ELR Citation: ELR 21054
No(s). s. 88-1040, -1041 (10th Cir. Apr 25, 1990)

The court upholds the Nuclear Regulatory Commission's (NRC's) 1987 amendments to its criteria for the operation of uranium mills and the disposal of tailings. The court holds that the NRC properly considered the costs and benefits of its 1987 amendments, enacted under the Uranium Mill Tailings Radiation Control Act (UMTRCA), when it conformed the amendments to the Environmental Protection Agency's (EPA's) UMTRCA regulations concerning public health and safety that had already assessed costs and benefits. Since Congress has not stated whether the NRC must independently assess the costs and benefits of its regulations and the NRC is required to conform to EPA's health and safety regulations, NRC's interpretation of the UMTRCA is permissible and avoids replicating EPA's properly conducted cost-benefit analysis. The court holds that EPA acted permissibly under the UMTRCA when it promulgated regulations that imposed the Agency's Resource Conservation and Recovery Act requirements on uranium mill tailings. The court also holds that NRC's UMTRCA "liner" regulation, which requires all new tailing impoundments to be lined to prevent waste migration, is not inflexibly arbitrary and capricious because it allows the licensee to propose alternatives and allows NRC to consider alternatives that will achieve an equivalent level of conformance. Finally, the court holds that the NRC complied with its statutory duties in requiring a liner and did not engage in illegal retroactive rulemaking. The UMTRCA requires the NRC to implement and enforce EPA's standards during the NRC's licensing activities from the time EPA promulgated the standards to when the NRC completes conformance rulemaking.

Counsel for Petitioners
Richard A. Meserve, Peter J. Nickles, Sonya D. Winner
Covington & Burling
1201 Pennsylavnia Ave. NW, P.O. Box 7566, Washington DC 20044
(202) 662-6000

Michael Yesley
Stephenson, Carpenter, Crout & Olmstead
Coronado Bldg., 141 E. Palace Ave., P.O. Box 669, Santa Fe NM 87504-0669
(505) 982-4611

Counsel for Respondent
William H. Briggs, Solicitor, E. Leo Slaggie, Deputy Solicitor
U.S. Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
(202) 492-7000

Before SEYMOUR and McWILLIAMS, Circuit Judges, and PHILLIPS, District Judge.^*