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Regulation of Colorado uranium mining awaits U.S. Supreme Court decision

Ruling could eliminate authority of states to ban mining
The headframe of the C-JD-5 uranium mine, above the Paradox Valley in Montrose County, is seen in this picture from June 22, 2012. A case pending before the U.S. Supreme Court is creating uncertainties over the authority of states like Colorado to regulate uranium mining.

A case pending before the U.S. Supreme Court is creating uncertainties about the authority of states like Colorado to regulate uranium mines, such as one being considered for Weld County on the eastern plains.

In the case of Virginia Uranium Inc., the Supreme Court is considering whether state laws on uranium mining are preempted by federal laws.

Virginia bans uranium mining, but Virginia Uranium wants to override the state law to dig up an estimated $6 billion of the radioactive mineral in the southern part of the state. The company says the Atomic Energy Act takes precedence over the state ban. Attorneys for the state argued the company has no legal right to make that decision.

If the company wins, the ruling would eliminate the authority of states to ban the mining. Also awaiting the court’s decision is what the ruling could mean for state regulation of safety issues, perhaps including health and environmental standards.

The case is pending while Canada-based Powertech Inc. seeks to build its “Centennial Project” mine near the tiny town of Nunn, in northern Colorado. The mine would supply uranium to nuclear power plants and possibly the Defense Department.

The General Assembly wants local health and safety laws to be a condition of the uranium mining operation. Environmentalists strongly oppose the project.

Other uranium deposits have been identified along the Front Range in Larimer, Boulder, Gilpin, Clear Creek and Jefferson counties.

“The legal issue is pretty straightforward, although the conclusion one draws from the facts tends to be less so,” said Mark Squillace, a University of Colorado Law School professor. “The general rule is that where federal law – usually including federal laws and regulations – ‘occupy the field,’ state laws are pre-empted.”

In Colorado, the General Assembly tried to regulate uranium mining through House Bill 08-1161, which was approved in 2008.

It would put the Colorado Mined Land Reclamation Board in charge of uranium mining in the state. Mining companies would be required to submit a plan to monitor and reclaim any land, surface water or groundwater affected by their operations.

Colorado law also requires enhanced public notice about uranium mining activities.

The U.S. Environmental Protection Agency “has adopted emissions standards for underground uranium mines, which might appear to qualify for ‘field preemption,’” Squillace said.

Field pre-emption means the federal rules control issues when there is a conflict with state rules or laws.

“But EPA has also promulgated general rules that apply generally to all sources of air emissions, and these standards specifically authorize states and local governments to adopt standards that are more stringent than federal standards,” Squillace said.

Squillace believes Colorado’s laws are likely to be unchanged by any Supreme Court ruling.

“The Virginia case is harder than the situation here in Colorado because Virginia wants a ban on uranium mining,” Squillace said. “I would think that imposing additional, more stringent standards on a mining company would be in keeping with EPA’s rules and therefore not pre-empted.”

During the Supreme Court hearing this month, attorneys for Virginia Uranium said rulings in previous cases show states must have a non-safety motivation before they can regulate uranium mining. Otherwise, federal law controls all safety issues.

The attorneys referred to the ruling in the 1983 Supreme Court case of Pacific Gas & Electric v. State Energy Resources Conservation and Development Commission.

Colorado native Justice Neil Gorsuch acknowledged the confusion about whether state or federal law controls safety issues when he said, “Why wouldn’t we just say this is just not an area that Congress regulated? Congress just couldn’t come to agreement on how to regulate mining.”

The Supreme Court’s ruling in the case is expected in early 2019.