WASHINGTON (CN) — A federal judge heard oral arguments Wednesday over whether to halt the continued construction of a public trail near the former Rocky Flats nuclear weapons production facility just outside Denver, Colorado.
Environmental and health advocates, led by Physicians for Social Responsibility, brought the lawsuit in the U.S. District Court for the District of Columbia in January against the U.S. Fish and Wildlife Service and the Federal Highway Administration.
The plaintiffs claim the agencies ignored potential health concerns, such as increased rates of cancer, that would likely result from increased foot traffic in an area described as a “plutonium plume” by a former Fish and Wildlife refuge manager.
The area, known as the “Wind Blown Exposure Unit,” has the highest levels of plutonium on the Rocky Flats National Wildlife Refuge and is where part of the proposed trail is planned to be constructed.
Physicians for Social Responsibility challenged the agencies’ authorization of the trail, arguing that their environmental and health assessments propelled the project forward despite evidence of plutonium five times higher than the regulatory limit.
In 2016, Fish and Wildlife and Federal Highway Administration conducted a study weighing potential alternate routes for the trail, including those that avoided the Wind Blown Area and the wildlife refuge entirely.
But in 2017, the Federal Highway Administration abandoned those alternatives in favor of a route that passes through the refuge.
The plaintiffs want a preliminary injunction to halt the 8-mile trail, known as the Greenway Project, before its estimated completion in spring 2025, and an order requiring the agencies to reassess the project's potential impacts on public health in the area.
U.S. District Judge Timothy Kelly, a Donald Trump appointee, scheduled Wednesday hearing to determine whether he should agree with the federal and state government’s assertion that the land is safe, or temporarily block the project.
Kelly focused on the “Bill Ray Particle,” a soil sample found and named after the executive director of the Jackson Parkway Authority in 2019, which revealed a plutonium particle five times higher than the regulatory limit.
The particle was well above the “acceptable risk range” of 50 picocuries per gram, — the maximum limit that still results in increased cancer risk — with a measurement of 264 picocuries per gram.
Kelly acknowledged the extreme finding, but noted Colorado officials had concluded the sample had little relevance to the project as it had been found offsite. He asked the plaintiffs’ attorney William Eubanks how much credence he should give it.
Eubanks, of firm Eubanks & Associates, told Kelly that while the particle is important in illustrating the potential risks, the plaintiffs still would have brought the case without Ray’s discovery as their concerns are rooted in more than just the particle.
He pointed out that in 2006, the Energy Department, the U.S. Environmental Protection Agency and the Colorado Department of Public Health & Environment determined that, after some additional cleanup, the area was “acceptable for unrestricted use.” But in the years since, that determination no longer rang true.
Beyond Ray’s findings, Eubanks highlighted the former refuge manager's 2011 warning against construction in the “plutonium plume” and a pair of cases in 2014 where two nearby residents contracted an extremely rare form of cancer.
Eubanks said the two people were diagnosed with a type of cancer that fewer than 25 people are diagnosed with each year across the globe, rejecting any chance of a coincidence.
Attorneys representing the federal agencies argued the plaintiffs had failed to meet the standard required for a preliminary injunction, by not reaching the legal standard that the site’s construction would cause irreparable harm to the plaintiffs.
Andrew Tardiff, a Justice Department attorney, told Kelly that the project is nearly complete, with 75% of the Fish and Wildlife’s construction finished and the highway agency’s work set to begin in the fall and finish in the spring.
He warned that an injunction “wouldn’t just be a pause, it would cause environmental harm, major financial cost and harm the public who enjoys these trails.”
Kelly, who noted at the start of the hearing this was the first time he had presided over a case like this, did not indicate how he would rule.
Between 1952 to 1989, the Rocky Flats Plant, located 16 miles northwest of Denver, was primarily responsible for manufacturing plutonium fission cores which were then shipped to other facilities to be assembled into nuclear weapons.
The site was shut down in 1989 following a raid by the FBI and Environmental Protection Agency for suspected environmental crimes that resulted in federal criminal convictions and an $18.5 million fine. The raid marked the first — and only — raid on a federal facility by other federal agencies.
Nuclear production briefly resumed following the raid in 1990, but was terminated soon after in 1993 following then-President George H.W. Bush’s cancellation of the W-88 Trident Warhead Program in 1992.
Soon after the site was shut down, a federal grand jury found that plutonium from the facility had contaminated a wide area of land outside the facility.
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