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Quivira Mining Co. v. NRC

Citation: 19 ELR 20778
No. No. 85-2853, 866 F.2d 1246/29 ERC 1055/(10th Cir., 01/27/1989)

The court upholds regulations issued by the Nuclear Regulatory Commission (NRC) pursuant to the Uranium Mill Tailings Radiation Control Act (UMTRCA) that establish standards for the NRC to follow in licensing and relicensing uranium mills and tailings sites. The court first rules that the UMTRCA requires the NRC to perform a cost-benefit rationalization for these regulations. This analysis, the least strict of the two forms of cost-benefit analysis, requires NRC toconsider the regulation's costs and find that they bear a reasonable relationship to the benefits. The court holds that such an analysis has taken place. The court holds that this analysis has been performed for those criteria that are essentially identical to NRC's 1980 criteria, since the NRC conducted a cost-benefit rationalization before issuing the 1980 criteria. The NRC determined that the costs of its general regulatory approach in the 1980 criteria were reasonable in light of the benefits. A large portion of an NRC environmental impact statement that was used as the basis for the 1980 criteria was devoted to cost-benefit analysis. The court also holds that a cost-benefit analysis has been performed for the criteria that NRC revised in 1985. Although NRC performed no new cost-benefit studies in promulgating the revised criteria, NRC reasonably relied on the cost-benefit analysis performed by the Environmental Protection Agency when it issued its active site regulations.

The court holds that the NRC has adequately provided site-specific flexibility for individual licensing decisions as required by Atomic Energy Act § 84(c). The court holds that the portions of the 1985 criteria applicable to thorium tailings are adequately supported by cost-benefit analysis. The court holds that application of the 1985 criteria to thorium tailings absent a formal adjudication did not deprive a petitioner of due process. Although the criteria presently would apply only to petitioner's facility, they are written in general terms and potentially affect many people, and thus were properly promulgated under the Administrative Procedure Act's rulemaking procedures. The rulemaking procedure accorded petitioner due process. The court holds that the financial criteria are consistent with the UMTRCA. The criterion that allows for a variety of surety mechanisms to ensure the decontamination, decommissioning, and reclamation of tailings sites but rejects bare self-insurance is not arbitrary and capricious. The criterion that establishes a minimum charge to cover the costs of long-term surveillance of each tailings site is a reasonable interpretation of the UMTRCA. The statute does not require the NRC to determine that each site requires such monitoring before imposing any cost.

Counsel for Petitioners
Richard A. Meserve
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20006
(202) 662-6000

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

Peter R. Steenland, J. Carol Williams
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2748

Before LOGAN, McWILLIAMS, and TACHA, Circuit Judges.