Piñon Ridge Uranium Mill lawsuit filed against CDPHE, May 24, 2013

7/16/2019 Piñon Ridge Uranium Mill lawsuit filed against CDPHE, May 24, 2013.

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DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO

Court Address:

2nd

Judicial District

Denver City & County Building

1437 Bannock Street, Room 256Denver, Colorado 80202Phone Number: (720) 865-8301

PLAINTIFFS: Sheep Mountain Alliance, Rocky MountainWild;

v.

DEFENDANTS: Colorado Department of Public Health

and Environment (“CDPHE”), Jennifer Opila, in her officialcapacity; CDPHE Executive Director Dr. Christopher

Urbina, in his official capacity;

and,INDISPENSABLE PARTY: Energy Fuels Resources

Corporation

ATTORNEYS FOR PLAINTIFFS:

Attorneys: Travis Stills, #27509

Energy Minerals Law Center Address: 1911 Main Avenue, Suite 238

Durango, Colorado 81301

Phone Number: (970)375-9231

Fax Number: (970)382-0316Email: [email protected]

Attorneys: Jeffrey C. Parsons, #30210

Roger Flynn, #21078

Western Mining Action ProjectAddress: P.O. Box 349, Lyons, CO 80540

Phone Number: (303) 823-5738

Fax Number: (303) 823-5732Email: [email protected]

Attorneys: Matthew Sandler #37921Rocky Mountain Wild

Address 536 Wynkoop St., Suite 303Denver, CO 80202

Phone: 303-546-0214 ext. 1Fax: 303-454-3366

Email: [email protected]

Case Number: 2013CV______

Courtroom: _________

COMPLAINT



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Plaintiffs, Sheep Mountain Alliance and Rocky Mountain Wild (Plaintiffs), by and through their undersigned legal counsel, hereby state and aver the following as its Complaint for relief against

the Defendants, Colorado Department of Public Health and Environment (“CDPHE”), and

Executive Director Dr. Christopher Urbina, and Jennifer Opila, acting in her official capacity on

behalf of CDPHE.

1. This lawsuit seeks judicial review and invalidation of CDPHE’s issuance of

Radioactive Materials License No. Colo. 1170-01, Amendment Number: 02, Global Revision 3(“License”) to Energy Fuels Resources Corporation (“Energy Fuels”) on April 25, 2013.

2. Copies of the License and accompanying materials were served on Sheep MountainAlliance by CDPHE Public Affairs Officer Mr. Warren Smith mailing a DVD on or about May 2,

2013. Copies of the License were not served on Rocky Mountain Wild.

3. The License, issued with conditions, allows Energy Fuels to transfer, receive,

possess, and use radioactive materials at a uranium mill in the Paradox Valley of westernColorado. The License allows Energy Fuels to construct and operate a uranium mill and an

“11e(2) byproduct” waste disposal cell for the permanent impoundment of the uranium milltailings and the eventual interment of the radioactive remains of the mill itself.

4. It has been nearly thirty years since a similar license was issued in Colorado for thecontinued operation of the Cotter Mill in Cañon City, Colorado. After milling Colorado-mined

ore at the Cotter Mill proved economically infeasible, the operations switched to processing of

uranium-bearing wastes from various industrial and government sources. The Cotter Mill has been demolished and is now undergoing remediation and closure proceedings pursuant to

requirements of the federal Uranium Mill Tailings Radiation Control Act (“UMTRCA”) and Superfund.

5. Many of the other valleys in western Colorado, including the San Miguel River

corridor near Nucla and Naturita, have been contaminated by uranium milling and the permanentinternment of uranium tailings. Historically, uranium milling has never been carried out in the

Paradox Valley. The Paradox Valley is an area of Montrose County known for its agricultural

characteristics, abundant wildlife, and recreational opportunities.

6. The regional economy has managed to endure several disruptive and unsustainable

boom/bust cycles that characterize the uranium industry. Uranium mills provide hazardous and intermittent employment based on widely fluctuating international commodity markets.

7. On information and belief, Energy Fuels has not obtained financing to design or construct the Piñon Ridge Mill (“PR Mill”). Publicly available statements by Energy Fuels

indicate that a South Korean electrical utility recently became a dominant shareholder in Energy

Fuels through a complex 2012 transaction with Denison Mines, a Canadian Corporation. In

2012, Energy Fuels became the owner of the White Mesa uranium mill near Blanding, Utah. In2012, Energy Fuels announced it will halt all mining of Colorado Plateau ores due to the

relatively high cost of processing Colorado Plateau ores. A substantial portion of Energy Fuels’



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business activities now involves shipment of uranium-bearing wastes to White Mesa as an

alternative to disposal in a licensed low-level radioactive waste facility.

8. On information and belief, Energy Fuels does not plan to start construction of the PR

Mill in 2013. On information and belief, Energy Fuels has not obtained all necessary state and

federal approvals for the PR Mill.

9. This lawsuit is brought to invalidate the License and Environmental Impact Analysis

(“EIA”), both of which were issued without compliance with the substantive and proceduralrequirements of the Colorado Radiation Control Act (“RCA”), C.R.S. § 25-11-101, et seq., and

the federal Atomic Energy Act (“AEA”) and UMTRCA, 42 U.S.C. § 2011, et seq., which are

implemented within the State of Colorado by CDPHE. These requirements are designed toensure the decisionmaking process is open to informed public involvement and subjected to

rigorous procedural requirements of a formal adjudication and initial decision by an

administrative law judge, subject to an appeal by right to the Executive Director, before CDPHE

may issue a radioactive materials license for purposes of uranium milling and maintaining the

radioactive tailings until the property is deeded to the government for perpetual care.

10. Persons living in the Paradox Valley have repeatedly expressed their opposition and concern about constructing a uranium mill in the Paradox Valley, including the owner of the

now-closed Bedrock Store and owner of the relatively new Paradox Valley Inn. Neither CDPHE

nor Energy Fuels conducted a detailed analysis of the benefits of siting the PR Mill and tailingsdisposal in an already-contaminated area as an alternative to the Paradox Valley.

11. The material issues raised by Plaintiffs were not resolved by the administrative law judge during the License Hearing mandated by the Judicial Review Order setting aside the

previously issued license and remanding for CDPHE to provide a license hearing that conformswith Colorado law, including the rights of parties under the Administrative Procedure Act. Sheep

Mountain Alliance v. CDPHE , 2011CV861, Judicial Review Order, at ¶¶32-35 (remanding for

compliance with, inter alia, C.R.S § 24-4-105).

12. Plaintiffs raised material issues early in the proceeding, including lack of water

supply, waste containment and exposure pathways, toxicity and management of mill wastes,

supply, on and off-site pollution, air emissions, socioeconomics, wildlife, federally protected species, due process/procedure, and the failure of CDPHE and Energy Fuels to meet the statutory

burdens meant to avoid repetition of the notorious impacts caused by the ongoing failure of

uranium mill tailings impoundments throughout Colorado. Similar issues were raised throughwritten and oral public comments by persons living in and near the Paradox Valley and by those

who farm, hunt, hike, climb, bike, visit, and otherwise enjoy the Paradox Valley.

13. Plaintiffs substantiated its issues at the seven day hearing with expert witness

testimony of Connie Travers, Dr. Ann Maste, Dr. Tom Power, cross examination, and

documentary evidence. See Exh. 1 Sheep Mountain Proposed Findings of Fact and

Determinations of Law, Exh. 2. Wildlife Coalition Proposed Findings of Fact and Determinations of Law.



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14. CDPHE selected Judge Richard Dana (ret.) of the Judicial Arbiter’s Group to serve as

the administrative law judge on CDPHE’s behalf. The ALJ committed legal error, including therefusal to issue an “initial decision” and instead treated the License Hearing as an elaborate

public comment opportunity. Exh. 3 compare C.R.S. § 24-4-105(14)(“Each decision and initial

decision shall include a statement of findings and conclusions upon all the material issues of fact,

law, or discretion presented by the record and the appropriate order, sanction, relief, or denialthereof.”)(emphasis supplied). The legal error was not corrected when Plaintiffs appealed to

Executive Director Dr. Christopher Urbina. Exh. 4.

15. The ALJ’s failure to make findings of fact and law in an “initial decision” left the

resolution of all contested issues of fact and law to CDPHE staff. CDPHE was an adverse party

to Plaintiffs throughout the License Hearing.

16. The issuance of a radioactive materials license is a final agency action based on the

culmination of a statutorily required licensing process that is ripe and subject to judicial review.

For the reasons herein, Plaintiffs seek judicial review, and an order vacating the License and

remanding the matter to CDPHE with instructions to conform with any such order and allrequirements of state and federal law.

PARTIES, JURISDICTION AND VENUE

17. Plaintiff SHEEP MOUNTAIN ALLIANCE (“SMA”) is a grassroots citizenorganization dedicated to the preservation of the natural environment in the Telluride Region and

Southwest Colorado, including the remote West End of Montrose County. The proposed Facility

would be built in the Paradox Valley, which is located at the far end of Montrose County and equal driving distance (approximately 70 miles) from the towns of Telluride and Montrose. The

Facility is sited 7 miles up-slope from the town of Bedrock, Colorado and the Dolores River,which runs across the Paradox Valley. Many of SMA’s members live downwind of the proposed

facility.

18. Plaintiff ROCKY MOUNTAIN WILD (“RMW”) is a non-profit environmentalorganization based in Denver, Colorado, that works to conserve and recover the native species

and ecosystems of the Greater Southern Rockies using the best available science. RMW was

formed in July 2011 by the merging of two organizations, Center for Native Ecosystems and Colorado Wild, and is the legal successor to both parties. Colorado Wild has worked for over a

decade to protect, preserve, and restore the native plants and animals of the Southern Rocky

Mountains. RMW members and staff recreate on and use lands that will be impacted by the proposed Pinon Ridge mill. RMW’s staff and members enjoy various activities on or near the

land proposed for development, including viewing and studying rare and imperiled wildlife and

native ecosystems. RMW’s members and staff plan to return to this area for these purposes inthe future.

19. In order to fulfill their organizational missions, Plaintiffs work to promote and protect

the health of regional ecosystems, wildlife habitats, watersheds, a sense of community, quality of life, and a diverse and sustainable local economy. Plaintiffs’ organizational interests and ability

to fulfill their organizational mission are adversely impacted by and aggrieved by the issuance of

the License without compliance with substantive and procedural requirements.



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20. Plaintiffs have members who live and own property in and near the Paradox Valleywhose property interests, interests in avoiding impacts of toxic and radioactive emissions, and

interest in the existing agricultural character of the Paradox Valley have been adversely impacted

and will be adversely impacted by the issuance of the challenged License. These members

regularly use and enjoy the benefits provided by the unique characteristics of the Paradox Valley.

21. The Paradox Valley is part of a public and private land complex which supports a

variety of activities, including tourism, recreation, enjoyment of wildlife, and agriculture whichare enjoyed by Plaintiffs’ members. Economic activity regarding uranium mining and milling

has not played a significant role in the region’s economy over the past thirty years, except the

economic activity generated by several uranium mine and mill closure, reclamation, and decontamination projects carried out by the federal Department of Energy’s Office of Legacy

Management, Bureau of Land Management, and Colorado’s Division of Reclamation and Mine

Safety.

22.

Unlike the San Miguel River Valley where the towns of Nucla and Naturita arelocated, there has never been a uranium mill in the Paradox Valley. Hundreds of millions of

dollars have been spent on disposal and still-ongoing remediation of uranium mill tailings and groundwater contamination near Nucla and Naturita.

23. The License involves a certain parcel of land that is not remote from the memberswho live in the Paradox Valley. The License is not sufficiently protective of the use and

enjoyment of the Paradox Valley by Plaintiffs’ members. Plaintiffs’ interests have been

adversely impacted and aggrieved and will continue to be adversely affected by the issuance of the challenged License.

24. The EIA failed to inform Plaintiffs, members, and the public of the impacts,

alternatives, mitigation measures, and cumulative impacts of the Energy Fuels proposal. The

protections provided by lawful preparation and publication of an EIA before notice of the

License Hearing is a federal statutory right which Defendants’ have denied Plaintiffs and their members.

25. Plaintiffs, through its staff and members, have exhausted the available administrativeremedies and participated extensively in all aspects of the license proceedings by making written

and oral statements and submitting detailed technical reports to address regulatory requirements

and the deficiencies in the application materials. Granting Plaintiff’s request for relief would remedy harms to the legally protected interests of Plaintiffs and Plaintiffs’ members which flow

from Defendants’ unlawful conduct during the proceedings below and in the issuance of the

License itself.

26. Defendant COLORADO DEPARTMENT OF PUBLIC HEALTH AND

ENVIRONMENT (“CDPHE”) is the Colorado regulatory Department with jurisdiction and

authority to implement the Colorado Radiation Control Act, C.R.S. §§ 25-11-101, et seq. TheColorado Radiation Control Act is the statutory mechanism through which the State of Colorado

implements the federal Atomic Energy Act, which sets forth the regulatory requirements for the



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processing of radioactive materials, and the disposal of 11e(2) byproduct materials, including

those activities proposed by Energy Fuels.

27. On behalf of the CDPHE, Defendant JENNIFER OPILA approved the issuance of

License No. Colo. 1170-01, Amendment No. 02, Global Revision 3 on April 25, 2013. On

information and belief, Ms. Opila was acting upon authority delegated from Dr. Christopher Urbina, CDPHE Executive Director. Dr. Urbina was Executive Director on April 25, 2011. Ms.

Opila conducted pre-hearing investigations into the application, attended the License Hearing,

and testified in the License Hearing.

28. On information and belief, Mr. Steve Tarlton prepared and approved the

Environmental Impact Analysis on behalf of CDPHE. Mr. Tarlton led and supervised theCDPHE investigations and review of the application, beginning with a 2007 site visit at the

request of Energy Fuels. Mr. Tarlton testified at the License Hearing. On information and belief,

Mr. Tarlton is Ms. Opila’s superior. On information and belief, Mr. Tarlton was acting upon

authority delegated from Dr. Urbina.

29. Defendant DR. CHRISTOPHER URBINA, CDPHE Executive Director, denied

Plaintiffs’ administrative appeal of the January 14, 2013 ruling (“January 2013 Ruling”) .

30. ENERGY FUELS RESOURCES CORPORATION (“Energy Fuels”), a wholly-

owned subsidiary of Energy Fuels Inc., a Canadian Corporation, is the entity that received theLicense. The management and ownership of Energy Fuels has radically changed since the

application was filed in 2009. The license decision lacks any information on actual control and

ownership interests of Energy Fuels. On information and belief, Energy Fuels relies entirely onits Canadian parent to fund its operations. On information and belief, Energy Fuels has not

generated any income from its Colorado uranium mines during the previous seven years. EnergyFuels’ Colorado Plateau mines are either inactive or in the process of going inactive. Energy

Fuels’ Whirlwind Mine has been allowed to fill with water after repeated exceedances of water

quality standards. On information and belief, at the time the License was issued Energy Fuels

Resources has not obtained the financing required to fully design and engineer the mill and associated tailings facilities. On information and belief, at the time the License was issued,

Energy Fuels had not obtained the financing required to build the mill or associated tailings

facilities. On information and belief, at the time the License was issued, Energy Fuels Resourceshad not obtained the financing required to decommission or close the mill and associated tailings

facilities. Energy Fuels’ financial statements are publicly available through the System for

Electronic Document Analysis and Retrieval (SEDAR.com). On information and belief, EnergyFuels now owns the White Mesa Uranium Mill near Blanding, Utah and has no current plans to

mine or mill uranium ore in Colorado.

31. This Court has jurisdiction in this case pursuant to the Colorado Administrative

Procedure Act, C.R.S. § 24-4-106. The Atomic Energy Act requires that licensing decisions be

subjected to judicial review. 42 U.S.C. § 2021(3)(A)(3). The Radiation Control Act requires a

quasi-adjudicatory administrative proceeding be completed before the issuance of a radioactivematerials license involving uranium milling and tailings disposal. C.R.S.§ 25-11-203(1)(b)(1).

All administrative remedies available to Plaintiffs have been exhausted.



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32. Venue is proper in this Court pursuant to C.R.C.P. 98(b), as this action is brought

against public entities whose offices are in Denver, and the decisions and actions at issue in thiscase occurred in the City and County of Denver. (See C.R.S. § 24-4-106(4)(“The residence of a

state agency for the purposes of this subsection (4) shall be deemed to be the city and county of

Denver.”).

STATUTORY AND REGULATORY FRAMEWORK

33. Colorado’s authority to license uranium mills and radioactive mill tailings disposal isderived from the Agreement State Program of the federal UMTRCA and Atomic Energy Act

(“AEA”). 42 U.S.C. §§ 2011 et seq.. The State implementation of the program is by regulation

(C.C.R. 1007-1) and statute. C.R.S. § 25-11-101, et seq.(Radiation Control Act (“RCA”)). Thestate must adhere to the Agreement State Agreement (as amended August 1982 to include

uranium milling and tailings disposal) and carry out its program in a manner which must be at

least as stringent as the federal program implemented by the Nuclear Regulatory Commission.

42 U.S.C. § 2021. Colorado laws implementing the Agreement State program designates

CDPHE as the primary regulator of radioactive materials in Colorado pursuant to the federallydelegated “Agreement State” program.

34. CDPHE lacks the necessary staff resources to implement the Agreement State

program. CDPHE has the power and duty to charge Energy Fuels and other licensees the full

cost of implementing the Agreement State program.

35. Colorado may adopt regulatory requirements that are more protective than the AEA.

Colorado cannot interpret or implement its regulations in a manner that is less stringent than thefederal program. 42 U.S.C. 2021(o).

36. Tailings and other wastes generated while milling uranium ore into yellowcake are

referred to as “11e(2) byproduct” based on the definition from the Atomic Energy Act, which is

codified at 42 U.S.C. § 2014 (e)(2). See also C.R.S. § 25-11-201(1)(adopting federal definition).

37. A key objective of the licensing and regulation of milling and 11e(2) byproduct is to

prevent environmental contamination and to reduce on and off site release and exposures to

levels that meet the “as low as reasonably achievable” (“ALARA”) standard as it applies tolicensing of uranium milling and tailings disposal. See 6 CCR 1007-1 Part 18.

38. “The greatest potential sources of offsite radiation exposure (aside from radonexposure) are dusting from dry surfaces of the tailings disposal area not covered by tailings

solution and emissions from yellowcake drying and packaging operations. During operations and

prior to closure, radiation doses from radon emissions from surface impoundments of uranium or thorium byproduct materials must be kept as low as is reasonably achievable.” CCR 1007-1 Part

18 Appendix A Criterion 8.

39. The minimum procedural requirements which all Agreement States must follow whenconducing a licensing proceeding involving uranium milling and tailings/11e(2) byproduct

material are set forth in AEA. 42 U.S.C.§ 2021(o).



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40. Colorado may not lawfully issue a new milling and 11e(2) byproduct material license

until an administrative law judge issues an initial decision on all material issues raised by the parties to the formal hearing. See 42 U.S.C. § 2021(o) accord C.R.S.§ 25-11-

203(1)(b)(1)(requiring licenses be issued “in accordance with sections 24-4-104 and 24-4-105,

C.R.S.”).

41. The Colorado regulations implementing the RCA/AEA require that an opportunity for

formal adjudication be provided before a license may be issued.

There shall be an opportunity for public hearings to be held in accordance with the

procedures in 24-4-104 and 24-4-105, C.R.S. 1973, as amended, and RH 18.6, prior to the

granting, denial or renewal of a specific license permitting the receipt, possession or use of source material for milling or byproduct material as in definition (2) of RH 1.4.

6 CCR 1007-1 § 18.6.1(emphasis supplied).

42.

The notice of opportunity to request a License Hearing must describe the availabilityof a draft license and Environmental Impact Analysis (EIA) for review and use by the interested

and affected persons who may seek party status at the hearing. 6 CCR 1007-1 § 18.6.2.1.4. Thenotice must also include, “A description of the proposed licensing action and a statement of the

availability of its text from the [CDPHE].” Id .

43. The RCA does not allow incremental review and approval of a license application.

The RCA requires a license application be approved or denied “as a whole.” C.R.S. § 25-11-

203(3)(c)(I).

44. The RCA prohibits the commencement of formal proceedings on the license until suchtime as the Department certifies the application “substantially complete.” C.R.S. § 25-2-

3(2)(b)(I).

45. The RCA and regulations implementing the RCA are designed to ensure sufficienttime for RCA/AEA mandated formal hearings by requiring that where an applicant submits to the

Department an application that does not clearly and completely demonstrate how objectives and

requirements of Part 18 of the state radioactive materials regulations are met, that failure “shall be grounds for refusing to accept an application.” 6 C.C.R. 1007-1 §18.3.

46. The license must be issued, if at all, within a specific amount of time. C.R.S. § 25-11-203(2)(c)(V)(C). April 29, 2013 was the deadline for making a final decision on the license

requested by Energy Fuels. On or about April 25, 2013, Defendant Jennifer Opila issued the

License based on the 2009 application submitted by Energy Fuels. On information and belief,Ms. Opila approved the license with the oversight and approval of Mr. Steve Tarlton.

47. Colorado may not issue a radioactive materials license until all procedural and

substantive requirements of the AEA, RCA, implementing regulations, federal standards, and Agreement State Agreements are satisfied.



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48. Where the RCA/AEA requirements and the APA may conflict, the APA does not

eliminate the requirement of the more specific statutory scheme. C.R.S. § 24-4-107. The APArequirements are explicitly incorporated into the RCA. Judicial Review Order at ¶¶25, 32-34

(holding CDPHE failed to provide a C.R.S. §24-4-105 compliant hearing and harmonizing timing

requirements of RCA and APA).

49. A license proceeding regarding a tailings facility may not be segmented temporally.

Expected expansions of the facility must be analyzed and considered in the initial license

proceeding before a license may be issued.

The specifications shall be developed considering the expected full capacity of tailings or

waste systems and the lifetime of mill operations. Where later expansions of systems or operations may be likely (for example, where large quantities of ore now marginally

uneconomical may be stockpiled), the amenability of the disposal system to accommodate

increased capacities without degradation in long-term stability and other performance

factors shall be evaluated.

C.C.R. 1007-1 § Appendix A.

50. The permissible scope of CDPHE’s analysis of a license application concerning

uranium milling and tailings disposal is not limited.

All site-specific licensing decisions based on the criteria in this Appendix or alternatives

proposed by licensees or applicants will take into account the risk to the public health and

safety and the environment with due consideration to the economic costs involved and anyother factors the Department determines to be appropriate.

6 C.C.R. 1007-1 Appendix A (emphasis supplied).

51. CDPHE’s exercise of discretion during consideration of a license involving uranium

milling and tailings disposal must be documented and articulated in judicially reviewabledocuments entered into the Administrative Record. C.R.S. §§ 24-4-105, 106.

52. The need for Colorado’s implementation of the AEA Agreement State Program tomeet or exceed the requirements of federal law is explicitly recognized in the applicable

regulations, which requires CDPHE to prepare an Environmental Impact Analysis (“EIA”) which

is the equivalent to the Environmental Impact Statement used by the U.S. Nuclear RegulatoryCommission (NRC) to satisfy the procedural requirements of the National Environmental Policy

Act. See 6 CCR 1007-1 at § 18.4.1.

53. RCA regulations require that the EIA “shall be available to the public and for review

by the U.S. Nuclear Regulatory Commission at the time of public notice of hearing.” Id .

54. The establishment of cost estimates for decommissioning and long-term care and afully executed financial surety instrument to cover these estimates is a condition precedent for

application approval and issuance of the requested license. C.C.R. 1007-1 § 3.9.5.1.



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55. In addition to the regulations in Part 3 that apply to radioactive materials generally, the

regulations specific to milling and tailings disposal confirm that financial assurance beestablished as a condition precedent to license issuance:

Prior to issuance of the license, the applicant shall (1) establish financial assurance

arrangements, as provided by RH 3.9.5, to ensure decontamination and decommissioningof the facility and (2) provide a fund adequate to cover the payment of the cost for long-

term care and monitoring as provided by RH 3.9.5.10.

C.C.R. 1007-1 § 18.5.

56. In turn, section 3.9.5.4 lists the acceptable methods for establishing financialassurance. All forms of payment contemplate prepayment. Id. at 3.9.5.4(2). Section 3.9.5 does

not contemplate the establishment of financial assurance based on promises to pay on some

future date. “Self-guarantee” schemes are explicitly prohibited for uranium milling licenses. Id.

at 3.9.5.4(3)(c).

57. “The value of the financial assurance warranty must not be dependent upon the

success, profitability, or continued operation of the licensed business or operation.” Id at §3.9.5.4(8).

58. Where financial assurance is concerned, the Agreement State Agreement (as amended August 1982) explicitly requires CDPHE to adhere to federal standards established by the

Nuclear Regulatory Commission (“Commission” or “NRC”). The 1982 Amendment states, in

part: "B. Such State surety or other financial requirements must be sufficient to ensurecompliance with those standards established by the Commission pertaining to bonds, sureties,

and financial arrangements to ensure adequate reclamation and long term management of such byproduct material and its disposal site." These standards are found in federal statute,

regulations, and Guidance Documents prepared by the NRC. Defendants are bound by the

financial surety standards set out by the NRC in a regulatory document known as NUREG 1757.

59. NUREG 1757 provides the accepted federal standards and methodology for

establishing financial surety cost estimates. NUREG 1757 Vol 3 at 1-1 (guidance “applies to

financial assurance requirements for licensees under 10 CFR Parts 30, 40, 70, and 72, with theexception of licensees subject to criteria 9 and 10 of Appendix A to Part 40 (uranium recovery

facilities)”. Because Colorado regulations do not rely on the NRC-specific surety requirements

of Criteria 9 and 10 of 10 C.F.R. Part 40 Appendix A, NUREG 1757 provides applicable federalstandards for the financial assurance requirements in Colorado. Compare C.C.R. 1007-1 Part 18,

Appendix A Criteria 9 (transfer of ownership) and 10 (hazardous constituents).

60. Colorado statutes and regulations, on their face and as applied in this proceeding, are

less stringent than NRC standards.

61. The financial surety must be established before the license issues and must remain in place during the life of the facility. See also: 6 C.C.R. 1007-1 § 3.9.5.8 (“With the approval of

the Department, a licensee may reduce the amount of a decommissioning warranty as



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decommissioning activities are completed in accordance with an approved decommissioning plan

and/or to reflect current site conditions and license authorizations.).

62. Uranium mills in Colorado do not enjoy “reasonable investment-based expectations.”

Department of Health v. The Mill, 887 P.2d 993 (Colo. 1994)(“Given this regulatory

environment, it is unreasonable for The Mill to claim it had no notice of the significant risk of further regulation of the site.”).

63. The amount of the financial surety must be based on Department-approved costestimates. CCR 1007-1§ 3.9.5.5. These estimates must be analyzed in the EIA.

64. A current Decommissioning Funding Plan is required by state regulation for allRadioactive Materials Licenses. C.C.R. 1007-1§ 3.9.6.

65. The control of radioactive materials is achieved through a license and specific

procedures, plans, and programs that have been lawfully reviewed and approved. The plans and

programs applicable to a uranium mill with a tailings disposal facility that are particularlyrelevant to this litigation include, but are not limited to, those found in 6 C.C.R. 1007-1 Part 18See also Id. Part 18, Appendix A: Criteria Relating To The Operation Of Mills And TheDisposition Of The Tailings Or Wastes From These Operations.

FACTUAL BACKGROUND AND GENERAL ALLEGATIONS

66. The lawsuit seeks review and invalidation of the License issued on or about April 25,2013 and review and invalidation of the Environmental Impact Analysis (“EIA”) that is a

condition precedent for a lawful License Hearing.

67. By failing to conduct a lawful Licensing Hearing based on a lawful EIA and

concluding with an initial decision, CDPHE, its staff, and agents have denied Plaintiffs’ state and

federal rights.

68. The claims involve the Findings of Fact and Conclusions of Law issued by Judge

Richard Dana (ret.) of the Judicial Arbiter’s Group on January 14, 2013 (“January 2013 Ruling”),the Executive Secretary’s Appeal Determination (“Appeal Decision”), the EIA, and other action

taken by CDPHE in support of issuing a Radioactive Materials License on or about April 25,

2013. (“License”).

69. The proceedings on remand failed to provide the procedural requirements explicitly

set forth in the Remand Order, including, but not limited to, statutory due process rights ( Id .at ¶¶12,22, 32) meaningful cross examination ( Id .¶¶12,19, 22), a “comprehensive EIA” ( Id . at ¶23)

at the time the hearing is noticed, and a requirement that the license applicant “clearly

demonstrate[] how objectives and requirements of [Part 18] are met” (18.3) within harmonized

timelines. Id . at ¶32.

70. Three agency persons played key roles in the License Hearing.



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71. Dr. Urbina is the agency person who made the Appeal Decision approving and

adopting the January 2013 Ruling on behalf of CDPHE.

72. On information and belief, Mr. Steve Tarlton was responsible for all aspects of the

agency’s review of the license application and CDPHE’s participation in the License Hearing.

On information and belief, Mr. Tarlton is the person who prepared and approved the EIA. Oninformation and belief, Mr. Tarlton is the person who prepared and approved the Decision and

Decision Analysis. On information and belief, Mr. Jerry Goad of the Office of Attorney General

assisted Mr. Tarlton in the drafting of the License, EIA, License Decision, and other supportingdocuments.

73. Ms. Opila signed the License. On information and belief, Mr. Tarlton has directsupervisory authority over Ms. Opila.

74. The License is based on CDPHE’s unlawful interpretation and implementation of

Colorado laws implementing the federal Atomic Energy Act.

75. NRC has informed CDPHE that CDPHE’s interpretation and implementation of

Colorado’s Agreement State program is not in accord with the rights of the public and thesubstantive protections provided by UMTRCA/AEA and federal regulations.

76. The required procedures were succinctly summarized by the Nuclear RegulatoryCommission (“NRC”) in a document not previously found in the administrative record. The

NRC letter stated, in part:

Of particular concern is 6 CCR 1007-1, Part 18.6.1, and whether this section provides for a

public notice announcing an opportunity for the public to submit comments and participatein a public hearing on the issuance of a new license after publication of the draft license

and environmental impacts analysis, as required pursuant to Section 274(o) of the Atomic

Energy Act of 1954, as amended (the Act) and the State of Colorado amended Agreement

with the NRC. See also, 42 U.S.C. §2021(o) and Section 274(b) of the Act.

CDPHE002881 (February 27, 2012 NRC Letter to CDPHE)(emphasis added).

77. A draft license is a mandatory feature of both the Agreement State and NRC

procedures for consideration of a license.

78. CDPHE provided no evidence regarding publication of a draft license. Id . at

18.6.2.1.4.

79. CDPHE provided no evidence to establish that an EIA was made available for NRC

review. Id . at § 18.4.1. On information and belief, the EIA and notice of hearing was not

provided to NRC for review and comment on August 6, 2012.

80. CDPHE, through the testimony of Steve Tarlton, conceded that the Colorado

regulations that implement the federal Atomic Energy Act do not comply with federal

requirements. Transcript at 950:25-951:2 (“Those deficiencies are because NRC said that the



13

Colorado regulations do not meet the Atomic Energy Act requirements; is that correct?

[Answered by Mr. Tarlton] A: NRC has said that, yes.”).

Procedural History Up to Judicial Review Order Invalidating the 2011 License

81.

At issue in this case are Defendants’ actions (and inactions) in failing to adequatelymaintain or follow legally-mandated procedures to properly determine whether to approve, deny,

or approve with conditions, the issuance of a radioactive materials license. C.R.S. § 25-11- 203,

§24-4-105.

82. In early 2007, CDPHE began billing Energy Fuels for time spent working with Energy

Fuels on preparation of the application for a Radioactive Materials License.

83. In 2007, after a site visit by CDPHE, Energy Fuels selected and purchased a parcel of

land in the Paradox Valley for the purpose of constructing a uranium mill and radioactive tailings

cells.

84. During the ensuing two years, CDPHE staff conducted significant reviews and

provided preliminary approval to Energy Fuels’ site selection, studies, designs, and proposals.CDPHE staff that provided pre-application assistance to Energy Fuels included Jennifer Opila

and Steve Tarlton.

85. In November 18, 2009, Energy Fuels submitted a multi-volume application requesting

a radioactive materials license.

86. On December 15, 2009, Sheep Mountain Alliance sent a letter to CDPHE asserting

several grounds that indicated the Application was not substantially complete.

87. On December 18, 2009, without considering Sheep Mountain Alliance’s objections,

CDPHE issued its determination that the Application was substantially complete. CDHPE’s

completeness determination initiated the quasi-adjudicatory licensing proceeding required by theRCA/AEA.

88. After the application was deemed substantially complete, CDPHE allowed EnergyFuels to supplement the application with many thousands of pages of amendments, revisions, and

responses to CDPHE’s numerous requests for additional information which included formal

determinations that the application lacked information or failed to address substantial regulatoryrequirements.

89. CDPHE failed to maintain a complete record of the documents exchanged betweenEnergy Fuels and CDPHE staff. Agency records concerning the Energy Fuels application have

been destroyed by CDPHE.

90. Despite repeated requests during the license proceedings, CDPHE refused to answer technical questions regarding the application that were asked by Plaintiffs, its members, and the

public.



14

91. Two opportunities for public comment were provided where official transcripts were

made. During meetings conducted in February and January 2010, CDPHE did not provide adetailed substantive presentation of the project, EIA, or a draft license to review. Energy Fuels

provided PowerPoint presentations of the project proposal on behalf of CDPHE.

92.

Sheep Mountain Alliance, its members, and the public requested an opportunity toquestion Energy Fuels and CDPHE personnel during the January and February 2010 meetings.

CDPHE declined the requests and the questions went unanswered. Cross-examination

opportunities were not provided at the January and February 2010 meetings.

93. No other on-the-record meetings or hearings were held during the license proceeding.

No opportunity to request a License Hearing was provided during the licensing proceeding. InJanuary and May 2011, an EIA was published concurrently with the now-invalid license. The

2011 EIA was relied upon during the proceedings on remand.

94. Sheep Mountain Alliance filed suit to remedy CDPHE’s failure to adhere to the

License Hearing requirements. Sheep Mountain Alliance v. CDPHE , 2011CV861 (Denver District).

95. Energy Fuels and CDPHE contested numerous aspects of jurisdiction via motions to

dismiss. The motions to dismiss were denied.

96. The lawsuit confirmed that CDPHE used an unlawful licensing process that denied the

opportunity for Sheep Mountain Alliance and the public to present their issues in the first

instance in a License Hearing, based on a comprehensive EIA. Sheep Mountain Alliance. Id .(Judicial Review Order).

97. An administrative remand was issued that invalidated the CDPHE action, including

the 2011 license that directed CDPHE to issue a new license, if at all, after complying with

formal hearing requirements imposed by the APA and RCA. Id .

98. Due to conflicts between the statute and regulations regarding timing requirements,

some flexibility was provided for setting a schedule. Id . at ¶32. A scheduling order was adopted

and approved that conformed with the Court’s harmonization of the timing requirements. Sheep

Mountain Alliance v. CDPHE , 2011CV861 (Denver District)(Order of August 7, 2012). Rocky

Mountain Wild was not a party to the previous litigation or any agreements by the parties to that

litigation.

99. The schedule approved on August 7, 2012, on its face, conformed with applicable

regulatory requirements.

100. The schedule approved on August 7, 2012, was unreasonably interpreted and applied

by Defendants, and failed to conform to applicable regulatory requirements and controlling law.



15

Procedural History of License Hearing

101. The basis for the License Hearing was Energy Fuels’ 2009 application. The

application was amended by unspecified documents submitted by Energy Fuels between 2009

and January 2011.

102. The entire license application can be found in the Administrative Record filed by

CDPHE in the previous litigation.

103. On information and belief, the entire hearing record was hand-delivered by Judge

Dana to Warren Smith’s home on or about January 12, 2013. Mr. Smith is CDPHE’s

Community Involvement Officer. With very few exceptions, the record was made and kept inelectronic form.

104. On information and belief, CDPHE staff considered additional material information

while making its License Decision that is not contained in the hearing record made by Judge

Dana.

105. Energy Fuels did not update or amend the application in preparation for the 2012License Hearing. Energy Fuels did not update or amend the application during the License

Hearing. On information and belief, Energy Fuels provided information updating and amending

the application after the close of the License Hearing.

106. Notice of opportunity for a License Hearing was provided on or about August 6, 2012.

107. CDPHE did not make a draft license available as part of the August 2012 Notice.

108. CDPHE’s August 2012 Notice did not describe a proposed licensing action or state

that the text of such description was available.

109. The August 2012 Notice vaguely referenced the 2011 EIA that had been produced for the invalidated 2011 license.

110. CDPHE did not update or amend its EIA in preparation for the 2012 License Hearing.

111. Both Plaintiffs submitted requests for party status.

112. SMA filed its Statement of Issues on September 9, 2013

113. On September 10, 2013 Judge Dana approved Plaintiffs’ request for party status and addressed several outstanding motions concerning the Notice and availability of the application

and EIA.

114. Other statements of issues and party status requests were filed and approved during thefirst two weeks of September 2013, including those of the Towns of Telluride and Ophir.

115. Energy Fuels provided a Statement of Issues on September 6, 2013.



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116. On September 20, 2013, SMA propounded written discovery on both Energy Fuelsand CDPHE.

117. After discovery disputes were resolved, Energy Fuels produced responses and records,

all of which were proffered and entered into the hearing record by Judge Dana without objection.Many of the documents were filed under seal, over SMA’s objections.

118. CDPHE refused to fully respond to the discovery requests and withheld documentsresponsive to SMA’s requests for production. Motions to compel were filed, but these motions

were not fully resolved until December 2013, after the License Hearing concluded. CDPHE’s

discovery conduct and the unreasonably delayed resolution of the motions to compel precluded SMA from effective cross examination and presentation of its case.

119. Prehearing conferences were held, and all were transcribed by a court reporter. All

transcripts were made part of the hearing record.

120. The License Hearing was held in Nucla, Colorado beginning November 7, 2013 and

concluding November 13, 2013.

121. Post-hearing briefing was filed in December 2013 .

122. On January 14, 2013, a ruling was issued by Judge Richard Dana (ret.). Based on the

Judicial Review Order and schedule, Judge Dana’s January 2013 Ruling was meant to be the

C.R.S. §24-4-105 “initial decision” of the CDPHE. An “initial decision” is defined under Colorado law as “a decision made by a hearing officer or administrative law judge which will

become the action of the agency unless reviewed by the agency.” C.R.S. § 24-4-102 (6) accord 6CCR 1007-1 §18.6.7.2.

123. The January 2013 Ruling did not resolve the issues raised by Plaintiffs or the parties to

the License Hearing.

124. Instead, Judge Dana determined in the January 2013 Ruling that as a matter of law his

role in the License Hearing on remand was to merely serve as a hearing officer with the hisauthority limited to deciding what to admit into the hearing record for later consideration by

CDPHE. Exh. 3. Energy Fuels and CDPHE vigorously advocated against Judge Dana resolving

the legal and factual issues raised by the parties. Judge Dana’s limitation on the scope of hisauthority is legal error that denied Plaintiffs’ rights as parties.

125. The January 2013 Ruling failed to make findings of fact or conclusions of lawregarding numerous material issues raised by the parties and the public.

126. The January 2013 Ruling made no determination on whether or not Energy Fuels met

its burden of proof regarding any statutory or regulatory criteria necessary for issuance of alicense.



17

127. By failing to provide a lawful “initial decision,” Defendants denied Plaintiffs, their

membership, and the public of their respective rights to have an independent adjudication and determination on all material issues raised during the License Hearing.

128. The January 2014 Ruling failed to make a determination on the question of whether or

not CDPHE has met the requirements of “§18.4.1 [which] requires that CDPHE make availableto the public a comprehensive Environmental Impact Analysis (“EIA”) at the time the 90-day

notice of hearing is sent.” Judicial Order at 9 ¶ 23 (emphasis supplied) citing CCR 1007-1 §

18.4.

129. Both Plaintiffs filed timely appeals of the January 2014 Ruling to CDPHE Executive

Director Dr. Urbina. Appeal of an “initial decision” is an appeal by right. Western Colo.

Congress v. Colorado Dep't of Health, 844 P.2d 1264, 1265 (Colo. Ct. App. 1992)(confirming

right of parties to appeal the initial decision issued by the hearing officer) accord 6 CCR 1007-1

§18.6.3.4 (“Parties shall have the right to […] appeal the decision of the hearing as provided by

the [APA].”).

130. CDPHE and Energy Fuels filed coordinated opposition to the appeal.

131. CDPHE Executive Director Urbina resolved Plaintiffs’ appeal.

132. On information and belief, Dr. Urbina’s decision was based on legal counsel and drafting assistance provided by Jerry Goad, the Assistant Attorney General who conducts day to

day regulatory activities regarding the application, represented CDPHE in the License Hearing,

and who prepared CDPHE’s opposition to Plaintiffs’ appeal. Dr. Urbina has no specialized training in the processing or handling of uranium or mill tailings. Dr. Urbina is not a lawyer.

133. On information and belief, after the License Hearing closed, CDPHE staff and Energy

Fuels exchanged communications not contained in the Administrative Record prepared by Judge

Dana.

134. On or about April 25, 2013 Ms. Opila signed the License on behalf of CDPHE.

135. CDPHE made its completed EIA available to the public for the first time on April 25,2013.

136. The License is the final agency action that makes the License, EIA, and administrative procedures on which the License and EIA were approved ripe for judicial review. C.R.S. § 24-4-

106.

137. The License was issued by CDPHE without benefit of an “initial decision.”

138. CDPHE made its decision on the license without benefit of an “initial decision”

139. An “initial decision” by the ALJ is required by the APA.



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140. On information and belief, CDPHE staff made all CDPHE determinations of fact and

law in the first instance when issuing the License in April 2013.

141. Plaintiffs raised material issues at each stage of the License Hearing. These material

issues were presented to Judge Dana by oral and written presentation of extensive legal authority,

expert witness testimony, and documentary evidence.

142. Defendants issued the License without benefit of an “initial decision” on material

issues raised by the parties to the License Hearing.

143. Because the License was issued without compliance with the basic standards of

administrative decisionmaking and in violation of Appellants’ rights as parties to the hearing, the proper remedy is to vacate the License.

144. No harm would befall Energy Fuels. Energy Fuels has merged with Denison Mines

and now owns and operates the White Mesa Uranium Mill near Blanding.

145. On information and belief, Energy Fuels has stopped production of uranium ore from

its Colorado Plateau uranium mining operations, including the Sunday Complex, Whirlwind Mine, and Energy Queen Mine.

146. In 2013, Energy Fuels sought and gained approval from Colorado Mined Land Reclamation Board to place all its Colorado uranium mines in temporary cessation of production

status for a period of at least five years. The temporary cessation of production request was

based on the economic infeasibility of mining and milling the Colorado uranium deposits.

147. In 2012, Energy Fuels came into possession of the uranium mill near Blanding, Utah.On information and belief, Energy Fuels is operating the Utah mill below capacity because of the

comparatively high costs of mining and milling Colorado Plateau ores.

148. No prejudice can befall Energy Fuels, who proposed and advocated the unlawfullicensing process and requested an unlawful result. Energy Fuels is not prohibited from re-filing

an updated application that reflects current conditions and plans.

149. Energy Fuels has a plan to seek amendments to the license shortly after issuance and

during the construction phase. The 2009 application vaguely identified for the License Hearing

is not an accurate representation of the current mill design, construction, and operation plan.

150. On information and belief, CDPHE received revisions and amendments to the

application after the License Hearing closed.

151. CDPHE procedures failed to provide Plaintiffs with the full rights of parties, including

an “initial decision” on issues presented by the parties’ Statement of Issues, in pre-hearing

motions, by objections raised at the hearing, and issues briefed during post-hearing briefing.

152. All issues raised by the attached briefing are incorporated here by reference.



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153. The federal regulation of uranium milling relies on procedural mechanisms to provide

substantive environmental protections. CDPHE used procedural mechanisms less stringent thanthose used in the federal program.

EXPERT TESTIMONY AND PARTY ADMISSIONS

154. Ms. Travers and Dr. Maest were certified in this proceeding to provide expert

opinions regarding the toxicity of the tailings, adequacy of the tailings cells, water supply,

groundwater, contamination pathways, based on their respective training and experience inhydro-geochemistry and hydrogeology, without objection.

155. In summary, Dr. Maest is a Boston University and Princeton University-trained Ph.D.with extensive educational and practical expertise in hydro-geochemistry.

156. Dr. Maest testified that the milling wastes (tailings) would be both highly acidic and

highly toxic with heavy metals as a result of the initial concentrations of contaminants in the

mined ore proposed to be processed at the mill.

157. Dr. Maest testified that despite presenting a contamination pathways analysis in themill application and the Environmental Impact Analysis, Energy Fuels and CDPHE omitted

entirely any analysis of potential contamination pathways associated with contamination of the

groundwater or surface water resulting from any spills or leaks from the evaporation ponds or tailings impoundments.

158. Dr. Maest testified that the tests done by Energy Fuels to characterize the acidity,radioactivity, and toxicity of the waste were not adequate to fully characterize the waste streams,

as those tests ignored significant data about the contents of additional mines that are proposed tofeed the mill.

159. Dr. Maest testified that the information submitted in the mill application materials

omitted highly relevant and important data necessary for a complete and adequatecharacterization of the mill waste.

160. Dr. Maest testified that the radioactive contaminants and the acidity readings of theomitted data demonstrated a more toxic waste stream than was presented in the mill application.

161. Dr. Maest’s opined that substantial additional characterization is necessary toaccurately present the true acidic and toxic nature of the mill wastes at the proposed PR Mill.

162. Dr. Maest testified that Energy Fuels and CDPHE also failed to fully investigate or adopt measures to ensure better protection of human health and the environment in terms of

neutralizing the mill waste to reduce its acidity and toxicity.

163. Dr. Maest testified that there are relatively easy and inexpensive methods to reducetoxic and radioactive concentrations to make uranium mill waste streams less toxic.



20

164. Dr. Maest, as with every other witness, confirmed that the liner system is likely to

leak.

165. Dr. Maest testified that the PR Mill proposal did not include a robust liner design and

leak detection system that would reduce tailings releases to as low as reasonably achievable

standards.

166. Dr. Maest testified that changes in bird netting designs that reduced evaporation from

the tailings was not taken into account in the EIA. Energy Fuels conceded this error and claimed it would be recalculated at some later date. On information and belief, the evaporation rates have

not been recalculated and the evaporation ponds have not been redesigned in light a correct

evaporation rate.

167. Ms. Travers holds bachelors and masters degrees from Stanford University with

extensive educational and practical expertise in hydro-geology.

168. Ms. Travers testified that Energy Fuels’ and CDPHE’s assumptions and methodologies failed to establish an adequate water supply for safe operation of the mill and

maintenance of the tailings.

169. Ms. Travers testified that no attempt was made to establish water availability beyond a

five year time horizon where the PR Mill has a proposed 40 year operating plan.

170. Ms. Travers testified that water levels in the wells from which the company proposes

to extract water for its mill operations has been dropping over the last several years,demonstrating that Energy Fuels’ assumptions of constant recharge back to the aquifer are simply

not justified.

171. Ms. Travers’ testimony confirmed that Energy Fuels’s application and the EIA

ignored shallow groundwater contamination pathways.

172. Ms. Travers testified that, contrary to the application and EIA, shallow groundwater

does in fact intermittently exist below the mill site at depth of only several feet.

173. Ms. Travers testified that without a competent analysis of shallow groundwater

patterns and flow paths, an adequate monitoring plan cannot be instituted.

174. Ms. Travers testified that the shallow groundwater has not been monitored for any

water quality baseline purposes.

175. Dr. Power testified to significant errors, omissions, and methodological mistakes in

the socioeconomic analyses performed by Energy Fuels in its application materials, and CDPHE

in its EIA such that both Energy Fuels and CDPHE have failed to meet applicable regulatory

standards.

176. Dr. Power’s qualifications as an expert went unrebutted and he was certified as an

expert in socioeconomics. In brief, Dr. Power holds a Ph.D. in economics from Princeton



21

University and has served on the faculty for the University of Montana in the economics

department for 40 years, among other substantial expert credentials.

177. Dr. Power testified that the EIA failed to account for or include basic principles and

methodologies required for a competent socioeconomic analysis.

178. Dr. Power testified that the socioeconomic study relied up by CDPHE do not provide a

scientifically valid basis to compare the costs versus the benefits of the project.

179. Dr. Power testified that the socioeconomic analysis prepared for this project failed to

consider site-specific issues associated with the geography of the area.

180. Dr. Power testified that Energy Fuels and CDPHE failed to properly account for the

fact that the domestic uranium mining industry has a long and well-established history of going

through dramatic booms and busts with regard to operations and employment, resulting in a gross

skewing of the analysis.

181. Dr. Power testified that it was “startling” to see CDPHE fail to take any credible,

serious look at the stigma issue in its socioeconomic analysis based on actual data from theParadox Valley and surrounding region.

182. Dr. Power asserted his expert opinion that the socioeconomic and cost-benefitanalyses conducted by Energy Fuels and CDPHE failed to reach the threshold of a professional,

or even competent, scientifically-based analysis.

183. During the License Hearing, Energy Fuels admitted the 2009 application and the EIA

relied upon in the August 2012 notice of hearing are outdated and deficient.

184. During the License Hearing, CDPHE admitted it lacked the resources to carry out its

duties.

185. The CH2M Hill partial design and plans (filed under seal) that formed the basis of the

2009 application were abandoned in September 2011in favor of a new, low cost, confidential

alternative provided by Lyntek. EFPH0144741, accord Id . at 144705-14470 (numerousconfidential documents addressing same).

186. Nothing in the design changes made by Lyntek were addressed in the EIA published on August 6, 2012. When the hearing was noticed, CDPHE was aware of Energy Fuels was

relying on a new Lyntek set of partial designs and plans.

187. On August 6, 2012, CDPHE was aware of substantive problems involving the

calculation of the “action leakage rate” which involves the margin of safety associated with

leakage rates related to the design and construction of the tailings impoundments, the materials to

be contained, and the response actions where a leak exceeds the capacity of the liner system.

188. There was no ability to present expert testimony or to cross-examine Energy Fuels

witnesses, Mr. Tarlton, or the other CDPHE personal regarding serious problems with the tailings



22

impoundments that were known to the agency on August 6, 2012, but which was not included in

the EIA, nor made public in any way until the December 2012 document release.

189. Due to deficiencies in the application, CDPHE sent many hundred requests for

information (RFIs) to Energy Fuels. Some RFIs remained unresolved as of April 25, 2013. Many

of CDPHE’s RFIs were addressed by Energy Fuels’ “conceptual” responses. For some RFIs,CDPHE deferred resolution until after the license issues.

190. Energy Fuels made no attempt to amend or update the November 2009 application thatdescribed construction of a 500 ton per day capacity mill. Energy Fuels’ admitted that “the mill

is still designed to produce with a production capacity of a thousand tons per day.”

191. Energy Fuels has prepared a written plan for an incremental expansion to a 1500 ton

per day operation.

192. Energy Fuels has actually foreseen the need to build reservoirs and pipelines to divert

water from the Dolores, San Miguel, and distant groundwater wells due to water shortages.

193. Four alternative sources of water along with a pipeline were analyzed internally byEnergy Fuels after the application was filed, but were not included in any updated alternatives

analysis because Energy Fuels considered them a part of a 1000 ton per day operation, and not

the 500 ton per day operation described in the application.

194. Energy Fuels admitted that any groundwater extraction must await the results of the

National Environmental Policy Act analysis required by the Bureau of Reclamation due to thefederal action involved in obtaining the conditional right to deplete the Dolores River. On

information and belief, Energy Fuels use of water at the PR Mill requires federal approvals thathave not yet been obtained.

195. All new water depletions from the Dolores and San Miguel Rivers must receive

federal approval due to the Endangered Species Act protections for what are known as the “four listed Colorado River fish.”

196. Briefing on the testimony of Plaintiffs’ expert witnesses and the material issues presented for an “initial decision” can be found in the attached post-hearing briefing and is

incorporated here by reference.

PLAINTIFFS’ CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF:

Unlawfully Issuing a Radioactive Materials License

Without Benefit of an Initial Decision on Issues Raised at the License Hearing 197. Plaintiffs incorporate by reference each and every allegation contained in all other

paragraphs of this Complaint.



23

198. This claim seeks declaratory and equitable judicial relief to invalidate the Radioactive

Materials License Numbered Colo. 1170-01, Amendment No:02, Global Revision 3 (“License”),which was signed by Jennifer Opila on behalf of CDPHE on April 25, 2013.

199. The purpose of the remand was for CDPHE to notice and convene the License

Hearing that is required by state and federal laws governing uranium milling and byproductdisposal, including the Radiation Control Act and Administrative Procedure Act. See Remand

Order at 11-12 ¶¶32-34, 19-21¶¶ 1-8, Litigants’ Stipulation at 1 (“ The procedures will be based

on the Court’s order of June 13, 2012, Colorado law and regulations, including theAdministrative Procedure Act (“APA”) section 105, the Radiation Control Act, section 203,

Radiation Control Regs. section 18.6, and the Colorado Rules of Civil Procedure.”).

200. The APA includes the following provision:

Each decision and initial decision shall include a statement of findings and conclusions

upon all the material issues of fact, law, or discretion presented by the record and the

appropriate order, sanction, relief, or denial thereof.

C.R.S. § 24-4-105(14)(a)(emphasis added). This provision is applicable to the “initial decision”made on the License Hearing and the “decision” issued by CDPHE. 6 CCR 1007-1 §18.6.7.2,applied by Western Colo. Congress v. Colorado Dep't of Health, 844 P.2d 1264, 1267 (Colo. Ct.

App. 1992)(holding that “the decision and order of [CDPHE’s] hearing officer or administrativelaw judge is an initial decision” subject to appeal).

201. In order to satisfy the requirements of the Atomic Energy Act, the License Hearingmust conclude with the issuance of “a written determination which is based upon findings

included in such determination and upon the evidence presented during the public comment period and which is subject to judicial review.” 42 U.S.C. 2021(o)(3)(iii).

202. A new milling and 11e(2) byproduct material license may not be issued until and

unless an opportunity for License Hearing is provided. See 42 U.S.C. § 2021(o) accord C.R.S.§25-11-203(1)(b)(1)(requiring licenses be issued “in accordance with sections 24-4-104 and 24-4-

105, C.R.S.”). CDPHE issued the License without benefit of a lawful License Hearing.

203. If a License Hearing is requested, it must be initiated by CDPHE publication of notice,

which notice must include an EIA. Order on Judicial Review at ¶23 (“§18.4.1 requires that

CDPHE make available to the public a comprehensive Environmental Impact Analysis (“EIA”)at the time the 90-day notice of hearing is sent.”). The Order on Judicial Review requires

CDPHE to prepare, and hold a hearing based on a “comprehensive EIA.”

204. Plaintiffs timely sought and received party status. Plaintiffs participated in all aspects

of the License Hearing, including presentation of issues, discovery, pre-hearing motions practice,

and presenting witnesses, evidence, and conducting cross-examination at the License Hearing.

205. All filings presented by Plaintiffs can be found in the Administrative Record and/or

hearing transcript prepared by Judge Dana.



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206. In December 2013, Plaintiffs’ filed post-hearing briefs which presented numerous

procedural and substantive issues for resolution in an “initial decision.”

207. In its brief, CDPHE specifically requested the hearing officer make a determination

“that state and federal procedural requirements applicable to the Application have been satisfied

[…]” and “that the Application is complete and, along with the administrative record, sufficientfor CDPHE to make a decision on the application.”

208. Response and reply briefs were also filed.

209. The ruling of Judge Richard Dana (ret.) was issued on January 14, 2013.

210. The January 2013 Ruling did not satisfy APA requirement that the ALJ provide an

“initial decision” of issues raised by the parties to the License Hearing.

211. Judge Dana did not issue an “initial decision” as contemplated and required by the

Colorado APA. C.R.S. § 24-4-105(14)(a). Instead, Judge Dana accepted Energy Fuels’argument that an “initial decision” was not required.

212. The January 2013 Ruling made no determination on whether or not Energy Fuels

satisfied the statutory or regulatory criteria necessary for issuance of a license.

213. By failing to provide a lawful “initial decision,” Defendants denied Plaintiffs, their

membership, and the public of their respective rights to have an independent adjudication and

determination on all issues raised during the hearing.

214. The January 2013 Ruling failed to make findings of fact or conclusions of lawregarding numerous material issues raised by the parties and the public.

215. The January 2013 Ruling does not address authority from the Atomic Energy Act,

Uranium Mill Tailings Radiation Control Act, Radiation Control Act, Administrative ProcedureAct, or Colorado’s radioactive materials regulations to support any determination that may have

been made on issues raised by Plaintiffs.

216. A fair read of the January 2013 Ruling did not provide a reviewable determination.

217. Failure to provide a written determination that could be subjected to the ExecutiveDirector’s review or subsequent judicial review, denies Plaintiffs’s rights as parties to the

proceedings.

218. The single issue upon which the ALJ identified any basis in law was the self-serving

pronouncement that “[T]he hearing conducted as described in the record of these proceedings

fully satisfies the requirements of C.R.S. §24-4-105 . . .” January 2013 Ruling at 3 ¶1.

219. The ALJ’s conclusory statement did not address the procedural requirements that flow

from the Radiation Control Act and Atomic Energy Act and applicable caselaw.



25

220. The hearing officer’s bare pronouncement regarding the lawfulness of the hearing is

due no deference, and is reviewed de novo by the district court as a matter of law.

221. Plaintiffs repeatedly and explicitly requested the hearing officer to make

determinations in an initial decision, thus squarely exhausting the issue. See e.g. SMA Brief at 5-

6, 11-13, SMA Burdens Brief (11/07/2012), Wildlife Coalition Brief (11/17/2012) at 1-2. Thisissue was presented to the Executive Director through a timely filed appeal.

222. This claim became ripe for adjudication under C.R.S. § 24-4-106 upon CDPHE’sservice of the License dated April 25, 2013.

223. This claim may be remedied by an order declaring the License invalid ab initio and remanding with instructions that CDPHE comply with all legal requirements in conformance

with any such order.

224. No prejudice can befall Energy Fuels, who alone advocated the untenable

“intermediate step” configuration based on the theory that the hearing officer lacked jurisdictionto determine issues of fact and law presented in the License Hearing by the parties and the public.

Second Claim for Relief

Due Process was Denied where the Hearing Officer Failed to Determine

and Adhere to an Explicit Burden of Proof

225. Plaintiffs incorporate by reference each and every allegation contained in all other paragraphs of this Complaint.

226. The issue of a burden of proof was not resolved by the hearing officer, despite the

central role played by such burdens in administrative hearings.

227. Energy Fuels, the applicant and the proponent of the license, bears the ultimate burdenof proof of demonstrating compliance with all requirements of state and federal law before a

license may issue.

228. Colorado regulations applicable to uranium mills clearly impose a burden of proof on

the license applicant. 6 CR 1007-1 §18.6.6.5 (“The proponent of any motion, order, or license

issuance bears the burden of proof .”)(emphasis added) accord C.R.S. § 24-4-105(7). Accord 6CCR 1007-1 § 18.3 (applicant must “clearly demonstrate” compliance with Part 18

requirements); § 18.3.6 (mill applicants have the affirmative burden to “clearly demonstrate”

how each of the requirements of Appendix A to Part 18 have been met).

229. The due process right of parties to administrative hearings was recently confirmed by

the Colorado Supreme Court:

The “procedural safeguards” attendant to an administrative action that can be classified as

quasi-judicial include the right to counsel, the ability to cross-examine, the ability to

present an opening statement and closing argument, the ability to put on witnesses and



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present rebuttal evidence, and the adherence to an explicit and predetermined burden of

proof.

Churchill v. Univ. of Colo. at Boulder, 2012 CO 54, P50 (Colo. 2012) citing Cleavinger v.

Saxner , 474 U.S. 193 (U.S. 1985).

230. Resolution of all issues presented by Plaintiffs at the License Hearing necessarily

turned on the assignment of the burden of proof. 6 CCR 1007-§ §18.6.6.5 (“The proponent of

any […] license issuance bears the burden of proof.”).

231. The burden of proof issue was repeatedly raised by Plaintiffs filings and during the

pre-hearing motions. The issue of Energy Fuels’ failure to meet a licensee’s burden wasextensively briefed and presented for decision.

232. Disputes concerning burdens applicable to CDPHE and any other party were not

resolved by the hearing officer nor by the Executive Director on appeal.

233. Failure to resolve and assign the burden of proof is reversible legal error that cannot be

remedied by the reviewing tribunal.

234. Prejudice flowing from the failure to determine the burden of proof is compounded by

the failure to apply that burden to factual determinations based on the documentary evidence and live testimony presented during the hearing.

235. The January 2013 Ruling, Executive Director’s appeal decision, and the License wereissued without requiring Energy Fuels, as the applicant, to “bear[] the burden of establishing by a

preponderance of evidence that all of the conditions for the [license] have been satisfied.”Orsinger Outdoor Advertising, Inc. v. Department of Highways, 752 P.2d 55, 67 (Colo. 1988)

(holding that the APA requires the applicant to satisfy the burden of proof). This general

requirement is confirmed by specific regulations applicable to uranium milling. 6 CCR 1007-§

§18.6.6.5

236. By failing to provide “an explicit and predetermined burden of proof” during the pre-

hearing motions practice, and by failing to apply this burden to factual and legal determinationson issues squarely presented by the parties, the adjudicatory hearing was degraded into a mere

presentation of information to be packaged and sent to the CDPHE, a party to the hearing, for

further consideration.

237. Where the License was issued after a License Hearing that lacked explicit burdens of

proof and without requiring an applicant to provide proof that substantive protections of state and federal law have been met, the License is void ab intio.



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Third Claim for Relief

The Administrative Law Judge Did not Apply

the Substantive Protections of Part 18 Regulations

238. Plaintiffs incorporate by reference each and every allegation contained in all other paragraphs of this Complaint.

239. Energy Fuels, the applicant and the proponent of the license, must “clearlydemonstrate” compliance with Part 18 requirements. 6 CCR 1007-1 § 18.3.

240. The plain language of the regulations specifies that Energy Fuels has an affirmative burden to “clearly demonstrate” how each of the requirements of Appendix A to Part 18 have

been met. Id . at § 18.3.6

241. Part 18 is the regulation most specifically applicable to uranium milling and tailings

disposal. Part 18 contains numerous provisions that guard against the hazards posed by uraniummilling and tailings disposal.

242. Appendix A to Part 18 has specific criteria that a proponent of proposed mill license

must satisfy.

243. The January 2013 Ruling accepted Energy Fuels’ argument that Part 18 of the

Colorado radiation regulations are not applicable to the License Hearing.

244. This erroneous proposition was directly contradicted by party admissions of Energy

Fuels. Transcript at 151:10-12 (Frank Filas testimony that “CDPHE's licensing requirements arefound in the Colorado Code of Regulations. Part 3 and Part 18 are the areas that we address.”).

245. Judge Dana committed reversible legal error by failing to recognize and apply the Part

18 Regulations to the evidence provided at the License Hearing. The error denied Plaintiffs’fundamental right as parties to the License Hearing.

246. At numerous points in the License Hearing, the parties disputed the issue of theapplicability of the Uranium Mill Tailings Radiation Control Act, Atomic Energy Act, Radiation

Control Act, Administrative Procedure Act, and Colorado’s radioactive materials regulations, but

these authorities were not applied in the January 2013 Ruling.

247. Part 18 of the Colorado regulations remain effective and control the outcome of the

“initial decision” on the License Hearing”, the Executive Director’s appeal decision, and thesubsequent CDPHE decision on the License.

248. The Judicial Review Order did reject various interpretations of Part 18 that did not

conform to the statute. Judicial Review Order at 8 -10, Id at ¶25 (“to the extent so interpreted, itis void.”).



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249. The Judicial Review Order confirmed the continuing application of the “minimum

standards set forth in §247o” of the federal Atomic Energy Act ( Id at 12, ¶22) and provided aninterpretation of the regulatory scheme that “harmonized” the timing requirements of state

authorities implementing the federal law. Id . at 11-12 ¶¶32-33 citing 42 U.S.C. §

2021(o)(codified version of §274o).

250. Despite the fact that Energy Fuels’ case in chief argued that the application met the

procedural and substantive standards of Part 18, none of these issues were addressed in the

January 2013 Ruling.

251. The following are among the Part 18 procedural issues that were not resolved by the

ALJ or the Executive Director appeal decision:

Failure to identify online location of application and EIA;

Failure to publish a draft license with the Notice;

Failure to include a description of the proposed licensing action and a statement of the

availability of its text in the Notice. Failure to provide a comprehensive EIA at time of Notice;

Failure to make an EIA available for NRC review

Failure to timely resolve discovery disputes;

Denial of Plaintiffs right to cross examine Energy Fuels on proofs offered to meet its burden.

252. CDPHE’ refusal to respond to reasonable discovery requests prevented Plaintiffs from

conducting cross-examination.

253. Energy Fuels did not meet its burden to provide substantial, admissible evidence that

its application satisfied the substantive standards of Part 18.

254. Plaintiffs’ provided extensive proof that Part 18 standards had not been met through

documentary evidence, and the expert analysis, opinions, and critiques presented by Dr. Maest,

Ms. Travers, and Dr. Power.

255. None of the substantive requirements of Part 18 or Part 18 Appendix A were

addressed by the January 2013 Ruling, even though they were raised repeatedly in nearly every

filing, during the hearing itself, and in the post-hearing briefs. See Exh 1 & 2 Post-HearingBriefing.

256. The proper remedy for the failure to conform to Rule 18 procedural requirements and to made factual and legal determinations on contested Rule 18 substantive issues is an order

vacating the License and to remand the matter to CDPHE with instructions to conform with any

such order and all requirements of state and federal law.



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Fourth Claim for Relief

Socioeconomic Omissions Require Denial of the License Request

257. Plaintiffs incorporate by reference each and every allegation contained in all other


258. Colorado requires a careful analysis and consideration of socioeconomic factors when

making uranium mill licensing decisions. See e.g. 6 CCR 1007-1 § 18.3.5.3.

259. CDPHE has the power to deny a license application based on socioeconomic

considerations, even if all other technical considerations have been satisfied.

260. The January 2013 Ruling rendered a single finding of fact upon the evidence presented

“the absence of separate and distinct economic data for the west end of Montrose County”

prevented any conclusion on the socioeconomic impacts of the proposed mill. January 2013

Ruling at 3 ¶8.

261. This finding of fact cannot be disturbed by the Executive Director or district court and was not appealed by any party below.

262. The January 2013 Ruling constitutes reversible legal error where the ALJ did notissue a finding of law where the lack of economic data for the impacted region confirms a lack of

substantial evidence to satisfy Energy Fuels’ burden of proof on Part 18 regulations and the

Radiation Control Act. C.R.S. § 25-11-203(2)(c)(VI)(requiring analysis of economic and socialcosts and benefits).

263. The failure to resolve the socioeconomic issues in an “initial decision” or otherwise

can be remedied by an order vacating the License and to remand the matter to CDPHE with

instructions for conformance with any such order and all requirements of state and federal law.

264. As a matter of law, the absence of competent socioeconomic data regarding the

impacted community requires invalidation of the License and denial of the license application. 6

CCR 1007-1 § 18.3.5.3.

Fifth Claim for Relief

CDPHE Arbitrarily Relied on an Unlawful Environmental Impact Analysis

265. Plaintiffs incorporate by reference each and every allegation contained in all other


266. 6 CCR 1007-1 §18.4.1 requires that CDPHE make available to the public a

comprehensive Environmental Impact Analysis (“EIA”) at the time the 90-day notice of hearing

is sent. The Judicial Review Order confirmed that CDPHE must prepare and make available a“comprehensive” EIA for use in the License Hearing.



30

267. The purpose of the EIA is to fully inform the public and ultimate decisionmakers

about the impacts, alternatives, and mitigation measures of the proposed project.

268. The procedural requirements of an EIA must be at least as stringent as the federal

procedures that require the Nuclear Regulatory Commission staff to provide an independent

“hard look” at the proposal for the benefit of the parties and ultimate decisionmakers.

269. The EIA is a requirement of federal law that Colorado must implement in a manner at

least as stringent as the federal requirements.

270. Numerous issues were raised by Plaintiffs and other parties to the License Hearing

regarding the EIA. However, none were resolved by the ALJ. Order on Judicial Review at ¶ 23(“In addition, §18.4.1 requires that CDPHE make available to the public a comprehensive

Environmental Impact Analysis (“EIA”) at the time the 90-day notice of hearing is sent.”) citing

CCR 1007-1 § 18.4.

271. The deficiencies in the EIA were raised in the statement of issues and again during the post-hearing filings, including:

CDPHE’s EIA does not contain required analysis.

Viable alternate locations were not considered in the EIA.

Alternate tailings disposal methods were not considered

Impacts across Energy Fuels plans for alternate processing capacity and rates werenot analyzed.

The EIA relies on stale and inaccurate information in Energy Fuels’ 2009Environmental Assessment.

The EIA did not analyze the long-term impacts and costs of various

decommissioning, decontamination, and reclamation scenarios. Cumulative impacts were not analyzed

Energy Fuels improperly influenced the 2009 Environmental Report which was relied on in the EIA.

The EIA does not comply with minimum federal standards applicable to review of uranium milling and tailings disposal applications.

The EIA fails to adequately analyze impacts to wildlife.

The expert analysis, opinions, and critiques presented by Dr. Maest and Ms. Traverswere not addressed in the EIA, initial decision, or License decision.

Plaintiffs’ post-hearing briefing is incorporated here by reference. Exh. 1 & 2.

272. CDPHE did not contest or refute any issues raised by the parties or defend the EIAduring the hearing or in its post-hearing briefs.

273. CDPHE’s entire direct case in support of the EIA relied on the direct testimony of Mr.Tarlton, which lasted a matter of minutes. Transcript at 831:25-839.



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274. On cross-examination, Mr. Tarlton admitted numerous EIA deficiencies. Transcript at

839-1029.

275. Energy Fuels’ testimony admitted its application was inaccurate and stale when the

hearing was noticed in August 2012.

276. On April 25, 2013, CDPHE released a new EIA that was nearly identical to the EIA

relied upon in its August 6, 2012 Notice of Hearing and contained in the Administrative Record.

The deficiencies identified during the License Hearing were not remedied.

277. The January 2013 Ruling directed CDPHE to conduct a post-hearing consideration of

the information presented by Plaintiffs, the public, and other parties to the License Hearing.

278. The EIA issued on April 25, 2013 does not contain analysis or consideration of

evidence presented by Plaintiffs, the public, or other parties to the License Hearing.

279. Where none of the factual or legal issues raised about the EIA were resolved by theJanuary 2013 Ruling, and where the information provided by Energy Fuels as the basis for a

comprehensive EIA was admittedly stale and incorrect, the proper remedy is an order vacatingthe License and remanding the matter to CDPHE with instructions for conformance with any

such order and all requirements of state and federal law.

280. Energy Fuels cannot suffer prejudice where it knowingly promoted reliance on a

deficient EIA that did not reflect current conditions.

Sixth Claim for Relief

CDPHE’s April 25, 2013 Licensing Action and Decision

Violates the UMTRCA, AEA, APA, RCA, and Part 18 of the Implementing Regulations 281. Plaintiffs incorporate by reference each and every allegation contained in all other


282. The violations in Claims One through Five, independently and collectively, also

prevent CDPHE from making a lawful decision to issue a License.

283. It is legal error for CDPHE staff, a party to the hearing, to make all conclusions of law

and findings of fact de novo in the April 2013 Licensing Action, including assessing thecredibility of the evidence and witnesses presented by the parties, without benefit of an “initial

decision” by an independent administrative law judge.

284. Where a draft license and lawful EIA were not provided with the hearing notice and

where findings of fact and conclusions of law were deferred to the CDPHE staff by Judge Dana,

Plaintiff were denied the procedural and substantive protections of a right to appeal the “initial

decision” to the Executive Director. Western Colo. Congress v. Colorado Dep't of Health, 844P.2d 1264, 1265 (Colo. Ct. App. 1992)(confirming right of parties to appeal the initial decision

issued by the hearing officer) accord 6 CCR 1007-1 §18.6.3.4 (“Parties shall have the right to

[…] appeal the decision of the hearing as provided by the [APA].”).



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285. Where the Plaintiffs’ rights of a party under APA § 105 were denied by CDPHE’sLicensing Action and Decision, the proper remedy is an order vacating the License and

remanding the matter to CDPHE with instructions to conform with any such order and all

requirements of state and federal law.

286. Where CDPHE and Energy Fuels advocated an unlawful result and denial of

Plaintiffs’ rights, neither can suffer harm by declaring the License invalid ab intio and entering

judicial findings of fact and law that the stale application and EIA cannot support issuance of alicense.

PRAYER FOR RELIEF

WHEREFORE, Sheep Mountain Alliance and Rocky Mountain Wild respectfully

requests that this Court examine the administrative record prepared by Judge Dana and all extra-

record materials created or obtained by CDPHE before issuance of the License and enter findings

that Defendants violated the requirements of the Administrative Procedure Act (C.R.S. § 24-101et seq.), Agreement State Agreement, Atomic Energy Act/Uranium Mill Tailings Control Act, 42

U.S.C. § 2011, et seq. and implementing regulations, Radiation Control Act (C.R.S. § 25-11-101et seq.), and the Board of Health Regulations (C.C.R. 1007-1) when conducting the Licensing

Hearing, when issuing the Environmental Impact Analysis, when issuing the Radioactive

Materials License Numbered Colo. 1170-01, Amendment No:02, Global Revision 3 (“License”),which was signed by Jennifer Opila on behalf of CDPHE on April 25, 2013, and enter further

findings that Defendants’ actions and failures to act cannot be sustained on judicial review

pursuant to standards set forth under C.R.S. § 24-4-106 , and based on such findings respectfullyrequest the court enter judgment providing the following relief:

1) declare that the License is void ab intio due to failure to satisfy all requirements of

federal and Colorado law before license issuance;

2) remand the matter to CDPHE with instructions to conform its further proceedings withany such order and all requirements of state and federal law;

3) hold unlawful and set aside the agency action and restrain the enforcement of allorders and rules under review, compel any agency action to be taken which has been unlawfully

withheld or unduly delayed, remand the case for further proceedings, and afford such other relief

as may be appropriate; and,

4) Sheep Mountain Alliance and Rocky Mountain Wild further pray that the Court grant

such other relief as the Court deems just and proper pursuant to its inherent equitable powers,including any injunctive and declaratory relief.

RESPECTFULLY SUBMITTED THIS 24th

DAY OF MAY, 2013,

S/Travis E. Stills

Travis E. Stills, #27509

Energy & Conservation Law



33

1911 Main Avenue, Suite 238

Durango, Colorado 81301(970) 375-9231

[email protected]

S/Jeffery C. ParsonsJeffrey C. Parsons, #30210

Roger Flynn, #21078

Western Mining Action ProjectP.O. Box 349

Lyons, CO 80537

(303) 823-5738Fax (303) 823-5732

[email protected]

S/Matt Sandler

Matthew Sandler #37921Staff Attorney

Rocky Mountain Wild 1536 Wynkoop St., Suite 303

Denver, CO 80202

Phone: 303-546-0214 ext. [email protected]

Plaintiffs’ Address:

SHEEP MOUNTAIN ALLIANCE

218 W Colorado Ave

PO Box 389Telluride, CO 81435

ROCKY MOUNTAIN WILD1536 Wynkoop St., Suite 303

Denver, CO 80202

Defendants’ Address:

Colorado Department of Public Health and Environment4300 Cherry Creek Drive South

Denver, Colorado 80246-1530

Dr. Christopher UrbinaJennifer Opila

Colorado Department of Public Health and Environment

4300 Cherry Creek Drive South



34

Denver, Colorado 80246-1530

Physical Location

700 South Ash Street, Building B

Denver, CO 80246-1530

Defendants’ Attorneys:

JOHN W. SUTHERS, Attorney GeneralJERRY W. GOAD, First Assistant Attorney General

1525 Sherman Street, 7th Floor

Denver, CO 80203Telephone: (303) 866-5016

FAX: (303) 866-3558

E-Mail: [email protected]

Indispensable Party’s Address:

ENERGY FUELS RESOURCES CORPORATION

David C. Frydenlund (Registered Agent)

225 Union Blvd, Suite 600Lakewood, CO 80228

Attorneys for Energy Fuels Resources Corporation:

James R. Spaanstra, #9516

Laurence W. DeMuth, III #13196Olivia D. Lucas, #36114

FAEGRE BAKER DANIELS, LLP

1700 Lincoln Street, Suite 3200

Denver, Colorado 80203Phone Number:(303) 607-3500

Fax Number: (303) 607-3600

E-mail: [email protected]@faegrebd.com

[email protected]

Attorneys for Parties to License Hearing

Towns of Telluride and Ophir

Kevin Geiger CO # 31339

Telluride Town Attorney

P.O. Box 397, 113 W. Columbia Ave.Telluride, Colorado 81435

Tel. (970) 728-2153 Fax (970) 728-3078

[email protected]



Stephen B. Johnson, CO #10555Stephen B. Johnson Law Firm, P.C.

Ophir Town Attorney

526 W. Colorado Avenue (Courier Only)

PO Box 726 (Postal Service Delivery Only )Telluride, Colorado 81435

Tel. (970) 728-5301 Fax: (970) 728-4271

Email: [email protected]

Randy BarnesTown of Ophir

(970)728-4943

[email protected]

Attorney for San Miguel County

Steven J. Zwick San Miguel County Attorney

P.O. Box 791

333 West Colorado Avenue, 3rd Flr.Telluride, CO 81435

Tel.: 970-728-3879; FAX: 970-728-3718

[email protected]

Dr. Robert Grossman - Appearing pro se

Dr. Bob Grossman

6215 Baseline Rd

Boulder, CO 80303303-499-7653

[email protected]