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Kerr-McGee Nuclear Corp. v. NRC

Citation: 12 ELR 20433
No. Nos. 80-2043 et al., 673 F.2d 1124/17 ERC 1537/(10th Cir., 03/23/1982)

The Tenth Circuit upholds regulations promulgated by the Nuclear Regulatory Commission (NRC) pursuant to Title II of the Uranium Mill Tailings Radiation Control Act (UMTRCA) that establish technical and financial criteria governing the regulation of uranium mills and uranium mill tailings. Rejecting petitioners' argument that the NRC was without authority to promulgate its regulations until the Environmental Protection Agency (EPA) had issued its general radiological standards applicable to active mill sites under § 206 of the UMPRCA, the court rules that the NRC did not exceed its authority in acting before the EPA in light of (1) the Act's extensive grant of authority to the NRC, which extends beyond the implementation and enforcement of EPA's standards, (2) the NRC's assurance that it would revise the regulations, if necessary, to conform with the EPA general standards, (3) EPA's failure, to date, to issue its § 206 general radiological standards despite a statutory deadline of May 1980, and (4) the harm to the public interest that would result from postponing or avoiding the regulation of uranium mills and mill tailings. Turning to petitioners' contention that the regulations are invalid because the NRC failed to make a significant risk finding, as allegedly required by Industrial Union Department, ALF-CIO v. American Petroleum Institute, 10 ELR 20489, the court first notes that the language and legislative history of the UMTRCA suggest that Congress itself made a determination of significant risk. However, even if the Act is interpreted as requiring an agency determination of significant risk, the court concludes that the NRC met that requirement since it implicitly established a specific level of significant risk that was reasonable and made a valid determination that the risks posed by uncontrolled uranium mill tailings exceed that level of significant risk. Next, the court rules that the UMTRCA does not require the NRC to undertake a cost-benefit analysis, but merely to consider the economic feasibility of its regulations. It concludes that the NRC's feasibility determination was reasonable in that the agency carefully considered the costs of the regulations to the uranium milling industry and determined that the regulations would not threaten the industry's economic viability.The court adds that the NRC's failure to disclose 19 documents prior to the close of the comment period did not violate § 553 of the Administrative Procedure Act because the agency did disclose those materials in the final rulemaking record. Changes made to certain proposed regulations after the comment period did not violate § 553 since the changes were of such little importance that the proposed rules were sufficient to put petitioners on notice of the potential scope of the final rules. Finally, the court rejects the claim that the technical regulations are unduly stringent and arbitrary and capricious.

A dissent would invalidate the NRC's licensing regulations based upon the recent expression of congressional intent in the language and legislative history of the Energy and Water Development Appropriation Act of 1982 that the NRC's promulgation of the regulations in advance of EPA's issuance of its standards violated the UMTRCA.

[Pleadings in a lawsuit challening EPA's failure to issue general radiological regulations pursuant to § 206 of the UMTRCA are summarized at ELR PEND. LIT. 65707 — Ed.]

Counsel for Petitioners
Peter J. Nickles, Charles H. Montage
Covington & Burling
P.O. Box 7566, Washington DC 20044
(202) 662-6000

G. Stanley Crout, C. Mott Woolley
Bigbee, Stephenson, Carpenter, Crout & Olmsted
Bokum Bldg., P.O. Box 669, Santa Fe NM 87504
(505) 982-4611

Anthony J. Thompson, Edward A. McCabe, Charles E. Sliter, Robert W. Frantz, Robert F. Reklaitis
Hamel, Park, McCabe & Sanuders
888 16th St. NW, Washington DC 20006
(202) 835-8000

Counsel for Respondents
Sheldon L. Trubatch, E. Leo Slaggie, Patricia R. Davis; Leonard Bickwit Jr., General Counsel
Nuclear Regulatory Comm'n, 1717 H St. NW, Washington DC 20555
(202) 634-3288

Anthony C. Liotta, Edward J. Shawaker, Eleanor M. Granger
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2718

Doyle, J. joined by McWilliams and Barrett, JJ.