Judge: State within rights to deny permit to dispose of waste

DENVER - Fremont County residents have won another round in their fight to keep radioactive soil from being buried at a local mill.

A Denver District Court judge ruled Friday that the Colorado Department of Public Health and Environment was within its rights to deny a permit to Cotter Corp. to dispose of radioactive soil at its Cañon City-area plant. Judge Christina Habas ruled also that the state and a citizens group that were the target of the lawsuit could collect legal costs from the corporation.

Cotter, which has operated the uranium-milling plant since 1958, announced in 2002 that it intended to receive radioactive soil from Maywood, N.J., and dispose of it at its waste impoundment site, leading to an outcry from area residents. After a hearing officer decided against Cotter and then the state formally rejected its permit application for the soil, Cotter sued.

In its lawsuit, the company claimed that the state’s ruling was arbitrary and capricious and pointed especially to the fact that the state rejected the permit application on the basis that importation of the soils would have a negative socio-economic effect on the community. Cotter attorney John Watson argued at a Nov. 17 hearing that Cotter had met all other regulations and that the state was using an undefined standard to mollify a noisy group of activists.

Senior Assistant Attorney General Jerry Goad responded that socio-economic impact is a legitimate basis for the decision and that while Cotter had been allowed in the past to dispose of radioactive waste from its plants, it never had attempted to bring in material from an outside source.

Habas agreed with those arguments, noting that it is reasonable for the department to interpret provisions of Colorado statutes to mean it must use socio-economic impacts in its licensing decision.

Also, she noted that Cotter had the burden of showing that the state’s decision was made without regard to evidence and that the company could not prove that.

Sharyn Cunningham, spokeswoman for the Colorado Citizens Against Toxic Waste group that formed in Fremont County, said she believes the decision not only will help it but will also set precedent for any other communities fighting potential uranium mills in Colorado.

“A lot of places can look at the socio-economic impact that these kinds of facilities can have, so it’s important for the whole state,” Cunningham said.

The five-year battle may not be over — Cotter can appeal the decision. Messages left with Watson and with Cotter’s parent company, General Atomics, were not immediately returned after the late Friday afternoon ruling.

Whether or not this is the last round of the fight, Cunningham said the group of citizens that has come together has accomplished a lot.

“We’re very happy,” she said. “It’s a relief because (the potential for importation of radioactive soils) is a worry, and it’s a worry that’s been held over our head since 2002.”

CONTACT THE WRITER: (303) 837-0613 or ed.sealover@gazette.com.