ML20055C468

Litigation Rept 1990-20

ML20055C468
Person / Time
Issue date:	05/02/1990
From:	Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
TASK-AII, TASK-SE SECY-90-157, NUDOCS 9005070266
Download: ML20055C468 (22)

Text

_ _ _.

.,4 f* *%

p I)

RELEASED TO THE PDR -

l I

5 5%e/90

&5

\\..../

..................e..

ee '

init May 2, 19 ADJUDICATORY ISSUE SECY-90-157 (Information)

FOR:-

The Commissioners FROM:

John F. Cordes, Jr.

Solicitor

SUBJECT:

LITIGATION REPORT 1990-20 American Mining Congress v. NRC, Nos. 88-1040 and 88-104,1 (10th Cir. April 25, 1990);

Environmental Defense Fund v. NRC, No.

88-1001 (10th Cir. April 25, 1990)

The decisions in these cases close out the 1itigation challenging the NRC's' amendments to its uranium mill tailings regulations (10 C.F.R. Part 40, Appendix A) which conform those regulations to the Environmental Protection Agency's (EPA's) general standards.

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

NRC, 866-F.2d 1263), the Tenth Circuit upheld the amendments issued in October 1985; in the above decisions the Tenth Circuit upholds the amendments (primarily groundwater regulations) issued in November 1987.

Here the Court rejects once again the industry petitioners' argument that the'NRC failed to peform the cost-benefit analysis required by statute, finding that-the NRC reasonably relied on the EPA's cost-benefit analysis which the NRC was under no obligation to duplicate.

The Court rejects as well industry's argument that both EPA.and the NRC erred in applying EPA's requirements 4

for low-volume high toxicity chemical wastec to mill tailings rather than awaiting EPA's promulgation of regulations governing high-volume low toxicity mining wastes, il (However, the Court notes that because the EPA has not finalized its mining wastes rules, NOTE:

TO BE MADE PUBLICLY AVAILABLE IN 10 WORKING DAYS FROM THE

~y DATE OF THIS PAPER

2 blc :

(7 r v.

f l...; %

S^

+,

"a determinati'on of whether uranium mill tailing waste'is now regulated properly would.

be premature.")

The environmental: petitioners _ argued _that:the

~

NRC had failed to incorporate'certain EPA standards, including those governing the

.i point of compliance and detection monitoring

' systems, as required under Section ' 84 (a) (2) -

q

'of the Atomic Energy Act - (AEA).. The-Court,-

i however, deferred tcr the. agency's construction of.the statuto-it is charged:

with administering,-following-Chevron U.S.A. v. Natural Resources' Defense:

Council, 467 U.S. 837 _ (1984).

The Court also

- rejected EDF's petition for mandamus:to:

require the NRC-to-undertake an additional rulemaking to fulfill its duty'under Section

+

84 (a) (3) of the AEA to' conform its general.

+

requirements for the management of uranium mill tailings-to the comparable' general requirements for similar waste established by-EPA under the Solid Waste Disposal Act..The.

Court.found that mandamus would-be premature.

in that the NRC was studying.the-

-comparability of_themtwo regulatory. systems to determine what.further regulatory action.

1 might be necessary and, in thefinterim, could-

' reasonably rely on a-_ combination of conformed.

regulations, policy and' guidance, and license-conditions ' to meet its -Section 84 (a) (3) duty..

CONTACT:

Neil Jensen

]

x21634 7

f l

(

h-Joh F. Cordes, Jr.-

i Sdlicitor j

Enclosures:

V Decisions l-r DISTRIBUTION:

Commissioners EDO j

L' OGC ACRS

'OIG ACNW ii LSS ASLBP P

GPA ASLAP H

REGIONAL OFFICES SECY 1

l 2

R

~.

g x'

F I L E D-

United States Court of App Tenth Cit

uit PUBLISH APR 2 51990 UNITED STATES COURT OF APPEALS ROBERT L HOECKI TENTH CIRCUIT Nos. 88-1040 and 88-1041 AMERICAN MINING CONGRESS,

)

)

Petitioner,

)

)

v.

)

)

UNITED' STATES NUCLEAR REGULATORY

)

COMMISSION and the UNITED STATES

)

OF AMERICA,

)

)

Respondents.

)

)

1 and

)

)

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.

)

~

Petitions for Review of a Regulation of the Nuclear Regulatory Commission 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.

~

?su ;,:

.s 39 d'

hiv

.E.

Neil Jensen, Attorney'(William B. Briggs, Jr., Solicitor, and-E. Leo:Slaggio, Deputy Solicitor, Washington, D.C.,,

with him-on the. brief),

for -United States-Nuclear--Regulatory-Commissione.

Respondent.-

Before SEYMOUR and -McWILLIAMS, Circuit

Judges, and. PHILLIPS,.

District-Judge.

McWILLIAMS, Circuit Judge.

.c

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

. Western District of Oklahoma, sitting by designation.

.I ) -

i s

\\_~

4; et,-

.. s N

o. -

Pursuant to 42 U.S.C. $ 2239(b) and 28 U.S.C. $.2342(4),.the-

- American Mining-Congress (No.: 88-1040) and Quivira Mining: Company,-

Kerr-McGee Chemical Corporation and Romestake Mining Company of s

California _(No.-88-1041) seek-judicial review of: certain amend-ments to;the' Nuclear Regulatory Commission's " Criteria Relating to the Operation of Uranium Mills and the Disposition of Tallings or Waste Produced by the Extraction or Concentration of Source Mate-rial from Ores Processed Primarily for.Their-Source Material Content."

The " Criteria" are published at 10 C.F.R. Part 40, Ap-pendix A, and are hereinafter. referred to as

" Criteria" or "Ap-pendix A

Criteria."

The amendments challenged in the present' proceeding concern measures required to be taken in the managementi and disposal of uranium mill' tailings to avoid contamination of groundwater and are published at 52 Fed. Reg. 43,553 (1987).

In the present. proceeding, we are not writing on a clean slate, and we shall-first review prior proceedings in this court which bear g

on the present controversy.

The Appendix A Criteria were initially promulgated by the Nuclear Regulatory' Commission (NRC) on October 3,

1980, pursuant-to Title II of the Uranium Mill Tailings Radiation Control Act of

[

1978-(UMTRCA), Pub. L. No.95-604, 92 Stat.-3021, as

amended, 42 U.S.C.

$-7901, et seg.

Under the UMTRCA, regulatory authority is divided among three federal agencies.

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

application.

. for the protection of the public health, safety and the environment from radiological and nonradiolog1 cal hazards associated with [ uranium mill tallings)."

42 U.S.C. S 2022.

The,

1*

ni

/c

.. Department of Energy is directed to provide for the decommission-

-ing ollal-1 linactive sites" (i.e.,

uranium'. tailings 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 insuring that the management of any by-product fasterial 6t " 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 U.S.C.

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

42 U.S.C.

S 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 obtained1 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.

1985),- cert. -denied, 476 U.S.

11'58 (1986);

(American Mining 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.

e

. 4 g

3.

the present proceeding, along with United Nuclear. Corporation, filed a

petition..in.this court.to review.the 1985 revised or amended criteria.

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

and, in so

doing, rejected-many of the arguments made-by petitioners in the-present proceeding.

See Quivira Mining:

Company, et al.

v. United States Nuclear Regulatory Commission, i

866 F.2d 1246 (10th Cir. 1989) (Quivire); 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-the petitioners challenge in the present proceeding.

The American Mining

Congress, petitioner in No.

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

The briefs in the instant 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 the Criteria.

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

with due consideration of the economic costs.

NRC's y

counter argument is that under 42 J3.S.,C.

S 2114(a)(2) it must

M!

I Mn

A 1

c.

5

- c e

.'?

.z

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

.ings to-EPA's." standards" and,,pnder the statute,;is~not free to i

reject an EPA: standard on the ground that in its view khe: cost might be relatively high and the. benefit gained only minimal.

.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 100 the EPA.

standards.

See 52 Fed.-Reg. 43,557-58 (1987) 51 Fed. Reg. 24,703-and 24,704 (1986).

Be that as it may, we believe that this matter-isLgoverned by Quivira.

In Quivira, we stated that " Congress did not intend-to free the NRC altogether from cost-benefit analysis rather, it intended

the NRC to perform cost-benefit rationalization for the 1985 Criteria."

Cost-benefit rationalization is a looser approach that requires'the agency only to consider-and compare the costs and

~

benefits of approaches and to choose an approach in which costs-and benefits are reasonably related to Congress's intent.

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

The issue in Quivira, -then, became whether the statute permitted NRC's interpretation that it may rely upon EPA's cost-benefit analysis when the revisions in the Criteria essentially duplicated the EPA regulation.

Quivira, 866 F.2d at 1253. -In Quivira, we held that NRC did not have to

" reweigh" costs and benefits for the revised criteria and could rely upon the EPA's cost-benefit analysis.

Quivira, 866 F.2d at 1258.

Congress requires EPA to consider the cost of its own standards by.

m e * :

o c,,

v,

' 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. $ 2J22(b)(1).. Moreover, we held that EPAJ

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

American Mining Congress II, 772 F.2d at 646.

Such a reassessmentLby 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 that NRC's interpretation of-the' statute was a

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

467 10. S.

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

Therefore, under Quivira and Chevron, the NRC performed its due consideration.

obligation here when it conformed to the EPA's regulations-it was required.to adopt.

' Petitioners also argue that under the statute. NRC. has an independent duty to ensure that the regulations it promulgates are consistent with the equivalent. regulatory regime under. the Solid Waste-Disposal Act (SWDA),

Subtitle C, as amended, 42 U.S.C. S-6921, et sea.

In this

regard, petitioners'

argument, as we understand it, is that under 42 U.S.C. S 2114(a)(3) NRC should conform its regulations to the requirements applicable to the pos-

session, transfer, and disposal.of "similar hazardous material" (mining-type wastes) regulated by the EPA under the SWDA (as:

~

amended and

termed, the Resource Conservation and Recovery'Act (RCRA)), but since uranium mill tailings are not "similar" to the hazardous material (chemical-type wastes) dealt' with. by the-EPA l

- I

~

y J

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 lIj[ where we affirmed EPA's determination that-there was sufficient similarity between uranium mill tailings and chemical wastes to-warrant application of the same standards to both-forms of waste.

There the petitioners argued that the EPA's standards under the SWDA were meant for managing high-toxicity, low volume-chemical:

waste, not low-toxicity, high volume mining waste.

In American Mining congress II, we noted that the EPA had refused to draw. the distinction urged by the petitioners and had imposed-its SWDA requirements 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 that' conditions-at tailing impoundments are not sufficiently dif-ferent-from conditions it considered in developing SWDA standards.~

48-Fed. Reg.. 45,941 (1983). In so doing, we held then and hold now-that EPA had acted " permissibly" under the statute.-

It shouldcbe noted, however, that the EPA presently has not finalized its' min-ing wastes rules, so a determination of whether uranium mill tail-ing waste is now regulated properly would be premature.*

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

51 Fed.

Reg.

24,496' (1986)=.

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

Cir.)

1988),

cert. denied, 109 S.Ct. 1120 (1989), the court declined to fully evaluate the adequacy 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-tien-and beneficiation of solid mining wastes under Subtitle D of the RCRA instead of Subtitle C

(which addresses hazards of.

t

g o D Petitioners' fin 1 cha110.ng0 is to the "linerd rsquitsmant in Criteria 5(A), which they say ic-arbitrary and capricious., because it does not reflect en appropriate relationship between costs and

benefits, fails to provide the statutorily required flexibility and opportu.nity for proposing elternative disposal strategies and As tetroactive in application.

It should be noted that the NRC 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 tailing impoundments, to be h

underlain by a

" liner

• to prevent any migration of waste out of the impoundment.

40 C.F.R. $ 264.22)(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.

264.221(b).

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

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 a

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 (f"

industrial and manufacturing 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. Cir7 Ii88), 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 and minerals."

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

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

~9-

4 --

Li ',

f practicable."

As. to the. liner requirement being retroactive to

.any impoundment on.which tallings.have been or will be placed

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

As

such, the NRC complied wl.th 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.

l i

l 5

l t

l t

1 I.

FILED Unied States Court of A pgaLrsg Tenth Cirruit UNITED STATES COURT OF APPEALS APA 251990 TENTN CIRCUIT gOBERTL HOECKEJ Clerk No. 88-1001 ENVIRONMENTAL DEFENSE FUND,

)

and the Southwest Research and

)

Information Center,

)

Petitioners,

)

)

v.

)

)

UNITED STATES NUCLEAR REGULATORY

)

COMMISSION, and the United States

)

of America,

)

)

Respondents.

}

Tetition for Review of Final Action by the Nuclear Regulatory Commission Regarding Standards for Licensing l

Uranium Nills, and for Mandamus to Require Further Rulemaking i

Robert E. Yuhnke, Attorney, Environmental Defense

Fund, Boulder, l

Colorado (Southwest Research and Information= Center, Albuquerque, New Mexico, with him on the brief), for Petitioners.

E. Neil

Jensen, Attorney, U.S.

Nuclear Regulatory Commission (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 p

McWILLIAMS, Circuit Judge.

• Honorable Layn R. Phillips, United States District Judge for the Western District of Oklahoma, sitting by design,ation.

4 hs

,.q. -

I i

In the present proceeding, the Environmental Defense Fund.

l (EDF) and the Southwest Research and Information Center have j

petitioned this court for review of final regulations promulgated j

by the Nuclear Regulatory Commission (NRC) modifying the require-f ments governing the licensing of uranium allis and tne disposal of-uranium mill tailings.

The regulations were issued by order'of f

the NRC on November 6, 1987, and were published in the Federal Register on November 13, 1987.

52' Fed. Reg. 43,553.

They also petition for mandamus to require further rulemaking by the NRC on this subject.

Jurisdiction for the petition for mandamus is based t

on the Administrative Procedures Act which directs agencies to perform duties assigned by statute "within a reasonable time," 5 U.S.C. $ 555(b), and further provides that the

" reviewing court shall

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

Jurisdiction to review final orders of the NRC lies exclusively in the United States Courts of Appeal.

42 U.S.C. $

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

Further, petitions to compel

+

final agency action which would only be reviewable in the United States Courts of Appeal are also within the exclusive jurisdiction j

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 88-1041.

Our opinion in that case has been filed simultaneously l

with this opinion.

For other Tenth Circuit cases relating to the 1

k

,,,, -.. ~..

4

/

i l

management and disposal oc uranium mill tailings, see Quivira Min-

[

t ing Company v. United States Nuclear Regulatory Commission, 866 4

F.2d 1246 (10th Cir. 1989); Environmental Defense Fund v. United States Nuclear Regulatory Commission, 866 F.2d 1263 (10th Cir.

l 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 amendments to NRC's

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

Tailings and Waste Produced by the Extraction and Concentration of f

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.

264.98

+

t

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

("500 meter boundary")).

The "A

Criteria" controls hasards 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 t

e i

+

4

-,e----

-+-w,

.[

e conform its general requirements for the management of uranium tailings to the comparable requirements for similar waste under the Solid Waste Disposal Act (SWDA).

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 NRC's position that such were not promulgated by EPA under Sec-tion 275(b)'of the Atomic Energy Act (AEA) and, that accordingly, 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 Section 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 i

l-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 i

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)(lv) and 40 C.F.R.

(

192.32(a)(2)(iii).

NRC argues that EPA did not adopt either the j

point of compliance or the detection monitoring program under its

+

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 S 275(b) authority, 48 Fed. Reg. 45,942 (1983). l l

l

l I

+

i i i 5B(1),

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

It incorporated some require-ments of 264.98 (detection monitoring) into its criterion 7A which i

3 appears at 52 Fed.

Reg.

43,565 (1987).

Standards requiring implementation of a corrective action program if an exceedance of i

groundwater standards le found at the compliance point is incorporated into NRC's Criterion 5D. 52 Fed. Reg. 43,564 (1987).

l t

As to the 500 meter boundary provision provided for in 40 i

C.F.R.

192.32(a)(2)(lv),

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 alternative concentration limit of a hazardous constituent at a

particular site.

That is, the NRC's final rule adopts the EPA's 500 meter boundary regulation except insofar as this regulation conflicts with the NRC's independent authority under Section 84(c) i r

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 Regula*ary Commission, 866 F.2d 1263, 1268-69 (10th Cir. 1989), we recently ruled that NRC did not need EPA's concurrence in approving licenses for uranium mill tailing sites containing site-specific alternatives to EPA's general standards.

We are in general accord with NRC's position on these matters.

Where an administrative agency is challenged on its construc-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 9

as follows:

e o

--r,

~

-r y

e

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,.

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-tion on the

statute, as would be necessary in the absence of an administrative interpretation.

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

Morton v. Ruiz, 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 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 actions under the AEA.

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

J

]

.A 4

L.'

)

1 to which broad responsibility is reposed in the admin,istrative l

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 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 P.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 l

must generally be at its most deferential."

Baltimore Gas &

L Electric Co. v. NRDC, 462 U.S. 87, 103 (1983).

As mentioned at the outset, petitioners also seek mandamus directing the NRC to promulgate rules and regulations which conform to the three EPA requirements above referred to (i.e.,

40 C.F.R.

'264.95, 40 C.F.R.

$264.98, and 40 C.F.R.

S l

192.32(a)(2)(iv)), and to otherwise perform its obligation under 1

Section 84(a)(3) of the AEA to confor.m its general requirements for the management of uranium tail'ings 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 manago mill tailings in conformance with the l -

" 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.

m m

N j

.c; e 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),

J 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 say the test is whether " agency action (has been) unlawfully with.-

held or unreasonably delayed" within the context of the EPA.

If so

"[t}he reviewing court shall compel agency action."

5 U.S.C.

706(1).

The lack of action has delayed installation of radon barriers,. inter alla, 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 f

scheme, either by frustrating the statutory goal or creating a

i situation in which the agency is losing its ability to ef-fectively regulate at all."

M., at 897-98.

Moreover,

"(djalays that-might be altogether reasonable in the sphere of economic i

regulation are less tolerable when human lives are at stake."

g., at 989.

Where delay adversely affects the health of persons,

. courts have required expeditious action by agencies.

In Public r

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

' l 1

u

.._,.y

p 1

- e t c occupational exposure standard within one year.

Petitioners herein request that same relief.

)

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

rulemaking. requirement on NRC, because the mandate of that provision is to assure cotoparability 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-l 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.

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

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

. amend the j

October 3, 1980 regulations.")

Moreover, NRC already issued three rulemakings on tailings pile management since Section 84(a)(3) was l

enacted, including NRC's 1980 regulations and NRC rulemakings in l

1985 and 1987 to conform to EPA's general standards.

Furthermore,

~

l NRC's present regulations are a

re-promulgation of NRC's 1980 regulations, amended where necessary to achieve conformity with t

l l

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 assesament is currently-in progress.

L NRC states that its reasons for refraining from a rulemaking now are because of its preference for concentrating NRC-resources i

site-specific enforcement of EPA's basic standards at existing on i

sites-(see 52 Fed.

Reg.

43,555 (1987)),

and because EPA is considering changes in groundwater monitoring rules.

Moreover, I I..=.

• 1.

o f.

L 4; 4 P rulemaking is presently unreasonable because the depressed state of the uranium industry means that construction of new mills and significant production of new tallings piles is improbable so that an immediate rulemaking would be of doubtful value.

Furthermore, deferring a rulemaking will conserve NRC resources until EPA completes revisions for the SWDA rules to which NRC's rules must be comparable.

It also enables NRC to draw upon its experience with site-specific application of general requirements.

As such, NRC maintains that deferring a discretionary rulemaking under Sec-tion 84(a)(3) is reasonable, as NRC found that its combination of conformed regulations, policy and guidance, and license conditions p

can adequately meet the Section 84(a)(3) comparability mandate for the foreseeable future.

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

We are in general accord with NRC's position.

The NRC is complying on a

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

l progress

and, such being the case, there is-no reason for this court to intervene.

In the interim, NRC relies on combination of conformed regulations, policy and guidance, and license condi-tions at mill tailings sites.

Certainly this is not an instance l

where the agency has taken no action.

Mandamus would be 1

l premature.

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

Criteria against the challenges raised herein.

The NRC-program for managing uranium mill tailings achieves the same objectives as the EPA regulations. The petition for mandamus is also denied.

l

_10

---=----------U