ELR Citation: ELR 20835
No(s). 86-1235 (10th Cir. Jan 27, 1989)

The court holds that Atomic Energy Act (AEA) §84(c) allows the Nuclear Regulatory Commission (NRC) to deviate from the Environmental Protection Agency's (EPA's) general standards for uranium and thorium mill tailings without EPA's concurrence when approving site-specific licenses where compliance with the EPA standards is not practicable. The Uranium Mill Tailings Radiation Control Act charges EPA to promulgate general standards for uranium and throium mill tailings at active sites, and charges NRC to comply with the EPA standards in licensing the sites. The court first holds that AEA §84(c) allows NRC to approve site-specific licenses that are less stringent than required by EPA standards where it is not practicable for the site to comply with the EPA standards. This is NRC's interpretation of AEA §84(c), which is entitled to deference, and it is reasonable based on the statutory language and structure. The court next holds that NRC is not required to obtain EPA concurrence before issuing a site-specific license. Previous litigation over the EPA standards did not address this issue, and although the EPA standards could only be challenged within 60 days of their promulgation, it is the NRC regulations, not the EPA standards, that are reviewed here.

Counsel for Petitioners
Melinda Kassen, Robert E. Yuhnke
Environmental Defense Fund, Inc.
1405 Arapahoe Ave., Boulder CO 80203
(303) 440-4901

Counsel for Respondents
E. Neil Jensen
U.S. Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
(202) 492-7000

Before LOGAN, McWILLIAMS, and TACHA, Circuit Judges.