Environmental Defense Fund v. U.S. Nuclear Regulatory Com'n

• Decision Date: 27 January 1989
• Docket Number: No. 86-1235,86-1235
• Citation: 866 F.2d 1263
• Parties: , 19 Envtl. L. Rep. 20,835 ENVIRONMENTAL DEFENSE FUND, Southwest Research & Information Center, and Sierra Club, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1263

866 F.2d 1263

29 ERC 1071, 19 Envtl. L. Rep. 20,835

ENVIRONMENTAL DEFENSE FUND, Southwest Research & Information Center, and Sierra Club, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents.

No. 86-1235.

United States Court of Appeals Tenth Circuit.

Jan. 27, 1989.

Melinda Kassen, Staff Atty. (Robert E. Yuhnke, Senior Staff Atty., with her on the briefs), Environmental Defense Fund, Boulder, Colorado, for petitioners.

E. Neil Jensen (William H. Briggs, Jr., Sol., and E. Leo Slaggie, Deputy Sol., with him on the brief), U.S. Nuclear Regulatory Commission, Washington, D.C., for respondents.

Before LOGAN, McWILLIAMS and TACHA, Circuit Judges.

LOGAN, Circuit Judge.

Petitioners Environmental Defense Fund, Southwest Research & Information Center, and Sierra Club challenge the United States Nuclear Regulatory Commission's (NRC's) final order establishing criteria regulating mill tailings at licensed commercial uranium and thorium processing sites (active mill sites). See 50 Fed.Reg. 41,852 (1985) (codified at 10 C.F.R. pt. 40, app. A). The NRC established these criteria pursuant to Title II of the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), Pub.L. No. 95-604, 92 Stat. 3021 (codified as amended in scattered sections of 42 U.S.C.). ¹ Jurisdiction for review of final NRC orders in rulemaking proceedings lies exclusively in the United States Courts of Appeal. 42 U.S.C. Sec. 2239(b); 28 U.S.C. Sec. 2342(4).

The general issue in the instant case is how and whether the NRC, in managing active mill sites, may deviate from the Environmental Protection Agency (EPA) general standards. More specifically, petitioners argue that certain site-specific deviations, which the NRC claims it has authority to permit under Sec. 84(c) of the Atomic Energy Act (AEA), 42 U.S.C. Sec. 2114(c), are impermissible under UMTRCA and ineffective without the EPA's concurrence therein. ²

I

UMTRCA charges the EPA with the duty to promulgate general standards to protect the public health and the environment from both radiological and nonradiological hazards presented by uranium and thorium mill tailings at active sites. 42 U.S.C. Sec. 2022(b)(1); see American Mining Congress v. Thomas, 772 F.2d 640 (10th Cir.1985) (AMC II ) (upholding EPA active site regulations against several challenges), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 718 (1986); American Mining Congress v. Thomas, 772 F.2d 617 (10th Cir.1985) (AMC I ) (reviewing EPA inactive site regulations), cert. denied, 476 U.S. 1158, 106 S.Ct. 2275, 90 L.Ed.2d 718 (1986). UMTRCA assigns the duty to regulate mill tailings to the NRC. 42 U.S.C. Sec. 2114(a). As part of its regulatory duty under UMTRCA, the NRC must conform its regulations to the EPA's general standards, id. Sec. 2114(a)(2), and "[i]mplement[ ] and enforce[ ]" the EPA standards. Id. Sec. 2022(d). In seeking to carry out its statutory duties under UMTRCA, in 1985 the NRC promulgated regulations, in the form of an introduction and twelve criteria (NRC or 1985 criteria), which we uphold against cost-benefit and other challenges by industrial petitioners in a companion case entered this day, Quivira Mining Co. v. NRC, 866 F.2d 1246 (10th Cir.1989). For a description of the NRC criteria, see id., at 1252-1253.

UMTRCA directs the EPA to make its general standards "consistent with the standards required under subtitle C of the Solid Waste Disposal Act [SWDA], ... as amended, which are applicable to such hazards." 42 U.S.C. Sec. 2022(b)(2). ³ In following this directive, the EPA expressly incorporated portions of the SWDA regulations in its mill tailings standards. See 48 Fed.Reg. 45,927 (1985) (EPA general standards to protect groundwater, incorporating SWDA rules); 40 C.F.R. Sec. 192.32(a)(2).

Because UMTRCA vests licensing authority over uranium mill tailing disposal sites in the NRC and requires the NRC to conform to the EPA standards, this incorporation of SWDA regulations into the EPA's general standards governing mill tailings generally allows the NRC to perform certain licensing functions otherwise performed by the EPA under the SWDA regulations. The EPA regulation, however, purports to limit the NRC's power as follows: any NRC attempt to grant an exemption of a hazardous constituent for an individual licensed site or to establish an alternate concentration limit for a hazardous constituent at such a site "shall not be effective until the EPA has concurred therein." Id. Sec. 192.32(a)(2)(v). ⁴

When it promulgated its 1985 criteria, the NRC rejected any concurrence role by the EPA in the application of those criteria. This rejection was both specific, in that the NRC claimed not to be bound by the precise terms of 40 C.F.R. Sec. 192.32(a)(2)(v), and general, in that the NRC expressly denied the duty to submit any site-specific license approval that deviated from the EPA's general standards to the EPA for its concurrence. Thus, the NRC final rule states:

"Consistent with that authority and in accordance with section 84c. of that Act, the [Nuclear Regulatory] Commission has the discretion to review and approve site specific alternatives to standards promulgated by the Commission and by the Administrator of the Environmental Protection Agency. In the exercise of this authority, section 84c does not require the Commission to obtain the concurrence of the Administrator in any site specific alternative which satisfies Commission requirements for the level of protection for public health, safety, and the environment from radiological and nonradiological hazards at uranium mill tailings sites. As an example, the Commission need not seek concurrence of the Administrator in case-by-case determinations of alternative concentration limits and delisting of hazardous constituents for specific sites."

NRC Final Rule, Uranium Mill Tailings Regulations, 50 Fed.Reg. 41,852, 41,861 (1985); see also id. at 41,853-55.

Two issues are presented in this case. First, does the NRC have the power to issue a license that does not comply with every aspect of the EPA's general standards? Second, if the NRC does have such power, is EPA concurrence required to validate any such license granted by the NRC?

II

Our standard of review, as we hold today in Quivira Mining, is that set out in the Administrative Procedure Act (APA), 5 U.S.C. Secs. 701-06. The APA allows the notice and comment rulemaking at issue here to be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. Sec. 706(2)(A). In this case, we must decide whether the NRC's interpretation of UMTRCA satisfies this standard. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court set forth the proper analysis to determine whether an administrative regulation permissibly construes the statute the agency is charged with enforcing:

"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 matter; 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 issue, the court does not simply impose its own construction 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 construction of the statute."

Id. at 842-43, 104 S.Ct. at 2781 (footnotes omitted).

III

The debate over the NRC's power to approve a site-specific license not in strict compliance with the EPA's general standards focuses on Sec. 84(c) of the AEA, 42 U.S.C. Sec. 2114(c). This section, which was added as Sec. 20 of the 1982 NRC Authorization, Pub.L. No. 97-415, 96 Stat.2067, 2079 (1983), provides:

"In the case of sites at which ores are processed primarily for their source material content or which are used for the disposal of byproduct material as defined in section 2014(e)(2) of this title, a licensee may propose alternatives to specific requirements adopted and enforced by the Commission under this chapter. Such alternative proposals may take into account local or regional conditions, including geology, topography, hydrology and meteorology. The Commission may treat such alternatives as satisfying Commission requirements if the Commission determines that such alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of protection for public health, safety, and the environment from radiological and nonradiological hazards associated with such sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the Environmental Protection Agency in accordance with section 2022 of this title."

Petitioners focus on the language that "a licensee may propose alternatives to specific requirements adopted and enforced by the Commission," and that the "Commission may treat such alternatives as satisfying Commission requirements." (emphasis added). Petitioners assert that this language means that a licensee's alternatives are limited solely to alternatives to the NRC regulations, that is, that Congress did not intend the NRC to be able to approve alternatives inconsistent with the EPA's general standards.

In making this argument, petitioners rely on other sections of UMTRCA, the history of regulation of radioactive material generally, and the legislative history of AEA Sec. 84(c). First, petitioners point to the history of...