In a major victory for rare native fish, the U.S. Fish and Wildlife Service (FWS) has asked the Nuclear Regulatory Commission to reassess its plan for groundwater cleanup and endangered species protection at the Atlas uranium tailings dump in Moab.
The dump, which is located on the banks of the Colorado River, is leaching deadly levels of ammonia and other toxic contaminants into the river and is jeopardizing the survival of the endangered Colorado pikeminnow and razorback sucker. The decision to re-open the cleanup plan means that the NRC decision to put a cap on the pile and leave it next to the river will be put on hold until analysis is complete.
In 1998 the FWS signed off on a Nuclear Regulatory Commission (NRC) plan to place a clay cap on the dump and leave it next on the banks of the river, based on the unfounded assumption that groundwater cleanup would eventually take place. Because the plan did not address how to clean up poisonous discharges of ammonia and other toxic contaminants that are jeopardizing the survival of the endangered Colorado pikeminnow and razorback sucker, the Grand Canyon Trust, Grand County, Utah, the Sierra Club, and a number of river outfitters in Moab filed suit against the FWS to challenge its authorization of the plan. With Judge David Sam expected to rule on the case next week, the FWS yesterday sent a letter to the NRC indicating that its biological opinion authorizing the plan inadequately addressed groundwater cleanup and asking for reinitiation of consultation to consider specific cleanup options to protect the Colorado River and its native fish.
Susan Daggett, an attorney with Earthjustice Legal Defense Fund who litigated the case, hailed the decision as a major step toward comprehensive cleanup at the site: "This is a victory of science over bureaucracy. We have been pushing the FWS to revisit protection of the Colorado River and native fish because there has been no groundwater cleanup plan in place. It is better for the FWS to reinitiate consultation than to have a court order requiring it."
Bill Hedden of the Grand Canyon Trust, a plaintiff in the case, was relieved: "It's crazy to leave the largest radioactive dump in the country on the banks of the Colorado River without even thinking about how groundwater cleanup might happen. This decision should give Congressman Cannon the ammunition he needs to move this pile."
Because there is insufficient money to clean up the site, Congressman Chris Cannon (R-Utah) has introduced legislation in Congress to transfer regulation of this site from the Nuclear Regulatory Commission to the Department of Energy, to appropriate some money for cleanup, and to require that the waste be moved away from the Colorado River.
From 1956 to 1984, the Atlas Uranium Mill deposited 10.5 million tons of radioactive tailings and other mill wastes in an unlined pond in the floodplain of the Colorado River at Moab. Underground leakage from this tailings pile results in a plume of heavily contaminated groundwater over a mile wide and forty feet deep, discharging directly into the Colorado River. Recent studies by the U.S. Geological Survey reveal that this plume is so toxic to fish that virtually100% of fish penned near the tailings pile die within moments. The owner of the site, the Atlas Corporation, is bankrupt, and there are no funds available to clean up the groundwater and stop the impacts to the Colorado River. The FWS's decision means that until there are assurances that water quality will be addressed, the government cannot make a final decision to leave the pile at the river's edge. This decision does not prevent taking interim steps to clean up the pile that do not prejudice the ultimate decision about whether to cap the pile.
In addition to the Grand Canyon Trust, the plaintiffs in this lawsuit are Grand County, Utah, the Sierra Club, the Colorado Plateau River Guides, and several individual river outfitters.
ATLAS LITIGATION FACT SHEET
Grand Canyon Trust v. Babbitt
U.S. District Court, Salt Lake City
On November 10, 1998, a lawsuit was filed to challenge the Biological Opinion adopted by the United States Fish and Wildlife Service ("FWS") covering a plan to "reclaim" the 130-acre uranium mill tailings site owned by the Atlas Corporation adjacent to the Colorado River near Moab, Utah. The suit was brought on behalf of the Grand Canyon Trust, Grand County, Utah, the Sierra Club, and several river guides and outfitters in Moab.
This case is about the undisputed impacts of massive water pollution on endangered fish (the Colorado pikeminnow and the razorback sucker). It's the same water pollution that threatens other kinds of wildlife and humans as well. Fish, wildlife and people are all in the same boat as far as the threat from the Atlas site is concerned, and that's why you see a united front among conservationists, municipal, county, and state government, and citizens.
With the blessing of the FWS, the Nuclear Regulatory Commission (NRC) has granted permission to close the site and turn it over to the U.S. government, specifically to the Department of Energy. The authorized reclamation plan would simply cover the tailings pile with a layer of clay, but the plan contains no specific means to address the continuing contamination of water quality and endangered fish habitat in the Colorado.
The legal claim against the Service is that it has okayed the capping without even knowing whether it will ultimately be effective in stopping the massive water pollution. The Endangered Species Act embodies a look before you leap principle: don't commit yourself to a course of action before you know whether it's going to harm endangered species. What the FWS said here was leap now, look later.
In the suit the plaintiffs requested that the FWS undertake a tiered consultation, which would allow the reclamation trustee to begin dewatering the pile, consolidating the waste materials in one location, and taking other steps to clean up the site short of placing a permanent cap on the pile. Before making a final decision about capping the pile in place, the FWS will have to look at whether and how groundwater could be cleaned up if the waste is left next to the river. This is essentially what will happen under the FWS's proposed consultation with the NRC.
The 130 acre tailings pile contains about 10.5 million tons of waste from the operation of a uranium mill and is one of the largest and most toxic in the country. The tailings are heaped in an open, unlined pit lying within the Colorado River floodplain about 750 feet from the river. Although nine smaller uranium tailings piles have been moved away from rivers, the NRC has approved Atlas's plan to cap this pile where it is.
Recent studies by the U.S. Geological Survey indicate that ammonia and other toxic contaminants are so poisonous at the Atlas site that fish put in cages in the river die immediately.
The Atlas Corporation filed for bankruptcy in September 1998, shortly after the FWS issued its biological opinion. The remaining assets, which amount to less than $21 million, have been put into a reclamation trust. The trust, however, contains less money than Atlas estimated would be required for the capping plan alone. It is clear that there is not enough money to conduct a multi-million dollar groundwater clean up as well.
Because there is insufficient money to clean up this site, Congressman Christopher Cannon (R-Utah) has introduced the "Keep the Colorado River Clean Act" (HR-4165) in Congress to transfer regulation of this site from the Nuclear Regulatory Commission to the Department of Energy, to appropriate some money for cleanup, and to require that the waste be moved away from the Colorado River.
Susan Daggett or Robert Wiygul, Earthjustice Legal Defense Fund
Tom Robinson, Grand Canyon Trust
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