ELR Citation: ELR 21084
No(s). s. 87-1254, 88-1636 (D.C. Cir. Apr 17, 1990)

The court holds that the Nuclear Regulatory Commission's (NRC's) interpretation of the definition of "byproduct material" in Atomic Energy Act (AEA) §11(e)(2) frustrates the purposes of the Uranium Mill Tailings Radiation Control Act (UMTRCA) and is impermissible. In 1987, Illinois and the NRC agreed that jurisdiction over source material within Illinois would be retained by the state, and the NRC would retain jurisdiction over byproduct material. However, when the NRC published the agreement, NRC staff expressed the opinion that onsite material at a milling process facility was byproduct material under the NRC's jurisdiction, while the offsite material was source material under the state's jurisdiction, even though all the tailings had derived from the same ores and were physically identical. The court finds that the legislative history of AEA §11(e)(2) extended the NRC's regulatory authority over all wastes resulting from the extraction or concentration of source materials in the course of the nuclear fuel cycle. The NRC, by determining what waste materials will be subject to Title II's remedial regime based solely on the objective for which the ore is first processed, rather than on the ore's physical characteristics or relationship to the nuclear fuel cycle, recreates the regulatory gap that the UMTRCA was designed to eliminate. The court holds that although the statutory language is ambiguous, deference to the agency's interpretation would frustrate Congress' policies of bringing previously unregulated radioactive end products of the source material extraction process within the scope of NRC regulation and of providing a comprehensive remedial program for the safe stabilization and disposal of uranium and thorium mill tailings.

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

Counsel for Respondents
Steven F. Crockett, William C. Parler, E. Leo Slaggie
Nuclear Regulatory Commission
1717 H St., SW, Washington DC 20852
(202) 492-1820, -1743, -1600

Peter R. Steenland, Jacques B. Gelin, Angus E. Crane
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 517-2000

Before MIKVA, BUCKLEY, and D.H. GINSBURG, Circuit Judges.