ML20044A741

Informs of Decisions Terminating Litigation Challenging NRC Amends to U Mill Tailings Regulation.Petitioners Argue That NRC Failed to Fulfill Statutory Duty to Conduct Cost Benefit Analysis

ML20044A741
Person / Time
Issue date:	05/03/1990
From:	Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Jeanne Johnston SENATE, APPROPRIATIONS
References
FRN-51FR24697, RULE-PR-40 CCS, NUDOCS 9007020161
Download: ML20044A741 (30)

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May 3, 1990 The honorable J.

Bennett Johnston, Chairman Subconnittee on Energy and Water Development Committee on Appropriations United States Senate Washington, D.C.

20510-Ret American Mining Congress v. Nuclear Regulatory Commission, Nos. 8 8. iii40 and 88-1041 (10th Cir. April 25, 1990);

Environmental Defense Fund v. Nuclear.

Regulatory Commission, No. 88-1001 (10th Cir.. April 25, 1990)

Dear Mr. Chairman:

This letter is to inform:you of the above-cited" decisions (enclosed) which terminate litigation challengi'ng.the Nuclear Regulatory Commission's ("NRC's") amendments-to its uranium mill tailings regulations ~(10 C.F.R. Part 40, Appendix A) conforming those' regulations to general standards promulgated by the Environmental Protection Agency (" EPA")..

In decisions issued in January 1989 (Quivira Mining Co.-v..NRC, 866 F.2d 1246; Environmental Defense Funo v. NRC, 86 6 T. 2d 1263), the United States Court of Appeals for the-Tenth; Circuit upheld H

the amendments issued in October 1985; in the above decisions' the Court upholds the amendments (primarily groundwater regulations) issued in November 1987.

i In affirming the NRC's amended regulations, the Court rejects 1

arguments presented by the industry petitioners that the NRC had. failed to fulfill its statutory duty toLconduct a cost-benefit analysis and had erred in adopting EPA's l

regulations designed for the protection of. low-volume high toxicity chemical waste.

The Court-also Ic'jects the argument presented by the environmental petitioners that the NRC had not completely fultilled its duty to conform'URC' regulations to EPA's general standards and rejects as premature their petition for mandamus with respect to NRC'.s duty under Section 84a(3) of the Atomic Energy Act to'acsure FULLTEXT ASCll SCAN 1/f'M/'bI

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comphrability between NRC's rcquirements and requirements issued'by EPA under the Solid Haste; Disposal Act for the control of similar hazardous taaterial.

Sincerely,

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[olicitor n F. Cordes, Jr.

Enclosures l

As stated l

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The lionorable flark O. It a t f ield

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May 3, 1990-3 i

The !!onorable t! orris K.

Udall, Chairman Subcommittee on Energy.and the Environment Committe3 on Interior and' Insular Affairs United States liouse of Representatives Washington,LD.C. 20515-1 1

Ret American Mining Congress v. Nuclear 1

Regulatory Commission, Nos. 88-1040 i

and 88-1041 (10th Cir. April 25, L1990);

i Environmental Defense Fund v. Nuclear Regulatory Commission,-No. 88-1001 (10th

(

Cir. April 25, 1990)

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Dear Mr. Chairman:

This letter is to inform you of the above-cited decisions (enclosed) which terminate litigation challenging the Nuclear 1

Regulatory Commission's i

("NRC's") amendments to its uranium mill tailings regulations (10 C. F.R. Part 40, Appendix A) conforming those regulations to general standards promulgated' by the Environmental Protection Agency

(" EPA").

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issued in January 1989 (Quivira Mining Co.

v. tHU, 806 F.2d.

1246; Environmental Defense Fund v. NRC, Bb6 ?.'i 1263),.the United States Court of Appeals for the Tenth Circuit upheld 1

the amendments iscued in October 1985; in the above decisions the Court upholds the amendments (primarily groundwater a

regulations) issued in November 1987.

i In affirming the NRC's amended regulations,-the Court: rejects arguments presented by the industry petitioners'that the NRC i

had failed to fulfill its statutory duty to conduct a cost-benefit analysis and had erred in. adopting. EPA's regulations designed for the protection of low-volume high toxicity chemical waste.

.The Court-also rejects the argument presented by the environmental petitioners'that the.NRC had:

4 not completely fulfilled its duty to conform NRC regulations-i to EPA's general standards and rejects as premature their j

petition for mandamus with respect to NRC's duty under Section 84a(3) of the Atomic Energy Act to assure

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May 3, 1990 The llor.orablo Philip Sharp, Chairtuan Subcor.uaittee on Energy and Power Committee on Energy and Commerce United States llouse of Representativos Washington, D.C.

20515 Rei Ataurican Mining Congrocu v. Nuclear itogulatbry commission, Nos. 88-1040 and bb-1041 (10th Cir. April 25, 1990);

Unvironnental Defense Fund v. N_uclear hogulatory Commi_nsion, No. 88-1001 (T0 th Cir. April 25, 1990)

Dear Mr. Chairnans This letter in to inform you c; the above-cited decisions (onclosed) which terminato litigation challenging the Nuclear Regulatory Commission's ("NRC's") amendments to itc uranium mill tailings regulations (10 C.F.R. Part 40, Appendix A) conforming those regulations to general standards promulgated by the Environmental Protection Agency

(" EPA").

In decisions issued in January 1989 (guivira Mining Co. v. NRC, 866 F.2d 1246; Envirentmntal Def ense Fund v. NRC, 866 F.2d 1263), the United States Court of Appeals for the Tenth circuit uphold the amendments issued in october 1985; in the above decisions chu' Court upholds the amo M monts (primarily groundwater regulations) issued in November 1987.

In uffirning the NRC's amended regulations, the Court rejects arguments presented by the industry petitionern that the NRC had failed to fulfill its statutory duty to conduct a ccat-bonofit analysis and had erred in adopting EPA's regulations designed for the protection of low-volume high toxicity chemical waste.

The Cnurt also ro]ectu the r.rgument prosented by the e vironmental petitioners that the NRC had not completely fulfillod its duty to conform NRC regulations to EPA's general standards and rejects as premature their petition for mandamus with respect to NRC's duty under Section 84a(3) of the Atomic Energy Act to assure

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May 3,1990 The Honorablu John D.

Breaux, Chairman Subcomrtittee on Nuclear Regulation Committee on Environment and Public Ucrks United Statuu Senate Wash >r-gton, D.C. 20510 Ret American Mining Congress v. Nuclear Regulatory Comn1ssion, Nos. 88-1040 1

and 88-1041 (10th Cir. April 25, 1990);

j Environmental Defenso Fund v. Nuclear Regulatory Commission, No. 88-1001 (10th Cir. April 25, 1990)

Dear Mr. Chairman:

This letter is to inform you of the above-cited decisions (enclosed) which terminate litigation challenging the Nuclear Regulatory Commission's ("NRC's") amendments to its uranium mill tailings regulations (10 C.F.R. Part 40, Appendix A) conforming those regulations to general standards promulgated by the Environmental Protection Agency

(" EPA").

In decisions issued in January 1989 (Quivira Mining Co. v. NRC, 866 F.2d 1246; Environmentcl Defense Fund v.

NRC, 866 F.2d 1263), the United States Court of Appeals for the Tenth _ Circuit upheld the amendments issued in October 1985; in the above decisions the Court upholds the amendments (primarily groundwater regulations) issued in November 1987.

In affirming the NRC's nuended regulations, the Court rejects arguments presented by the industry petitioners that the NRC had failed to fulfill its statutory duty to conduct a cost-benefit analysis and had erred in adopting EPA's regulations designed for the protection of low-volurne high toxicity chemical waste.

The Court also rejects the argument presented by the environmental petitioners that the NRC had not completely fulfilled its duty to conform NRC regulations to EPA's general standards and rejects as premature their petition for mandamus with respect to NRC'c duty under Section 84a(3) of the Atomic Energy Act to c.ssure i

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Sincerely, I

s hnLF.-Cordesi Jr.

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T Enclosures; As.ctated.

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.The Honorable Alan' K. Sitapson m.

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May 3. 1990 iho tionorablo Tom Br vill, Chairman Subcommittoo on Energy and Untor Development Cotrmittee on Appropriations United Status llouse of Roprosentotivon Wathington, D.C. 20515 Ret American Mining Congress v. Nuclear, He 88-1040 lin~gula to ry coruni s a lon, lion.cf88-1041 Tf6 E Tlr. April 25, 1990);

Environmental __Defonno Fund v. Nuclour_

!;o3[ulatory Comminnion, No. 88-1001 (10th Cir. April 25, 1990)

Dear fir. Chairman:

This letter in to inform you of the abovo-nited decisions (onclosed) which terminato litigation challenging the Nuclear Regulatory Coranission's ("NRC'n") umundments to its uranium mill tailings regulationn (10 C.F.R. Part 40, Appendix A) conforming thoso regulations to general utandards promulgated by the Environmental Protection Agency

(" EPA").

In decisions

v. NRC 866 P.2d luouud in January 1989 (Quivira Mining Co.

1246 ; Environmental Def onne Punct_ _v. NRC, GT6 F Jd',1263), the

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United Statou Court of nppealu tor tho Tonth Circuit uphold the amendmonts lasuod in October 1985; in the above docinions the Court upholds the amondmonts (primarily groundwatur regulationn) issued in November 1987.

In affirming the NRC's amended togulations, the Court rojecta arguments presented by the induntry pot _.;ioners that the NRC had failed to fulfill its otatutory duty to conduct a cost-bonofit analyais and had arred in adopting EPA's regulations donigned for the protection of low-volumo high toxicity chemical wasto.

The Court also rejects the argument presented by the environmental petitioners that the NRC had not completely fulfilled its duty to conform NRC regulations to EPA'u goreral standards and rojects as prematuro their petition fo; mandamun with respect to NRC'n duty under Scotion 84: (3) of the Atomic Enurgy Act to assure

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comparabilitySetween NRC's requirementn and requirements issued by'r.PA under.the Solid h te Dispor.,a1 Act,for the control'of similar hn::ardous material.

. Sincerely, f hA chu F. Cordes, Jr.

uulicitor.

s Enclosures As stated cc:

The Honorable John T. Myers

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FILED United States Court of Ap' j

Tenth Cir:uit PUsLISu APR 2 51990 UNITED STATES COURT OF APPEALS ROBERTL.HOECK i TENTH CIRCUIT Clerk Nos. 88-1040 and 88-1041 i

AMERICAN MINING CONGRESS,

)

)

j Petitioner,

)

)

v.

)

)

UNITED STATES NUCLEAR REGULATORY

)

COMMISSION and the UNITED STATES

)

OF AMERICA,

)

)

Respondents.

)

3

)

and

)

)

i

)

QUIVIRA MINING COMPANY,

)

Kerr-McGee Chemical Corporation,

)

and Homestake Mining Company of

)

California,

)

)

Petitioners,

)

)-

v.

)

)

UNITED STATES NUCLEAR REGULATORY

)

COMMISSION and the UNITED STATES

)

OF AMERICA,

)

)

Respondents.

)

t Petitions for' Review of a Regulation of the Nuclear Regulatory Conmission s

Richard A. Meserve of Covington & Burling (Peter J.

Nickles and Sonya D.

Winner of Covington

& Burling, Washington, D.C.; and Michael Yesley of Stephenson, Carpenter, Crout

&.Olmsted, Santa Fe, New Mexico, with him on the brief), for Petitioners.

.l 1

E.

Neil Jensen, Attorney (William B. Briggs, Jr., Solicitor, and E. Leo slaggie, Deputy Solicitor,, Washington, D.C.,

with-him on the brief),

for.Un;,ted States Nuclear--Regulatory Commission, Respondent.

Before SEYMOUR and McWILLIAMS, Circuit

Judges, and

PHILLIPS, District Judge.

McWILLIAMS, Circuit Judge.

l l

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• Honorable Layn R. Phillips, United States District-Judge.,for the

-Western District of Oklahoma, sitting by designation.

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,t Pursuant to 42 U.S.C. 5 2239(b) and 28 U.S.C. $ 2342(4), the American Mining Congress (No. 88-1040) and Quivira Mining Company, I

Xerr-McGee Chemical Corporation and Homestake Mining Company of California (No. 88-1041) seek judicial review-of certain amend-ments to the Nuclear Regulatory Commission's " Criteria Relating to i

the Operation of Uranium Mills and the Disposition of Tailings or 1

Waste Produced by the Extraction or Concentration of Source Mate-rial from Ores Processed Primarily for Their Source Material 4

content."

The " Criteria" are published at.10 C.F.R. Part 40, Ap-

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pendix A, and are hereinafter referred to as

" Criteria" or "Ap-j pendix A

Criteria."

The amendments challenged in the present proceeding concern measures required to be taken in the management l

and disposal of uranium mill tailings to avoid contamination of 1

groundwater and are published at 52 Fed. Reg. 43,553 (1987).

In the present pt9t.eeding, we are not writing on a clean slate, and i

we shall first review prior proceedings in this court which bear on the present controversy.

The Appendix A

Criteria were initially promulgated by the I

Nuclear Regulatory Commission (NRC) on October 3,

1980, pursuant to Title II of the Uranium Mill Tallings Radiation Control Act of 1978 (UMTRCA), Pub. L. No.95-604, 92 Stat. 3021, as

amended, 42 i

U.S.C.

$ 7901, ej s_ej.

Under the UMTRCA, regulatory authority is o

divided among,three federal agencies.

The Environmental Protec-tion Agency (EPA) is directed to develop " standards of general i

application.

. for the protection of the public health, safety and the environment from radiological and nonradiological hazards assoc'.ated with [ uranium mill tailings)."

42 U.S.C. S 2022.

The I i I

j.

I j

Department of Energy is directed to provide for the decommission-ing of all ninactive sites" (i.e.,

uranium tallings sites no longer under NRC license, in accordance with EPA standards).

42

)

U.S.C. $ 7918(a)(1).

Thirdly, NRC is charged with the duty of i

insuring that the management of any.by-product material-at " active sites" (i.e., sites currently under NRC license and new sites licensed in the future), is carried out in such manner as conforms-to applicable general standards promulgated by the EPA under 42 U.S.C.

$ 2022, and, in connection therewith, NRC is authorized to promulgate rules and regulations to accomplish this.

42 U.S.C.

S j

.i 2114.

We are here concerned with EPA and NRC.

Acting pursuant to congressional mandate, the. EPA promulgated standards on September 30, 1983.

Immediately thereafter a number of mining companies and their trade association, the American Min-ing Congress, sought and obtained judicial review by this court of those standards.

On September 5, 1985, we upheld the standards.

See American Mining Congress v. Thomas, 772 F.2d 640 (10th Cir.

1

?

1985),

cert.

denied, 476 U.S.

1158 (1986);

(American Minino l

Congress II).

See also American Mining Congress v.

Thomas, 772 F.2d 617 (10th Cir.

1985),

cert. denied, 476 U.S. 1158 (1986)

(American Mining Congress I).

On November 26, 1984, the.NRC published a notice of proposed rulemaking to conform the Appendix A Criteria to and with the EPA standards promulgated on September 30, 1983.

After hearings, the NRC on October 16, 1985, promulgated amendments'to the Appendix A

. Criteria.

Quivira Mining Company, Kerr-McGee Chemical Corpora-

tion, and.

Homestake Mining Company of California, petitioners in

_ I

-.. _ _ _. _ ~., _ _.... _.

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the present proceeding, along with United Nuclear. Corporation, i

filed a

petition in.this court.to review the 1985 revised or j

amended criteria.

On January 27, 1989, this' court upheld the 1985 NRC regula-i tion

and, in so

doing, rejected many of the arguments made by 1

petitioners in the present proceeding.

See Quivira Mining I

Company, et al.

v.. United States Nuclear Regulatory Commission, f

866 F.2d 1246 (10th Cir. 1989) (Quivira); see also Environmental l

Defense Fund

v. United States Nuclear Regulatory Commission, 866 F.2d 1263 (10th Cir. 1989).

On November 13, 1987, the NRC promulgated additional amend-ments to the Appendix A Criteria, and it is those amendments which i

~

the petitioners challenge in the present proceeding.

The Amer 1can Mining

Congress, petitioner in No.

88-1040, has joined in the-brief filed by the petitioners in No. 88-1041.

The briefs'in the l

instaat proceeding were filed before the' filing of our opinion in Quivira, which was filed January 27, 1989.

The present cases were

]

orally argued before this panel on September 25, 1989, and the effect of Quivira on the present. case was discussed then.

Petitioners' principal argument is that'NRC did not perform >a

[

cost-benefit analysis before promulgating the 1987 amendments to l

the Criteria.

Counsel states that 42 U.S.C. $ 2114(a)(1) requires NRC in its management of uranium, mill tallings to "tak[e] into ac-count the risk to the public health, safety, and the environment, with due consideration-of the economic l costs.-

NRC's counter argument is that under-42 U.S.,C.

2114(a)(2) it must e

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" conform" any regulations concerning the management of mill tail-l i

. ings to EPA's " standards" and, Jnder the statute, is not free to reject an EPA standard on the ground that in its view the' cost might be relatively high and the benefit gained only minimal.

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i

Moreover, NRC maintains that a separate analysis is not required because the NRC's rulemaking was restricted to the conforming provision of Criterion 5,

a mandatory provision of the EPA standards.

See 52 Fed. Reg. 43,557-58 (1987); 51 Fed. Reg. 24,701 and 24,704 (1986).

Be that as it may, we believe that this matter is governed by Quivira.

f In Quivira, we stated that " Congress did not intend to free l

the NRC altogether from cost-benefit analysis; rather, it intended the NRC to perform cost-benefit rationa'lization for the 1985 Criteria."

Cost-benefit rationalization is a looser appr'cach that requires the agency only~to consider and compare the costs and benefits of approaches and to choose ~an approach in which costs i

and benefits are reasonably related to Congrest'y intent.

Quivira, 866 F.2d at 1250, quoting, American Mining Congress 1, 772 F.2d at 632.

1 The issue in

Quivira, then, became whether the statute permitted NRC's interpretation that it may rely upon EPA's cost-i benefit analysis when the revisions in the criteria essentially t

duplicated the EPA regulation.

Quivira, 866 F.2d at 1253.

In Quivira, we held that NRC did not have to "reweidh" costs and benefits for the revised Criteria and could rely upon-the EPA's cost-benefit analysis.

Quivira, 866 F.2d at 1258.

Congress

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's considering "the risk to the. public

health, safety, and the environment, the environmental and economic costs of applying such standards, and such other factors as the (EPA) determines. to be appropriate."

42 U.S.C. $ 2022(b)(1).

Moreover, we held that EPA

~

properly conducted cost-benefit factors when it established those standards.

America,n Mining Congress II, 772 F.2d at 646.

Such a reassessment by the NRC would serve to replicate the EPA's work.

In so

ruling, we observed that Congress had not spoken on the

" precise question at issue," and thatNRC's interpretation of the statute was a

" permissible construction of the statute," citing Chevron USA, Inc. v. Natural Rescu;ces Defense Council, Inc.,

467 U.S.

837, 842-43 (1984); Quivira, 866 F.2d at 1258.

Therefore,

[

under Quivira and Chevron, the iM performed its due consideration obligation here when it conformed to the EPA'a tegulations it was i

required to adopt.

Petitioners also argue that under

'he statute NRC has an independent duty to ensure that the regulations it promulgates are consistent with the equivalent regulatory regfme under the Solid a

Waste Disposal Act (SWDA),

Subtitle C, as amended, 42 U.S.C4 5 6921, el sg.

In this

regard, petitioners'

argument, as we understand it, is that 'under 42 U.S.C. $ 2114(a)(3)'NRC should l

conform -its regulations to the requirements; applicable to the pos -

9

session, transfer, and dispos'al of "similar hazardous material" (mining-type wastes) regulated by the EPA ut. ler the. SWDA (as f

amended and

termed, the nesource C6nservation and Recovery Act (RCRA)), but since uranium mill tailings are not "simiiar" to. the hazardous material (chemical-type wastes) dealt with by the"BPA t.

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under the SWDA, both EPA and NRC erred in applying those require-ments to uranium mill tailings.

This. matter was considered by us in American Mining Congress l

I_I,where we affirmed EPA's determination that there was sufficient similarity between uranium mill tailings and chemical wastes to L

warrant application of the same standards to both forms of waste.

There the petitior. ors argued that the EPA's standards under the t-SWDr. were meant fr,r managing high-toxicity, low volume chemical

waste, not lov-toxicity, high volume mining waste In American Mining Congress II, we noted that the EPA had refused to draw the distinc' ton urged by the petitioners and had imposed its SWDA i

equirements on uranium mill -tailings.

That is, even though nonradioactive constituents in uranium mill tailings may be more comparable to hazards in mining wastes than hazards in chemical wastes (see 51 Fed.

Reg. 24,701 (1986)), the EPA made' findings l

that conditions at tailing impoundments are not sufficiently dif-ferent from conditions it considered in developing SWDA standards.

I 48 Fed. Reg. 45,941 (1983). In so doing, we held then and hold now

]

that EPA had acted permissibly" under the ntatute.

It should be noted, however, that the EPA presently has not finalized its min-i ing wastes rules, so a determination of whether uranium mill tail-l i

i ing waste is now regulated propeJ1y would be premature.'

I 1

The EPA is currently promulgating rules governing mining wastes unde.r the SWDA.

$1 Fed.

Reg.

24,496 (1986).

In Environmental Defense Fund v. EPA, 852 F.2d 1309, 1316,(D.C.

Cir.

i 1988),

cert. denied, 109 S.Ct. 1120 (1989), the court' declined to fully evaluate the idequacy of EPA's mining waste regulatory ef-

~~

forts, as rules had not.been finally-promulgated at.that juncture.

The court there ruled that EPA's determination to regulate extrac-tion-and beneficiation of solid mining -wastes.under subtitle D'of '

the RCRA instead of Subtitle C

(Which addresses hazards of I t 4

i X...

m.

L

['

I g

Petitioners' final challenge is to the " liner" requirement in

. Criteria 5(A), which they say is-arbitrary and capricious, because l

p it does'not reflect en appropriate relationship between costs and F

1

benefits, fails to provide the statutorily required flexibility i

and opportunity for proposing alternative di:posti. strategies and is retroactive in application.

It should be noted that the NRC 4

adopted the EPA's groundwater

standard, almost

verbatim, into criterion 5A of Appendix A.

Criteria 5(A) requires all new tail-ing impoundments, or extensions of old talling impoundments, to be underlain by a

" liner" to prevent any migration of waste out of the impoundment.

40 C.F.R. $ 264.221(a).

It also provides that a licensee may request an exemption upon a showing that an alternate practice will accomplish the same objective.

40 C.F.R.

S 264.221(b).

The cost issue of the EPA standards was considered by us and upheld as reasonable in American Mining Congress I.

Petitioners maintain that the exemption is allegedly unobtainable

and, therefore, inflexible.

Clearly, the liner requirement is not inflexible, as it allows the licensee to propose alternatives.

Moreover, even if proposals under that standard are impractical, pursuant to Section 84(c), the NRC has authority to consider alternatives to the "A Criteria" which will achieve an equivalent level of conformance, "to the extent industrial and manufacturirig processing wastes),

was not an unreasonable agency action.

42 U.S.C. $$ 6921-6939(b)

(1982 and Supp. III, 1985).

Also see Environmental Defense Fund v. EPA, 852 F.2d 1316 (D.C. Cir!"TiBB)7 cert. denied, 109 S.Ct.

1120 (1989).

Even thereafter, the EPA has undertaken more rulemakings regarding wastes-from the " extraction, beneficiation, and processing of ores j

and minerals."

54 Fed. Reg._ 15,316 (April 17, 1989); and 54 Fed.

Reg. 36,592 (Sept. 1, 1989).

! L

0,

.~ -

[

practicable."

As to the liner requirement being retroactive to a3y impoundment on which tallings have been or will be placed f

I,fter September 30, 1983, the NRC merely acted pursuant to its Section 84(a)(2) duty when it conformed to EPA's standards.

Moreover, the Section 275(d) requires the NRC to implement and j

enforce the EPA standards during NRC's licensing activities from the time that EPA promulgated standards to when NRC completes it c6nformance rulemaking.

As

such, the NRC complied with its statutory duties in requiring a

liner and, therefore, did not engage in illegal retroactive rulemaking.

Accordingly, we affirm the NRC's 1987 amendments to the Ap-pendix A Criteria against the challenges raised herein.

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.i FILED

, PUBLISH

. d Sf8tes Court of A E

Tenth Cirxit UNITED STATES COURT OF APPEAL

APR 251990 TENTH CIRCUIT gOBERTL HOECIC Clerk No. 88-1001 l

ENVIRONMENTAL DEFENSE FUND,

)

dnd the Southwest Research and

)

Information Center,

)

Petitioners,

)

)

v.

)

)

UNITED STATES NUCLEAR REGULATORY

)

COMMISSION, and the United States

)

of America,

)

)

Respondents.

)

Petition for Review of. Final Action by the Nuclear Regulatory Commission Regarding Standards for Licensing Uranium Mills, and for Mandamus to Require Further Rulemaking L

Robert E. Yuhnke, Attorney, Environmental Defense

Fund, Boulder,'

Colorado (Southwest Research and-Information Center, Albuquerque, t

New Mexico, with him on the brief), for Petitioners.

E. Neil

Jensen, Attorney, U.S.

Nuclear Regulatory Commission l

(William H.

Briggs, Jr.,

Solicitor, and E. Leo Slaggie, Deputy Solicitor, with him on the brief),

Washington, D.C.,.

for Respondents.

Before SEYMOUR McWILLIAMS, Circuit

Judges, and PHILLIPS, District Judge., and McWILLIAMS, Circuit Judge.

l

• Honorable Layn R. Phillips, United States District Judge for the l

Western District of Oklahoma, sitting by designation.

e w'..,

,t In the present proceeding, the Environmental Defense Fund (EDF) and the Southwest Research and Information Center have petitioned this court for review of final regulations promulgated by the Nuclear Regulatory Commission (NRC) modifying the require-monts governing the licensing of uranium mills and the disposal of uranium mill tallings.

The regulations were issued by order of l

the NRC on November 6, 1987, and were published in the Federal l

Register on November 13, 1987.

52-Fed. Reg. 43,553.

They also I

petition for mandamus to require further rulemaking by the NRC on i

this subject.

Jurisdiction for the petition for mandamus is based on the Adrainistrative Procedures Act which directs agencies to perform duties assigned by statute "within a reasonable time," 5 U.S.C. S 555(b), and further provides that the

" reviewing. court shall

. compel agency action unlawfully withheld or unreason-l ably delayed." 5 U.S.C. S 706(1).

l Jurisdiction to review final orders of the NRC lies i

exclusively in the United States Courts of-Appeal ~.

42 U.S.C.

S j

2239(b) and 28 U.S.C. $ 2342(4).

Further, petitions to c'ompel final agency action which would only be reviewable in the United States Courts of Appeal are also within the exclusive jurisdiction of a United States Court of Appeals.

Telecommunications Research

& Action Center v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984);

EDF v.

Ruckelshaus, 439 F.2d 584, 593 (D.C. Cir. 1971).

This is a

companion case to American Mining' Congress v.

United States Nuclear Regulatory Commission, our Nos. 88-1040 and l

88-1041.

Our opinion in that case has been filed simultaneously with this opinion.

For other Tenth Circuit cases relating to the =

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'y'.

management and disposal of uranium mill tailings, see Quivira Min-ing Company v. United States Nuclear Regulatory Commission, 866 l

F.2d 1246 (10th Cir. 1989); Environmental Defense Fund v. United l

States Nuclear Regulatory Commission, 866 F.2d 1263 (10th Cir.

1989); American Mining Congress v. Thomas, 772 F.2d 640 (10th Cir.

1985), cert. denied, 476 U.S. 1158 (1986);

and American Mining Congress v.

Thomas, 772 F.2d 617 (10th Cir. 1985), cert. denied, 476 U.S. 1158 (1986).

For general background material to the present proceeding, read those cases.

It is sufficient for present purposes to state that in their petition for review of the 1987 amendDents to NRC's

" Criteria Relating to the Operation of Uranium Mills and the Disposition of

~

Tailings and Waste Produced by the Extraction and Concentration of 1

Source Materials from Ores Processed Primarily for Their Source Material Content"

(" Appendix A

Criteria" or "A

Criteria"),

petitioners claim that NRC did

not, as required by statute, conform its "A Criteria" to EPA standards in that the NRC did not adopt three EPA standards for the disposal of mill tailings (i.e.,

40 C.F.R. $ 264.95

(" point of compliance");

40 C.F.R.

S 264.98

(" detection monitoring program"); and 40 C.F.R. K 192.32(a)(2)(iv)

("500 meter boundary")).

The "A

Criteria" controls hazards involving uranium mill tailings during mill operations and the closure period.

In their petition for mandamus, petitioners seek an order directing NRC to adopt the " missing elements".of EPA's standards governing the

" point of compliance,"

" detection.

monitoring program,"

and' "500 meter boundary standards," and to otherwise

l i

i conform its general requirements for the management of uranium

[

t tailings to the comparable requirements for similar waste under y

the Solid Waste Disposal Act (SWDA).

j NRC admits that it did not entirely incorporate 40 C.F.R.

264.95 (point of compliance) and'40 C.F.R. $ 264.98 (detection monitoring program) in its 1987 amendments.

In this

regard, it-is NkC's position that such were not promulgated by EPA under Sec~

tion 275(b) of the Atomic Energy Act (AEA) and, that accordingly, i

NRC is not required to conform thereto.

Petitioners' position is that 40 C.F.R. $ 264.95 (point of compliance) is referred to in 40

[

C.F.R.

192.32(a)(2)(iv) and that 40 C.F.R. $ 264.98 (detection monitoring program) is referred to in 40 C.F.R. 192.32(a)(2)(iii),

and accordingly were promulgated by EPA under Soution 275(b).*

In its conformance rules, NRC instead adopted and defined the

" point of compliance" as "the site specific Location in the up-permost aquifer where the groundwater protection standard must be met."

52 Fed. Reg. 43,563 (1987).

NRC. stated that it "will also establish the point of compliance and compliance period on a site specific basis through license conditions and' orders."

Criterion More specifically, petitioners argue:that NRC is obligated under.42 U.S.C. $ 2114(a)(2) and 42 U.S.C. $ 2002(f)(3) to adopt EPA's point of compliance regulation, 40 C.F.R. $ 264.95, as well as the regulation governing detection monitoring program, 40 C.F.R. $ 264.98, because EPA imposed these regulations under-its $

275(b) authority (42 U.S.C.

$ 2022) by virtue of the. reference made thereto in 40 C.F.R.

192.32(a)(2)(iv) and 40 C.F.R.

4 192.32(a)(2)(iii).

NRC argues that-EPA did not adopt either the point of compliance or the detection monitoring program under its l

275(b) authority, and, therefore, NRC is not required to adopt either standard.

In support of its. position, NRC points out that both in its proposed and final rule-EPA explicitly excludes $$

264.95 and 264.98 from the list of Solid Waste Disposal regula-tions which EPA identifies as being adopted under.its $ 275(b) authority, 48 Fed. Reg. 45,942 (1983). j q

)

je

(

5B(1),

52 Fed. Reg. 43,563 (1987).

It incorporated some require-ments of 264.98 (detection monitoring) into its Criterion 7A which appears at 52 Fed.

Reg.

43,565 (1987).

Standards requiring implementation of a corrective action program if an exceedance of groundwater standards is found at the compliance point is incorporated into NRC's Criterion SD. 52 Fed. Reg. 43,564 (1987).

As to the 500 meter boundary provision provided for in 40 C.F.R.

5 192.32(a)(2)(iv),

NRC states that the only portion thereof which it has not conformed to is certain language implying that the NRC must seek EPA's concurrence before accepting an j

alternative concentration limit of a hazardous constituent at a

particular site.

That is, the NRC's final rule adopts the EPA's 1

500 meter boundary regulation except insofar as' this regulation conflicts with the NRC's independent authority under Section 84(c) of the AEA by requiring the EPA's concurrence in certain site-specific decisions.

In connection therewith, NRC adds that in Environmental Defense Fund v.

United States Nuclear Regulatory i

Commission, 866 F.2d 1263, 1268-69 (10th Cir. 1989),-we recently 1

ruled that NRC did not need EPA's concurrence in approving licenses for uranium mill tailing sites containing site-specific i

alternatives to EPA's general standards.

We are in general accord i

with NRC's position on these matters.

Where an administrative agency is challenged on its construc-l tion of a statute which it administers, the Supreme

Court, in Chevron U.S.A.,

inc.

v.

Natural Resources Defense Council,'467 U.S. 837, 842-44 (1984) has defined the role of a reviewing court as follows:

-S-4 i

i j.

When a

court reviews an agency's construction of the statute which it administers, it is confronted with two questions.

First, always, is the question whether Congress has directly spoken to the precise. question at issue.

If the intent of Congress is clear, that is the

)

end of the matters for the court, as well as the agency, I

must~ give effect to the unambiguously expressed intent of Congress.

.If, however, the court determines Congress has not directly addressed the precise question at is-sue, the court does not simply impose its own construc-i tion on the

statute, as would be necessary in the j

absence of an administrative interpretation.

Rather, if i

the statute is silent or ambiguous with respect to the specific issue, the question for the -court-is whether the agency's answer is based on a permissible construc-tion of the statute.

The power of an administrative agency to administer a

congressionally created necessarily requires the formulation of policy program and the making of rules to fill any gap left, implicitly.or explicitly, by Congress."

Morton v. Ruis, 415 U.S.

199, 231 (1974).

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.

Such legislative regulations are given

~

controlling weight unless they are arbitrary, capri-clous, or manifestly contrary to the statute.

Sometimes the legislative delegation to an agency on a particular question is implicit rather than. explicit.

In such a

case, a court may not substitute its own construction of i

a statutory provision for a

reasonable interpretation made by the administrator of an agency.

As indicated, petitioners and the NRC argue different constructions of the statutes here involved.

Our study of the matter leads us to conclude that this is-an instance where Congress has not directly addressed the precise question at hand

'and,

further, that NRC's construction is a permissible one.

In such case, under Chevron, we uphold the agency's construction of the statute which it is charged with administering.

In this con-nection, an unusual degree of deference is due NRC agency'

tions I

under the AEA.-

Indeed, courts have observed that the statutory scheme that the NRC administers is " virtually unique in the degree i

,i

's to which broad responsibility is reposed in the administrative agency, free of close prescription to its charter as to how it shall proceed in achieving statutory objectives."

Carsterns v.

NRC, 742 F.2d 1546, 1551 (D.C. Cir. 1984), cert. denied, 471 U.S.

1136 (1985), quoting, Siegel v. Atomic Energy Commission, 400 F.2d I

778, 783 (D.C. Cir. 1968).

See, e.g.,

Duke Power Co. v. NRC, 770 F.2d 386, 390 (4th Cir. 1985); Detroit Edison Co. v. NRC, 630 F.2d 1

450, 453 (6th Cir. 1980); Westinghouse Electric Corp. v. NRC, 598 F.2d 759, 771 and n. 47 (3rd Cir. 1979).

The NRC's resolutions of technical matters, like regulation of uranium and thorium mill

tailings, is a

technical judgment "within its area of special expertise, at the frontiers of science (where) a reviewing court j

must generally be at its most deferential."

Baltimore Gas't, Electric Co. v. NRDC, 462 U.S. 87, 103 (1963).

As mentioned at the outset, petitioners also seek mandamus f

directing the NRC to promulgate rules and regulations which conform to the three EPA requirements above referred to (i.e.,

40 i

C.F.R.

S 264.95, 40 C.F.R.

5264.98, and 40 C.F.R.

S l

I 192.32(a)(2)(iv)), and to otherwise perform its obligation under Section 84(a)(3) of the AEA to conform its general requirements l

for the management of uranium tailings to the comparable

" general

{

requirements" for similar waste established by EPA under the SWDA.

EDF argues that the language of Section 84(a)(3) contemplates that NRC will manage mill tailings in conformance with the

" general requirements" established by the EPA.

It suggests that NRC's site-specific-licensing orders'and staff guidance in NRC's proposed rulemaking which is at 51 Fed. Reg. 24,701 (1986) are not ?

I

4 4

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.' e 6

enforceable " requirements" without formal adoption pursuant to rulemaking procedures under the EPA.

See Porter County Chapter of Izaak Walton League v. AEC, 533 F.2d 1011, 1016 (7th Cir.

1976),

cert.

denied, 429 U.S. 945 (1976); and In the Matter of Vermont Yankee Nuclear Power Corp.,

8 A.E.C.

809, 811 (1974).

Furthermore, they point out that NRC stated a third round of rulemaking would probably be necessary to comply fully.

52 Fed.

Reg. 43,556 (1987).

EDF, however, requests a conformance rulemaking now.

They 1

say the test is whether " agency action (has been) unlawfully with-unreasonably delayed" within the context of the EPA.

If held or so, "[t]he reviewing court shall compel agency action."

5 U.S.C.

J 5

706(1).

The lack of action has delayed installation of radbn barriers, inter alia, intended to protect the public from high risks of cancer caused by exposure to radon.

Pursuant to Cutler

v. Hayes, 818 F.2d 879, 897 (D.C. Cir. 1987), the court must also estimate the extent to which the delay undermines the statutory scheme, either by frustrating the-statutory goal or creating a

situation in which the agency is

" losing its ability to ef-

)

fectively regulate at all."

Id., at 897-98.

Moreover,

"(dlelays that might be altogether reasonable in the sphere of economic regulation are less tolerable when human lives are at stake."

Id., at 989.

Where delay _ adversely affects the health of persons, courts have required expeditious action by agencies.

In Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C. Cir.

1983), the court required the completion of'a rulemaking to set an i s

.? '

4 occupational exposure standard within one year.

Petitioners herein request that same relief.

Conversely, NRC perceives that Section 84(a)(3) does not impose a

rulemaking requirement on NRC,'because the mandate of 9

that provision is to assure comparability of NRC and EPA require-ments.

The statute does not expressly state that NRC must engage in rulemaking to achieve comparability to EPA's " general require-ments."

In other sections of the UMTRCA when Congress wanted EPA or NRC to conduct a

rulemaking, it used

explicit, mandatory language to achieve this objective.

See Section 275(b)(1), ("the Administrator shall, by rule, propose and.

. promulgate.

standards") and Section 275(f)(3), l"The NRC shall.

. amend the October I, 1980 regulations.")

Moreover, NRC already issued th~ree rulemakings on tallings pile management since Section 84(a)(3) was enacted, including NRC's 1980 regulations and NRC rulemakings in 1985 and 1987 to conform to EPA's general standards.

Furthermore, NRC's present regulations are a

re-promulgation of NRC's 1980 regulations, amended where necessary to achieve conformity with EPA standards.

As such, NRC's remaining task is-to determine whether its general requirements are now comparable to EPA's SWDA requirements.'

This comparability assessment is currently in progress.

NRC states that its reasons for refraining from a rulemaking now are because of its preference for concentrating NRC resources site-specific enforcement of EPA's basic standards at existing on sites (see 52 Fed.

Reg.

43,555 (1987)),

and because EPA is considering changes in groundwater monitoring rules.

Moreover, !

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rulemaking is presently unreasonable because the depressed state of the uranium industry means that construction of new mills and t

\\

significant production of new tailings piles is improbable so that l

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an immediate rulemaking would be of doubtful value.

Furthermore, deferring a rulemaking will conserve NRC resources until EPA.

l completes revisions for the SWDA rules to which NRC's rules must be comparable.

It also enables NRC to draw upon its experience a

with site-specific appilcation of general requirements.

As such, NRC maintains that deferring a discretionary rulemaking under Sec-i tion 84(a)(3) is reasonable, as NRC found that its combination of conformed regulations, policy and guidance, and license conditions can adequately meet the Section 84(a)(3) comparability mandate for the foreseeable future.

See 51 Fed. Reg. 24,701 (1986).-

f We are in general accord with NRC's position.

The NRC is complying on a

reasonable schedule with its Section 84(a)(3) comparability duty in that its comparability study is still in

- t i

progress

and, such being the case, there is no reason'for this i

h court to intervene.

In the interim, NRC relies on a

combination of conformed regulations, policy and guidance, and license condi-j tions at mill tailings sites.

Certainly this is not-an instance b

where the agency has taken no action.

Mandamus would be premature, 1

i Accordingly, we affirm the NRC's 1987 amendments to the-Ap-pendix A

Criteria against the challenges raised herein.

The NRC-i program for managing uranium mill tailings achieves the. same objectives as the EPA regulations. The petition for mandamus i=

l also denied.

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