ELR Citation: ELR 20256
No(s). 88-2958 (10th Cir. Jul 31, 1990)

The court holds that the Department of Energy (DOE) properly refused to designate the Durita uranium mill tailings reprocessing site in Colorado as a "processing site" under the Uranium Mill Tailings Radiation Control Act (UMTRCA), a designation that would have required the federal and state governments to pay for the cleanup of the site. The court first holds that DOE's notice and comment procedures were adequate. The UMTRCA authorizes DOE to promulgate rules and hold public hearings when it designates processing sites. Moreover, the Administrative Procedure Act authorizes notice and comment proceedings in general. The court next holds that whether DOE conducted the notice and comment proceedings to bolster its litigation posture does not alter DOE's authority to conduct the procedures. The U.S. Supreme Court has ruled that when Congress delegated to agencies the power to promulgate rules on a statute, the choice of procedures is left to the agency. Thus, DOE's interpretation of the UMTRCA is entitled to deference, since Congress delegated to DOE the power to designate processing sites under the UMTRCA. The court next holds that DOE's interpretation that the radioactive waste at the site was not "residual radioactive material" within the meaning of UMTRCA §101(7) was based on an unreasonable interpretation of the statute and is incorrect. The statute implicitly assumes that tailings used to produce uranium, such as those at the Durita site, can still be designated as residual radioactive materials. However, the court holds that DOE reasonably determined that the radioactive waste at the site was not "derived from" a site where uranium was produced for sale to the federal government. Although tailings were taken from such a site to the Durita site, those tailings were reprocessed at the Durita site in a private, commercial venture. The UMTRCA was enacted to make safe uranium tailings produced to fill government, not private, contracts. The legislative history of the UMTRCA indicates that Congress intended to exclude sites with state licenses for the production of uranium effective on or after January 1, 1978, from the definition of processing sites.

Counsel for Plaintiff-Appellant
Joseph M. McMahon Jr., Elizabeth H. Temkin, Roger L. Freeman
Davis, Graham & Stubbs
370 17th St., Ste. 4700, P.O. Box 185, Denver CO 80201-0185
(303) 892-9400

Counsel for Defendants-Appellees
Donald A. Carr, Acting Ass't Attorney General; Dirk D. Snel, Jeffrey P. Kehne, David W. Zugschwerdt
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Michael J. Norton, Acting U.S. Attorney; J. Greg Whitehair, Ass't U.S. Attorney
1200 Federal Office Bldg., Drawer 3615, Denver CO 80294
(303) 844-2081

Duane Woodard, Attorney General; Charles B. Howe, Deputy Attorney General
Natural Resources Section, State of Colorado
1525 Sherman St., 3rd Fl., Denver CO 80203
(303) 866-3611

Before McKAY, MOORE, and ANDERSON, Circuit Judges.