ELR Citation: ELR 21076
No(s). 88-1001 (10th Cir. Apr 25, 1990)

The court upholds the Nuclear Regulatory Commission's (NRC's) 1987 amendments to its regulations modifying requirements governing the licensing of uranium mills and the disposition of tailings. Environmental organizations sought judicial review of NRC's final regulations claiming that NRC failed to conform its regulations to Environmental Protection Agency (EPA) standards as required by statute. The court holds that NRC's construction of the Atomic Energy Act (AEA), which holds that certain provisions found in EPA's regulations were not promulgated under the AEA and thus NRC is not obligated to conform its regulations to them, is permissible and must be upheld because Congress has not directly addressed the precise question. An unusual degree of deference is due to NRC actions under the AEA, and NRC's decision to adopt alternative definitions and site specific compliance measures must be deferred to, absent a contrary indication by Congress. The court holds that the environmental organizations' petition seeking mandamus to direct NRC to promulgate rules and regulations that conform to the above mentioned EPA provisions is unwarranted, since NRC is currently complying on a reasonable schedule with its comparability duty and its comparability study is still in progress. Mandamus would be premature because NRC is not unlawfully withholding or delaying its conformance rulemaking.

Counsel for Petitioners
Robert E. Yuhnke
Environmental Defense Fund
1405 Arapahoe, Boulder CO 80302
(303) 440-4901

Counsel for Respondents
E. Neil Jensen, William H. Briggs Jr., E. Leo Slaggie
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.^*