 Ex. 38 ¶ 2.) It is based in Arizona with offices in Colorado and Utah. (Id. ) Its mission, according to its Executive Director, William L. Hedden, is to "protect and restore the Colorado Plateau," which "stretches south-to-north from roughly the Mogollon Rim in northern Arizona and the Uinta Mountains in northern Utah and east-to-west from the Great Basin in Utah to the western side of the Rocky Mountains in Colorado and northwestern New Mexico" and encompasses the land upon which the Mill is located. (Id. ¶ 3.)

The Trust aims to protect the landscape, rivers, air, plant and animal life, beauty, and solitude within the Colorado Plateau. (Id. ) The Trust opposes "irresponsible uranium mining and milling on the Plateau" and seeks to see contamination from uranium mining removed and the area reclaimed. (Id. ¶ 4.) As such, the Trust has worked to clean up abandoned surface tailings piles on the former site of another mill; campaigned to raise funds through legislation for cleanup where reclamation bonds were insufficient; advocated an end to uranium mining on the Plateau, including lobbying for legislation that would permanently end the staking of new claims around the Grand Canyon; developed a water quality monitoring program; submitted comments on permitting decisions for White Mesa Mill and other uranium operations on the Plateau; lobbied for changes to uranium regulations; and brought lawsuits aimed at protecting areas threatened by pollution that can be linked to the uranium industry. (Id. ¶¶ 4–6.)

The Trust sued the Mill on April 2, 2014, to enforce violations by the Mill of the Clean Air Act (CAA). (Dkt. No. 2 ¶ 1.) The Trust contends that this action "seeks to promote the same interests that underlie essentially all the Trust's work," that is "to protect the environment of the Colorado Plateau and the health of those who live on or visit it." (Dkt. No. 68 Ex. 38 ¶ 7.)

2. Regulatory Background

Congress enacted the CAA "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401. In furtherance of that goal, Congress identified a list of hazardous air pollutants (HAPs), each of which is subject to the EPA's review and revision. Id. § 7412. It listed radionuclides, including radon, as HAPs. Id. § 7412(c). Congress also required the EPA to "promulgate regulations establishing emission standards for ... major sources and area sources of hazardous air pollutants ... in accordance with" the CAA. Id. § 7412(d).

The EPA then promulgated the National Emission Standard for Hazardous Air Pollutants (NESHAPs), which set emission limits for listed HAPs according to category and subcategory of potential polluters. See generally 40 C.F.R. § 61. Relevant to this case are the Subpart W NESHAPs, which set out the "National Emission Standards for Radon Emissions from Operating Mill Tailings" and which took effect on December 15, 1989. See Subpart W— National Emission Standards for Radon Emissions from Operating Mill Tailings, 54 Fed. Reg. 51,703 (December 15, 1989) (codified at 40 C.F.R. § 61.250 – 256 ). Prior to December 1989, Subpart W had previously been promulgated in 1986. Subpart W—National Emission Standards for Radon Emissions from Operating Mill Tailings, 51 Fed. Reg. 34, 056 (Sept. 24, 1986). And it was subsequently amended on March 21, 2017. Revisions to National Emission Standards for Radon Emissions from Operating Mill Tailings, 82 Fed. Reg. 5,142 (Jan. 17, 2017).²

Subpart W sets two standards—one for existing uranium mill tailings piles and one that is triggered by newly built tailings impoundments but that applies to all tailings impoundments once it is triggered. 40 C.F.R. § 61.252. First, Subpart W capped emission of radon–222 into the ambient air from existing sources at 20 pCi/(m²-sec) (1.9 pCi/(ft² -sec). Id. § 61.252(a). Compliance with this limitation—the radon flux limit—is monitored according to Method 115. Id. § 61.253. Method 115 requires radon flux measurements to be taken from the following regions of each tailings pile: (1) the water-saturated areas or beaches; (2) the dry top-surface area; and (3) the sides, unless they are made of dirt. 40 C.F.R. Pt. 61, Appx. B. ("Method 115") §§ 2.1.2 & 3. It does not require measurement of "water covered area[s]." Id. § 2.1.3.

When such monitoring is conducted over a one-year period, the facility must provide the EPA with a monitoring schedule showing the "measurement frequency to be used." 40 C.F.R. § 61.253. Measurements can be conducted once per year or more frequently, so long as it is done on "quarterly, monthly or weekly intervals." Method 115 § 2.1.1. The schedule may be submitted before or after the first measurement, and EPA must receive thirty days' notice before any testing so that it may observe. 40 C.F.R. § 61.253. The test results, no matter how frequently taken, must be reported to the EPA by March 31 of the following year. Id. § 61.254. If the annual report reveals that the facility is not in compliance with the radon flux limit, the facility must make monthly reports beginning the month immediately following the noncompliant annual report. Id. § 61.254(b). And it must do so until the EPA or state agency determines monthly reporting is no longer necessary. Id. Such monthly reports should include updated test results and plans to control or modify operations to bring the facility into compliance. Id.

Second, Subpart W limits the total number of tailings impoundments operated at a facility beginning from the time an impoundment is newly built if it is constructed after 1989. Construction of a new impound is not permitted unless it is designed, constructed, and operated in compliance with the following: does not exceed forty acres; meets the requirements of the Nuclear Regulatory Commission set out in 40 CFR § 192.32(a) ; and does...