No. 10-___
IN THE
Supreme Court of the United States
MARILYN MORRIS, ET AL.,
Petitioners,
v.
U.S. NUCLEAR REGULATORY COMMISSION, ET AL.,
Respondents.
On Petition for A Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
Diane Curran
Counsel of Record
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
Suite 600
1736 M Street N.W.,
Washington, D.C. 20035
(202) 328-3500
dcurran@harmoncurran.com
Eric Jantz
New Mexico Environmental
Law Center
Suite 5
1405 Luisa Street
Santa Fe, NM 87505
(505) 989-9022
Counsel for Petitioners Eastern Navajo Diné Against Uranium
Mining and Southwest Research and Information Center
Other counsel listed inside cover
Levon Henry
Jesse Traugott
DNA-People’s Legal
Services, Inc.
P.O. Box 306
Window Rock,
Arizona 86515
(928) 871-4151
Zackeree Kelin
Kelin Law Firm
1309 Rio Grande
Boulevard N.W.
Albuquerque,
New Mexico 87104
(505) 242-7200
Counsel for Petitioners Marilyn Morris and Grace Sam
i
QUESTIONS PRESENTED
1. In determining whether public radiation
doses from a proposed new uranium mine would
exceed regulatory limits, could the U.S. Nuclear
Regulatory Commission (“NRC”) interpret 10
C.F.R. § 20.1301(a)(1) to allow it to ignore radioactive
emissions from existing uranium mine
waste on the mine site?
2. Where, in establishing a groundwater restoration
surety for a proposed uranium mine,
the NRC failed to follow its own criteria for protecting
the drinking water on the site, did the
NRC violate the Atomic Energy Act’s prohibition
against licensing operations that are inimical
to public health and safety?
ii
PARTIES TO THE PROCEEDING
AND CORPORATE DISCLOSURE STATEMENT
The following parties were petitioners below and
are petitioners here: Grace Sam, Marilyn Morris,
Eastern Navajo Diné Against Uranium Mining
(“ENDAUM”), and the Southwest Research and Information
Center (“SRIC”). The United States and
the United States Nuclear Regulatory Commission
(“NRC” or “Commission”) were the respondents below
and are respondents here. Hydro Resources, Inc.
(“HRI”) was a respondent-intervenor below and is
also a respondent-intervenor here.
ENDAUM is a nonprofit organization incorporated
under the laws of the Navajo Nation and is exempt
from taxation under Section 501(c)(3) of the Internal
Revenue Code. ENDAUM does not issue stock
and no parent corporation or publicly held corporation
has ten percent or more ownership interest.
ENDAUM’s membership consists of concerned community
members in Church Rock and Crownpoint,
who are predominantly members of the Navajo Nation.
ENDAUM’s mission is to protect public health
and the water of the communities of Church Rock
and Crownpoint.
SRIC is a nonprofit organization incorporated
under the laws of New Mexico and is exempt from
taxation under Section 501(c)(3) of the Internal Revenue
Code. SRIC does not issue stock and no parent
corporation or publicly held corporation has ten percent
or more ownership interest. SRIC’s mission is
to promote the health of people and communities,
protect natural resources, ensure citizen participation
in government decisions that affect their weliii
fare, and secure environmental and social justice for
present and future generations.
Marilyn Morris and Grace Sam are individual
members of the Navajo Nation who reside and graze
livestock near the proposed Church Rock mine sites.
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
TABLE OF CONTENTS ........................................... iv
TABLE OF AUTHORITIES ...................................... vi
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
STATUTES AND REGULATIONS INVOLVED ...... 1
STATEMENT OF THE CASE.................................... 2
A. Procedural History........................................... 2
B. Radioactive Air Emissions at Section 17 ....... 2
C. Groundwater Quality at Church Rock
Section 8 .......................................................... 4
1. Groundwater quality and ISL mining ...... 4
2. NRC requirements for restoration
and financial surety ................................... 5
a. Restoration goals ............................. 6
b. Financial surety .............................. 7
D. Decisions Below ............................................... 8
1. Radioactive air emissions at Section 17 ..... 8
2. Groundwater restoration goals and
surety for Section 8 .................................... 9
REASONS FOR GRANTING THE WRIT .............. 11
ARGUMENT ............................................................ 12
I. The NRC’s Interpretation of 10 C.F.R. §
20.1301, as Upheld by the Court of Appeals,
Violates Fundamental Principles of Statutory
Interpretation as Outlined by this Court. ......... 12
v
A. The Plain Language of 10 C.F.R. §
20.1301(a)(1) Does not Support the NRC’s
Interpretation of the Regulation .................. 12
B. The Majority’s Opinion is Inconsistent with
Other Part 20 Regulations and the
Regulations’ History ...................................... 14
II. The NRC Approved Groundwater Surety for
Groundwater Restoration at Section 8 Violates
the Atomic Energy Act’s Public Health
Protection Mandate ............................................ 17
CONCLUSION.......................................................... 19
Appendix:
Opinion of the United States Court of Appeals
for the Tenth Circuit, filed March 8, 2010 …App. 1
CLI-06-29, 64 N.R.C. 417 (2006) ................ … App. 68
CLI-06-14, 63 N.R.C. 510 (2006) ................. …App. 91
CLI-04-33, 60 NRC 581 (2004) ................. … App. 109
CLI-01-04, 53 N.R.C. 31 (2004) ................ … App. 156
CLI-00-12, 52 N.R.C. 1 (2000) .................. … App. 235
CLI-06-1, 63 N.R.C. 1 (2006) .................... … App. 248
Order of the United States Court of Appeals
for the Tenth Circuit Denying Rehearing
and Rehearing En Banc, filed May 18,
2010....................................................... … App. 261
Atomic Energy Act, 42 U.S.C. § 2022(a) .. … App. 263
Atomic Energy Act, 42 U.S.C. § 2099........ … App. 264
10 C.F.R. § 30.1301(a)(1) .......................... … App. 265
10 C.F.R. Part 40, Appendix A, Criterion 9...App. 267
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) .........................................…17
Thomas Jefferson Univ. v. Shalala, 512 U.S.
504 (1994) .....................................................…9, 14
STATUTES:
Atomic Energy Act.................................... 1, 16, 18, 10
42 U.S.C. § 2099 .......................1, 11, 12, 16, 17, 19
National Environmental Policy Act ..................... 1, 17
Uranium Mill tailings Radiation Control Act............ 1
42 U.S.C. 2022(a) .................................................. 1
28 U.S.C. § 1254(1) ............................................... 1
REGULATIONS:
10 C.F.R. § 20.1301(a)(1) ............. I, 3, 8, 11, 12, 15, 16
10 C.F.R. § 20.1001(b)................................................. 5
Internal Revenue Code § 501(c)(3) ............................ 1
ADMINISTRATIVE DECISIONS
In re Hydro Resources, Inc., CLI-06-29, 64
N.R.C. 417 (2006) ................................................ 1
In re Hydro Resources, Inc., CLI-06-14, 63
N.R.C. 510 (2006) .................................... 1, 3, 8, 9
In re Hydro Resources, Inc., CLI-06-1, 63
N.R.C. 1 (2006) .................................................... 1
In re Hydro Resources, Inc., CLI-04-33, 60
N.R.C. 581 (2004) .......................................... 1, 10
vii
In re Hydro Resources, Inc., CLI-01-04, 53
N.R.C.3 1 (2001) ................................................... 1
In re Hydro Resources, Inc., CLI-00-12, 52
N.R.C. 1 (2000) ..................................... 1, 7, 10, 17
In re Hydro Resources, Inc., LBP-05-17, 62
N.R.C. 77 (2005), review denied, CLI-06-1,
63 N.R.C. 1 (2006) ............................................ 6, 9
In re Hydro Resources, Inc., LBP-04-3, 59
N.R.C. 84 (2004), rev’d in part, CLI-04-33,
60 N.R.C. 581 (2004) ............................................ 7
In re Hydro Resources, Inc., LBP-99-30 50
N.R.C. 77 (1999), affirmed, CLI-00-12, 52
N.R.C. 1 (2000) ................................................. 4, 9
In re Hydro Res., Inc., LBP-98-9, 47 N.R.C.
261 (1998), rev’d in part, 48 N.R.C. 119
(1998) ................................................................... 2
Shieldalloy Metallurgical Corp. (Newfield,
NJ); Director’s Decision Under 10 C.F.R.
2.206, 45 N.R.C. 338, 342 (1997) .................. 17, 18
FEDERAL REGISTER NOTICES
56 Fed. Reg. 23,360 (May 21, 1991) ........................ 15
51 Fed. Reg.1032 (Jan. 9, 1986) .............................. 15
25 Fed. Reg. 8595 (1960) .......................................... 16
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of certiorari
to review the judgment of the United States
Court of Appeals for the Tenth Circuit in this case.
OPINIONS BELOW
The opinion of the panel of the court of appeals is
reported at 598 F.3d 677, and is reprinted in the Appendix
to the Petition (“Pet. App.”) 1-67. The order
denying rehearing or en banc review of the panel decision
is reprinted at Pet. App. 261-62. The NRC orders
reviewed by the court of appeals are reported at
64 N.R.C. 417, 63 N.R.C 510, 63 N.R.C. 1, 53 N.R.C.
31, and 52 N.R.C. 1, and are reprinted at Pet. App.
68-260.
JURISDICTION
The judgment of the court of appeals was entered
on March 8, 2010. A request for rehearing or en banc
review was denied on May 18, 2010. On July 23,
2010, Associate Justice Sotomayor extended the time
in which to file this Petition up to and including September
15, 2010. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS INVOLVED
The relevant provisions of the Atomic Energy Act,
the National Environmental Policy Act, the Uranium
Mill Tailings Radiation Control Act, and NRC’s implementing
regulations are reprinted at Pet. App.
263-270.
STATEMENT OF THE CASE
A. Procedural History
This case began in 1988, when HRI applied to the
2
NRC for a license to conduct in situ leach (“ISL”)
mining of uranium on four sites in the towns of
Church Rock (Sections 8 and 17) and Crownpoint
(Crownpoint and Unit 1) in northwestern New Mexico.
Church Rock and Crownpoint both lie within the
boundaries of the Navajo Nation and are located in
the Eastern Navajo Agency. Pet. App. 3. The NRC
issued a notice of opportunity for hearing in 1994,
when it published the Draft Environmental Impact
Statement for the proposed mine. In re Hydro Res.,
Inc., LBP-98-9, 47 N.R.C. 261, 264 (1998), rev’d in
part on other grounds, 48 N.R.C. 119 (1998). Petitioners
requested a hearing in 1995, but the proceeding
was held in abeyance pending the issuance of the
Final Environmental Impact Statement (“FEIS”) in
1997. Id., 48 N.R.C. at 265-66.
In 1998, before hearings had begun, the NRC issued
a license to HRI. Pet. App. 5. The NRC then
conducted informal adjudicatory hearings on HRI’s
applications in two phases. In Phase I, the NRC addressed
issues pertaining only to HRI’s proposed
mine on Section 8 at Church Rock. Id. at 7. In
Phase II, the NRC adjudicated the lawfulness of the
other three mine sites: Church Rock Section 17, Unit
1 and Crownpoint. Id. This petition and the case in
the court of appeals concern only Church Rock Sections
8 and 17.
B. Radioactive Air Emissions at Section 17
HRI’s Section 17 licensed area at Church Rock is
located on land held in trust by the U.S. Government
for the Navajo Nation and leased by the Bureau of
Indian Affairs to local residents who live and graze
their livestock there. Three families live on Section
17 inside the licensed area, and approximately 850
3
people live within five miles of the Section 8 and Section
17 mining sites. Pet. App. 7-8.
HRI’s licensed area on Section 17 includes the
site of the abandoned Old Church Rock Mine, an underground
uranium mine that operated in the early
1960s and from 1977 to 1983 before it was purchased
by HRI in the early 1990s. The surface remains contaminated
by dust and rocks from the prior uranium
mining operations. Those wastes continue to emit
radiation in excess of the NRC’s regulatory limits.
Id.
In the 1997 FEIS, the NRC acknowledged that
some parts of the Section 17 site already are radioactively
contaminated, but asserted that “these areas
may be cleaned up as part of the well field decontamination.”
Pet. App. 30 n.15. The NRC concluded
that licensing the proposed uranium mine “may be
result in a positive health effect at the Church Rock
site.” Id.
Nine years later, in the adjudicatory proceeding
on the issue of whether HRI’s license application for
Section 17 satisfied 10 C.F.R. § 20.1301(a)(1)’s public
radiation dose limits, the NRC changed course, holding
that it has no authority to require HRI to clean
up the mine site if it is licensed by the NRC. Pet.
App. 98. As a result, HRI would now receive a license
to operate Section 17 without ever having to
clean up existing radioactive contamination that is
nine to fifteen times the regulatory limit. Id. at 60
(Lucero, J. dissenting). Nevertheless, the NRC did
not correct the now-disproven representation in the
1997 FEIS that the issuance of a license to HRI
would likely benefit the public by leading to NRCordered
cleanup of the existing contamination.
4
C. Groundwater Quality at Church Rock
Section 8
1. Groundwater quality and ISL mining
In its undisturbed state, uranium is immobile in
an aquifer. The mineralized zone of the aquifer contains
high concentrations of chemicals such as uranium
and radium, while surrounding groundwater
may have low concentrations of these chemicals.
J.A. 331, Morris v. U.S. Nuclear Regulatory Comm'n,
598 F.3d 677 (10th Cir. 2010) (No. 07-9505) (“C.A.
J.A.”). Thus, an aquifer with a mineralized ore zone
may also have drinking water nearby. See In re Hydro
Resources, Inc., LBP-99-30, 50 N.R.C. 77, 105
(1999), affirmed, CLI-00-12, 52 N.R.C. 1 (2000).
By its nature, the ISL process of mining uranium
in an aquifer “tend[s] to contaminate groundwater.”
Pet. App. 33. ISL mining involves establishing a series
of injection and production wells that are laid
out in a series of geometric patterns known as “well
fields.” Pet. App. 4. Mining is conducted by injecting
a solution of water, dissolved oxygen, and sodium bicarbonate
(known as “lixiviant”) through injection
wells and into the discrete areas of uranium mineralization,
called “ore zones.” The lixiviant dissolves
the uranium in the ore zone and causes it to become
mobile in the aquifer. Production wells then pump
the uranium-laden solution (known as “pregnant lixiviant”)
to the surface for processing. At a processing
plant, the uranium is chemically stripped from the
groundwater, which is then returned to the aquifer
to extract more uranium. Id. at 3-4. During the
mining process, monitoring wells around the perimeter
of the well field are used to detect excursion of
lixiviant. Id. at 4.
5
In a given well field, pre-mining groundwater
quality within the ore zone is generally poor due to
the mineralization of the aquifer. C.A. J.A. 331. Premining
quality of groundwater that lies outside the
ore zone but still within the well field, however, may
be good. Id. Such is the case at Section 8 where
uranium concentrations vary from as high as 10.9
milligrams per liter (“mg/l”) in the ore zone to as low
as 0.002 mg/l in other parts of the Section 8 mine
site. C.A. J.A. 253. The uranium concentration of
0.002 mg/l is more than an order of magnitude below
the Environmental Protection Agency’s (“EPA’s”)
drinking water standard of 0.03 mg/l.
2. NRC requirements for restoration and
financial surety
HRI’s license contains two related requirements
with respect to restoration of groundwater at the
termination of HRI’s mining operation. First, after
licensing but before mining may begin, HRI must establish
“groundwater restoration goals” within the
well field for an array of chemicals and radionuclides.
Pet. App. 5, 40-42. Second, at the time of licensing
HRI must establish a financial surety based
on the estimated cost of restoring the groundwater at
the conclusion of HRI’s mining operation. Id. at 5.
a. Restoration goals
HRI’s license requires it to establish a “primary
restoration goal” of returning all contaminants to
“average pre-lixiviant injection conditions,” also
known as “baseline” conditions. Id. at 40-42. These
restoration goals are consistent with the Uranium
Mill Tailings Restoration and Control Act, which requires
the EPA to establish standards for protection
of public health from hazards posed by inactive ura6
nium milling sites. Pet. App. 263. Because groundwater
quality may vary so widely within a mine site,
primary restoration goals must be separately established
for the groundwater within and outside the
ore zone and HRI may not average those values.
LBP-99-30, 50 N.R.C. at 99-100; In re: Hydro Resources,
Inc., LBP-05-17, 62 N.R.C. 77, 96-97 (2005),
review denied, CLI-06-1, 63 N.R.C. 1 (2006).
The license allows HRI to postpone setting primary
restoration goals until just prior to the commencement
of mining activities, after HRI has installed
its injection, production and monitoring wells.
C.A. J.A. 320.1 Thus, HRI has yet to establish the
pre-mining baseline conditions for Section 8. Pet.
App. 243.
b. Financial surety
NRC regulations require HRI to set aside a financial
surety that is sufficient to cover the estimated
cost of decommissioning its mine sites, including
restoring groundwater. Pet. App. 44-45, 267-70.
Groundwater restoration accounts for the majority of
decommissioning costs and therefore the majority of
––––––––––––––––––––––––
1 If baseline concentrations of contaminants are lower than
the maximum concentration limits (“MCLs”) specified in the
EPA’s drinking water regulations, the license establishes a
“secondary goal” of returning groundwater to those EPA MCLs.
Pet. App. 41-42. When HRI received its license in 1998, however,
EPA did not have an MCL for uranium, and therefore the
NRC imposed a secondary restoration goal for uranium of 0.44
mg/l. LBP-05-17, 62 N.R.C. at 89. After the EPA determined
that chronic ingestion of even low levels of uranium can cause
kidney damage and promulgated a drinking water MCL for
uranium of 0.03 mg/l, the NRC agreed to reduce the limit in
HRI’s license in order to be consistent with EPA. Id. at 89-92.
7
the surety estimate. In re Hydro Resources, Inc.,
LBP-04-3, 59 N.R.C. 84, 90 (2004).
The amount of money that must be set aside for a
groundwater restoration surety is based on the estimated
cost of flushing enough water through a
mined aquifer to return the groundwater quality to
the primary or secondary restoration goals that will
be established by HRI prior to mining, i.e., baseline
conditions or EPA drinking water standards. Pet.
App. 112-113; C.A. J.A. 256.
While HRI must establish a surety at the time of
licensing, its license does not require it to establish
restoration goals until after licensing. Therefore, by
necessity, HRI based its groundwater restoration
cost estimate on only a limited amount of data about
groundwater conditions on Section 8. Those data,
presented in the FEIS, show that water quality at
Section 8 varied from highly contaminated in the ore
zone to drinking water quality outside the ore zone.
C.A. J.A. 253. Even though HRI’s license prohibits it
from averaging ore zone and non-ore zone groundwater
quality values in establishing primary restoration
goals, the NRC allowed HRI to average those widely
divergent water quality values for purposes of establishing
a surety for Section 8. Pet. App. 243. The
NRC concluded that it would be necessary to flush
the Section 8 mine with nine “pore volumes” of water
in order to restore the quality of the water to these
average values. Id. at 47.
D. Decisions Below
1. Radioactive air emissions at Section 17
NRC regulation 10 C.F.R. § 20.1301(a)(1) limits
the public radiation dose (i.e., the total effective dose
equivalent (“TEDE”)) to 0.1 rem per year. Pet. App.
8
8. In the administrative adjudication of HRI’s license,
Petitioners contended that HRI could not satisfy
§ 20.1301(a)(1) at Section 17 because radiation
doses from existing contamination on the site far exceeded
the TEDE of 0.1 rem per year. Id. at 15, 95.
But the Commission rejected Petitioners’ argument
on the ground that the radioactive debris on Section
17 is not part of HRI’s “licensed operation.” Id. at 98
The Commission also concluded that radioactive
emissions from the debris constitute “background radiation”
which is not subject to the dose limits in 10
C.F.R. § 20.1301(a)(1). Id. at 107.
On review, a majority of the court of appeals concluded
that the NRC’s interpretation of §
20.1301(a)(1) was entitled to deference because it
was not “plainly erroneous” or inconsistent with the
NRC’s statements of intent in promulgating the regulations
at the time it promulgated the regulations.
Id. at 16-22. Because the majority relied on the
Commission’s interpretation of the term “licensed
operation,” it never reached the question of whether
the NRC had applied a proper interpretation of the
term “background radiation.” Id. at 22. See also Pet.
App. 91-108.
Judge Lucero dissented from the majority’s interpretation
of 10 C.F.R. § 20.1301(a)(1), concluding
that it is “‘inconsistent with the regulation’ and thus
warrants no deference.” Id. at 62 (quoting Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).
Observing that the NRC’s interpretation rendered
specific exclusions from the rule “unnecessary,”
Judge Lucero concluded that the NRC’s interpretation
“violates a fundamental rule of construction.”
Id. at 64. Further, he concluded that “the majority’s
decision . . . will unnecessarily and unjustifiably
9
compromise the health and safety of the people who
currently live within and immediately downwind of
Section 17...” Id. at 61.
2. Groundwater restoration goals and surety
for Section 8
In the adjudicatory proceeding before the NRC,
Petitioners charged that in its Environmental Report
for the proposed mine, HRI had already established
baseline groundwater conditions that were based on
averages of uranium concentrations in the ore zone
and the surrounding area of much lower uranium
concentration. C.A. J.A. 384-85. Petitioners asserted
that HRI “may use this same tactic in setting
restoration goals for the project sites.” Id.
The Presiding Officer rejected Petitioners’ claim,
however, concluding that HRI had not yet established
baseline conditions, and would not do so until
after the license was issued. LBP-99-30, 50 N.R.C.
at 99-100. He also noted that “baseline should be determined
in both the production area and the mine
area separately.” Id. at 100. This prohibition
against averaging ore zone and non-ore-zone water
quality was also affirmed in a subsequent decision,
LBP-05-17, 62 N.R.C. at 96-97.
Despite the NRC’s clear instruction that HRI may
not average ore zone and non-ore-zone water quality
values to set restoration goals, the NRC did just that
in concluding that HRI’s surety was adequate and
that it had a reasonable assurance that HRI could
clean up the Section 8 aquifer at the conclusion of its
mining operation. This assumption is made clear in
CLI-00-12, in which the Commission stated its expectation
that HRI would not have to restore uranium
concentrations in Section 8 groundwater to “a
10
cleaner, more stringent level” than 1.8 mg/l, the “average
level already existing in Section 8.” Pet. App.
243 (citing FEIS at 3-36, C.A. J.A. 253) (emphasis
added). The FEIS itself reports 1.8 mg/l as the
“mean’ between uranium concentrations of 10.9 mg/l
in the ore zone and 0.002 mg/l in the non-ore-zone.
C.A. J.A. 253. The Commission did not change its
conclusion when it revisited the surety issue in CLI-
04-33, Pet. App. 131.
The court of appeals affirmed the NRC’s decision,
deferring to the agency’s determination that HRI’s
proposed groundwater restoration efforts and attendant
surety estimates are adequate. Id. at 51-52.
Additionally, the court affirmed the NRC’s conclusion
that it would be reasonable to use Section 8 to
demonstrate that HRI could restore groundwater before
permitting it to mine at its other sites. Id. at 51.
However, the court did not address the validity of
NRC’s assumption that it could use average values
for ore zone and non-ore zone water quality to assess
the adequacy of HRI’s surety and the feasibility of
groundwater restoration.
11
REASONS FOR GRANTING THE WRIT
The Court should take review of this case because,
as Judge Lucero noted in his dissent, the majority’s
decision “violates a fundamental rule of construction”
by accepting an interpretation of §
20.1301(a)(1) that renders other terms of the rule
superfluous. Pet. App. 64 (Lucero, J. dissenting).
The NRC’s interpretation of the rule is also inconsistent
with other statements of intent by the NRC, not
only in the § 20.1301(a)(1) rulemaking context but
also throughout the course of the administrative proceeding.
While the NRC used the 1997 FEIS to assure
members of the public that licensing of the mine
would benefit them by resulting in an NRC-ordered
cleanup of highly contaminated areas of the Section
17 mine site, the majority has now affirmed the
NRC’s subsequent disclaimer of any authority to order
such a cleanup. Thus, the majority has allowed
the government to renege on its promise to the members
of the public living near the HRI mine, who
must now live indefinitely with radioactive contamination
that will “unnecessarily and unjustifiably
compromise the health and safety of the people who
currently live within and immediately down wind
from Section 17.” Id. at 60 (Lucero, J. dissenting).
Moreover, by approving a financial surety for
groundwater restoration that was based on the impermissible
assumption that high quality groundwater
values could be averaged with values for the polluted
ore zone, the court countenanced the NRC’s
violation of the Atomic Energy Act’s prohibition
against licensing operations that are inimical to public
health and safety. Pet. App. 264. Because the
12
court’s decision is inconsistent with the law and puts
public health at risk, it should be reviewed.
ARGUMENT
I. The NRC’s Interpretation of 10 C.F.R. §
20.1301, as Upheld by the Court of Appeals, Violates
Fundamental Principles of Statutory Interpretation
as Outlined by this Court.
A. The Plain Language of 10 C.F.R. §
20.1301(a)(1) Does not Support the NRC’s
Interpretation of the Regulation.
NRC regulation 10 C.F.R. § 20.1301(a)(1) requires
that:
(a) Each licensee shall conduct operations so
that –
(1) The total effective dose equivalent to
individual members of the public from the
licensed operation does not exceed 0.1 rem
(1 mSv) in a year, exclusive of the dose contributions
from background radiation, from
any administration the individual has received,
from exposure to individuals administered
radioactive material and released
under § 35.75, from voluntary participation
in medical research programs, and from
the licensee’s disposal of radioactive material
into sanitary sewerage in accordance
with § 20.2003.
Pet. App. 265. The majority opinion defers to the
NRC’s interpretation that the term “licensed operation”
means only HRI’s activities in removing uranium
from the ground and chemically processing it,
and therefore § 20.1301(a)(1) does not apply to the
significant radioactive emissions from pre-existing,
13
human-caused mine waste on HRI’s site. Pet. App.
16-18 . The majority found that an alternative reading
was not compelled by the regulation’s plain language.
Id . at 17.
As Judge Lucero noted in his dissent, however,
the NRC’s interpretation of the term “licensed operation”
as used in 10 C.F.R. § 20.1301(a)(1) renders
other terms of the regulation superfluous. For instance,
language in § 20.1301(a)(1) excluding sanitary
sewers and medical operations from the regulation’s
scope would not be necessary because those activities
are not part of the specific activity to be conducted
under the license. While the majority asserts
that the language in the regulation excluding sanitary
sewers and medical administration “clarifies”
that the NRC has other regulations that govern
those matters (Pet. App. 17), in fact “[t]here is no
reason to expressly exclude radiation from medical
research programs if ‘licensed operation,’ by definition,
refers only to activity of the licensee.” Id. at 64.
Further, the majority completely fails to explain
its circular statement that the exclusion of background
radiation “makes sense in its own right” under
the NRC’s interpretation of the regulations. Pet.
App. 17. In fact, the exclusion of background radiation
does not make sense under any reasoning, because
this interpretation renders the exclusion “superfluous,”
in violation of the “well-established principle
of statutory and regulatory interpretation that
a provision should be read such that no term is ren14
dered nugatory.” Id. at 63. See also Thomas Jefferson
Univ., 512 U.S. at 513.2
B. The Majority’s Opinion is Inconsistent
with Other Part 20 Regulations and the
Regulations’ History.
The majority also misreads the history of the
1991 rulemaking in which the NRC strengthened radiation
doses limits for members of the public. Pet.
App. 18-21. According to the majority, the rulemaking
history supports the NRC’s interpretation of 10
C.F.R. § 20.1301(a)(1) because it “specifically linked
the relevant measured dose to the ‘licensed operation’
by changing regulatory language that had referred
to “both licensed and unlicensed sources” to
the “licensed operation.” Id. at 18.
But the court’s analysis begs the question of what
the NRC meant by the term “licensed operation,”
which is not defined in the regulations. The majority
apparently assumes that “licensed operation” means
essentially the same thing as “licensed sources,” and
therefore the exclusion of the term “unlicensed
sources” from the 1991 rule shows that the NRC did
not intend the rule to cover unlicensed sources in the
licensee’s possession. That reading of the regula-
––––––––––––––––––––––––
2 Because the majority opinion defers to the NRC’s interpretation
of “licensed operation,” it does not address the issue of
whether the NRC’s interpretation of “background radiation” is
entitled to deference. Judge Lucero’s dissent addresses that issue,
however, and concludes that the NRC’s interpretation of
“background radiation” violates canons of regulatory construction.
Pet. App. 64-65. Because the NRC’s interpretation of its
regulatory language renders significant portions of those regulations
superfluous, the majority should not have afforded that
interpretation any deference.
15
tions is not supported by the context of the rulemaking,
however, because the statement of regulatory
purpose that accompanies 10 C.F.R. § 20.1301(a)(1)
expresses the Commission’s intent to regulate radiation
doses from both “licensed and unlicensed radioactive
material.”3
Similarly, a colloquy in the 1991 rulemaking expresses
the Commission’s intent to regulate “doses
from radiation and radioactive material under the
licensee’s control.” 56 Fed. Reg. 23,360, 23,374 (May
21, 1991). See also 51 Fed. Reg.1032, 1133 (Jan. 9,
1986) (NRC’s statement in the proposed rule regarding
the impracticality of regulating radiation doses
from several sources, “not all of which are controlled
by the licensee.”)
For the same reason, the fact that the NRC reduced
the maximum permissible radiation dose from
0.5 rem/year in the proposed rule to 0.1 rem/year in
the final rule does not, as the majority suggests,
show that the NRC intended to exclude from the
scope of the rule any radiation source in the licensee’s
control that is not also used in the licensee’s ac-
––––––––––––––––––––––––
3 Section 20.1001(b) provides that:
It is the purpose of the regulations in this part to
control the receipt, possession, use, transfer, and
disposal of licensed material by any licensee in such
a manner that the total dose to an individual (including
doses resulting from licensed and unlicensed
radioactive material and from radiation
sources other than background radiation) does not
exceed the standards for protection against radiation
prescribed in this part.
(emphasis added).
16
tivities. Pet. App. 21. It simply demonstrates that in
contrast to the proposed rule, which covered radiation
sources both within and beyond the licensee’s
control, the final rule covers only radiation sources
within the licensee’s control.
The majority also states that the NRC’s reading
of § 20.1301(a)(1) is consistent with the Commission’s
stated interest in establishing standards that
are “‘practical from the standpoint of the licensees’”
and that meet the Atomic Energy Act’s policy of developing
nuclear energy. Pet. App. 19 (quoting 25
Fed. Reg. 8595 (1960)). But no practical consideration
or general statement of policy could be fairly
read to permit the NRC to subvert the specific command
of 42 U.S.C. § 2099 that it may not issue a
source materials license that would be “inimical to . .
. the health and safety of the public.” As Judge Lucero
states in his dissent, that is exactly what the
NRC has done here with the approval of the majority.
Pet. App. 60.
Finally, the majority does not address the fact
that the NRC’s interpretation of 10 C.F.R. §
20.1301(a)(1) renders false the 1997 FEIS’ statement
that high levels of existing contamination on the
Church Rock Section 17 site “may be cleaned up as
part of the well field decontamination.” Pet. App. 30
n.15. The court leaves unexplained the question of
how, if the NRC has no authority over HRI’s existing
mine waste for purposes of enforcing 10 C.F.R. §
20.1301(a)(1), it could claim in the FEIS that it has
the authority to order HRI to clean up the existing
contamination at the conclusion of HRI’s mining operation.
17
Nor has the NRC attempted to correct what now
constitutes a misstatement in the FEIS that licensing
of the HRI mine is likely to benefit the community
by resulting in an NRC-ordered cleanup of existing
contamination. See discussion above at 3-4. The
NRC simply allowed the 1997 FEIS to stand uncorrected,
despite its obligation under the National Environmental
Policy Act to provide “carefully consider[
ed] and “detailed” information to the public regarding
the environmental consequences of its decisions.
Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 349-350 (1989).
II. The NRC-Approved Groundwater Surety for
Groundwater Restoration at Section 8 Violates
the Atomic Energy Act’s Public Health Protection
Mandate.
Consistent with the Atomic Energy Act’s requirement
that the issuance of an NRC source materials
license may not be “inimical to public health
and safety,” 42 U.S.C. § 2099 (Pet. App. 264), NRC
decommissioning funding requirements are designed
to ensure that at the end of operations, a licensee
will possess “sufficient funds to eventually decontaminate
and decommission the site to a level at
which public health and safety is assured.” Shieldalloy
Metallurgical Corp. (Newfield, NJ); Director’s Decision
Under 10 C.F.R. 2.206, 45 N.R.C. 338, 342
(1997). The NRC runs afoul of this mandate by arbitrarily
basing HRI’s initial groundwater restoration
effort and surety estimate on the assumption that
HRI needs to restore groundwater at Section 8 only
to the average of ore zone and non-ore zone groundwater
quality, not the drinking water quality currently
found in some areas of Section 8. Pet. App.
18
243. Contrary to its own conclusion that baseline
restoration goals cannot be established by averaging
ore zone and non-ore zone water quality, the NRC
has founded HRI’s restoration surety on a preliminary
restoration goal estimated by averaging extremely
low contamination values for potable nonore-
zone water with extremely high values for polluted
ore zone water.
Thus, even though baseline conditions have yet to
be definitively established, the NRC has impermissibly
assumed that average groundwater conditions
are poor and approved a surety that is correspondingly
low. As a result, HRI’s financial surety for
groundwater restoration at Section 8 is unlikely to be
sufficient to restore good quality groundwater outside
the ore zone to pre-mining conditions in the
event that HRI is financially unable to do so. By effectively
allowing HRI to degrade local residents’ potable
water source, the NRC has violated the Atomic
Energy Act’s public health protection mandate in 42
U.S.C. § 2099 and the NRC’s own interpretation of
the purpose of surety estimates as set forth in
Shieldalloy.
In affirming the NRC, the court reasoned that the
surety for Section 8 applies only to the “outset” of
HRI’s mining project and that the surety was subject
to future revisions for the other three mining sites.
Pet. App. 52-53. Setting aside the very high standard
for obtaining a hearing on future revisions to
the surety (Pet. App. 55), it is no consolation to the
neighbors of the Section 8 mine that the aquifer on
which they depend for drinking water will have been
sacrificed as an initial experiment in setting
groundwater restoration surety amounts. As the
court has acknowledged, groundwater restoration to
19
baseline conditions at ISL projects is exceedingly difficult,
if not impossible and at best, only one ISL operation
may have successfully restored groundwater.
Pet. App.35-36.4 Like the NRC, the court of appeals
failed to account for the real possibility that HRI
may not be able to complete the demonstration experiment
and leave Section 8 contaminated because
of an inadequate groundwater restoration surety.
This kind of experiment is not contemplated by the
Atomic Energy Act’s requirement for protection of
public health and therefore warrants review.
––––––––––––––––––––––––
4 In note 19 of its opinion, the panel states that there is evidence
in the record that groundwater quality was successfully
restored at the Bison Basin project, without providing a record
citation. Pet. App. 36. However, that assertion was not supported
in the administrative case with any evidence, and the
court does not cite any. To Petitioners’ knowledge, no ISL mining
operation has ever restored groundwater to pre-mining conditions.
20
CONCLUSION
The petition for certiorari should be granted.
Respectfully submitted,
Diane Curran
Counsel of Record
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
Suite 600
1736 M Street N.W.
Washington, D.C. 20035
(202) 328-3500
dcurran@harmoncurran.com
Eric Jantz
New Mexico Environmental
Law Center
Suite 5
1405 Luisa Street
Santa Fe, New Mexico
87505
(505) 989-9022
Counsel for Petitioners Eastern Navajo Diné Against
Uranium Mining and Southwest Research and
Information Center
Levon Henry
Jesse Traugott
DNA-People’s
Legal Services, Inc.
P.O. Box 306
Window Rock, Arizona
86515
(928) 871-4151
Zackeree Kelin
Kelin Law Firm, P.C.
1309 Rio Grande
Boulevard N.W.
Albuquerque,
New Mexico 87104
(505) 242-7200
Counsel for Petitioners Marilyn Morris and Grace
Sam
September 2010
