12 ELR 20433 | Environmental Law Reporter | copyright © 1982 | All rights reserved

Kerr-McGee Nuclear Corp. v. Nuclear Regulatory Commission

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.

[12 ELR 20433]

Doyle, J.:

I. Background Statement

This is a petition brought by Kerr-McGee, the American Mining Congress, Energy Fuels Nuclear, Inc., Phillips Uranium Corporation, United Nuclear Corporation, and Western Nuclear, Inc., seeking review of regulations of the Nuclear Regulatory Commission (NRC) which were promulgated to implement the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978, Pub. L. No. 95-604, 92 Stat. 3021 (1978). The review of sought pursuant to 28 U.S.C. §§ 2342(4), 2349(a) and 42 U.S.C. § 5871(g). The regulations which are challenged establish standards governing the licensing and relicensing of uranium mills and uranium mill tailings. These are reported in 45 Fed. Reg. 65521-38 (October 3, 1980).

Kerr-McGee is the main litigant in this appeal. They have a uranium mill located in the Grants mineral belt area in New Mexico. Western Nuclear owns and operates uranium mills near Jeffrey City, Wyoming and Wellpinit, Washington. United Nuclear owns and operates a uranium mill at Church Rock, New Mexico, and is a partner in the United Nuclear/Homestake Partners mill in the Grants mineral belt. Consolidated with the petition of the above three uranium producing companies is the petition of the American Mining Congress, Energy Fuels Nuclear, Inc. and Phillips Uranium Corp. The Mining Congress is a trade association [12 ELR 20434] that represents substantially all of the domestic uranium producers including Energy Fuels Nuclear and Phillips Uranium.

The matter was previously submitted to this court in an effort on the part of petitioners to stay the NRC's regulations until the Environmental Protection Agency (EPA) promulgated its general standards for protecting the public health and safety from uranium mill tailings. They contended that they were not given an opportunity to comment on certain technical documents in the record. The motion for a stay was denied June 19, 1981, but the same challenges which were made in connection with the effort to secure the stay are repeated here.

The regulations involve uranium mill tailings, a residual product in theproduction of uranium for the eventual generation of electric power. The ore containing uranium is first ground to a sand-like consistency, then it is leached with acid. From this step a liquid with uranium in suspension is separated from the sand-like material. The uranium oxide, U[3]O[8], is precipitated from the solution. The liquid is removed from the uranium oxide; that which remains is the residue which is called "yellowcake." This process extracts over ninety percent of the uranium from the ore. The sands that remain, separate from the yellowacke, are the tailings. These tailings contain small amounts of uranium and other radionuclides in the uranium-238 decay series. The tailings are usually piped in a slurry to a tailings pond for storage. The tailings, as well as the entire process, release only low-level radiation. The chief source of radioactive emissions from the tailings is radon gas, an inert gas released to the atmosphere. Radon is a naturally occurring element, emitted continuouslh from such sources as rocks, water, soil and common building materials. Radon is produced through the radioactive decay of thorium-230 in the tailings. A constant supply of thorium, and therefore radon, is present in these tailings because thorium has a half-life of eighty thousand years.

Following the enactment of the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., the Atomic Energy Commission (AEC) took charge of the regulation and licensing of the use, possession and transfer of source material, byproduct material and special nuclear material (which includes plutonium and enriched uranium, but excludes source material; 42 U.S.C. § 2014(aa)). The AEC was abolished in 1974. The Nuclear Regulatory Commission (NRC), and the Administrator of the Energy Research and Development Administration (ERDA) took on all of the functions of the AEC that are of any relevance to the case before this court. Pub. L. No. 93-438, 88 Stat. 1233 (1974). When the Department of Energy (DOE) was created in 1977, the Secretary of Energy assumed the duties of the Administrator of ERDA. Pub. L. No. 95-91, 91 Stat. 565 (1977).

Under § 274 of the Atomic Energy Act, states desiring to enter into an agreement with the AEC may take over the federal authority to regulate certain nuclear activity, including uranium milling. Twenty-six states have signed such agreements.

The sole authority that the AEC and later the NRC had over uranium mill tailings (prior to 1978) was through the source material licensing of the mills. The tailings did not fall into one of the three categories of radioactive material. Therefore, when the tailings were removed from the licensed mill, or when the mill license was terminated, the agency lost control over the uranium tailings. Tailings piles which continued to grow because of active milling (active sites) as well as abandoned piles (inactive sites) were thought to be harmless until a danger was discovered in Grand Junction, Colorado, from the use of tailings in building materials. These concentrates were found to sharply increase the possibility of adverse health effects in occupants of buildings. It was then that Congress authorized financial assistance to Colorado to limit exposure to the radon produced from these tailings. Pub. L. No. 92-314, §§ 201-04, 88 Stat. 226-27 (1972).

This 1972 appropriation marked a growing awareness by Congress and the appropriate agencies that comprehensive regulation of uranium mill tailings was necessary. In 1975 the Natural Resources Defense Council asked the NRC to prepare a generic environmental impact statement (GEIS) to evaluate the regulatory programs on uranium milling. The decision of the NRC to reevaluate its own regulation of tailings at NRC licensed active mills was undertaken. License conditions were added requiring mill operators to reduce wind dispersion of tailings and seepage of chemicals into groundwater. Also, licensees were required to reduce radon emissions by covering tailings with earth. This was to obviate long-term management of the piles. Since 1977 new mill licensees have been required to comply with NRC management and disposal programs based on objectives similar to those reflected in the regulations that are here being challenged.

The GEIS, which was undertaken at the request of the Natural Resources Defense Council, really provided the source for the regulations. Many studies of the various aspects of tailings dispersal were undertaken. The NRC used information collected by the DOE and the EPA on inactive sites. A program of field and laboratroy research was conducted. Much of the research was done in New Mexico, where several of petitioners' mills are located.

The National Academy of Sciences Committee on the Biological Effects of Ionizing Radiation (BEIR Committee) provided the support for NRC's position that there existed potential harm from radon gas. The Committee did not find direct experimental evidence that low-dose radiation, such as radon's emissions, does or does not cause cancer deaths. But radiation from radon was found to have the potential for causing cancer and genetic mutations. Experimental data has confirmed that high-dose radiation does induce cancer. The BEIR Committee then hypothesized that there is no low-dose threshold below which radiation exposure is harmless. The Committee used, and the NRC adopted, the linear non-threshold hypothesis for calculating deaths from low-dose radiation. Thus, an extrapolation was done where, if the deaths from certain levels of high-dose radiation are known, one can infer downward to estimate the number of deaths from certain levels of low-dose radiation. BEIR's view, which was adopted by the NRC, was that the basic premise on uranium mill tailings regulations should be that radiation must be reduced to a level that is as low as reasonably achievable (ALARA).

The NRC determined that wind will serve to disperse the radon emitted from tailings over the entire North American continent. In the GEIS, the estimate of increased deaths attributable to radon emanating from uncontrolled tailings is six thousand excess cancer deaths over the next one thousand years. The non-radiological hazard present is found to be to groundwater sources near tailings piles. The milling process releases toxic chemicals previously immobilized in the uranium ore.

A. The Regulations

Appendix A to 10 C.F.R., Part 40, 45 Fed. Reg. 65533-536 (1980) contains the regulations promulgated by NRC which are being challenged. The Appendix contains the technical and financial criteria that are the important aspects of the new regulatory control over uranium mill tailings. Under the regulations, all mill operators must submit to the Commission a program with their license renewal, or within nine months of the effective date of the regulations which complies with the criteria. A summary of the regulations are set forth below.¹

[12 ELR 20435]

B. The Contentions of the Petitioners

1. That the NRC, in promulgating the technical criteria usurped the authority vested in the EPA. The uranium companies point to § 206 of the UMTRCA, the division of authority specified in Reorganization Plan No. 3 of 1970 (establishing EPA, 42 U.S.C. § 4321), legislative history and the NRC's representations to Congress.

2. The NRC cannot validly or constitutionally impose these regulations without a finding that the requirements are necessary to address a significant risk. The Atomic Energy Act, 42 U.S.C. § 2201(b) does not allow the NRC to structure the elimination of all conceivable risk. Cf. Industrial Union Dept. v. American Petroleum Institute, 100 S. Ct. 2844 [10 ELR 20489] (1980). Only reasonable efforts need be made in the disposition of the tailings. The NRC was required to make a significant risk finding. Without this significant risk finding there is no intelligible principle to guide NRC's discretion.

3. The NRC has exceeded its statutory authority in requiring the companies to dispose of tailings so that no active maintenance is required to preserve the site after the mill is decommissioned. The sponsors of the legislation indicated that eliminating long-term maintenance was not an absolute requirement of the enabling legislation, 42 U.S.C. § 2201(x)(2)(A).

4. The NRC is charged with having denied access to and comment on nineteen reports used by the NRC as support for the regulations. Petitioners claim that this contravenes 5 U.S.C. § 553(c) in not "disclosing in detail . . . the data upon which [a] rule is based." Home Box Office v. FCC, 567 F.2d 9, 35 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977).

5. The technical criteria are arbitrary and capricious and therefore should be ruled invalid under 5 U.S.C. § 706(2)(A).

6. The costs that these regulations impose fail to bear a reasonable relationship to the risks they will avert. Congress did not intend to impose an economic burden that would close uranium mills. The only mention of costs by the NRC in their "Generic Environmental Impact Statement" prepared prior to promulgation of the regulations is in regard to the costs to attain seepage and groundwater protection and to achieve the 2pCi/m²/sec emission standard and the three-meter ground cover requirement. The cost of compliance was said to be reasonable.

7. NRC's regulations have been tailored to the physical setting of a hypothetical "model mill." This model mill differs significantly from mills presently in operation. Due to this variance, the standards set in many areas bear no relationship to what is practical. Congress expressed an intent in UMTRCA that the federal regulations recognize the distinction between existing and prospective facilities.

Numerous other complaints addressed to the technical criteria are made by the petitioners. In general these attack the 2pCi/m²/sec radiation standard as being unnecessary to protect health based on the NRC's and the Surgeon General's research. The three-meter ground cover requirement and the below-grade disposal restrictions are based on the false assumption that the government will not fulfill its mandate in 42 U.S.C. § 2113 to maintain tailing piles once reclamation is over. There is no evidence in the record why the NRC has forbidden the mill operators from using a thin synthetic layer to meet the 2pCi/m²/sec maximum radiation limit. Criterion 5, which bans the degradation of groundwater, is unreasonably based on a "model mill." The NRC failed to allow comment on this criterion when it published it in a final form that was more stringent than earlier proposals.

The petitioners attack Financial Criterion 9 and 10. Criterion 9 requires bonding to ensure that each licensee completes all decommissioning requirements on the mill tailings. The mill operators assert that NRC's refusal to allow self-insurance is arbitrary. Self-insurance is permitted by the NRC for operators of nuclear reactors. NRC relied on three studies in promulgating these regulations, and these studies recommend self-bonding. The bar on self-insurance is contrary to 42 U.S.C. § 2201(x) which requires the NRC to minimize the expense of surety arrangements. Criterion 10 requires every mill operator to pay $250,000 to the government, to cover the costs of long-term surveillance of the tailings. The enabling statute, 42 U.S.C. § 2201(x)(2), is said to be unconstitutional, because this requirement is no less than a tax which Congress is unable to delegate to the NRC to levy. Should this criterion be found to be constitutional it is ultra vires, because of the legislative history provision that a charge would be levied only after the NRC determined that a particular site required long-term maintenance.

II.Did The NRC Act Within Its Powers in Promulgating Regulations Having to Do with Uranium Mill Tailings at Active Sites Under the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), Pub. L. 95-604, 92 Stat. 3021, Prior to the Creation of General Radiation Standards by the Environmental Protection Agency?

The principal contention of petitioners is that the NRC's regulations are ultra vires in that they do not agree with either the language or the statutory history of the UMTRCA. Kerr-McGee and the others maintain that Congress intended that the EPA had the authority under § 206(a) of UMTRCA (adding § 275 to the Atomic Energy Act of 1954 [AEA], 42 U.S.C. § 2011, et seq., at § 2022) to promulgate the "standards of general application for the protection of the public health, safety and the environment from radiological and non-radiological hazards associated with [uranium mill tailings]. . . ." prior to the promulgation of the more specific NCR regulations controlling the licensing of uranium mill tailings.

But as of the beginning of 1982 the EPA has still not created such standards. Their mandate was to do so within eighteen months of enactment of the UMTRCA, that is, by May 8, 1980. So it is not surprising that NRC took the initiative since it was part of its mission.

The UMTRCA is divided into three titles. The first section governs remedial activities at inactive tailings sites, those mills and dump-sites where uranium mill tailings are presently exposed and are not connected with active uranium ore processing operations. Title III merely provides for a study of two New Mexico tailings sites. Title II is the part which is here under attack, and in order to ascertain whether there is merit to this challenge, it is necessary to examine Title II in some detail.

A. Relevant Sections of Title II of the UMTRCA

1. Section 202, Ownership and Custody of Certain Byproduct Material and Disposal Sites (adds § 83 to AEA, 42 U.S.C. § 2113)

This section requres that any license involving byproduct material that is issued or renewed by the NRC shall contain the terms the NRC provides to assure that prior to termination of the license, the licensee will comply with the decontamination, decommissioning and reclamation standards set by the Commission to deal with uranium mill tailings sites. This requirement then is a way of integrating the usual licensing function of the NRC with Congress's concern that when a mill site is abandoned, the tailings are neutralized in order to avoid the hazardous emission of radiation from radon gas. The nature of licensing requires the site-specific examination of each proposed mill. The National Environmental [12 ELR 20436] [Policy] Act requires the NRC to provide an EIS or environmental assessment prior to licensing, since that activity is "major federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332.

2. Section 203 — Authority to Establish Certain Requirements (adds subsection 161(x) to AEA, 42 U.S.C. § 2201)

The NRC may, by rule, regulation or order issue standards to insure an adequate bond is provided before terminating a byproduct license. Such a bond will ensure the completion of requirements established by NRC for decontamination, decommissioning and reclamation of uranium mill tailings sites, structures and equipment. This surety requirement will also ensure that, to the maximum extent practicable, long-term maintenance and monitoring of these sites is to avoided once the license has terminated.

The House Report contains comments which indicate that the Committee on Interstate and Foreign Commerce envisioned the NRC regulating the disposal of tailings, so that when a license was terminated, reclamation and stabilization would already be implemented and long-term maintenance avoided. The Committee indicated that in issuing these surety rules the adjudicatory provisions of the APA need not apply. See H.R. REP. NO. 1480, 95th Cong., 2d Sess. 44, reprinted in [1978] U.S. CODE CONG. & AD. NEWS 7471.

3. Section 205, Authorities of the Commission Respecting Certain Byproduct Material (adds § 84 to the AEA, 42 U.S.C. § 2114)

Here the NRC is given authority to regulate uranium mill tailings under a sweeping mandate so that the management of byproduct materials is carried out as "the Commission deems appropriate to protect the public health and safety and the environment from radiological and non-radiological hazards associated with the processing and with the possession and transfer of such material." 42 U.S.C. § 2114(a)(1). The Commission's management of uranium mill tailings must conform with the general standards promulgated by the EPA under § 206 of the Act. This requirement of conformity is one the bulwarks of the petitioner's argument as will be made apparent.

The Committee's comment[s] on § 205 are not extensive. They do clarify that the term "management" refers to the NRC's obligation to regulate the permanent federal custody of uranium mill tailings disposal sites. [1978] U.S. CODE CONG. & AD. NEWS at 7442.

4. Section 206 — Authority of EPA Over Certain Byproduct Material (adds § 275 to the AEA, 42 U.S.C. § 2022)

Subsection (b)(1) requires that within eighteen months of enactment, that is to say after November 8, 1978, the administrator of EPA shall issue "standards of general application for the protection of the public health, safety and the environment from radiological and non-radiological hazards associated with the processing . . . [of uranium mill tailings at active sites]." The implementation and enforcement of this mandate shall be the responsibility of the NRC in conjunction with its licensing activities under this Act.

The commentary in the House Report on § 206 indicates that EPA's standards are not to be site-specific. The regulations of the NRC under attack, 45 Fed. Reg. 65521 (1980), are industry-wide standards. Apparently these standards will be incorporated into individual licenses unless site-specific demands dictate their modification. Id. at 65523, 65524.

The NRC noted in the final rules the criticism of its promulgation of uranium mill tailings standards before the EPA had acted. The Commission gave its assurance that it would see to it that its standards were compatible with the general standards § 206 of the Act required from EPA. When EPA issues its regulations, NRC will revise their standards as necessary

B. Argument of the Parties

1. Position of Petitioners

In support of its contention that NRC has usurped EPA's obligation to promulgate general radiological standards, Kerr-McGee relies on the language of 42 U.S.C. § 2022(d), § 206(d) of UMTRCA. This subsection declares that NRC implement and enforce EPA standards during the licensing of byproducts materials; it is said that this is inconsistent with NRC's present actions and with Reorganization Plan No. 3 of 1970, 5 U.S.C. Appendix II (1976). President Nixon at § 2(6) of the Reorganization Plan transferred to the EPA the Atomic Energy Commission's function of establishing generally applicable environmental standards for the protection of the general environment from radiological material. Standards in this context means limits in radiation exposure or levels in the general environment outside the boundary of locations under control of persons possessing or using radioactive materials.

Kerr-McGee relies on several of the technical criteria promulgated by the NRC as exemplifying the general standards that were intended to be within EPA's purview. For example, Criterion 5 which requires that groundwater in the area of a tailings pile suffer no deferioration in quality; and Criterion 6 which sets a firm radon emanation limit for all tailings piles of two picocurie per meter square per second.

Some points are added by the American Mining Congress (AMC). It also argues against the NRC's regulations, and asks what other conclusion can be drawn from the structure of § 205(a)(2) and § 206 of the Act, except that Congress intended EPA to issue their general radiological regulations prior to NRC's mandate to tailor site-specific tailings standards for individual licensees. They say that NRC is not authorized to manage byproduct material in its own discretion — that it is constrained by the requirements that such management must conform to the general standards § 206 authorizes the EPA to issue. In view of this, AMC asks how can the NRC proceed before the EPA has acted?

The AMC points out that § 204(e) and (h) of the Act were amended by the Surface Transportation Assistance Act of 1978, Pub. L. No. 96-106, § 22, 93 Stat. 796. This amendment made clear that NRC had no authority over byproduct material licensees in Agreement States until November 8, 1981. Under § 204(e) Agreement States are required to promulgate standards "which are equivalent, to the extent practicable, or more stringent than, standards . . . [of the NRC and EPA on uranium mill tailings]." The AMC asserts that if by November 8, 1981, NRC had not issued any standards because of EPA's delay, then Agreement States that were in accord with NRC's requirements prior to the UMTRCA would remain in compliance. All this is a lot of to-do about nothing. The important thing is to protect against damage resulting from failure to maintain high standards in the management of the tailings. It is noteworthy that EPA is not complaining.

Another argument made by the AMC is that the Memorandum of Understanding between the EPA and the AEC (now the NRC) in 1973, stemming from the 1970 Reorganization Plan, puts a gloss on the UMTRCA consistent with its position.38 Fed. Reg. 24936 (1973). AEC agreed that it would retain responsibility for implementing and enforcing radiation standards through its licensing authority. The AEC assured the EPA it would "take appropriate action to assure that AEC-licensed facilities are operated in such a manner that routine radioactive discharge therefrom does not exceed generally applicable environments standards established by EPA, outside the site boundary for the protection of the general environment from radioactive materials." Id. The historical relationship between the AEC (now the NRC) and EPA is said to be a licensing role for the Commission while the Administrator promulgates generalized standards. The agreement that is referred to does not appear to support the contention that the NRC role should necessarily be one of licensing or opposed to the promulgation of standards.

Also pointed out by the AMC is the House Report in connection with the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 101, 91 Stat. 685 (1977). There is a commentary in the report from the Committee on Interstate and Foreign Commerce on the roles of the NRC and EPA in regulating excessive radiation. The Committee concluded that the primary function of the Nuclear Regulatory Commission is to license nuclear plant siting and construction. It went on to say that environmental concerns, though important, are of secondary concern. H.R. REP. NO. 95-294, 95th Cong., 1st Sess. 42, reprinted in [1977] U.S. CODE CONG. & AD. NEWS, at 1120. However, the petitioners fail to mention that on the same page of the House Report an excerpt out of a letter from [12 ELR 20437] the NRC's general counsel outlined the shared responsibility between NRC and EPA. The letter acknowledged EPA's right under Reorganization Plan No. 3 of 1970 to promulgate general environmental standards on radioactive material. The general counsel asserted that "with respect to the particular sources of radiation, NRC has responsibility for prescribing limitations on discharges of AEA-regulated substances, . . . ." Id. Thus, it would seem that the NRC's regulation of tailings, especially the radon emanation limit, is consistent with what the NRC's general counsel believed to be the Commission's functions.

2. The NRC's Arguments

It is the contention of the Commission that its authority to deal with the problems of uranium mill tailings is greater than merely implementing and enforcing EPA regulations promulgated under § 206 of the Act, 42 U.S.C. § 2022. Section 202 of the Act, 42 U.S.C. § 2113(a), requires that licensees comply with the decontamination, decommissioning and reclamation standards set by the NRC. The regulations here at issue encompass all those standards. Moreover, § 205(a) of the Act, 42 U.S.C. § 2114, gives the NRC the power to manage the tailings to protect the public's health and the environment. The technical and financial criteria in Appendix A to 10 C.F.R. Part 40 meet this Congressional mandate by controlling radon emanations, groundwater standards and minimizing the long-term maintenance and monitoring of tailings piles.

The NRC points to the different treatment the Department of Energy (DOE) received in Title I of the UMTRCA. Section 108(a) of the Act, 42 U.S.C. § 7918, authorizes the DOE to perform remedial action at inactive tailings sites in conformity with standards set by EPA under § 206 of the Act. Congress cautioned the DOE that "no such remedial action may be undertaken under this section before the promulgation by the Administrator of such standards." Section 108(a)(2). This language does not appear anywhere in Title II warning the NRC to await EPA action.

NRC relies on the amended deadline for standards to be issued by Agreement States in Pub. L. No. 96-106 in support of its contention that Congress did not intend the NRC await the EPA. By this amendment Congress intended that all active sites — those licensed by Agreement States and by NRC — be regulated by November 8, 1981. Thus, action by NRC was urgent in order to deal with the tailings at active sites that continued to grow. Congress wished to prevent the sort of costly remedial cleanup necessary to treat inactive sites. H.R. REP. NO. 95-1480, Part I, 95th Cong., 2d Sess. at 12, reprinted in [1978] U.S. CODE CONG. & AD. NEWS, 7435.

The NRC contends that it has other support from House Report 95-1480 on the propriety of its action. The Committee on Interior and Insular Affairs in this House Report intended the NRC to be the "lead agency in regulation, oversight and management of uranium mill tailings-related activities." Id. at 15. The NRC, in promulgating requirements and regulations for licensing, is to set all standards for the management of tailings, and tailor the "specific technology, engineering methods and procedures to achieve desired levels of control for limiting exposure [to radon] . . . ." Id. at 16. The EPA in this task would avoid both "site-specific requirements for management, technology or engineering methods on licensees . . ." and duplication of NRC requirements for permits or licenses for activities concerning uranium mill tailings.Id. at 17. This certainly appears to support NRC's position; it discloses the Committee viewpoint as to the activities of the two agencies.

NRC's position is supported by Amici Curiae National Wildlife Federation, the Southwest Research and Information Center and the State of New Mexico. First, Congress knew all along what a head start the NRC had on the EPA in devising mill tailings regulations. The House Report contains the acknowledgment that the NRC would have its generic environmental impact statement and proposed regulations completed in 1978. Therefore, the proposed standards would be issued even prior to timely action by the EPA. The NRC's proposed rules were published August 24, 1979, 44 Fed. Reg. 50015, before the amendment to the UMTRCA, Pub. L. No. 96-106, but Congress did not comment on NRC's pace. Secondly, if the NRC had awaited the EPA and no regulations were enacted prior to November 8, 1981, then NRC would not have complied with the dictate of § 205 of the Act, 42 U.S.C. § 2114, that the Commission ensure that management of tailings is carried out to protect the public and the environment.

C. EPA Regulation of Inactive Sites

The EPA in complying with the dictates of § 206 of the Act has acted with greater alacrity in issuing proposed rules to deal with inactive sites (§ 206(a) mandates that the EPA promulgate standards to clean up tailings at inactive uranium mills) than they have shown in addressing standards for operating mills. At 45 Fed. Reg. 27366-375 (1980) are the proposed rules to deal with open land and buildings contaminated with residual radioactivity. At 46 Fed. Reg. 2556, et seq. (1981), are the proposed disposal regulations. It is interesting to note that the EPA has chosen a path for their general standards at inactive sites of striking similarity to the NRC's approach in promulgating the disputed activesite regulations. The EPA's disposal regulations set limits on radon release and water contamination. Disposal methods must ensure that these limits will be met for the next one thousand years. EPA chose the same hypothesis on the harmfulness of low-dose radiation as the NRC — the linear non-threshold model. The radon emanation limit chosen was the two picocurie standard NRC has adopted. Water quality standards set weight per volume limits on inert non-radiological chemicals present in groundwater, as well as radium and uranium levels. It is clearly possible that when EPA issues their active site regulations they will be similar to NRC's rules, and to their own inactive site regulations. However, a look at the petitioners' argument and the legislative history is still necessary to answer the legal question of NRC's authority under UMTRCA to act prior to EPA. U.S.C. § 706(2)(c) (1976).

D. Legislative History of the Uranium Mill Tailings Radiation Control Act of 1978

The background of H.R. 13650, which became the UMTRCA of 1978, stemmed from Congress' initial concern with cleaning up the inactive uranium mill tailings sites throughout the western United States. The Carter Administration proposal was H.R. 12535. Another bill which also was concerned with the clean-up of inactive uranium mill tailings sites was H.R. 13382, which was introduced in 1978. This sought to govern the regulation of active uranium mill tailings sites. Three other bills similar to H.R. 12535 were introduced. These were H.R. 11678, H.R. 10229 and H.R. 12938. The bill eventually passed, H.R. 13650, was submitted by Chairman Udall of the Committee on Interior and Insular Affairs. H.R. 13650 combined many of the provisions of H.R. 12535 and H.R. 13382. All of these measures were referred to the Committee on Interstate and Foreign Commerce and the Committee on Interior and Insular Affairs.

Congress was aware in 1978 that the EPA had not taken any action regarding issuing proposed rules to deal with uranium mill tailings. Chairman Hendrie of the NRC testified that EPA has had the authority to create regulations on tailings since the passage of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq. (amending the Solid Waste Disposal Act of 1965, Pub. L. No. 89-272, 79 Stat. 997), but had not done so. The Chairman of the Energy and Power Subcommittee urged the NRC to immediately submit a bill to deal with active sites. H.R. REP. NO. 1480, 95th Cong., 2d Sess. 29 (1978). If Congress wished to act quickly and knew of EPA's pace in the matter, why would they have the NRC awaiting EPA action?

An EPA official sent Chairman Udall a letter regading H.R. 12535 supporting the bill and promising that EPA would issue regulations within 180 days of enactment and then NRC would be responsible for enforcement. The letter went on to say that NRC's charge in the proposed legislation may require some broadening to permit them to prepare regulations pursuant to their enforcement responsibility. Hearings on H.R. 13382, 12938 and 12535 before the Subcommittee on Energy and Environment of the Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. 441 (1978).

In a Senate debate speech by Senator Domenici, one of the sponsors of the Senate version of the UMTRCA, Congress was made aware that the EPA testified before the Nuclear Regulatory Subcommittee that it would not be prepared to issue regulations [12 ELR 20438] governing the disposal of mill tailings for several years and possibly not before 1984. 124 CONG. REC. 29776 (1978). Nevertheless Congress in § 206 of the Act directed the EPA to promulgate active site standards within eighteen months of enactment. It is difficult to understand how the NRC could be expected to wait for the EPA before dealing with the tailings issue. To have done so would have been at odds with its affirmative duty. Senator Domenici went on to state that under the Act "the NRC would be given the authority to set detailed requirements for the disposal of mill tailings, including specific management requirements and licensing disposal sites . . . [however] if NRC requirements already provide sufficient protection for the control of mill tailings, EPA need not duplicate that effort in setting its standards and criteria. . . ." Id. The latter part of this quote gives a temporal sequence to NRC and EPA rulemaking — if EPA is not to duplicate NRC actions, they must be expected to promulgate standards after NRC has acted.

During this same Senate debate Senator McClure commented on the amendments to Senate Bill S. 2584, which conformed in all pertinent respects with H.R. 13650. He noted:

. . . The overlap between the potential for regulation under the NRC and the mandate of EPA . . . There needs to be some definition of the overlap authority lest we end up in duplicative regulatory procedures. We do not want to see NRC out there doing exactly what EPA is required to do and is doing. We do, however, want to make certain that NRC has the authority to do what needs to be done.I think that the effort that is underway now in this amendment — to say to NRC, you have the authority to look at the mill tailings, to establish what has to be done, that EPA will set the general standards and NRC will take specific measures and recommend specific measures — can be extended as the Hart-Domenici amendment proposes to do. . . .

Id. at 29777.

E. The Action of Congress Subsequent to the Promulgation of the NRC's Final Rules, 45 Fed. Reg. 65251 (1980)

On December 4, 1981, the President approved Pub. L. 97-88, the Energy and Water Development Appropriation Act of 1982 (H.R. 4144). This law forbids the NRC from using any of its 1982 appropriation to implement the uranium mill tailings regulations published at 45 Fed. Reg. 65521 (1980).

The Senate Report accompanying this appropriations act together with the debate of both Houses contains a criticism of the regulations issued by the NRC. Congress made a clear statement that in their understanding of the UMTRCA, NRC was to await EPA. Congressman Stratton, who supported the move to curtail funds for NRC said, "Public Law 95-604 required the Nuclear Regulatory Commission to promulgate rules which would implement and enforce the EPA's final standards. There are no EPA final rules; and there should not be NRC rules." 127 CONG. REC. H4873 (daily ed. July 24, 1981). In the Senate, Senator Domenici, a co-sponsor of a bill similar to the UMTRCA, said that NRC's uranium mill licensing requirements are troublesome; "they were issued in advance of EPA standards . . . NRC erred in issuing standards and more detailed requirements in advance of EPA's standards. NRC's action is not only contrary to the statute, but also subjects agreement states and regulated industry to shifting and conflicting regulatory requirements." 127 CONG. REC. S12984 (daily ed. November 5, 1981). Other Senators expressed similar sentiments during the debate. The Senate Report on the appropriations bill agreed with the House that the NRC had acted hastily. No funds to implement NRC's tailings regulations were to be forthcoming until EPA promulgates its final environmental standards for uranium mill tailings at active uranium mill sites.S. REP. NO. 256, 97th Cong., 1st Sess. 154 (1981).

In evaluating these comments which were made subsequent the passage of the legislation, it is well to consider that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Price, 361 U.S. 304, 313 (1960). The Court has said that subsequent legislative history should rarely supersede a reasonable interpretation of a statute based on the plain language of the law and its prior legislative history. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980). Where there is a clear expression of legislative intent upon enactment, subsequent statements by individual members of Congress or its committees are not entitled to be given overriding significance. Southeastern Community College v. Davis, 442 U.S. 397, 411 n.11 (1979).

Because we adopt the view that the UMTRCA clearly expresses Congress' intent that the NRC act before the EPA and promulgate the type of industry-wide standards that are reflected in Appendix A, the appropriations bill and its legislative history add nothing to the court's understanding of the matter.

We are called upon to decide the case in accordance with the law in effect at the time. That law continues to be in effect and therefore is a justiciable issue. We feel bound to declare it in accordance with its terms. There is no contention that NRC did not pursue its duty in accordance with the statutes enacted by Congress. We fail to see any virtue in waiting.

III. Whether the Doctrine Which Is Referred to as Significant Risk Should Apply to the NRC Regulations

The petitioners maintain that uranium mill tailings do not pose a significant risk. They point to the Supreme Court's ruling in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 100 S. Ct. 2844 [10 ELR 20489] (1980), and argue that it should be applied to invalidate the NRC mill tailings regulations. But, as we view it, the Uranium Mill Tailings Radiation Control Act (UMTRCA) may be construed to avoid any requirement of a preliminary finding of significant risk. And even if such a finding were required, the NRC's measured evaluation of the hazardous effects created by uncontrolled tailings piles is undoubtedly adequate to establish the significance of the risk in question.

In Industrial Union Department, supra, the Supreme Court considered the validity of regulations which had been promulgated by OSHA to protect workers from the carcinogenic effects of benzene, a common industrial solvent. OSHA had reduced the level of permissible exposure to benzene from the former standard of ten parts per million (ppm) to one part per million. The action of OSHA was based not on studies indicating harmful effects between one and ten ppm, but on an agency carcinogen policy that such substances with no known safe levels should be subject to the lowest exposure levels that were economically feasible.

Five members of the Supreme Court voted to invalidate the benzene regulations. Four of them focused upon the absence of a finding that exposure to benzene at levels lower than the old 10 ppm standard posed a significant risk to employees.

Justice Stevens' plurality opinion which established the significant risk standard relied upon the language of the relevant statute, the Occupational Safety and Health Act. The opinion paid special attention to § 3(8) which broadly defined an occupational safety and health standard as a "standard which requires conditions . . . reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. § 652(8) (1976). The plurality opinion maintained that the statute's reference to safe workplaces did not mean workplaces totally free of risk. The opinion viewed the "reasonably necessary" language of the provision as placing an affirmative obligation on OSHA to make a threshold finding that a workplace threatened workers with a "significant risk of harm." 100 S. Ct. 2864. The opinion concluded that OSHA's carcinogen policy and its statement that benefits flowing from the new standard were "likely" to be "appreciable" could not serve as substitutes for a determination of significant risk. Id. at 2869-70.

A. Does the Significant Risk Doctrine Apply to UMTRCA?

The reasoning of the Supreme Court relied heavily on the language of the Occupational Safety and Health Act, and therefore, it would not necessarily apply to the Act in question. As a matter of fact, the subsequent cases in which significant risk has played a prominent part have all been concerned with OSHA regulations. See, e.g., Pratt & Whitney Aircraft, Division of United Technologies Corporation v. Secretary of Labor, 649 F.2d 96 (2d Cir. 1981); ASARCO, Inc. v. OSHA, 647 F.2d 1 (9th Cir. 1981); Texas Independent Ginners Association v. Marshall, 630 F.2d 398 [12 ELR 20439] (5th Cir. 1980). Commentators have recognized the limited statutory basis for the Industrial Union Department significant risk requirement, but have suggested that the decision may herald a trend toward narrower construction of all congressional delegations of power to administrative agencies. The Supreme Court 1979 Term, 94 HARV. L. REV. 242, 251 (1980).

It is possible that the intent of the Court was that the significant risk requirement might apply to non-OSHA cases. But the enabling statute which was being construed would have to contain language at least similar to the reasonable necessary or appropriate language found to mandate a determination of significant risk in Industrial Union Department. And even if the statute were to contain such language, the Supreme Court might choose not to infer a significant risk requirement, where there is a basis for distinguishing the Industrial Union Department case. As Justice Marshall said in his dissent, "reasonably necessary" language is routinely inserted in regulatory legislation, and is not interpreted generally as superseding more specific provisions delineating an agency's duties.² Moreover, Justice Rehnquist, who concurred in the judgment, agreed with the dissenters that Congress did not intend § 3(8) to limit OSHA's authority under other parts of the Act.³ So, five members of the Supreme Court actually disagreed with the plurality's interpretation of "reasonably necessary or appropriate" to require a determination of significant risk.⁴

Unlike the Occupational and Safety Act, UMTRCA emerged from specific Congressional concern about health risks associated with a particular substance, uranium mill tailings, 42 U.S.C. § 7901 (Supp. IV 1980). ("Congress finds that uranium mill tailings . . . may pose a potential and significant radiation health hazard to the public.") That positive expression of concern about a particular hazard is supplemented by express language in the statute and in the legislative history emphasizing that the hazard in question is real. See, id. ("[T]he protection of the public health, safety and welfare . . . require that every reasonable effort be made to provide for the stabilization, disposal and control in a safe and environmentally sound manner of such tailings in order to prevent or minimize radon diffusion . . . and . . . other environmental hazards . . . ."); H.R. REP. NO. 1480, Part 2, 95th Cong., 2d Sess. 34-35, reprinted in [1978] U.S. CODE CONG. & AD. NEWS 7450, 7461-62 ("uranium mill tailings pose a potential and significant radiation health hazard to the public"); H.R. REP. NO. 1480, Part 1, 95th Cong., 2d Sess. 11, reprinted in [1978] U.S. CODE CONG. & AD. NEWS 7433, 7433 [sic] ([T]he dangers which accompany [the mill tailings radioactive decay process] . . . will continue for a billion years. As a result of being, for all practical purposes, a perpetual hazard, uranium mill tailings present the major threat of the nuclear fuel cycle."); 124 CONG. REC. S18746-47 (October 13, 1978) (remarks of Senator Hansen) ("All of these bills reflect the basic judgment that the mill tailings located at sites now inactive do constitute a serious threat to the public health and safety that should be the subject of remedial action to stabilize the mill tailings in order to protect public health and safety and the environment"); 124 CONG. REC. S18748 (October 13, 1978) (remarks of Senator Randolph) ("[T]he hazardous wastes from uranium mills present a long-ignored threat to the health and safety of our citizens. Although these mill tailings are far less toxic than spent fuel or high-level waste, they persist for long periods of time"). These declarations appear tantamount to a Congressional determination of "significant risk" and thus may obviate the need for an equivalent determination by the NRC.

B. Are the NRC Findings Adequate with Respect to the Significant Risk Standard?

Even if UMTRCA were construed as requiring the relevant administrative agencies to establish significant risk, NRC's findings probably satisfy that requirement. The significant risk threshold requirement can rationally amount to no more than a de minimis burden on administrative agencies to show that risks to be regulated are non-trivial. See The Significant Risk Requirement in OSHA Regulation of Carcinogens: Industrial Union Department, AFL-CIO v. American Petroleum Institute, 3 STAN. L. REV. 551, 556-559, 566 (1981). The Industrial Union decision stemmed from the lack of quantification in OSHA's findings rather than from a judicial finding that existing evidence indicated that risks were trivial. The Significant Risk Requirement, supra, 33 STAN. L. REV. at 560. The court did not concern itself with what kind of evidence might be sufficient to establish significant risk. See 100 S. Ct. at 2855, 2858, 2866. Indeed, the plurality noted, "[w]e express no opinion on what factual findings this record might support . . . nor do we express any opinion on the more difficult question of what factual determinations would warrant a conclusion that significant risks are present which make promulgation of a new standard reasonably necessary or appropriate." 100 S. Ct. at 2872. Thus, the significant risk doctrine merely requires that "the risk from a substance . . . be quantified sufficiently to . . . characterize it as significant in an understandable way." 100 S. Ct. at 2866; The Significant Risk Requirement, 33 STAN. L. REV. at 560.

How is a risk characterized as significant?First, the agency establishes a specific level of risk of harm, for example, one in ten thousand, as being significant. See Industrial Union, 100 S. Ct. at 2871. Second, the agency assesses whether the risk posed by the conduct to be regulated exceeds that level. See Id. Regarding the first step, the Industrial Union opinions indicate that the Court would defer to the agency's determination of the level of risk which is significant, provided that level is reasonable. Id. at 2870-71, 2875; see 94 HARV. L. REV. at 247, at 33 STAN. L. REV. at 557. A plurality in Industrial Union agreed upon one in a thousand as a level of risk that can be found significant, and one in a billion as one that could not. 100 S. Ct. at 2871. With regard to the second step, the agency's finding that the threshold had been exceeded would presumably be subject to normal review under the "substantial evidence" or "arbitrary and capricious" standard. The Supreme Court, 1979 Term, supra, 94 HARV. L. REV. at 247.

In the instant case, NRC has attempted to ground its regulations on quantified predictions of risk.See, e.g., Final Generic Environmental Impact Statement (FGEIS) Table 12.5, at 12-22. The Commission estimated that radon releases from uncontrolled tailings piles would cause 5.4 additional cancer deaths in the United States each year between 1979 and 3000. FGEIS at 7. In addition, the Commission predicted that about two genetic defects a year would also result. FGEIS at 6-69, 6-72. Those risks average out to about one in fifty million for cancer and one in one hundred fifty million for genetic defects, based on an estimated population of 293 million. Id. See also, FGEIS Appendix G-8 at G-68. Such risks, considering the numbers only, seem small; for comparison, natural background radiation may pose a one in twenty thousand (50 in one million) level of risk of cancer. FGEIS at 12-14. Indeed, the fraction of lung cancer deaths that may be attributable to uncontrolled uranium mill tailings is only about 0.001%, and the fraction of similarly caused genetic defects is estimated to be only 0.002%. FGEIS at 6-68-6-69.

But other characteristics of both radioactive and nonradioactive hazards associated with uranium mill tailings make the risk far from trivial. First, the risk of radon-caused cancer is considerably higher if exposure to individuals living or working near tailings piles is considered. FGEIS at 5, 12-13, 12-15. For example, an individual living near a uranium mill for twenty years would face a one in 2,600 (380 in a million) chance of dying prematurely from cancer. FGEIS at 5. Persons living on or immediately adjacent to tailings piles would face much higher risks. FGEIS, Table 12.2 at 12-14. Second, uranium mill tailings also pose significant nonradiological health hazards. Seepage of heavy metals and toxic chemicals from tailings ponds into groundwater is the primary nonradiological hazard of concern. FGEIS Appendix E-3. Heavy metals are naturally present in uranium ore, and large quantities of toxic chemicals such as sulfuric acid are added to ore during the milling process.FGEIS at 5-5, E-15-E-16. In consequence, high concentrations of iron, manganese, sulfate, selenium, radium, thorium, lead and other toxic substances are commonly found in [12 ELR 20440] tailings ponds. Id. The Commission found that several of those elements tend to seep rapidly through subsoil, and that concentrations of such elements in nearby well water could grossly exceed EPA and Public Health Service maximum permissible levels. FGEIS at 6-9-6-10.

The findings by the Commission, as indicated above, are a satisfactory basis for determining that uncontrolled uranium mill tailings pose a "significant risk of harm." The Commission did not follow the two-step process described above, nor do the data the Commission relied upon necessarily compel the conclusion that mill tailings should fall under the strictest possible regulatory method. But "significant risk" is only a threshold de minimis burden on administrative agencies to offer some "understandable" proof of risk. See Industrial Union, 100 S. Ct. at 2866, supra.

Here the Commission first has impliedly fixed a level of risk it considers significant. That level, ranging somewhere between one in two thousand and one in one hundred fifty million, depending on the specific risk addressed, is appropriately left to the Commission's discretion so long as it is reasonable. The reasonableness of the significant level seems adequately substantiated here.

The Commission's second determination that the risks posed by uncontrolled uranium mill tailings exceed the "significant" level also seems valid under the arbitrary and capricious test. Petitioners contend that the Commission improperly inflated its estimates of risk by frequently using conservative data and assumptions in the face of substantial disagreement by experts. However, erring on the side of caution is much to be preferred to understating the risk, particularly in the face of scientific uncertainty. See The Significant Risk Requirement, supra, 33 STAN. L. REV. at 563-64 & n.66; The Supreme Court, 1979 Term, supra, 94 HARV. L. REV. at 249-50. Thus, the Commission's reliance on such moderately conservative models as the linear non-threshold radiation dose-response curve was proper. See 33 STAT. L. REV. at 553, n.11; 561, n.53; 94 HARV. L. REV. at 250, n.67. Mr. Justice Stevens, in his opinion in Industrial Union, noted that OSHA was "free to use conservative assumptions in interpreting the data . . . risking error on the side of over-protection rather than under-protection," as long as the assumptions were scientifically supportable. 100 S. Ct. at 2871.

From the foregoing, we conclude that petitioners' "significant risk" challenge to the uranium tailings regulations must be and the same is hereby rejected.

IV. Does the Atomic Energy Act, Generally, or UMTRCA, in Particular, Require Cost-Benefit Analysis to Balance the Benefits of the Proposed Uranium Mill Tailings Regulations Against Their Substantial Costs to the Industry?

It is contended by the petitioners that NRC did not undertake cost-benefit balancing and further, that any such analysis that was performed was deficient in under-estimating costs and over-estimating benefits.

At the threshold we must consider whether the Act requires cost-benefit balancing. If it does, petitioners are probably correct that NRC's analysis was not sufficient. If, on the other hand, NRC's argument that the statute requires only a "feasibility" analysis is accepted, NRC's data on costs is undoubtedly adequate to sustain the regulations.

A. The Statutory Basis for the Alleged Requirement of Cost Benefit Analysis

Petitioners derive their cost-benefit analysis argument from UMTRCA itself and from the broader Atomic Energy Act of which UMTRCA is a part. Section 2 of UMTRCA, 42 U.S.C. § 7901(a) provides that "every reasonable effort be made to provide for the stabilization, disposal and control in a safe and environmentally sound manner of [mill] tailings." Petitioners emphasized Congress' choice of the word "reasonable." They cite cases in which similar language was found to mandate cost-benefit analysis. See, e.g., H & H Tire Co. v. Department of Transportation, 471 F.2d 350, 356-57 (7th Cir. 1972); Aqua Slide 'N' Dive Corp. v. CPSC, 569 F.2d 831, 839-40 (5th Cir. 1978); D.D. Bean & Sons v. CPSC, 574 F.2d 643. 649 (1st Cir. 1978). See also American Textile Manufacturers Institute, Inc. v. Donovan, U.S. , 101 S. Ct. 2478, 2492 [11 ELR 20736] (1981) (language in Occupational Safety and Health Act requiring standards to be "reasonably necessary or appropriate to provide safe or healthful places of employment" "might be construed to contemplate some balancing of the costs and benefits of a standard;" requirement would not be superimposed, however, on separate toxic substances provision).

The Atomic Energy Act also contains some language suggesting balancing. 42 U.S.C. § 2013(d) provides, for example, that one purpose of the Atomic Energy Act is to "encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent . . . with the health and safety of the public . . . ." It is argued by Petitioner AMC that the language requires NRC to utilize cost-benefit analysis to balance the objective of promoting atomic energy against that of protecting the public health and safety.

But petitioners draw their strongest support for a cost-benefit analysis requirement from UMTRCA's legislative history. There several passages indicate that Congress intended the NRC to consider the costs of its regulations to existing uranium mills. The House Committee on Interstate and Foreign Commerce stated, for example:

The committee notes that many of the provisions of Title II of the act may make it difficult for existing licensees to comply with [sic] because of the financial impact or the time it will take to do so. The NRC should take such factors into account and provide a means to alleviate or mitigate those problems where appropriate while assuring that the purposes of this act are fully met. The committee believes and expects that these purposes should be met without causing mill closings and putting people out of work.

H.R. REP. No. 95-1480, Part 2, 95th Cong., 2d Sess., p. 44.

The House Committee on Interior and Insular Affairs also expressed itself on the question of NRC taking costs into account. It said:

It is also the desire of the Committee that the NRC . . ., in implementing new standards, . . . consider possible differences in applicability . . . to existing tailings disposal sites versus new sites. Specifications for tailings site selection and impoundment design, in particular, once implemented by a licensee, may be reversible only at great cost. In all cases such considerations must be weighed against the Committee's requirement in Section 161(X) . . . that the Commission regulate to the maximum extent practicable in such a way that disposal sites for tailings will be stabilized sufficiently . . . to preclude any necessity for long-term maintenance and monitoring.

H.R. REP. No. 95-1480, Part I, 95th Cong., 2d Sess., p. 16.

B. The NRC's Contention That Only Feasibility Analysis is Required

In response, NRC maintains that UMTRCA requires only that the NRC consider costs of the regulations to existing mills, to ensure that such mills will not be forced to close down. Even when it considers costs, the NRC maintains, it is to assign more weight to health and safety than to the economic burden on the industry. The NRC's position is, therefore, that it is required only to consider the economic feasibility of the regulations — a far less severe restraint on agency actions than a cost-benefit analysis requirement. See American Textile Manufactures Institute, Inc. v. Donovan, U.S. , 101 S. Ct. 2478, 2490-91, 2497 [11 ELR 20736] (1981) (feasibility analysis focuses upon agency's estimate of costs and on its determination that economic viability of industry would not be threatened).

Our conclusion is that NRC is correct.The Supreme Court has been inclined to require a fairly plain statement of Congressional intent before finding that the cost-benefit analysis is to be performed by a regulatory agency. American Textile Manufacturers, supra, at 2491. In American Textile Manufacturers, the Supreme Court recognized that "unreasonable risk" language has been found to mandate cost-benefit analysis. Nevertheless the Court concluded, reading a cost-benefit analysis requirement into the Occupational Safety and Health Act was inappropriate because [12 ELR 20441] the legislative history and certain specific provisions of that Act precluded such a requirement. 101 S. Ct. at 2491, n.30.

UMTRCA seems more analogous to OSHA — which was construed in American Textile Manufactures to require only feasibility analysis — that to other statutes on which a cost-benefit requirement was super-imposed. See Id. See also, The Supreme Court, 1979 Term, 94 HARV. L. REV. 242, 247-48, n.51. There is substantial evidence that the balancing of costs and benefits appurtenant to uranium mill tailings regulations was performed by Congress itself. Cf. American Textile Manufacturers, supra, at 2493-97.(Congress undertook its own cost-benefit analysis before enacting OSHA; "nowhere is there any indication that Congress contemplated a different balancing by [the agency]"). Congress found that "uranium mill tailings . . . may pose a potential and significant radiation health hazard to the public," 42 U.S.C. § 7901(a), and several portions of UMTRCA's legislative history suggest that Congress believed the benefits of strict tailings regulations would outweigh its costs. See, e.g., 124 CONG. REC. S18746-47 (October 13, 1978) (remarks of Senator Hansen) ("[a]ll of these bills reflect the basic judgment that the mill tailings do constitute a serious threat to public health and safety that should be the subject of remedial action to stabilize the mill tailings in order to protect public health and safety and the environment."). In addition, even the portions of the legislative history expressing concerns about costs contain language directing the NRC to, nevertheless, "assur[e] that the purposes of this Act are fully met." H.R. REP. No. 95-1480, Part 2, 95th Cong., 2d Sess., at 44. See also, Id., Part 1, at 16 ("In all cases such [cost] considerations must be weighed against the Committee's requirement in Section 161(X) . . . that the Commission regulate to the maximum extent practicable in such a way that disposal sites will be stabilized sufficiently . . . to preclude any necessity for long term maintenance and monitoring."). We think that the Commission's view of such language as ordering the implementation of regulations that are merely economically sustainable by the industry, rather than regulations that are cost-effective, is correct.

Other factors support the NRC's view that UMTRCA does not contain a requirement of cost-benefit analysis. The Atomic Energy Act provisions that petitioners claim require NRC to promote atomic energy were effectively nullified by the Energy Reorganization Act of 1974. That Act transferred to the NRC the former Atomic Energy Commission's licensing and regulatory functions, but not its promotion and development functions (which went to ERDA). 42 U.S.C. §§ 5801, 5813-14, 5841(f), 5841(g).Thus, any promotional language contained generally in the Atomic Energy Act cannot be viewed as imposing a cost-benefit analysis requirement on NRC.

Furthermore cost-benefit analysis is of little use in the context of carcinogen regulation. See § 6(b)(5) of the Occupational Safety and Health Act of 1970: Is Cost-Benefit Analysis Required?, 49 FORDHAM L. REV. 432, 437 n.25, 443, 447, 451 (1980) (estimated risks of exposure to carcinogens often differ by multiples of 10 to 10,000); N. ASHFORD, CRISIS IN THE WORKPLACE: OCCUPATIONAL DISEASE AND INJURY 79, 120-21 (1976). "The probability of benefits accruing by limiting exposure to toxic substances such as carcinogens . . . is so imprecise as to make cost [-benefit] analysis meaningless." 49 FORDHAM L. REV. at 437. For example, estimates of bladder cancer resulting from a lifetime of using saccharin ranged from .001 per 1,000,000 exposed, to 5,200 per 1,000,000 exposed. 45 Fed. Reg. 5001, 5247 (1980). Because unavoidable scientific uncertainties pervade any attempts to analyze the effects of low-level exposure to carcinogens, decisions about regulating such substances rely at last upon policy judgments. McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 GEO. L.J. 729, 733-34 (1979). In such cases cost-benefit analysis cannot and should not displace policy decisions — decisions either already made by Congress, or properly left to the agency's discretionary powers. 49 FORDHAM L. REV. at 443. See also NRDC, Inc. v. SEC, 606 F.2d 1031, 1059 [9 ELR 20367] (D.C. Cir. 1979) (in the absence of firm data, cost-benefit analysis is not required in the rulemaking context). Only marginal constraints such as feasibility requirements should be imposed on agencies entrusted with the authority to regulate such substances. 49 FORDHAM L. REV. at 447. Compare, The Supreme Court, 1979 Term, 94 HARV. L. REV. 242, 249-50 (1980) (although any degree of danger from small doses of carcinogens is extremely difficult to determine, rough cost-benefit analysis predicated on conservative assumptions and data should still be undertaken).Our view is, however, that cost-benefit analysis should not in most instances govern.

C. Are the Mill Tailings Regulations Based Upon a Valid Feasibility Analysis?

Our conclusion is that the Commission has made a satisfactory showing of feasibility. Most aspects of the costs of the regulations to existing mills were carefully considered, the only exception being the cost of cover material. Regarding total control costs, NRC prepared estimates which indicated that the measures mandated by the regulations would cost from 2% to 4% of the total uranium mill product price. Petitioners dispute these figures, urging that the product price has dropped drastically, and that costs could be greater than 7.5% of product price. Specific dollar totals calculated by the parties vary substantially. The total cost measured by NRC would be in the range of $760,000,000 to $1,521,000,000. The petitioners contend that a more realistic range is $880,000,000 to $2,000,000,000.

In any event the figures are not substantially disparate. Even accepting petitioners' higher figures, the costs are substantial, but they do not seem infeasible for the uranium milling industry. Kerr-McGee argues that the industry is currently so depressed that even standards costing only a small percentage of product price are capable of driving companies out of business. Such a possibility is certainly relevant to the feasibility analysis. Industrial Union Department v. Hodgson, 499 F.2d 467, 478 [4 ELR 20415] (D.C. Cir. 1974) (standards are economically feasible if they do not threaten the existence or competitiveness of the industry); AFL-CIO v. Brennan, 530 F.2d 109 (3d Cir. 1975) (standards are economically feasible if they do not create the possiblity of massive economic dislocation). It seems unlikely, however, that the industry could be so vulnerable in view of the relative insignficance of the cost increases. Most of the industry's customers are stable concerns such as utilities, which require a continuing supply of uranium regardless of modest price changes. In fact, it is likely that the industry will simply pass on to its customers virtually all of the costs associated with the mill tailings regulations. Moreover, the regulations may be viewed as economically feasible even if some producers suffer substantial detrimental effects, if a majority of the producers do not suffer greatly. United Steelworkers v. Marshall, 647 F.2d 1189 [10 ELR 20784] (D.C. Cir. 1981).

We conclude that UMTRCA does not require cost-benefit analysis, and that the NRC's feasibility determination was reasonable and not arbitrary or capricious. Cf. American Textile Manufacturers, supra, 101 S. Ct. at 2497-2504 (OSHA's feasibility finding was supported by substantial evidence).

V. Did the Actions of the NRC Violate the Procedural Requirements for Agency Rulemaking Set Out In the Administrative Procedure Act?

The petitioners allege two procedural defects in the rulemaking process by the NRC.

First, they argue that the NRC included nineteen documents in the certified index to the record, which were not available during the comment period, thereby denying the petitioners the opportunity to respond to them. They request that, because of that alleged error, all of the technical criteria enacted by the NRC must be invalidated.

Second, they argue that significant changes were made in certain regulations between the time that the proposed rules were published and the time that the final rules were promulgated without sufficient notice or explanation by the NRC.Petitioners request that these regulations be invalidated.

A. Inclusion by the NRC of Nineteen Additional Documents

Petitioners argue that all of the technical criteria in the Uranium Mill Licensing Requirements, 45 Fed. Reg. 65521 (Oct. 3, 1980), should be invalidated because the NRC denied them access to nineteen "critical" documents which the NRC ultimately included in the certified index to the record. These documents included [12 ELR 20442] various scientific studies and reports on issues considered by the NRC in the promulgation of the Uranium Mill Licensing Requirements. The parties agree that a majority of the studies were not complete and available for distribution until after the comment period.

The petitioners' contention is that the failure of the NRC to release the documents until after the comment period violates the procedural requirements for agency rulemaking set out in the Administrative Procedure Act (APA), 5 U.S.C. § 553(c). Section 553(c) provides, in part, that: "[T]he agency shall give interested persons an opportunity to participate in rulemaking through submission of written data, views or arguments with or without an opportunity for oral presentation." Petitioners argue that as a corollary of this right, agencies are required to disclose in detail the data upon which a rule is based. Home Box Office, Inc. v. Federal Communications Commission, 567 F.2d 9, 35 (D.C. Cir. 1977). The Tenth Circuit is in accord with this principle, holding that the grounds on which the agency acted must be clearly disclosed in and sustained by the record and that the agency must make plain its course of inquiry, its analysis and its reasoning. American Petroleum Institute v. Environmental Protection Agency, 540 F.2d 1023, 1029 [6 ELR 20748] (10th Cir. 1976).

This rule is intended to serve more than the one purpose of providing an opportunity to interested persons to participate in the rulemaking process. As the court in Home Box Office, supra, said, the requirements of § 553(b) and (c), including the disclosure by the agency of underlying data, are intended to provide for fair treatment for persons affected by the rule, as well as to assist in judicial review of agency rulemaking. Id. at 35. For the purpose of judicial review, inclusion of the underlying data in the record, even if it was not available prior to that time, satisfies the procedural requirement.

When must the agency disclose the underlying facts? In United States Lines v. Federal Maritime Commission, 584 F.2d 519 (D.C. Cir. 1978), it was held that: "While such disclosure would ideally appear appropriate at the earliest stage of the agency proceeding, at the very least it is clear that it must come in the final decision so that reconsideration may be sought and judicial review meaningfully afforded." Id. at 535. The NRC did not violate § 553(b) or (c), since it did disclose the documents in the final record. This is in contrast to other cases where the data was never disclosed by the agency. United States v. Nova Scotia, 568 F.2d 240 (2d Cir. 1977).

The APA does not require that every bit of background information used by an administrative agency must be published for public comment. B.F. Goodrich Company v. Department of Transportation, 541 F.2d 1178 (6th Cir. 1976). In Sierra Club v. Costle, 657 F.2d 298 [11 ELR 20455] (D.C. Cir. 1981), the failure to reopen the comment period after the agency received a substantial number of comments was not found to be error.

The question boils down to whether or not the basic data underlying the regulations promulgated by the NRC was disclosed in time to allow petitioners an opportunity to comment on it and challenge the methodology used therein.

The data available to petitioners during the comment period was contained in the Draft Generic Environmental Impact Statement (DGEIS), prepared by the NRC. The DGEIS was a detailed, comprehensive statement of the issues raised by the proposed regulations, including a tremendous amount of scientific data and research. Petitioners contend, however, that the DGEIS does not suffice for the underlying scientific reports from which the flaws in the agency's methodology may be ascertained.

Clearly petitioners had an opportunity to comment on the proposed regulations and the data underlying them. This is reflected in their submission of hundreds of pages of comments and lengthy oral presentations at each of the public hearings. It must be noted that the DGEIS was published for comment in April 1979, the proposed regulations were published in August 1979, and that the comment period was extended to September 24, 1979, at the request of industry representatives to allow time for additional comments.

The nineteen documents in question were not the basic data upon which the rules were promulgated. These documents merely corroborate or supplement information already available for comment. Since the comments were not fundamental to the rulemaking process, the rules would have been validly promulgated even if the documents had not been disclosed. Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 394, 402 [3 ELR 20642] (D.C. Cir.), cert. denied, 417 U.S. 921 (1973).

The fact that petitioners do not now set forth any specific challenges to the data or the methodology in the nineteen additional documents certainly undermines their argument, since if the documents contained any ammunition, it is fairly certain that the petitioners would have pointed it out here. Moreover, in view of the fact that the petitioners contest the position of the NRC that these documents were supplemental, they should have called attention to some additional controversy raised by the documents. Since petitioners have no serious challenge to the additional documents other than their late inclusion, they have not been prejudiced. They failed to demonstrate to the court how their comments would have changed had they been allowed to respond to the documents in question. If the new data contradicted the previous studies, time for further comment by petitioners would have been necessary. Independent Meat Packers Association v. Butz, 526 F.2d 228, 241 (8th Cir. 1975), cert. denied, 424 U.S. 966 (1976).

B. Objections on the Part of the Petitioners to the Changes Made in Proposed Technical Criterion 5 by the NRC Prior to Its Being Enacted

The contention of petitioners is that the effect of the change which was made in Criterion 5 is significant in (1) that it now applies to existing sites, and the proposed Criterion 5 did not and (2) that it imposed corrective action requirements amounting to restoration of groundwater to its potential uses rather than merely preserving the quality of groundwater, as the original Criterion 5 provided. The original provision was that "steps shall be taken to reduce seepage of toxic materials into groundwater to the maximum extent reasonably achievable." 44 Fed. Reg. 50021 (Aug. 24, 1979). Proposed Criterion 5 goest on to suggest ways to reduce the seepage, but adds that: "The specific method, or combination of methods, to be used must be worked out on a site-specific basis." Id. The last sentence refers to demonstrations that the "proposed disposal and treatment methods will preserve quality of groundwater." Id.

The proposal was changed prior to its promulgation. The first sentence remained the same, retaining the phrase "to the maximum extent reasonably achievable." 45 Fed. Reg. 65534 (Oct. 3, 1980). Criterion 5 was expanded, however, in several ways. The addition found to be significant by petitioners was the following sentence:

Where groundwater impacts are occurring at an existing site due to seepage, action shall be taken to alleviate conditions that lead to excessive seepage impacts and restore groundwater quality to its potential use before milling operations began to the maximum extent practicable.

Id. The question is whether the institution of these changes violates § 553(b) or (c) of the APA.

Administrative agencies may make changes in a proposed rule after the comment period without a new round of hearings, provided that the changes are in character with the original scheme and foreshadowed in proposals and comments advanced during the rulemaking. Beirne v. Secretary of the Department of Agriculture, 645 F.2d 862, 865 (10th Cir. 1981); South Terminal Corporation v. Environmental Protection Agency, 504 F.2d 646, 658 [4 ELR 20768] (1st Cir. 1974). See also, American Iron and Steel Institute v. Environmental Protection Agency, 568 F.2d 284 [7 ELR 20738] (3d Cir. 1977).

The fact that NRC changed the rule is not, in and of itself, sufficient to constitute a violation of the APA, 5 U.S.C. § 553(b) or (c) and invalidate the rule. Only if the changes are significant and not a logical outgrowth of the rulemaking proceeding would an agency violate the APA. United Steelworkers of America v. Marshall, 647 F.2d 1189, 1220 [10 ELR 20784] (D.C. Cir. 1980).

An agency must be free to change a proposed rule after the submission by the public of comments and additional data. The notice and comment period would be rendered useless were it not for this, because the agency would be unable to change the proposed [12 ELR 20443] rule to reflect the additional information. See International Harvester Company v. Ruckelshaus, 478 F.2d 615, 632 n.51 [3 ELR 20133] (D.C. Cir. 1973). This policy was reflected by the First Circuit in BASF Wyandotte Corporation v. Costle, 598 F.2d 637, 644-45 [9 ELR 20609] (1st Cir. 1979), where the court said:

It is perfectly predictable that new data will come in during the comment period, either submitted by the public with comments or collected by the agency in a continuing effort to give the regulations a more accurate foundation. The agency should be encouraged to use such information in its final calculations without thereby risking the requirement of a new comment period.

The changes in Criterion 5 must be examined to see if they are sufficiently related to the proposed rule so that petitioners had an opportunity to comment on them. The first challenged modificationof Criterion 5 refers to its application to existing sites. This is simply a clarification of the proposed criterion. There is nothing in the proposed criterion which indicates that it would not apply to existing sites. Quoting from the proposed Appendix A to Part 40, which contains Criterion 5, it is said: "This appendix establishes technical, financial, ownership and long-term site surveillance requirements relating to the siting, operation, decontamination, decommissioning and reclamation of mills and tailings or waste systems and sites at which such mills and systems are located." 44 Fed. Reg. 50020 (Aug. 24, 1979).

The intention of the NRC that the regulations were to apply to existing sites is found in the DGEIS § 12.4, entitled "Implementation of Proposed Requirements at Existing Sites." Included within that section is the sentence, "The staff considers that these points are to be incorporated to the maximum extent reasonably achievable at existing sites." Petitioners had notice, as a result of the above section, that the proposed groundwater regulations in Criterion 5 could conceivably be applied to existing sites. They should have made these objections along with their other comments during the comment period.

The second challenged modification to Criterion 5 refers to water reclamation. Petitioners argue that this is a substantial change for which the cost would be "astronomical." The law is that even substantial changes to a rule can be valid without allowing additional comment. American Iron and Steel Institute, supra, at 293. The test is whether the notice would fairly apprise interested persons of the "subjects and issues" before the agency. Id. See also, South Terminal Corporation v. Environmental Protection Agency, supra, at 658.

Petitioners maintain that protection of groundwater for any "potential use" is in effect proection and restoration of all groundwater to drinking water standards. Petitioners were not unaware that the NRC was concerned with drinking water supplies and standards. This fact is reflected in comments made by petitioner in response to the DGEIS, concerning the effect of seepage on drinking water supplies.

Petitioners should have been aware that restoration of groundwater to its potential uses could become a part of the final plan. The general tone of the proposal was one of restoration of the environment to a pre-milling condition to the extent possible. The introduction to proposed Appendix A refers to "reclamation" of sites at which mills are located. Reclamation could conceivably include the restoration of groundwater. Petitioners were sufficiently apprised of this possibility.

Inasmuch as Criterion 5 still includes the qualification that restoration shall be achieved only "to the maximum extent practicable," there remains the opportunity for the NRC to consider petitioners' arguments about the cost and the practicalities of implementing the criterion when the NRC attempts to subject petitioners to the requirements.

C. The Application of Criterion 1 to Existing Sites

The challenge to Criterion 1, based on the fact that it now specifically applies to existing sites, is groundless. The NRC gave adequate notice in the DGEIS that the criterion would be applied to existing sites to the maximum extent reasonably achievable. The final rule did not change this intention.

* * *

In sum, we conclude that there were no violations of a substantial nature; nor has there been prejudice.

VI. Are the Technical Criteria Which Have Been Promulgated by the NRC Arbitrary and Capricious?

Section 706(2)(A), 5 U.S.C., provides that agency action shall be invalidated if it is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." The petitioners challenge several of the technical criteria promulgated by the NRC as being arbitrary and capricious. The standard of review that this court is to use in overseeing the rulemaking by the NRC is whether the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). Under this "arbitrary and capricious" standard, the "reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285 (1974).

This standard of review is a deferential one. It presumes agency action to be valid. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 [1 ELR 20110] (1971). It forbids the court substituting its judgment for that of the agency. Id. at 416. The arbitrary and capricious standard of review requires affirmance if a rational basis exists for the agency's decision. Bowman, supra, at 290.

A reviewing court must exercise its narrowly defined duty of holding agencies to certain minimal standards of rationality. Ethyl Corporation v. EPA, 541 F.2d 1 [6 ELR 20267] (D.C. Cir.), cert. denied, 426 U.S. 941 (1976). The inquiry into the facts is to be searching and careful, but the ultimate standard of review is a narrow one. Citizens to Preserve Overton Park, supra, at 416.

The several criteria are discussed hereafter.

1. Application of Rigid Criteria to Existing Mills

The application of the Uranium Mill Licensing Requirements to existing mills was not arbitrary and capricious. The requirements distinguish between existing sites and new ones. Criteria required at existing sites are those that the NRC ruled necessary to meet minimum levels of protection of public health, safety and the environment.

the NRC brief and the Final Generic Environmental Impact Statement (FGEIS) show that the NRC considered the relevant factors and the range of variability of those factors that could affect industry-wide compliance with the milling requirements.

2.2pCi/m²/sec Limit

In adopting the 2pCi/m²/sec radon emanation limit in Criterion 6 the NRC adopted a criterion for setting the release limit of radon, the simple objective of which was to return the disposal site's conditions that affect health to conditions reasonably near those of the surrounding environment.

We have noted that the radon release process is long-term. The calculations necessary to set the appropriate radon emission levels are, therefore, not amenable to a precise determination. UMTRCA vested NRC with authority to establish a reasonable emanation level. Being policy choices, they are not subject to review with the same substantive rigor proper for questions of fact. Ethyl Corp. v. EPA, supra, at 24.

The NRC arrived in a reasonable manner at its choice of the 2 picocuries per square meter per second limit on tailings pile radon releases.

3. The Three-meter Earth Cover Requirement

The primary health and safety measure in the Commission's regulations (for control of tailings piles) is the Criterion 6 requirement that tailings be covered with "[s]ufficient earth cover, but not less than three meters." The heart of the reduction in surface exhalation of radon emanating from the tailings to less than 2 picocuries per square meter per second is accomplished in this way. 45 Fed. Reg. 65534.

The NRC considered the reduction in radon flux that would result from coverings of various thicknesses and different levels of soil, together with the material processes that could reduce a cover's ability to isolate tailings over a long period of time.

Criterion 6 would reduce the number of fatalities from cancer among the general population and would diminish the risks to individuals [12 ELR 20444] who live in the vicinity of a tailings pile. The costs to the milling industry would be, at most, a small percentage increase. The three-meter requirement was based on the NRC's analysis of the health risks involved, the concerns of Congress about mill tailings hazards in enacting UMTRCA and the cost to the industry of the protective regulation. This decision is reasonable in light of the difficult nature and inherent uncertainty of the problem and the risks to public health and safety.

4. The Exclusion of Thin Layers of Synthetic Material

The NRC staff found that thin layers of synthetic material could not provide long-term protection against the exhalation of radon from tailings piles because these materials are easily deteriorated by exposure to the sun and oxygen, develop holes and cannot withstand the mechanical stresses and dislocations generated by the differential settlement that will occur between sand and slime areas of tailings piles as they dry out and consolidate. The ban on these synthetic layers by the NRC has a rational basis in the information and research available to the NRC.

5. The Ban on the Degradation of Groundwater

Criterion 5 is designed to protect against the potential pollution of groundwater by toxic chemicals that are either released from the natural soils by the crushing of the ore or are added during the uranium extraction process. These chemicals can seep into the groundwater in the vicinity of the mill and contaminate a valuable resource.

Criterion 5 does not require a particular method of protection of groundwater, but rather sets out a performance objective that is to be met to the "maximum extent reasonably achievable." 45 Fed. Reg. 65534. Criterion 5 recognizes the limitation on a licensee's ability to restore groundwater quality and leaves considerable flexibility to achieve the criterion's objectives.

6. The Below Grade Disposal Requirement

Criterion 3 identifies the below grade disposal of tailings as the prime option and requires mill operators to very seriously consider this alternative, but does not require it.Below grade disposal as a reasonable solution will therefore only be considered in individual proceedings for specific facility licenses. It is not an arbitrary and capricious regulation.

7. Criterion 10's Charge for Long-term Monitoring

Criterion 10 establishes a minimum charge of $250,000 to cover the costs of long-term surveillance of each mill disposal site.The charge is to be paid by each mill operator prior to the termination of a thorium or uranium mill license.

The charge is not an unconstitutional tax, but rather a charge assessed against the mill operators for the cost to the government of long-term monitoring of mill tailings disposal sites after they have been reclaimed. This charge relieves the licensees of the burden of conducting the monitoring and maintenance of the sites.

The charge is based on the NRC's estimate of a cost of $2,500 per visit for long-term monitoring of sites. This is a reasonable estimate, and greater precision is not possible or required. Mississippi Power and Light v. United States Nuclear Regulatory Commission, 601 F.2d 223, 232 [9 ELR 20655] (5th Cir. 1979).

The NRC, once it determined the annual monitoring cost, then determined what would be an appropriate one-time charge that would annually yield an amount sufficient to cover the annual cost. This one-time charge of $250,000 is a reasonable estimate and there is every reason to uphold it.

8. The NRC's Rejection of Self-bonding

Criterion 9 requires that financial surety arrangement be established by each mill prior to commencement of milling. This is to ensure that adequate sums will be available to comply with the NRC's decommissioning, decontaminating and reclamation requirements.

Criterion 9 contains the following restriction: "[H]owever, self insurance, or any arrangement which essentially constitutes self insurance (e.g., a contract with a state or federal agency), will not satisfy the surety requirement since this provides no additional assurance other than that which already exists through license requirements." 45 Fed. Reg. 65535.

Thus, Criterion 9 rejects self insurance because it provides no additional security and therefore negates the intention of Congress in promulgating the surety requirement of UMTRCA.

Criterion 9 does not limit a licensee's financial flexibility; it lists six alternatives that are acceptable, but not declared to be exclusive. If an operator can propose a "self insurance" surety program that would provide addtional assurance, Criterion 9 does not automatically require its rejection. The NRC will, at that time, be able to evaluate the specific surety proposal. Criterion 9 is not arbitrary and capricious simply because it disallows a bare "self insurance" program.

Application of the "arbitrary and capricious" standard to the technical criteria promulgated by the NRC results in the criteria being upheld. The NRC provides sufficient substantiation and rationale for each of the criteria so that this court must accept the agency's decision making process and trust its judgment. For all of the criteria, the NRC considered the relevant factors and made its decision accordingly. This court is not empowered to overturn those evaluations absent a "clear error of judgment" by the agency. Bowman, supra, at 442. Since in the case at bar it is not appearent that such a clear error of judgment has been made by the agency, the rulings are upheld.

Concluding Remarks

Undoubtedly the important issue in this case is the first one discussed, that is, the consideration of the authority granted by Congress to the NRC, as opposed to the EPA. Petitioners' main challenge is addressed to the authority of the NRC to promulgate certain regulations, pursuant to UMTRCA, the Act of 1978. The other issue is the authority to regulate the disposition of mill tailings. The petitioners' contention is that the NRC is invading the EPA's function. We disagree. The reasons for our disagreement are as follows.

Congress has given very wide and extensive authority to the NRC with respect to licensing and furthermore day-to-day regulation of abandoned tailings. The EPA, on the other hand, has been given authority to issue general environmental regulations. It is argued by the petitioners that the actions of the NRC have been contrary to statutes and void. We do not agree.

One example of statutory grant is § 202, dealing with ownership and custody of byproduct material and disposal sites. This section requires that any license involving byproduct material granted or renewed by NRC shall contain the terms the NRC provides, the purpose being to assure that prior to determination of the license, the licensee will comply with the decontamination, decommissioning and reclamation standards to deal with mill tailings sites. The NRC gave its assurance in the standards that it would conform to the standards set forth by the EPA; that it would act in a manner wholly compatible with general standards provided in § 206 of the Act. Other sections of UMTRCA which corroborate this position are §§ 203, 205 and 206.

It surely was never contemplated by Congress that this grant of general authority to issue standards to the EPA and the grant of specific authority in the NRC was to create a problem such as is here presented; nor was it contemplated that there would be postponement of the exercise of this very important regulatory function indefinitely; nor that it would be used as a means for postponing or avoiding the regulation of hazardous wastes indefinitely. Public interest has required that the NRC proceed to discharge its mission, and it has done so. It has worked within the framework created by the Congress.

It would be contrary to the interests of the public to now declare that all regulation must come to a halt until such time as the EPA issues general regulations. This would be contrary to the intention of Congress that there should be timely issuance of standards and timely regulation of the activity.

We see no need to comment on the other points raised, since we have done so, perhaps too fully, in the foregoing opinion.

Our conclusion is that the relief sought by the petitioners must be denied. Our holding is that the regulations promuglated by the Nuclear Regulatory Commission were within its authority and were valid.

1. Criterion 1 — Sets out the standards for choosing tailings disposal sites. It is of primary importance that a site should be picked where no active maintenance is required. No specific requirements are set forth; a site should be remote from people, hydrologic interaction and the minimization of erosion and other natually dispersive forces should be considered.

Criterion 2 — Mills shall avoid the proliferation of small waste disposal sites by disposing of byproduct material at existing large mill tailings disposal sites, unless transportation is impractical or would cause greater environmental impact.

Criterion 3 — Operators shall consider as the optimum disposal mode belowgrade placement of tailings. If above-grade disposal is to be used, the operator must demonstrate that it will provide similar isolation of tailings from erosional forces.

Criterion 4 — Site and design requirements are provided. Rainfall catchment is to be maintainted; good wind protection is necessary; embankment and cover slopes are to be flat to avoid erosion; vegetative or rock cover to be employed; impoundment walls of the pile shall avoid fault areas and promote deposition of the tailings.

Criterion 5 — Reduce seepage of toxic materials into groundwater to the maximum extent reasonably achievable. Groundwater should not deteriorate from current or potential use. Specific steps are listed to achieve this result.

Criterion 6 — At least three meters of earth cover shall be placed over tailings when milling is terminated so that radon emanating from the pile is less than two picocuries per square meter per second (2pCi/m²/sec) above the natural emission level of the earth cover itself.

Criterion 7 — One year prior to the construction of a mill a monitoring program shall be conducted to obtain data on the site and its environs.

Criterion 8 — All airborne effluent releases must be reduced to levels as low as reasonably achievable during milling operations. Emission control operations shall be employed. Particular attention must be given to dry surfaces of the tailings disposal area, emissions from yellowcake (usable uranium extracted from leaching the ore) and packaging operations.

Criterion 9 — Surety arrangements shall be established by each mill operator prior to commencement of milling to ensure that adequate sums will be available to comply with the NRC's decommissioning, decontamination and reclamation requirements. The surety arrangements must be approved by the NRC as to the amount and type.

Criterion 10 — Each mill operator shall pay $250,000 to the United States or the appropriate state agency prior to the termination of its license to cover the costs of long-term surveillance.

Criterion 11 — Upon termination of the license, licensed byproduct material and land used for disposal will be transferred to the federal government or the state where it is located. This requirement will ensure physical isolation necessary for long-term control.

Criterion 12 — Annual site inspections shall be conducted by the agency retaining ultimate custody of the site to confirm the integrity of the stabilized tailings and determine if there is a need for maintenance or monitoring.

In reference to Criterion 6, a curie is a measurement of the decay rate of emissions from radioactive material. One curie equals thirty-seven billion emissions a second. The term "pico" means one trillionth; therefore, two pico curies are equal toapproximately one emission every fourteen seconds. This is the rate of emissions that will be tolerated over and above the amount of radon that will emanate from the soil used to cover the tailings.

2. 110 S. Ct. at 3897-98. See also The Supreme Court, 1979 Term, 94 HARV. L. REV. 242, 246 & n.40 (1980).

3. 100 S. Ct. at 2883.

4. See The Significant Risk Requirement in OSHA Regulation of Carcinogens: Industrial Union Department, AFL-CIO v. American Petroleum Institute, 33 STAN. L. REV. 551, 555-56 n.28 (1981); The Billion Dollar Benzene Blunder: Supreme Court Scrutinizes OSHA Standards in Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 16 TULSA L.J. 252, 278 (1980).

[12 ELR 20444]

Barrett, J., dissenting:

It is my view, contrary to that of the majority, that the legislative [12 ELR 20445] history supports the contention of the petitioners that the challenged Nuclear Regulatory Commission (NRC) regulations are not in accord with the law and are beyond the authority of that agency. Thus, they are invalid.

The legislative history and the clear, unambiguous expression of elgislative intent contained in the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978, P.L. 95-604, 42 U.S.C.A. § 2022, support petitioners' position that theNRC regulations are unlawful and invalid. This is so simply because they were issued in advance of Environmental Protection Agency (EPA) standards of general application for the protection of the public health, safety, and the environment from radiological and nonradiological hazards associated with uranium mine tailings.

In response to the development of atomic energy, Congress enacted the Atomic Energy Act of 1954, 42 U.S.C.A. § 2001, et seq. Under the Act, the Atomic Energy Commission (now the Nuclear Regulatory Commission) was created to direct the development, use and control of atomic energy.

Originally, the processing and disposal of nuclear byproducts fell within the jurisdiction of the AEC. In 1959, however, the Congress added Section 274 to the Act, 42 U.S.C.A. § 2021, which authorized the AEC to enter into agreements with states transferring regulatory authority over certain nuclear materials and nuclear plants. From that time until recently, the states have exercised regulatory authority over uranium mill byproducts.

In 1978, Congress enacted specific legislation (UMTRCA) relating to health and environmental standards for uranium mine tailings. P.L. 95-604, November 8, 1978, 42 U.S.C.A. § 2022. By the Act's express terms — unambiguous and clear — the EPA was directed to promulgate standards of general application for the protection of the public from the hazards associated with residual radioactive materials found at uranium mill tailing sites. These standards were to be adopted within eighteen months of November 8, 1978, and thereafter "Implementation and enforcement of the standards promulgated . . . [is] . . . the responsibility of the [Nuclear Regulatory] Commission . . . ." 42 U.S.C.A. § 2022(d).

Although required by law to do so, the EPA failed to timely promulgate general standards for active sites. Nevertheless, the NRC adopted the challenged uranium mill licensing requirements which form the basis of this proceeding. Those "requirements" detail procedures which states should follow in designing their regulatory scheme. The NRC has declared that even though the states must follow its "requirements" only "to the extent practicable" that, even so, its requirements are practical and constitute minimum national standards.

The Congress obviously did not intend that NRC preempt EPA's statutorily delegated responsibility to provide those guidelines within which the NRC should function. Furthermore, Congress intended that the states should actively participate in the regulatory process. While the EPA-NRC regulations are to provide basic models, limited flexibility to deviate where impracticalities exist is clearly recognized.

On December 4, 1981, the President signed into law the Energy and Water Development Appropriation Act of 1982, P.L. 97-88. That Act expressly suspends the NRC from implementing its requirements by providing that no funds appropriated to the NRC may be used to implement or enforce any portion of the uranium mill licensing requirements or to require any state to adopt such requirements in order for the state to continue to exercise authority under state law for uranium mill and mill licensing.

It is my view that the December 4, 1981, Act, supra, is a clear expression of legislative intent directed to the 1978 enactment (UMTRCA). It speaks to the identical subject matter. Thus, "[s]ubsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81 (1969). When P.L. 97-88 was before the Senate Committee on Appropriations [in the form of H.R. 4144], the Senate Committee's Report No. 97-256 dated October 28, 1981, read in pertinent part:

Uranium mill licensing requirements. — The House of Representatives adopted a provision that would prohibit the use of appropriated funds by the NRC to implement or enforce any portion of the uranium mill licensing regulations promulgated by the Commission on October 3, 1980.

The Commission has advised the Committee that the House provision would have several detrimental effects on the uranium mill licensing programs of the NRC and those Agreement States that have elected to regulate uranium mills under State law. In particular, the NRC has expressed the concern that the House provision would prevent the Commission from imposing on a case-by-case basis license conditions on uranium milling needed to protect the public health and safety, as it did prior to the promulgation of the NRC uranium mill licensing regulations. The Commission has also expressed the concern that the House provision would force the Commission to terminate all Agreement State uranium mill licensing programs after November 8, 1981 — the present statutory deadline for Agreement State compliance with certain requirements of the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA).

The Committee agrees with the House that the Commission should not have adopted these technical requirements for uranium mill tailings prior to EPA's promulgation of final environmental standards. Nevertheless, the Committee believes that the House provision is broader than necessary to carry out the purpose of preventing the implementation and enforcement of the NRC technical requirements. In addtition, the Committee believes that the detrimental effects identified by the NRC, as described above, should be eliminated. For these reasons, the Committee has modified the House provision.

As modified by the Committee, the provision would prevent the Commission from implementing or enforcing the technical requirements in uranium mill licensing regulations promulgated by the NRC on October 3, 1980, or from adopting by regulation similar technical requirements during fiscal year 1982 until EPA promulgates its final environmental standards for uranium mill tailings at active uranium mill sites. However, the NRC would retain its authority to regulate uranium mill tailings on a case-by-case basis in the manner and to the extent permitted prior to the promulgation of its uranium mill licensing regulations. Thus, the Commission would retain the authority to impose through license conditions those requirements for the management of uranium mill tailings that the Commission can demonstrate in each case are necessary to protect the public health, safety, and the environment. This preserves the situation in effect prior to the promulgation of the NRC uranium mill licensing regulations. The provision, as modified by the Committee, is intended to permit the Commission also to retain its authority under UMTRCA to promulgate by regulation technical requirements for uranium mill tailings after EPA promulgates its final environmental standards for uranium mill tailings at active sites.

[Emphasis supplied.]

Senator Alan K. Simpson, Chairman of the Senate Nuclear Regulation Subcommittee, was crystal clear in his observation that NRC had acted unlawfully in adopting the subject regulations prior to action by the EPA. In like manner, Senator Pete V. Domenici, a sponsor of the UMTRC Act which added § 275 to the Atomic Energy Act, stated that NRC acted contrary to the statute in issuing standards and requirements in advance of EPA's standards.

Judges do not have the role of lawmakers. It is not our function to legislate. This is particularly unacceptable when the very subject matter presented to the court is one which has been treated, considered and decided in the legislative arena of its origin. The subject matter of this litigation involves political and policy determinations reserved exclusively to the legislative branch. In this case, it is my view, bolstered by specific observations of Senators Simpson, Domenici and the quoted senate report, supra, that the language of the Act is plain and unambiguous, admitting of only one meaning. The Congress must be taken to have meant and intended what it plainly expressed and that which it has enacted in clear terms, regardless of opinions of judges that it leads to an unwise result.Where the language is plain, the duty of interpretation does not arise and rules designed to aid doubtful meanings do not come into play.

[12 ELR 20446]

The petitioners should be granted the relief requested. I would hold that the regulations promulgated by NRC are not presently enforceable and cannot be enforced until EPA has promulgated its general standards.

12 ELR 20433 | Environmental Law Reporter | copyright © 1982 | All rights reserved