Joint Appendix — Va. Uranium, Inc. v. Warren, 138 S. Ct. 293 (2017) (No. 16-1275)

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No. 16-1275

In The

Supreme Court of the Hnited States

VIRGINIA URANIUM, INC., et ai.,

Petitioners,

JOHN WARREN, et ai.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

Tosy J. HEYTENS

Solicitor General

Counsel of Record

MATTHEW R. MCGUIRE

Deputy Solicitor General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, VA 23219

(804) 786-7240

theytens@oag.state.va.us

Counsel for Respondents

Counsel for Petitioners

Petition For Certiorari Filed April 21, 2017

Certiorari Granted May 21, 2018

TABLE OF CONTENTS

United States District Court for the Western

District of Virginia Docket Entries ...................

United States Court of Appeals for the Fourth

Circuit Docket Entries ..................:ccsscssseeeeeeees

Cuccinelli, McAuliffe Weigh in on Uranium Min-

ing, Tue Vircinia Pitot, Mar. 19, 2013 (at-

tached as Exhibit 6 to Plaintiffs’ Complaint

for Declaratory and Injunctive Relief, Virginia

Uranium, Inc. v. McAuliffe, No. 4:15-cv-31

(W.D. Va. Aug. 5, 2015), Doc. 1-6) ..................0.

Defendants’ Memorandum in Support of Motion

to Dismiss, pp. 14—17, Virginia Uranium, Inc.

vu. McAuliffe, No. 4:15-cv-31 (W.D. Va. Aug. 25,

MEMORANDUM FROM HOWARD K. SHAPAR TO WIL-

LIAM J. Dircks, Apr. 28, 1980 (attached as Ex-

hibit A to Defendants’ Moticn to Dismiss,

Virginia Uranium, Inc. v. McAuliffe, No. 4:15-

ev-31 (W.D. Va. Aug. 25, 2015), Doc. 32-1) .........

SENES ConsuLtants LTp., ASSESSMENT OF RISK

FROM URANIUM MINING IN VIRGINIA, pp. S-1

through S-4 (1984) (attached as Exhibit 7 to

Declaration of John D. Ohlendorf in Support

of Plaintiffs’ Cross-Motion for Summary Judg-

ment, Virginia Uranium, Inc. v. McAuliffe, No.

4:15-cv-31 (W.D. Va. Sept. 11, 2015), Doc. 48-

ip cocecesnenennsnscesncensnscnssnesuecensnenveceosessensccsccecossocoqsee

TABLE OF CONTENTS — Continued

Page

REPORT OF THE VA. CoAL & ENERGY COMM’N TO

THE GOVERNOR AND THE GEN. ASSEMBLY OF VA.

App. B, S. Doc. No. 15, pp. 6-8, 10-29 (1985)

(attached as Exhibit 16 to Declaration of John

D. Ohlendorf in Support of Plaintiffs’ Cross-

Motion for Summary Judgment, Virginia Ura-

nium, Inc. v. McAuliffe, No. 4:15-cv-31 (W.D.

Va. Sept. 11, 2015), Doc. 48-17).............cccccceceeeeees 119

MICHAEL BAKER, ET AL., A PRELIMINARY ASSESS.

MENT OF POTENTIAL IMPACTS OF URANIUM MIN.

ING IN VIRGINIA ON DRINKING WATER SOURCES,

pp. ES-1 through ES-8 (2011) (attached as Ex-

hibit 18 to Declaration of John D. Ohlendorf

in Support of Plaintiffs’ Cross-Motion for Sum-

mary Judgment, Virginia Uranium, Inc. v.

McAuliffe, No. 4:15-cv-31 (W.D. Va. Sept. 11,

eC cictrinitnitsinicennantnininchieanrenciatticanrecenes 153

City of Chesapeake, Resolution Requesting that

the Va. Gen. Assembly Maintain the Current

Moratorium on Uranium Mining Until the

Completion of Scientific Studies Evaluating

the Risk of Contamination of Drinking Water

Supplies & Harm to the Pub. Health (June 1,

2011) (attached as Exhibit 23 to Declaration

of John D. Ohlendorf in Support of Plaintiffs’

Cross-Motion for Summary Judgment, Virginia

Uranium, Inc. v. McAuliffe, No. 4:15-cv-31

(W.D. Va. Sept. 11, 2015), Doc. 48-20) ................... 163

TABLE OF CONTENTS — Continued

Town of Culpeper, Resolution Supporting the

Continued Ban on Uranium Mining in Vir-

ginia (May 14, 2013) (attached as Exhibit 25

to Declaration of John D. Ohlendorf in Sup-

port of Plaintiffs’ Cross-Motion for Summary

Judgment, Virginia Uranium, Inc. v. McAuliffe,

No. 4:15-cv-31 (W_D. Va. Sept. 11, 2015), Doc.

KEEP THE BAN, KEEP THE BAN ON URANIUM MIN.

ING IN VIRGINIA (attached as Exhibit 28 to Dec-

laration of John D. Ohlendorf in Support of

Plaintiffs’ Cross-Motion for Summary Judg-

ment, Virginia Uranium, Inc. v. McAuliffe, No.

4:15-cv-31 (W.D. Va. Sept. 11, 2015), Doc. 48-

Uranium Mining—A Risky Experiment, Soutu-

ERN ENnvt.. LAw Crr. (attached as Exhibit 29

to Declaration of John D. Ohlendorf in Sup-

port of Plaintiffs’ Cross-Motion for Summary

Judgment, Virginia Uranium, Inc. v. McAuliffe,

No. 4:15-cv-31 (W.D. Va. Sept. 11, 2015), Doc.

Mary Beth Jackson, Milling “Driving Issue’ of

Uranium Controversy, THE DANVILLE REGIs-

TER & Bes, Dec. 10, 2012 (attached as Exhibit

30 to Declaration of John D. Ohlendorf in Sup-

port of Plaintiffs’ Cross-Motion for Summary

Judgment, Virginia Uranium, Inc. v. McAuliffe,

No. 4:15-cv-31 (W_D. Va. Sept. 11, 2015), Doc.

Page

TABLE OF CONTENTS — Continued

Page

Uranium Likely to be Hot Topic, TH&# MARTINS.

VILLE BULLETIN, Dec. 19, 2012 (attached as Ex-

hibit 32 to Declaration of John D. Ohlendorf

in Support of Plaintiffs’ Cross-Motion for Sum-

mary Judgment, Virginia Uranium, Inc. v.

McAuliffe, No. 4:15-cv-31 (W.D. Va. Sept. 11,

ee acenicncernsnimentstainstisecisntninnimmmenenens

Kenneth R. Plum, Uranium Mining in Virginia,

THE CONNECTION, July 10, 2012 (attached as

Exhibit 33 to Declaration of John D. Ohlen-

dorf in Support of Plaintiffs’ Cross-Motion for

Summary Judgment, Virginia Uranium, Inc.

v. McAuliffe, No. 4:15-cv-31 (W_D. Va. Sept. 11,

ID HT ciicterncicemcenssinpminnianrinintnitintiesemnemncese

Herring Opposes Lifting Ban on Uranium Min-

ing, LoupoUN CNTY. Democratic Comm., Dec.

19, 2012 (attached as Exhibit 36 to Declara-

tion of John D. Ohlendorf in Support of Plain-

tiffs’ Cross-Motion for Summary Judgment,

Virginia Uranium, Inc. v. McAuliffe, No. 4:15-

cv-31 (W.D. Va. Sept. 11, 2015), Doc. 48-22) .........

Jeff E. Schapiro, McAuliffe Looks to Bury Ura-

nium Issue, RICHMOND Times-DispaTcH, Nov.

13, 2013 (attached as Exhibit 38 to Declara-

tion of John D. Ohlendorf in Support of Plain-

tiffs’ Cross-Motion for Summary Judgment,

Virginia Uranium, Inc. v. McAuliffe, No. 4:15-

cv-31 (W.D. Va. Sept. 11, 2015), Doc. 48-22) .........

TABLE OF CONTENTS — Continued

Page

124 Conc. Rec. 836687, 36694—95 (daily ed. Oct.

13, 1978) (attached as Exhibit 47 to Declara-

tion of John D. Ohlendorf in Support of Plain-

tiffs’ Cross-Motion for Summary Judgment,

Virginia Uranium, Inc. v. McAuliffe, No. 4:15-

cv-31 (W.D. Va. Sept. 11, 2015), Doc. 48-23) ......... 194

Hearing on S. 1717, A Bill for the Development

& Control of Atomic Energy Before the S.

Comm. on Atomic Energy, 79th Cong. 318-20

(1946) (attached as Exhibit 48 to Declaration

of John D. Ohlendorf in Support of Plaintiffs’

Cross-Motion for Summary Judgment, Virginia

Uranium, Inc. v. McAuliffe, No. 4:15-cv-31

(W.D. Va. Sept. 11, 2015), Doc. 48-23) ................... 197

H.R. Rep. No. 2181 1-4 (1954) (attached as Ex-

hibit 49 to Declaration of John D. Ohlendorf

in Support of Plaintiffs’ Cross-Motion for Sum-

mary Judgment, Virginia Uranium, Inc. v. Mc-

Auliffe, No. 4:15-cv-31 (W_D. Va. Sept. 11, 2015),

FUN, ie ciecrecnensiecnteinimtenmennntbidueminmeisenatonnnen 203

Defendants’ Reply in Support of Motion to Dis-

miss and Response to Cross-Motion for Sum-

mary Judgment, pp. 7-8, Virginia Uranium,

Inc. v. McAuliffe, No. 4:15-cv-31 (W.D. Va. Sept.

ee Fe ee nirctrrasenmesesintntnenmmastennssmeteenceces 211

Brief of Appellees, pp. 14—16, Virginia Uranium,

Inc. v. Warren, No. 16-1005 (4th Cir. Apr. 18,

ees NE ai carcnntnscintntedanniarnncnineisapiemannemnentents 214

TABLE OF CONTENTS — Continued

Page

The following opinions and orders have been omitted

in printing this Joint Appendix because they appear on

the following pages in the appendix to the Petition for

a Writ of Certiorari:

Opinion of the United States Court of Appeals

for the Fourth Circuit, Virginia Uranium, Inc.

v. Warren, No. 16-1005 (Feb. 17, 2017) ................... la

Opinion of the United States District Court for

the Western District of Virginia, Virginia Ura-

nium, Inc. v. McAuliffe, No. 4:15-cv-31 (Dec. 2,

STI ccnveiccnemtundsincetitsnrnaussngninesnaseninenndtnmnanndauenesneneassted 53a

U.S. District Court

Western District of Virginia (Danville)

CIVIL DOCKET FOR

CASE #: 4:15—-cv—00031-—JLK-RSB

Virginia Uranium, Inc. et al v. McAuliffe et al

Assigned to: Judge Jackson L. Kiser

Referred to: Magistrate Judge Robert S. Ballou

Case in other court: 16—-01005

Cause: 28:1331 Fed. Question

Date Filed: 08/05/2015

Date Terminated: 12/02/2015

Jury Demand: None

Nature of Suit: 950 Constitutional — State Statute

vurisdiction: Federal Question

Date Filed # Docket Text

08/05/2015 1 COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF against

Melanie D. Davenport, Michael Dowd,

Maurice Jones, Bradley C. Lambert,

Terry McAuliffe, David K. Paylor,

James P. Skorupa, Conrad Spangler,

Molly J. Ward, Robert J. Weld, Justin

Williams (Filing & Administrative fee

$400.00; receipt number 0423—

2282328 paid via pay.gov) filed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. 100 Day

Notice due by 11/13/2015; 120 Day

Service due by 12/3/2015.

(Attachments: # 1 Exhibit 1, # 2

Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4,

08/05/2015 2

08/05/2015 3

08/05/2015 4

08/05/2015 5

08/05/2015 6

# 5 Exhibit 5, # 6 Exhibit 6, # 7 Civil

Cover Sheet)(ham)

Positive Corporate Disclosure

Statement by Virginia Uranium, Inc.

identifying Corporate Parent Virginia

Energy Resources, Inc. and Virginia

Energy Resources, Inc. identifying

Other Affiliate Sprott Resource Corp.

& Other Affiliate Energy Fuels, Inc.

Negative Corporate Disclosure

Statement by Coles Hill, LLC and

Bowen Minerals, LLC. (ham)

Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to Terry

McAuliffe.(Weitzner, Michae}l)

Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to Maurice

Jones.(Weitzner, Michael)

Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to Conrad

Spangler.(Weitzner, Michael)

Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to Bradley C.

Lambert.(Weitzner, Michael)

08/05/2015

7 Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to James P.

Skorupa.(Weitzner, Michael)

Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to Molly J.

Ward.(Weitzner, Michael)

Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to David K.

Paylor.(Weitzner, Michael)

10 Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Lowen

Minerals, LLC as to Robert J.

Weld.(Weitzner, Michael)

11 Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to Michael

Dowd.(Weitzner, Michael)

12 Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to Melanie D.

Davenport.(Weitzner, Michael)

13 Proposed Summons by Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc., Bowen

Minerals, LLC as to Justin

Williams.(Weitzner, Michael)

08/05/2015 14 Summons Issued as to Melanie D.

Davenport, Michael Dowd, Maurice

Jones, Bradley C. Lambert, Terry

McAuliffe, David K. Paylor, James P.

Skorupa, Conrad Spangler, Molly J.

Ward, Robert J. Weld, Justin Williams.

(Original Summons mailed to counsel!

for service).(ham)

08/05/2015 15 MOTION for Charles J. Cooper to

Appear Pro Hac Vice. by Bowen

Minerals, LLC, Coles Hill, LLC,

Virginia Energy Resources, Inc.,

Virginia Uranium, Inc.. (Attachments:

# 1 Certificate of Good Standing, # 2

Text of Proposed Order)(Weitzner,

Michael)

08/05/2015 16 MOTION for Michael W. Kirk to

Appear Pro Hac Vice. by Bowen

Minerals, LLC, Coles Hill, LLC,

Virginia Energy Resources, Inc.,

Virginia Uranium, Inc.. (Attachments:

# 1 Certificate of Good Standing, # 2

Text of Proposed Order)(Weitzner,

Michael)

08/05/2015 17 MOTION for John D. Ohlendorf to

Appear Pro Hac Vice. by Bowen

Minerals, LLC, Coles Hill, LLC,

Virginia Energy Resources, Inc.,

Virginia Uranium, Inc.. (Attachments:

# 1 Certificate of Good Standing, # 2

Text of Proposed Order)(Weitzner,

Michael)

08/06/2015 18 ORDER granting 15 MOTION for

Charles J. Cooper to Appear Pro Hac

Vice. Attorney Charles J. Cooper for

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.

& Virginia Uranium, Inc. added.

Signed by Judge Jackson L. Kiser on

8/6/15. (ham)

08/06/2015 19 ORDER granting 16 MOTION for

Michael W. Kirk to Appear Pro Hac

Vice. Attorney Michael W. Kirk for

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.

& Virginia Uranium, Inc. added.

Signed by Judge Jackson L. Kiser on

8/6/15. (ham)

08/06/2015 20 ORDER granting 17 MOTION for

John D. Ohlendorf to Appear Pro Hac

Vice. Attorney John D. Ohlendorf for

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.

& Virginia Uranium, Inc. added.

Signed by Judge Jackson L. Kiser on

8/6/15. (ham)

08/10/2015 21 SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. Terry

McAuliffe served on 8/7/2015, answer

due 8/28/2015.(Weitzner, Michaei)

08/10/2015 22 SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. Maurice

Jones served on 8/7/2015, answer due

8/28/2015.(Weitzner, Michael)

08/10/2015 23 SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. Conrad

Spangler served on 8/7/2015, answer

due 8/28/2015.(Weitzner, Michael)

08/10/2015 24SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. Molly J.

Ward served on 8/7/2015, answer due

8/28/2015.(Weitzner, Michael)

08/10/2015 25 SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. David K.

Paylor served on 8/7/2015, answer due

8/28/2015.(Weitzner, Michael)

08/10/2015 26 SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. Michael

Dowd served on 8/7/2015, answer due

8/28/2015.(Weitzner, Michael)

08/10/2015 27 SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. Melanie

D. Davenport served on 8/7/2015,

answer due 8/28/2015.(Weitzner,

Michael)

08/10/2015 28 SUMMONS Returned Executed by

08/10/2015

08/11/2015

08/1 1/2015

08/25/2015

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. Justin

Williams served on 8/7/2015, answer

due 8/28/2015.(Weitzner, Michael)

29 SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. Bradley C.

Lambert served on 8/10/2015, answer

due 8/31/2015.(Weitzner, Michael)

30 SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. James P.

Skorupa served on 8/10/2015, answer

due 8/31/2015.(Weitzner, Michael)

31 SUMMONS Returned Executed by

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Bowen Minerals, LLC. Robert J.

Weld served on 8/6/2015, answer due

8/27/2015.(Weitzner, Michael)

32 MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM,

MOTION to Dismiss for Lack of

Jurisdiction by Melanie D. Davenport,

Michael Dowd, Maurice Jones,

Bradley C. Lambert, Terry McAuliffe,

David K. Paylor, James P. Skorupa,

Conrad Spangler, Molly J. Ward,

Robert J. Weld, Justin Williams.

(Attachments: # 1 Declaration in

Support Motion to Dismiss, # 2

Exhibit A— NRC Memorandum, # 3

Exhibit B — NRC Fact Sheet, # 4

Exhibit C — EPA Fact Sheet, # 5

Exhibit D — Report of Secretary of the

Commonwealth, # 6 Text of Proposed

Order Granting Motion to

Dismiss)(Pitchford, Jonathan)

08/25/2015 33 Magistrate Consent Notice to Parties.

(ham)

08/25/2015 34 PRETRIAL ORDER, Order Referring

Case to Magistrate Judge Robert S.

Ballou. Signed by Judge Jackson L.

Kiser on 8/25/15. (ham)

08/30/2015 35 NOTICE of Hearing: (CR) Bench

Trial set for 12/14/2015 at 09:30 AM

in Danville before Judge Jackson L.

Kiser. Counsel must contact the

Clerk’s Office no later than five (5)

business «ays before the

schedulcu trial date for your

technology needs. (ham)

08/30/2015 36 NOTICE of Requested Hearing by

Attorney for Melanie D. Davenport,

Michael Dowd, Maurice Jones,

Bradley C. Lambert, Terry McAuliffe,

David K. Paylor, James P. Skorupa,

Conrad Spangler, Molly J. Ward,

Robert J. Weld, Justin Williams re 32

MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM

MOTION to Dismiss for Lack of

Jurisdiction Motion to Dismiss

hearing date November 6, 2015, at

10:00 a.m., at U.S. District Court,

Danville, before Judge Kiser.

Confirmation notice to be sent by the

Clerk’s Office. (Pitchford, Jonathan)

08/30/2015 37 NOTICE of Hearing on Motion 32

MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM

MOTION to Dismiss for Lack of

Jurisdiction: (CR) Motion Hearing set

for 11/6/2015 at 10:00 AM in Danville

before Judge Jackson L. Kiser. (ham)

09/04/2015 38 NOTICE of Appearance by William

Choice Cleveland, IV on behalf of

Roanoke River Basin Association, Dan

River Basin Association (Cleveland,

William)

09/04/2015 39 NOTICE of Appearance by Caleb

Adam Jaffee on behalf of Dan River

Basin Association, Roanoke River

Basin Association (Jaffee, Caleb)

09/04/2015 40 First MOTION to Intervene by Dan

River Basin Association, Roanoke

River Basin Association. (Jaffee,

Caleb)

09/04/2015 41 Brief / Memorandum in Support re 40

First MOTION to Intervene . filed by

Dan River Basin Association, Roanoke

09/04/2015

09/11/2015

River Basin Association. (Jaffee,

Caleb)

42 MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM by

Dan River Basin Association, Roanoke

River Basin Association. (Jaffee,

Caleb)

43 Brief / Memorandum in Support re 42

MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM . filed

by Dan River Basin Association,

Roanoke River Basin Association.

(Attachments: # 1 Exhibit Danville

2011)Jaffee, Caleb)

44 Negative Corporate Disclosure

Statement by Roanoke River Basin

Association (Jaffee, Caleb)

45 Negative Corporate Disclosure

Statement by Dan River Basin

Association (Jaffee, Caleb)

46 Cross MOTION for Summary

Judgment by Bowen Minerals, LLC,

Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc.. (Attachments: # 1 Text of

Proposed Order)(Cooper, Charles)

47 Brief / Memorandum in Support re 46

Cross MOTION for Summary

Judgment, 32 MOTION TO DISMISS

FOR FAILURE TO STATE A CLAIM

MOTION to Dismiss for Lack of

Jurisdiction (Response in Opposition).

filed by Bowen Minerals, LLC, Coles

Hill, LLC, Virginia Energy Resources,

Inc., Virginia Uranium, Inc..

(Attachments: # 1 Appendix)Cooper,

Charles)

09/11/2015 48 Declaration re 46 Cross MOTION for

Summary Judgment by Bowen

Minerals, LLC, Coles Hill, LLC,

Virginia Energy Resources, Inc.,

Virginia Uranium, Inc. (Attachments:

# 1 Exhibit 1 & 2, # 2 Exhibit 3 (Part

1 of 6), # 3 Exhibit 3 (Part 2 of 6), # 4

Exhibit 3 (Part 3 of 6), # 5 Exhibit 3

(Part 4 of 6), # 6 Exhibit 3 (Part 5 of

6), # 7 Exhibit 3 (Part 6 of 6), #8

Exhibit 4 & 5, # 9 Exhibit 6, # 10

Exhibit 7 (Part 1 of 3), # 11 Exhibit 7

(Part 2 of 3), # 12 Exhibit 7 (Part 3 of

3), # 13 Exhibit 8 — 14, # 14 Exhibit 15

(Part 1 of 3), # 15 Exhibit 15 (Part 2 of

3), # 16 Exhibit 15 (Part 3 of 3), # 17

Exhibit 16, # 18 Exhibit 17, # 19

Exhibit 18 — 21, # 20 Exhibit 22 — 27,

# 21 Exhibit 28 — 33, # 22 Exhibit 34 —

41, # 23 Exhibit 42 — 48, # 24 Exhibit

49 — 54, # 25 Exhibit 55 — 60, # 26

Exhibit 61 — 67, # 27 Exhibit 68 — 75,

# 28 Exhibit 76 — 82, # 29 Exhibit 83 —

89, # 30 Exhibit 90 — 94)(Cooper,

Charles)

09/15/2015 49 NOTICE of Requested Hearing by

Attorney for Dan River Basin

Association, Roanoke River Basin

Association re 40 First MOTION to

Intervene Oral Argument on Motion

to Intervene hearing date 10/09/2015,

at 10:00am, at U.S. District Court,

Confirmation notice to be sent by the

Clerk’s Office. (Cleveland, William)

09/15/2015 50 NOTICE of Requested Hearing by

Attorney for Bowen Minerals, LLC,

Coles Hill, LLC, Virginia Energy

Resources, Lac., Virginia Uranium,

Inc. re 46 Cross MOTION for

Summary Judgment Requested

hearing date Friday, November 6,

2015, at 10:00 a.m., at U.S. District

Court, Danville Courthouse, 700 Main

Street, Danville, Virginia 24541,

before Judge Kiser. Confirmation

notice to be sent by the Clerk’s Office.

(Cooper, Charles)

09/17/2015 51 NOTICE of Hearing on Motion 40

First MOTION to Intervene: (CR)

Motion Hearing set for 19/9/2015 at

10:00 AM in Danville before Judge

Jackson L. Kiser. (ham)

09/17/2015 52 NOTICE of Hearing on Motion 46

Cross MOTION for Summary

Judgment: (CR) Motion Hearing set

for 11/6/2015 at 10:00 AM in Danville

before Judge Jackson L. Kiser. (ham)

09/17/2015 53 NOTICE of Requested Hearing by

Attorney for Dan River Basin

Association, Roanoke River Basin

Association re 42 MOTION TO

DISMISS FOR FAILURE TO STATE

A CLAIM Motion to Dismiss hearing

date November 6, 2015, at 10am, at

U.S. District Court, Danville, before

Judge Kiser. Confirmation notice to be

sent by the Clerk’s Office. (Cleveland,

William)

09/17/2015 54 NOTICE of Hearing on Motion 42

MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM: (CR)

Motion Hearing set for 11/6/2015 at

10:00 AM in Danville before Judge

Jackson L. Kiser. (ham)

09/18/2015 55 RESPONSE to Motion re 40 First

MOTION to Intervene . filed by

Melanie D. Davenport, Michael Dowd,

Maurice Jones, Bradley C. Lambert,

Terry McAuliffe, David K. Paylor,

James P. Skorupa, Conrad Spangler,

Molly J. Ward, Robert J. Weld, Justin

Williams. (Pitchford, Jonathan)

09/18/2015 56 REPLY to Response to Motion re 32

MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM,

MOTION to Dismiss for Lack of

Jurisdiction and RESPONSE in

Opposition re 46 Cross MOTION for

Summary Judgment filed by Melanie

D. Davenport, Michael Dowd, Maurice

Jones, Bradley C. Lambert, Terry

McAuliffe, David K. Paylor, James P.

Skorupa, Conrad Spangler, Molly J.

Ward, Robert J. Weld, Justin Williams.

(Pitchford, Jonathan) Modified on

9/18/2015 — corrected docket text

(ham).

09/21/2015 57 RESPONSE in Opposition re 40 First

MOTION to Intervene . filed by

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc.. (Cooper,

Charles)

09/28/2015 58 REPLY to Response to Motion re 46

Cross MOTION for Summary

Judgment . filed by Bowen Minerals,

LLC, Coles Hill, LLC, Virginia Energy

Resources, Inc., Virginia Uranium,

Inc.. (Cooper, Charles)

10/01/2015 59 REPLY to Response to Motion re 40

First MOTION to Intervene . filed by

Dan River Basin Association, Roanoke

River Basin Association. (Jaffee,

Caleb)

10/09/2015 60 Minute Entry for proceedings held

before Judge Jackson L. Kiser: Motion

Hearing held on 10/9/2015 re: 40

Motion for Leave to Intervene

Pursuant to Fed. R. Civ. P. 24 on

Behalf of the Roanoke River Basin

Association and the Dan River Basin

Association. Order

(Court Reporter: Judy Webb) (mlh)

10/09/2015 61 TRANSCRIPT REQUEST (14

calendar days Service) by Melanie D.

Davenport, Michael Dowd, Maurice

Jones, Bradley C. Lambert, Terry

McAuliffe, David K. Paylor, James P.

Skorupa, Conrad Spangler, Molly J.

Ward, Robert J. Weld, Justin Williams

for Hearing on Motion to Intervene

held on 10/09/2015 before Judge

Kiser, Judy Webb, OCR. Transcript

Due Deadline will be set when

Financial Arrangements are made.

(Pitchford, Jonathan) (Main

Document 61 replaced on 10/9/2015 to

attach pfd formatted request) (rkm).

Modified on 10/9/2015 to include name

of Court Reporter (rkm).

10/09/2015 62 Financial arrangements made (14

calerdar days Service) re 61

Tri script Request,, Transcript due

by 10/23/2015. (jw) (Entered:

10/13/2015)

10/19/2015 63 TRANSCRIPT of Proceedings: Motion

Hearing held on 10/9/15 before Judge

Jackson L. Kiser. Court

Reporter/Transcriber Judy K. Webb,

Telephone number 540-857-5100 X

5333/4udyw@vawd.uscourts.gov.

NOTICE RE REDACTION OF

TRANSCRIPTS:The parties have

seven (7) calendar days to file

with the Court a Notice of Intent

to Request Redaction of this

transcript. If no such Notice is

filed, the transcript will be made

remotely available

to the public without redaction

after 90 calendar days. The policy

is located on our website at

www.vawd.uscourts.gov

Transcript may be viewed at the

court public terminal or

purchased through the Court

Reporter/Transcriber before the

deadline for Release of Transcript

Restriction. After that date it may

be obtained through PACER.

Redaction Request due 11/12/2015.

Redacted Transcript Deadline set

for 11/23/2015. Release of

Transcript Restriction set for

1/22/2016. (jw)

10/19/2015 64 MEMORANDUM OPINION. Signed

by Judge Jackson L. Kiser on

10/19/2015. (mlh)

10/19/2015 65 ORDER denying 40 Motion for Leave

to Intervene Pursuant to Fed. R. Civ.

P. 24 on Behalf of the Roanoke River

Basin Association and the Dan River

Basin Association; granting Movants

leave to file amicus curiae briefs in

further proceedings. Signed by Judge

Jackson L. Kiser on 10/19/2015. (mlh)

10/19/2015 66 TRANSCRIPT REQUEST — COPY

(Expedited—7 calendar days Service)

by Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc. for Hearing on

Motion to Intervene held on 10/9/2015

reported by Court Reporter Judy K.

Webb before Judge Jackson L. Kiser.

Transcript Due Deadline will be set

when Financial Arrangements are

made. (Weitzner, Michael) Modified on

10/21/2015 as a copy request, original

previously requested by another party

at DE#61 (bkd).

10/20/2015 67 ORDER denying as moot 42 Motion to

Dismiss for Failure to State a Claim.

Signed by Judge Jackson L. Kiser on

10/20/15. (ham)

11/02/2015 69 Brief/Memorandum Amicus Curiae.

11/03/2015

filed by Dan River Basin Association,

Roanoke River Basin Association.

(Attachments: # 1 Exhibit Coles Op—

Ed, # 2 Exhibit NAS Report chapters

7 and 8, # 3 Exhibit Coles London

transcript, # 4 Exhibit Coles New York

transcript)(Jaffee, Caleb)

Notice of Correction: Changed viewing

restriction of Document 68

Brief/Memorandum due to attorney

attaching incorrect/deficient pdf (s/

signature was omitted; attorney

preferred to refile pleading with s/

signature even though not required to

do so); only viewable by court

personnel. Document correctly filed at

Document 69 Brief/Memorandum.

(ham)

11/04/2015 70 MOTION for Leave to File a Response

to the Roanoke River Basin

Association and Dan River Basin

Association’s Amicus Curiae Brief by

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc.. (Attachments:

# 1 Proposed Response to Amicus

Brief (Cooper, Charles)

11/05/2015 71 ORDER granting 70 Motion for Leave

to File a Response to Roanoke River

Basin Association and Dan River

Basin Association’s Amicus Curiae

Brief. Signed by Judge Jackson L.

Kiser on 11/5/15. (ham)

11/05/2015 72 Response to 69 Amicus Curiae Brief

filed by Bowen Minerals, LLC, Coles

Hill, LLC, Virginia Energy Resources,

Inc., Virginia Uranium, Inc. (ham)

11/06/2015 73 Minute Entry for proceedings held

before Judge Jackson L. Kiser: Motion

Hearing held on 11/6/2015 re: 32

MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM,

MOTION to Dismiss for Lack of

Jurisdiction filed by Conrad Spangler,

David K. Paylor, Justin Williams,

Terry McAuliffe, Melanie D.

Davenport, Molly J. Ward, James P.

Skorupa, Bradley C. Lambert, Robert

J. Weld, Maurice Jones, Michael

Dowd; 46 Cross MOTION for

Summary Judgment filed by Virginia

Energy Resources, Inc., Virginia

Uranium, Inc., Coles Hill, LLC, Bowen

Minerals, LLC. Order forthcoming.

(Court Reporter: Janelle Mundy

(sworn)) (mlh)

11/09/2015 74 TRANSCRIPT REQUEST (Ordinary—

30 calendar days Service) by Melanie

D. Davenport, Michael Dowd, Maurice

Jones, Bradley C. Lambert, Terry

McAulitie, David K. . ayior, James P.

Skorupa, Conrad Spangler, Molly J.

Ward, Robert J. Weld, Justin Williams

for Hearing on Motion to Dismiss held

on November 6, 2015 before Judge

Kiser. Transcript Due Deadline will be

set when Financial Arrangements are

made. (Pitchford, Jonathan)

11/10/2015 75 TRANSCRIPT REQUEST — (COPY)

by Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.,

Virginia Uranium, Inc. for Hearing on

Motion to Dismiss and Cross—Motion

for Summary Judgment held on

11/6/2015 reported by Court Reporter

Janelle Mundy before Judge Jackson

L. Kiser. Transcript Due Deadline will

be set when Financial Arrangements

are made. (Cooper, Charles) Corrected

request to reflect copy instead of

original. Modified on 11/12/2015 (bkd).

12/01/2015 77 TRANSCRIPT of Proceedings:

Motion for Summary Judgment

held on November 6, 2015 before

Judge Jackson L. Kiser. Court

Reporter/Transcriber Janelle Mundy,

Contract court reporter, Telephone

number 540/342-2547. NOTICE

RE REDACTION OF

TRANSCRIPTS:The parties

have seven (7) calendar days to

file with the Court a Notice of

Intent to Request Redaction of

this transcript. If no such Notice

is filed, the transcript will be

made remotely electronically

available to the public without

redaction after 90 calendar days.

The policy is located on our

website at www.vawd.uscourts.gov

Transcript may be viewed at the

court public terminal or

purchased through the Court

Reporter/Transcriber before the

deadline for Release of Transcript

Restriction. After that date it may

be obtained through PACER.

Redaction Request due 12/28/2015.

Redacted Transcript Deadline set

for 1/7/2016. Release of Transcript

Restriction set for 3/3/2016. (bkd)

12/02/2015 78 MEMORANDUM OPINION. Signed

by Judge Jackson L. Kiser on

12/2/2015. (mlh)

12/02/2015 79 ORDER granting 32 Motion to

Dismiss for Failure to State a Claim;

granting 32 Motion to Dismiss for

Lack of Jurisdiction; denying 46 Cross

Motion for Summary Judgment. Clerk

is directed to strike this case from the

active docket of this Court. Signed by

Judge Jackson L. Kiser on 12/2/2015.

(mlh)

12/31/2015 80 NOTICE OF APPEAL as to 78

Memorandum Opinion, 79 Order on

Motion to Dismiss for Failure to State

a Claim, Order on Motion to

Dismiss/Lack of Jurisdiction, Order on

Motion for Summary Judgment by

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.

& Virginia Uranium, Inc.

(Attachment: # 1 Exhibit A — Order of

Final Judgment)(Cooper, Charles)

Modified on 1/4/2016 — removed filing

fee text due to being paid separately

(ham).

12/31/2015 81 USCA Appeal Fees received: $505.00;

receipt number 7-47678 re 80 Notice

of Appeal filed by Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Coles Hill, LLC & Bowen

Minerals, LLC. (ham) (Entered:

01/04/2016)

01/04/2016 82 Transmittal of Notice of Appeal to

4CCA re 80 Notice of Appeal. NOTE:

The Docketing Statement and

Transcript Order Form are available

on the 4th Circuit Court of Appeals

website at www.ca4.uscourts.gov. If

CJA24 form(s) are applicable, you

must submit a separate Auth—24 for

each court reporter from whom you

wish to order a transcript through the

District Court’s eVoucher system.

(ham)

01/04/2016 83 Order Directing Appellant to Post

Cost Bond, with proper surety, in

penal amount of $500.00 within ten

days. Signed by Judge Jackson L.

Kiser on 1/4/16. (ham)

01/05/2016 84 NOTICE of Docketing Record on

Appeal from USCA re 80 Notice of

Appeal filed by Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Coles Hill, LLC & Bowen

Minerals, LLC. USCA Case Number

16-1005; Case Manager M. Radday.

(ham)

01/05/2016 85 USCA APPEAL COSTS BOND

received in the amount of $500.00;

receipt number 4—1842 re 80 Notice of

Appeal. (Attachment: # 1 Receipt 4—

1842)(ham)

02/17/2017 86 USCA Memorandum Opinion from

4th Circuit re 80 Notice of Appeal;

affirming; decided on 2/17/17. (ham)

02/17/2017 87 USCA JUDGMENT as to 80 Notice of

Appeal filed by Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Coles Hill, LLC, Bowen Minerals,

LLC. (ham)

03/13/2017 88 MANDATE of USCA as to 80 Notice

of Appeal filed by Virginia Energy

Resources, Inc., Virginia Uranium,

Inc., Coles Hill, LLC, Bowen Minerals,

LLC. (ham)

03/14/2017 89 Order for Release of Appeal Bond to

Plaintiffs/Appellants. Signed by Judge

Jackson L. Kiser on 3/14/17. (ham)

03/15/2017 90 Disbursement made to counsel per

order 89 as to Virginia Uranium, Inc.

(erf) (Entered: 03/20/2017)

04/26/2017 91 USCA Notice of Supreme Court

Remark: Petition for Writ of

Certiorari filed. (ham)

05/22/2018 92 USCA Notice of Supreme Court

Remark: Petition for Writ of

Certiorari granted. (mlh)

General Docket

United States Court of Appeals

for the Fourth Circuit

Court of Appeals Docket #: 16-1005

Virginia Uranium, Inc. v. John Warren

01/05/2016 1 Case docketed. Originating case

number: 4:15-cv-00031-JLK-RSB.

Case manager: MRadday. (16-1005)

MR [Entered: 01/05/2016 08:43 AM]

01/05/2016 2 DOCKETING NOTICE issued Re: [1!

case docketed Initial forms due

within 14 days. Originating case

number: 4:15-cv-00031-JLK-RSB.

Mailed to: attorneys Kirk and

Weitzner. |16-1005] MR [Entered:

01/05/2016 09:34 AM]

01/05/2016 3 BRIEFING ORDER filed. Mailed to:

attorneys Kirk and Weitzner. Opening

Brief and Appendix due 02/16/2016.

Response Brief due 03/18/2016 [16-

1005] MR (Entered: 01/05/2016 09:36

AM]

01/05/2016 4 APPEARANCE OF COUNSEL (Local

Rule 46(c)) by J. Duncan Pitchford for

Melanie D. Davenport, Michael Dowd,

Maurice Jones, Bradley C. Lambert,

Terry McAuliffe, David K. Paylor,

James P. Skorupa, Conrad Spangler,

Molly J. Ward, Robert J. Weld and

Justin Williams. (999729938] [16-

1005] Jonathan Pitchford [Entered:

01/05/2016 11:05 AM]

01/05/2016 5

01/05/2016 6

01/05/2016 7

01/05/2016 8

APPEARANCE OF COUNSEL (Local

Rule 46(c)) by Rhodes B. Ritenour for

Melanie D. Davenport, Michael Dowd,

Maurice Jones, Bradley C. Lambert,

Terry McAuliffe, David K. Paylor,

James P. Skorupa, Conrad Spangler,

Molly J. Ward, Robert J. Weld and

Justin Williams. (999729942) [16-

1005] Jonathan Pitchford [Entered:

01/05/2016 11:07 AM]

ORDER filed {999730002}

substituting party (FRAP 43) John W.

Warren substituted for Conrad

Spangler Copies to all parties. Mailed

to: attorneys Kirk and Weitzner. |16-

1005] MR [Entered: 01/05/2016 11:34

AM]

APPEARANCE OF COUNSEL (Local

Rule 46(c)) by Charles J. Cooper for

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.

and Virginia Uranium,

Inc..[9997305 19] [16-1005] Charles

Cooper [Entered: 01/05/2016 04:29

PM]

APPEARANCE OF COUNSEL (Local

Rule 46(c)) by Michael W. Kirk for

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.

and Virginia Uranium,

Inc..[999730523] [16-1005] Michael

Kirk [Entered: 01/05/2016 04:32 PM]

01/05/2016 9 APPEARANCE OF COUNSEL (Local

Rule 46(c)) by John D. Ohlendorf for

Inc..[999730526] [16-1005] John

Ohlendorf (Entered: 01/05/2016 04:34

PM]

01/05/2016 10 DISCLOSURE OF CORPORATE

AFFILIATIONS (Local Rule 26.1) by

Appellant Virginia Uranium, Inc..

Was any question on Disclosure Form

answered yes? Yes [999730532] [16-

1005] Charles Cooper [Entered:

01/05/2016 04:41 PM]

01/05/2016 11 DISCLOSURE OF CORPORATE

AFFILIATIONS (Local Rule 26.1) by

Appellant Coles Hill, LLC. Was any

question on Disclosure Form

answered yes? No [999730533] |16-

1005] Charles Cooper [Entered:

01/05/2016 04:42 PM]

01/05/2016 12 DISCLOSURE OF CORPORATE

AFFILIATIONS (Local Rule 26.1) by

Appellant Bowen Minerals, LLC. Was

any question on Disclosure Form

answered yes? No [999730536] |16-

1005] Charles Cooper (Entered:

01/05/2016 04:43 PM]

01/05/2016 13 DISCLOSURE OF CORPORATE

AFFILIATIONS (Local Rule 26.1) by

Appellant Virginia Energy Resources,

Inc.. Was any question on Disclosure

01/05/2016

01/06/2016

01/07/2016

Form answered yes? Yes [999730538]

[16-1005] Charles Cooper [Entered:

01/05/2016 04:44 PM]

14 DOCKETING STATEMENT by

Appellants Bowen Minerals, LLC,

Coles Hill, LLC, Virginia Energy

Resources, Inc. and Virginia

Uranium, Inc.. [16-1005] Charles

Cooper [Entered: 01/05/2016 05:02

PM]

15 MOTION by Appellants Bowen

Minerals, LLC, Coles Hill, LLC,

Virginia Energy Resources, Inc. and

Virginia Uranium, Inc. to extend

filing time for opening brief and

appendix until March 17, 2016. Date

and method of service: 01/05/2016 ecf.

[999730565] [16-1005] Charles

Cooper |Entered: 01/05/2016 06:04

PM]

16 NOTICE ISSUED re: case caption

modified.. [16-1005] MR |Entered:

01/06/2016 09:04 AM]

17 ORDER filed (999730747) granting

Motion to extend filing time [15].

Opening brief and appendix due

03/17/2016. Response brief due

04/18/2016. Copies to all parties.. | 16-

1005] MR (Entered: 01/06/2016 09:11

AM]

18 APPEARANCE OF COUNSEL (Local

Rule 46(c)) by Stuart A. Raphael for

Bradley C. Lambert, James P.

Skorupa and John

Warren. (999731911) [16-1005] Stuart

Raphael [Entered: 01/07/2016 01:31

PM]

03/17/2016 19 BRIEF by Appellants Bowen

Minerals, LLC, Coles Hill, LLC,

Virginia Energy Resources, Inc. and

Virginia Uranium, Inc. in electronic

and paper format. Type of Brief:

OPENING. Method of Filing Paper

Copies: mail. Date Paper Copies

Mailed, Dispatched, or Delivered to

Court: 03/17/2016. [999777153] [16-

1005] Charles Cooper [Entered:

03/17/2016 05:37 PM]

03/17/2016 20 FULL ELECTRONIC APPENDIX

and full paper appendix by

Appellants Bowen Minerals, LLC,

Coles Hill, LLC, Virginia Energy

Resources, Inc. and Virginia

Uranium, Inc.. Method of Filing

Paper Copies: mail. Date paper copies

mailed dispatched or delivered to

court: 03/17/2016. [999777155] [16-

1005] Charles Cooper [Entered:

03/17/2016 05:44 PM]

03/17/2016 21 OPENING BRIEF (PAPER) file-

stamped, on behalf of Bowen

Minerals, LLC, Coles Hill, LLC,

Virginia Energy Resources, Inc. and

Virginia Uranium, Inc.. Number of

pages: [88]. Sufficient: YES. Number

of Copies: [1]. Entered on Docket

Date: 03/18/2016. Received by clerk

date: 03/18/2016. |[999777597]) |16-

1005] MR |Entered: 03/18/2016 12:25

PM]

03/17/2016 22 APPENDIX (PAPER) file-stamped, on

behalf of Bowen Minerals, LLC, Coles

Hill, LLC, Virginia Energy Resources,

Inc. and Virginia Uranium, Inc.. Total

number of volumes (including any

sealed): 3. Total number of pages in

all volumes: 941. Total number of

sealed volumes: 0. Sufficient? Yes.

CD/DVD/Other exhibit? No. Number

of Copies: 1. Entered on Docket Date:

03/18/2016. Received by clerk date:

03/18/2016. [999777601] [16-1005]

MR (Entered: 03/18/2016 12:29 PM]

04/11/2016 23 APPEARANCE OF COUNSEL (Local

Rule 46(c)) by Peter C. Meir for

Nuclear Energy Institut

[999792753] [16-1005] Pev.c Meier

[Entered: 04/11/2016 02:26 PM]

04/11/2016 24 DISCLOSURE OF CORPORATE

AFFILIATIONS (Local Rule 26.1) by

Potential Amicus Curiae Nuclear

Energy Institute. Was any question

on Disclosure Form answered yes? No

[999792760] [16-1005] Peter Meier

[Entered: 04/11/2016 02:28 PM]

04/11/2016 25 MOTION by Potential Amicus Curiae

Nuclear Energy Institute to file

amicus curiae brief (FRAP 29%e)) with

consent of all parties on appeal

outside time allowed by FRAP 29%e)..

Date and method of service:

04/11/2016 ecf. [999792784] [16-1005}

Peter Meier |Entered: 04/11/2016

02:35 PM]

04/11/2016 26 AMICUS CURIAE/INTERVENOR

BRIEF by Potential Amicus Curiae

Nuclear C~ argy Institute in

electronic and paper format. Type of

Brief: Amicus Curiae. Method of

Filing Paper Copies: hand delivery.

Date Paper Copies Mailed,

Dispatched, or Delivered to Court:

04/11/2016. [999792794] [16-1005]

Peter Meier [Entered: 04/11/2016

02:41 PM]

04/11/2016 28 AMICUS CURIAE BRIEF (PAPER)

file-stamped, on behalf of Nuclear

Energy Institute. Number of pages:

[32]. Number of Copies: [1]. Entered

on Docket Date: 04/12/2016. Received

by clerk date: 04/11/2016.

[999793625] [16-1005] MR (Entered:

04/12/2016 12:32 PM]

04/12/2016 27 ORDER filed [999793601] granting

Motion to file amicus curiae brief {25}.

Disclosure Statement filed (if

corporate amicus)? Y. Appearance

Form filed? Y. Copies to all parties..

[16-1005] MR [Entered: 04/12/2016

12:21 PM]

04/18/2016 29 BRIEF by Appellees Bradley C.

Lambert, James P. Skorupa and John

Warren in electronic and paper

format. Type of Brief: RESPONSE.

Method of Filing Paper Copies: hand

delivery. Date Paper Copies Mailed,

Dispatched, or Delivered to Court:

04/18/2016. [999797224] [16-1005]

Stuart Raphael [Entered: 04/18/2016

01:47 PM]

04/18/2016 30 RESPONSE BRIEF (PAPER) file-

04/25/2016 31

stamped, on behalf of Bradley C.

Lambert, James P. Skorupa and John

Warren. Number of pages: [83].

Sufficient: YES. Number of Copies:

[4]. Entered on Docket Date:

04/19/2016. Received by clerk date:

04/18/2016. [999797859] [16-1005]

MR [Entered: 04/19/2016 09:15 AM]

MOTION by Dan River Basin

Association and Roanoke River Basin

Association as Amici Curiae in

Support of Defendants-Appellees to

file amicus curiae brief (FRAP 29%e))

with consent of all parties on appeal!

within time allowed by FRAP 29%e)..

Date and method of service:

04/25/2016 ecf. [999803951] [16-1005}

William Cleveland (Entered:

04/25/2016 04:53 PM]

04/25/2016 32 AMICUS CURIAE/INTERVENOR

BRIEF by Dan River Basin

Association and Roanoke River Basin

Association as Amici Curiae in

Support of Defendants-Appellees in

electronic and paper format. Type of

Brief: Amicus Curiae. Method of

Filing Paper Copies: mail. Date Paper

Copies Mailed, Dispatched, or

Delivered to Court: 04/26/2016.

[999803968] [16-1005] William

Cleveland [Entered: 04/25/2016 05:01

PM]

04/25/2016 36 DISCLOSURE OF CORPORATE

AFFILIATIONS (Local Rule 26.1) by

Amicus Supporting Appellee Dan

River Basin Association. Was any

question on Disclosure Form

answered yes? No [999812628] |16-

1005] MR [Entered: 05/04/2016 11:33

AM]

04/25/2016 37 DISCLOSURE OF CORPORATE

AFFILIATIONS (Local Rule 26.1) by

Amicus Supporting Appellee Roanoke

River Basin Association. Was any

question on Disclosure Form

answered yes? No [999812632] [16-

1005] MR (Entered: 05/04/2016 11:34

AM]

04/25/2016 38 AMICUS CURIAE BRIEF (PAPER)

file-stamped, on behalf of Dan River

Basin Association and Roanoke River

Basin Association. Number of pages:

[44]. Number of Copies: [1]. Entered

on Docket Date: 05/04/2016. Received

by clerk date: 04/29/2016.

[999812636] [16-1005] MR (Entered:

05/04/2016 11:36 AM]

04/27/2016 34 ORDER filed [999805525] granting

motion to file amicus curiae brief [31].

Disclosure Statement filed (if

corporate amicus)? N/A. Appearance

Form filed? Y. Copies to all parties..

[16-1005] MR (Entered: 04/27/2016

08:07 AM]

05/02/2016 35 BRIEF by Appellants Bowen

Minerals, LLC, Coles Hill, LLC,

Virginia Energy Resources, Inc. and

Virginia Uranium, Inc. in electronic

and paper format. Type of Brief:

REPLY. Method of Filing Paper

Copies: mail. Date Paper Copies

Mailed, Dispatched, or Delivered to

Court: 05/02/2016. [999810190] [16-

1005] Charles Cooper (Entered:

05/02/2016 03:06 PM]

05/02/2016 39 RELY BRIEF (PAPER) file-stamped,

on behalf of Bowen Minerals, LLC,

Coles Hill, LLC, Virginia Energy

Resources, Inc. and Virginia

Uranium, Inc.. Number of pages: |32).

Sufficient: YES. Number of Copies:

[1]. Entered on Docket Date:

05/05/2016. Received by clerk date:

05/05/2016. [999813920] [16-1005)

MR (Entered: 05/05/2016 12:56 PM}

07/15/2016 40 CASE TENTATIVELY

CALENDARED for oral argument

during the 10/25/16 - 10/28/16

argument session. Notify Clerk’s

Office of any scheduling conflict * +»:

07/25/2016 [16-1005] JLC (Entered:

07/15/2016 03:41 PM]

07/18/2016

07/19/2016

08/04/2016

08/08/2016

08/11/2016

41 Letter re: [40] case tentatively

calendared by Appellees Bradley C.

Lambert, James P. Skorupa and John

Warren. [999890372] [16-1005] Stuart

Raphael [Entered: 07/18/2016 01:18

PM]

42 Additional copies of OPENING

BRIEF, JOINT APPENDIX (vols. 1-3),

and REPLY BRIEF received from

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.

and Virginia Uranium, Inc.. [16-1005]

AC (Entered: 07/21/2016 08:50 AM]

43 COPY FOLLOW-UP NOTICE issued

to Nuclear Energy Institute and Dan

River Basin Association and Roanoke

River Basin Association requesting

additional copies of Amicus briefs.

Additional copies due 08/09/2016 [16-

1005] AD (Entered: 08/04/2016 03:00

PM]

44 Additional copies of AMICUS BRIEF

received from Nuclear Energy

Institute. [16-1005] AD [Entered:

08/08/2016 09:41 AM]

45 Additional copies of AMICUS BRIEF

received from Dan River Basin

Association and Roanoke River Basin

Association. [16-1005] AD (Entered:

08/08/2016 04:12 PM]

46 CASE CALENDARED for oral

argument. Date: 10/28/2016.

Registration Time: 7:45 - 8:00. Daily

Arguments Begin: 8:30. Oral

argument acknowledgment form due

within 5 days. [16-1005] JLC

|Entered: 08/11/2016 04:13 PM]

08/12/2016 47 ORAL ARGUMENT

ACKNOWLEDGMENT by Appellants

Bowen Minerals, LLC, Coles Hill,

LLC, Virginia Energy Resources, Inc.

and Virginia Uranium, Inc.. Counsel

arguing: Charles J. Cooper Opening

argument time: 13 minutes Rebuttal

argument time: 7 minutes

[999909308] [16-1005] Charles

Cooper (Entered: 08/12/2016 10:37

AM]

08/15/2016 48 ORAL ARGUMENT

ACKNOWLEDGMENT by Appellees

Bradley C. Lambert, James P.

Skorupa and John Warren. Counsel

arguing: Stuart A. Raphael Opening

argument time: 20 [999910256] [16-

1005] Stuart Raphael [Entered:

08/15/2016 01:28 PM]

10/28/2016 49 ORAL ARGUMENT heard before the

Honorable William B. Traxler, Jr.,

Albert Diaz and Pamela A. Harris.

Attorneys arguing case: Mr. Charles

J. Cooper for Appellants Virginia

Uranium, Inc., Coles Hill, LLC,

Bowen Minerals, LLC and Virginia

Energy Resources, Inc. and Stuart

Alan Raphael for Appellees Bradley

C. Lambert, James P. Skorupa and

John Warren. Courtroom Deputy:

Jocelyn Mitchell Manion. |[999957350}

[16-1005] JM (Entered: 10/28/2016

12:33 PM]

01/30/2017 50 Letter re: Rhodes Ritenour no longer

employed by AG’s office and no longer

participating on appeal by Appellee

Vicki Montgomery in 16-1916,

Appellees Bradley C. Lambert and

James P. Skorupa in 16-1005,

Appellee Denise Lawhorn in 16-1936.

[1000012647] |16-1916, 16-1005, 16-

1936] AW [Entered: 01/30/2017 10:18

AMI]

02/17/2017 51 PUBLISHED AUTHORED OPINION

filed. Originating case number: 4:15-

cv-00031-JLK-RSB. [1000025607].

[16-1005] MR (Entered: 02/17/2017

08:50 AM]

02/17/2017 52 JUDGMENT ORDER filed.

Disposition method: 16-1005

opn.p.arg. Decision: Affirmed.

Originating case number: 4:15-cv-

00031-JLK-RSB. Entered on Docket

Date: 02/17/2017. {1000025610}

Copies to all parties and the district

court/agency.. [16-1005] MR (Entered:

02/17/2017 08:53 AM]

02/17/2017 53 OPINION ATTACHMENTS (2). [16-

1005] ZS (Entered: 02/22/2017 03:23

PM]

03/13/2017 54 Mandate issued. Referencing: [52]

Judgment Order, [51] Published

Authored Opinion. Originating case

number: 4:15-cv-00031-J3LK-RSB..

[16-1005] MR |Entered: 03/13/2017

07:49 AM]

04/26/2017 55 SUPREME COURT REMARK-

petition for writ of certiorari filed.

04/21/2017. 16-1275. [16-1005] SJC

[Entered: 04/26/2017 02:45 PM!

05/22/2018 56 SUPREME COURT REMARK--

petition for writ of certiorari granted.

05/2 1/2018 [16-1005] SJC (Entered:

05/22/2018 07:58 AM]

PilotOnline.com

Cuccinelli, McAuliffe weigh in on uranium

mining

By Steve Szkotak

The Associated Press

RICHMOND

If Gov. Bob McDonnell decides against reviving the is-

sue of uranium mining this year, the two men who are

likely to succeed him are willing to keep the issue alive

in 2014.

Republican Attorney General Ken Cuccinelli and Dem-

ocrat Terry McAuliffe conditionally said they would be

open to consider uranium mining, in response to an

fiercely debated subject. Each identified key factors in

their ultimate decision, such as its economic impact

and whether mining can be done safely.

Cuccinelli goes further than his presumptive Demo-

cratic opponent in November, stating that some of

those questions could be answered if state regulations

governing mining were in place before the General As-

sembly takes up the issue anew, as proponents have

suggested.

“This would clarify what would be involved and would

eliminate any uncertainty prior to the General Assem-

bly’s decision,” Cuccinelli’s office said in a statement.

Despite a big build up to the 2013 session of the Gen-

eral Assembly, proposals to end a 1983 prohibition on

uranium mining failed to even achieve a committee

vote amid almost certain defeat. Mining supporters

then suggested that McDonnell direct the appropriate

agencies to draw up regulations to better inform legis-

lators when they take up the issue again, which is ex-

pected.

McDonnell has said he is giving the suggestion any

thought while he continues to review legislation

passed by the General Assembly and until after an

April veto session. He has also raised the possibility he

might not take a public position on uranium mining.

The issue is being pushed by Virginia Uranium Inc.,

which wants to mine a 119-million-pound deposit of

the radioactive ore in Pittsylvania County. Is the larg-

est known uranium deposit in the United States.

Before it can mine, however, a decades-old ban must be

lifted by the General Assembly. Virginia Uranium has

made it clear it will not walk away from a deposit it

values at $7 billion.

McAuliffe and Cuccinelli offered succinct responses to

the question of uranium mining, with the attorney gen-

eral offering a slightly more expansive answer.

“Mr. Cuccinelli feels the factors that should be weighed

... include the safety of miners and the surrounding

community, jobs created, tax revenues generated, the

gion, and energy independence for Virginia and Amer-

ica,” wrote Caroline Gibson, a spokeswoman for his

office.

She said Cuccinelli “believes that it would be appropri-

ate” to have regulations in place before the General As-

sembly considers ending the ban.

McAuliffe’s campaign issued his response:

“Any economic proposal in these tough times merits a

hard look. However, I would need to be certain that

mining uranium can be done safely and cleaned up

completely before a moratorium is lifted.”

McAuliffe added today, “So far I have not seen that.”

McAuliffe is a businessman and former chairman of

the National Democratic Committee.

Opponents and supporters of mining would argue

those questions both men cite have already been an-

swered. Uranium mining has been studied extensively

over the past few years, from an environmental and

economic perspective. A study by the National Acad-

emy of Sciences, completed in late 2011, is the most

widely accepted.

The mostly [sic] commonly cited portion of the report

states Virginia would have to overcome “steep hurdles”

before allowing mining and milling of the ore to ensure

the safety of workers, the public and the environment.

Mining supporters cite a section of the report that

states “internationally accepted best practices” govern-

ing mining could be a starting point for Virginia.

Full-fledged uranium mining has never occurred on

the East Coast. Critics say the state’s climate is too wet

and prone to tropical storms to allow uranium mining

and milling, or the separation of ore from rock.

Virginia Uranium says mining and milling can be done

safely and create jobs in the economically depressed

Southside region of the state.

Lt. Gov. Bill Bolling was expected to offer anti-mining

voters an option in November after he declared his op-

position to uranium mining, but has since abandoned

a GOP or independent bid for governor.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

Danville Division

VIRGINIA URANIUM, INC., et ai.,

Plaintiffs,

v. CIVIL ACTION NO.

TERRY McAULIFFE, et ai., 4:15CV-31-JLK

Defendants.

MEMORANDUM IN SUPPORT

OF MOTION TO DISMISS

Mark R. Herring

Attorney General

John W. Daniel, I

Deputy Attorney General!

Rhodes B. Ritenour (VSB No. 71406)*

Deputy Attorney General

Lynne C. Rhode

Senior Assistant Attorney General & Section Chief

J. Duncan Pitchford (VSB No. 87065)*

Assistant Attorney General III

Office of the Attorney Genera!

Commonwealth of Virginia

900 East Main Street

Richmond, Virginia 23219

(804) 371-0977 — Office

(804) 786-2650 — Facsimile

jpitchford@oag.state.va.us

*Counsel of record for Defendants

* * *

|14| I. The Atomic Energy Act does not prohibit

Virginia from considering health and

safety concerns in regulating conven-

tional uranium mining.

In light of the foregoing, it cannot be questioned

that Virginia plainly enjoys the authority to regulate

conventional uranium mining on private property.

And, as noted previously, the Plaintiffs do not appear

to seriously contest the issue in their Complaint. See

Complaint at 13 937 (Page I1D#13). The Plaintiffs

nonetheless maintain that Va. Code § 45.1-283 is

preempted by the Atomic Energy Act because Virginia

may have considered radiological safety issues in

enacting the legislation. The Plaintiffs point to a num-

ber of past statements by members of [15] various

study commissions as evidence that Virginia rested its

decision to both pass the moratorium, and to not sub-

sequently enact a regulatory scheme permitting con-

ventional uranium mining, upon radiological safety

concerns. According to the Plaintiffs, this consideration

is precluded by the sweep of the AEA.

Assuming for purposes of the current motion the

Plaintiffs are correct, and one of the purposes’ behind

an unsatisfactory venture,” and this is particularly true for the

Virginia General Assembly, as it does not regularly publish com-

mittee reports or other similar documentation, in contrast to

those available for evaluating the motivation behind federal stat-

utes. PG&E, 461 U.S. at 216 (citing United States v. O’Brien, 391

U.S. 367, 383 (1968)). Further, it is “particularly pointless” to do

so in this case where “it is clear that the States have been allowed

to retain authority over” uranium mining. /d.

enacting” § 45.1-283 was to address potential radio-

logical safety concerns,'’ nothing in the AEA precludes

such a consideration. As noted above, nothing in the

text of the statute itself, the legislative history behind

its enactment, subsequent amendments to the statute

or the NRC’s interpretation of its power under the Act

suggest the AEA reaches conventional uranium min-

ing on private lands. It “would be odd, if not irrational,

to conclude” that Congress excluded uranium mining

from the ambit of the Act, yet at the same time some-

how expressed a “clear and manifest purpose” to limit

the issues the Commonwealth may consider in exercis-

ing its historic police powers. English, 496 U.S. at 86;

PG&E, 461 U.S. at 206.

This, however, is the conclusion the Plaintiffs

claim PG&E and its progeny compel. Pointing to lan-

guage in the decision that the “Federal Government

‘© Much of what the Plaintiffs discuss in their lengthy narra-

tive occurred after the enactment of the statute. How these post-

hoe actions bear upon the decision to enact the statute is difficult

to discern.

The attachments to the Plaintiffs’ Complaint fail to sup-

port their central tenet, which is that the 1982 statute arose out

of concerns for radiological safety. Both the 1981 House Joint Res-

olution (attached as Exhibit 1 to the Complaint) and the provi-

sions of Chapter 269 of the 1982 Acts of Assembly, wherein the

General Assembly adopted Va. Code § 45.1-283 (attached as Ex-

hibit 2 to the Complaint), state that the study of uranium mining,

and then the enactment of the moratorium, stem from the Gen-

eral Assembly’s concerns about potential adverse effects upon the

“environment and the health and safety of the public.” Va. Code

§45.1-272 (1982). At no point does the General Assembly refer-

ence radiological safety; rather only the historic, police power con-

cerns of health, safety and general welfare. See Section III, infra.

has occupied the entire field of nuclear safety con-

cerns,” the Plaintiffs contend any decision that rests,

in part, upon [16] radiological safety is solely the prov-

ince of the United States. PG&E, 461 U.S. at 212. Noth-

ing in the texts of the decisions compels such a bizarre

conclusion.

First, as noted previously, the Supreme Court has

three times considered the preemptive effect of the Act,

and on all three occasions, even in areas where the

NRC robustly exercises its regulatory authority, found

state regulation or state law not preempted by the Act.

See PG&E, 461 U.S. at 222-23 (concluding the AEA did

not preempt a California statute prohibiting nuclear

plant construction until development of plan for waste

disposal); Silkwood, 464 U.S. at 256 (finding that the

AEA did not preempt state law allowing for the award

of punitive damages for safety violations at a nuclear

fuel facility); English, 492 U.S. at 90 (concluding that

the AEA did not prohibit a claim of intentional inflic-

tion of emotional distress). The PG&E court took pains

to note that the Act reserves to the several states —

again, even in areas where the NRC has exercised thc

full scope of its statutory mandate — “their traditional

authority” over such issues as “land use.” PG&E, 461

U.S. at 212. Further, in English, the Court pared back

some of the broad dicta in PG&E by noting “for a state

law to fall within the pre-empted zone, it must have

some direct and substantial effect on the decisions

made by those who build or operate nuclear facilities

concerning radiological safety levels.” English, 496 U.S.

at 85 (emphasis added).

Indeed, the cases where lower courts have found

preclusive effect of the Act have been associated with

direct impacts upon those who build or operate nuclear

facilities regulated by the NRC. For example, in En-

tergy Nuclear Vermont Yankee, LLC v. Shumlin, 733

F.3d 393 (2nd Cir. 2013), relied upon by the Plaintiffs,

the state law in question attempted to impose safety

requirements at the Vermont Yankee nuclear power

plant. In United States v. Manning, 527 F.3d 828 (9th

Cir. 2008), the state law involved “cleanup of existing

contamination” at the [17] Hanford nuclear reserva-

tion. Jd. at 830. In Westinghouse, the court addressed

radiological cleanup of a former nuclear fuel facility.

Id., 487 F. Supp. 2d at 1078.

In each of these situations, the “matter on which

the State assert|ed] the right to act” was clearly “regu-

lated by the [AEA].” PG&E, 461 US. at 213. This

stands in stark contrast to the question of conventional

uranium mining, which, as shown, is not in any way

regulated by the AEA. Nothing suggests the state may

not exercise the full scope of its “historic police pow-

ers”, including the ability to address radiological safety

concerns, in those areas which are not regulated by the

AEA. PG&E, 461 U.S. at 206.

Further, states have continued to exercise their

rights to regulate conventional uranium mining. For

example, the Texas Uranium Surface Mining and Rec-

lamation Act, Tex. Nat. Res. Code § 131 et seg., empow-

ers Texas state regulators to require mine operators

address any number of health and safety concerns be-

fore they receive a permit to conduct conventional

uranium mining activities in Texas. The enabling reg-

ulations direct that any mine operations must be con-

ducted “as to prevent unreasonable degradation to

land and water resources” and otherwise to “prevent

adverse effects to society and the environment.” Tit. 16,

Part 1, Ch. 11, R. 11.71 Texas Admin. Code. While no

state could intrude upon areas regulated by other fed-

eral statutes (such as the Clean Air Act), no provision

of the AEA suggests that a state could not consider the

full scope of potential environmental! effects, including

radiologic, in otherwise regulating conventional ura-

nium mining.

APR 28 1980

FOR: Chairman Ahearne

FROM: Howard K. Shapar

Executive Legal Director

THRU: William J. Dircks

(Signed) William J. Dircks

Acting Executive Director

for Operations

SUBJECT: OELD LEGAL OPINION ON TWO

QUESTIONS RELATING TO

OPERATION OF THE URANIUM

MILL TAILINGS RADIATION

CONTROL ACT OF 1973

Following your recent meeting with Governor Hersch-

ler of Wyoming, (which capped a series of meetings and

exchanges of letters with the Governor and other offi-

cials of the State), you asked for answers to the follow-

ing questions:

1. What is the extent, if any, of NRC’s legal authority

to impose license conditions to protect groundwa-

ter from contaminants which result from licensed

operations connected with in-situ extraction of

source material?

2. Has non-Agreement State authority over the non-

radiological hazards of uranium mill tailings been

preempted by the Federal Government and, if not,

what, if any, authority is shared between the NRC

and the non-Agreement States.

The preemption issue, in particular, is extremely

complex because of some cumbersome and internally

inconsistent statutory language that the Attorney

General of Wyoming has correctly likened to a Brob-

dingnagian Knot.” Comprehensive legal analyses of

each question are presented in the two attachments to

this memorandum. A summary of the conclusions is

presented below.

Question 1. We conclude that the NRC has the legal

authority to impose groundwater protection conditions

upon its in-situ extraction licensees under the licens-

ing and regulatory authority found in the Atomic En-

ergy Act of 1954, as amended by the Uranium Mill

Tailings Radiation Control Act of 1978 as amended,

(Mill Tailings Act.) This is so even though the defini-

tion of uranium mill tailings in our regulations (10

CFR 40.4(a-1)) excludes underground ore bodies de-

pleted by solution extraction. This is because the po-

tential interaction with groundwater is so integrally

related to the above-ground processing (which we do

license) as to be properly the subject of license condi-

tions, just as, historically, we were able to regulate the

generation (but not subsequent use) of tailings from

the conventional milling process. This specific author-

ity reinforces the general authority available under

the National Environmental Policy Act to impose envi-

ronmental license conditions.

Question 2. The second question presents extremely

difficult questions of the proper construction of the Mill

Tailings Act and the so-called remedial amendments to

it. The problem is compounded by the paucity of legis-

lative history.

A conclusion of preemption would mean that the fed-

eral government has so completely occupied the field

of regulation over the nonradiological hazards of ura-

nium mill tailings that there is no room for any exer-

cise of non-Agreement State authority in this area.

Conversely, concurrent jurisdiction would mean that

non-Agreement States could exercise authority over

the very same subject matter as the NRC — the non-

radiological hazards of uranium mill tailings — though

such concurrent exercise of authority would have to be

consistent with the federal scheme of regulation. We

note, however, that even where there is concurrent ju-

risdiction, the supremacy clause of the Constitution re-

quires that particular state regulation must give way

to federal authority in the event of a conflict such that

compliance with both federal and state regulatory re-

quirements is impossible.

Though the question is very close, we conclude that the

better legal view is that there is insufficient evidence

of Congressional intent to completely and exclusively

occupy the field to override the strong presumption

against implied preemption of historic state policy

powers to regulate matters affecting the public health

and safety. There is, therefore, in our view, concur-

rent jurisdiction over the nonradiological hazards of

uranium mill tailings. This conclusion is somewhat

stronger with respect to the period before November 8,

1981, because section 204(h)(1) of the Mill Tailings Act,

added by the remedial amendments, operates (according

to the best interpretation) to expressly preserve previ-

ously existing non-Agreement State authority over the

non-radiological hazards of uranium mill tailings until

that date.

This paper has been coordinated with the Office of the

General Counsel.

[Illegible| 4/24/80

Howard K. Shapar

Executive Legal Director

Attachments: As stated Distribution:

Cunningham OELD R/File

cc: Commissioner Gilinsky Shapar Chron

Commissioner Kennedy EDO [Illegible}

Commissioner Hendrie SECY SP

Commissioner Bradford EDO R/File

OPE OELD

ccc

Contacts: W. Parler 492-7527 (Attachment A)

G. Cunningham 492-7203 (Attachment B)

ATTACHMENT A

NRC’s AUTHORITY TO IMPOSE CONDITIONS TO

PROTECT GROUNDWATER IN ITS LICENSES

FOR THE IN SITU EXTRACTION OF SOURCE

MATERIAL IN NON-AGREEMENT STATES

This analysis deals with the question of NRC’s legal

authority to impose license conditions in its licenses

for the in situ extraction of source material to protect

groundwater from contaminants which result from the

licensed activity in non-Agreement States.

In summary, the NRC has the legal authority to impose

such license conditions under its licensing and regula-

tory authority in the Atomic Energy Act of 1954, as

amended by the Uranium Mill Tailings Radiation Con-

trol Act of 1978. This specific authority reinforces the

general authority available under the National Envi-

ronmental Policy Act (NEPA) to impose environmental

license conditions. '

The Factual Background

Uranium oxide (U;0,) is processed from uraniun ore

by a series of physical and chemical actions. The con-

ventional uranium oxide production process is con-

ducted in uranium mills which are generally located

near uranium mines, and the mills receive uranium

ore either directly from mines or from intermediate ore

buying stations. Uranium ore is also processed by an

in situ or solution extraction process which combines

uranium mining and milling into essentially one oper-

ation.* This process, also called injection mining or

' It is noted that other agencies may have regulatory author-

ity in this area under other Federal laws, such as the Resource

Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seg.,

the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seg.

and the Safe Drinking Water Act, 42 U.S.C. § 300 et seq.

* In 1976, about 2% of the total uranium concentrate pro-

duced in the United States resulted from in situ operations. U.S.

NUCLEAR REGULATORY COMMISSION, DRAFT GENERIC

ENVIRONMENTAL IMPACT STATEMENT ON URANIUM

MILLING, at 8-2 (NUREG-0511, April 1979). There is reason to

borehole leaching, involves (1) the injection of a leach

solution (lixiviant) through lined wells into a uranium-

bearing ore body to form a chemical compound with the

uranium, (2) mobilization of the uranium complex

formed, and (3) surface recovery of the solution bearing

the uranium complex via production wells. Uranium is

then separated from the pregnant leach solution by

milling unit operations at the surface.*

Unlike conventional! milling operations, in situ extrac-

tion requires no ore mining, transportation, crushing,

or grinding. Moreover, the solution extraction process

does not produce conventional mill tailings.‘ It does,

believe, however, that in situ extraction will become a significant

means of uranium extraction in the near future, especially in

States like Texas and Wyoming, where smal! pockets of uranium

deposits are particularly susceptible to in situ techniques. See

U.S. NUCLEAR REGULATORY COMMISSION, TRANSCRIPT

OF PUBLIC HEARING THE MATTER OF DRAFT GENERIC

ENVIRONMENTAL IMPACT STATEMENT ON URANIUM

MILLING, 46 et seg. (Denver, Oct. 1. 1979) (statement of James

Montgomery, Colorado Department of Health).

* US. NUCLEAR REGULATORY COMMISSION, FINAL

ENVIRONMENTAL STATEMENT RELATED TO THE OPERA-

TION OF HIGHLAND URANIUM SOLUTION MINING PRO-

JECT, 3-1 (NUREG-0489, Nov. 1978) Friedman, Environmental

Problems Relating to Uranium Mining and Milling, 11 NAT. RE-

SOURCES LAW. 277 (1978).

* Uranium ore usually contains only a very small! fraction,

often less than 1 percent by weight, of useable uranium oxide.

Consequently, the milling process generates large amounts of

waste tailings in the form of sand-like material. These “mill tail-

ings” contain traces of the chemicals used to extract uranium from

the ore and more importantly, most of the radioactivity naturally

associated with the ore due to the presence of radioactive decay

products of uranium. See NRC Policy Statement an “Assessment

however, produce solid and liquid wastes that are sim-

ilar to those of conventional processes and that also re-

quire controlled disposal. Disposal of wastes from in

situ operations may be accomplished through manage-

ment like that used for conventional tailings piles or

through deep well disposal, also known as reinjection.

As a general rule, the most serious environmental im-

pact associated with solution extraction operation is

potential contamination of the groundwater by these

wastes.°

Uranium milling, whether by the conventional or by

the in situ process, has always required a license under

the Atomic Energy Act. The uranium oxide is source

material which the Atomic Energy Act of 1954 requires

a license for its possession and use “after removal from

its place of deposit in nature.”

of Environmental Impacts of Uranium Mills in Agreement

States,” 43 F.R. No. 81 April 26, 1978.

* US. NUCLEAR REGULATORY COMMISSION, FINAL

ENVIRONMENTAL STATEMENT RELATED TO THE OPERA-

TION OF HIGHLAND URANIUM SOLUTION MINING PRO-

JECT, 3-1 THROUGH 3-6 (NUREG-04839, Nov. 1978).

* “Source Material” is defined in section 11z of the Atomic

Energy Act of 1954, 42 U.S.C. § 2014z. Section 62 of that Act, 42

U.S.C. § 2092, generally, requires a license for the transfer, re-

ceipt, possession etc. of “any source material after removal from

its place of deposit in nature, except that licenses shal! not be re-

quired for quantities of source material which, in the upinion of

the Commission, are unimportant”. NRC is authorized to issue

licenses to possess and use source material resulting from ura-

nium ore processing by Section 63 of the Atomic Energy Act, 42

U.S.C. § 2093. Regulatory requirements for such source materia!

licenses are stated in 10 CFR Part 40 “Domestic Licensing of

During the two decades of licensing the processing of

uranium ore, attention has focused on the control over

which, until the Atomic Energy Act was amended on

November 8, 1978 by the Uranium Mill Tailings Radi-

ation Control Act (UMTRCA),’ were not themselves

within the definition of source material (or any other

material licensable by the Commission) and therefore

the mill tailings themselves were beyond the NRC’s li-

censing jurisdiction.*

In 1972, however, the AEC published a regulation re-

quiring the preparation of an environmental impact

statement, under the authority of the National Envi-

ronmental Policy Act (NEPA),’ for each license issued

for uranium ore processing. Subsequent to 1972

and until the enactment of the UMTRCA, the NRC

licensed and regulated uranium ore processing in

ever, is under the jurisdiction of other agencies and departments.

For example, the Federal Mine Safety and Health Act of 1977

(Public Law 95-164, November 9, 1977) authorizes the Secretary

of Labor to establish health and safety standards for mine work.

ers. Also, the Environmental Protection Agency has authority for

regulating certain environmental! aspects of mining under the Re

source Conservation and Recovery Act of 1976.

" Public Law 95-604, 42 U.S.C. § 7901 et. seq.

* Prior to November 8, 1978 regulatory jurisdiction under the

Atomic Energy Act was exercised, however, over the generation

of the tailings on the premise that such generation was an inte-

gral part of the mill operation.

® 42 U.S.C. § 4321. The procedures and guidelines for these

statements are set forth in 10 CFR Part 51 “Licensing and Regu-

latory Policy and Procedures For Environmental Protection”.

non-agreement states under its licensing and regula-

tion of source material authority in the Atomic Energy

Act as supplemented by NEPA. However, since the mill

tailings themselves were not material licensable by

NRC once the underlying source material license for

the processing of the uranium ore terminated, there

was no longer any legal basis for further NRC regula-

tory control of the mill tailings. This was one of the

problems addressed by the Congress in the UMTRCA.

That Act specifically expanded the Commission’s Ju-

risdiction in this area and established a comprehen-

sive regulatory regime for the licensing and regulation

of the tailings or wastes produced by the extraction or

concentration of uranium or thorium from any ore pro-

cessed primarily for its source material content.

It is from this historical perspective that we now turn

to consider the question raised. We consider first the

relevant authority available to the Commission under

the Atomic Energy Act, as amended by the UMTRCA.

Then we will examine the relevance of NEPA to the

exercise of the NRC’s licensing authority.

il. The Jurisdicti f the NRC Under the A

Energy Act of 1954

A. The Atomic Energy Act, prior to its amendment

by the UMTRCA.

For purposes of analysis, we begin with the relevant

provisions of the Atomic Energy Act, which were not

affected by the UMTRCA.” There is no reasonable ba-

sis to question the clear and long-exercised legal au-

thority available to the NRC to license the processing

of uranium ore which produces source material. In the

exercise of this licensing authority, the NRC is author-

ized to “govern any activity authorized pursuant to

[the Atomic Energy] Act .. . in order to protect health

and to minimize danger to life or property.” 42 U.S.C.

§ 22011.(3). In addition, the Commission is authorized

to “establish by rule, regulation, or order, such stand-

ards and instructions to govern the possession and use

of... source material. . . as the Commission may deem

necessary or desirable . . . to protect health or to mini-

mize danger to life or property.” 42 U.S.C. § 2201b..

Each license “shall be in such form and contain such

terms and conditions as the Commission may, by rule

or regulation, prescribe to effectuate the provisions

of [the Atomic Energy] Act . . .” 42 U.S.C. § 2233. NRC

may exercise this regulatory authority and control

over all integral parts of an activity, such as the extrac-

tion of source material, for which an NRC license is re-

quired by the Atomic Energy Act.

This application of the source material licensing and

regulatory authority of the Atomic Energy Act has

been consistently followed by the NRC and its prede-

cessor for years."

obligations placed on NRC by NEPA. This matter is discussed

subsequently, under Part III.

"! See legal opinions which are printed in the hearings, “Ura-

nium Mill Tailings Control Act of 1978,” before the Subcommittee

B. The Atomic Energy Act as amended by the

UMTRCA.

The UMTRCA established a remedial action program

to stabilize and control uranium tailings at inactive

mill sites as well as a program for the regulation of mill

tailings during uranium or thorium ore processing at

active mill operations.’ Nowhere in the UMTRCA is

there specific mention of in situ extraction. In fact, it

appears that the authors of the UMTRCA were pri-

marily concerned with the mill tailings and waste from

conventional uranium milling techniques, rather than

in situ operations.'* Nevertheless, as we discuss below,

the UMTRCA did reinforce the NRC’s licensing and

regulatory authority under the Atomic Energy Act in

respects which are applicable both to conventional

milling and to in situ proc_ssing of uranium or thorium

ores to produce source material.

1. The Statutory Language

Section 201 of the UMTRCA amends section lle of

the Atomic Energy Act by expanding the definition of

on Energy and Power, Committee on Interstate and Foreign Com-

merce, 95th Cong., 2d Sess., June 19, 20 and August 2, 1978, at

pp. 204-207.

™ UMTRCA, section 2, 42 U.S.C. § 7901 and H.Rep. 95-1480,

Pt. 2 at 25, 29 (1978). Title I of the UMTRCA is concerned with

the remedial action program for inactive mill sites, and Title [I

with uranium mill tailings licensing and regulations.

% See H.Rep. 95-1480, Pt. 2, at 25, 29 (1978), which discusses

the hazards associated with the enormous tailings piles gener-

ated in conventional! milling operations.

byproduct material, a material over which the NRC

clearly has licensing and regulatory jurisdiction under

the Atomic Energy Act (Section 81, 42 U.S.C. § 2111),

to include:"*

the tailings or wastes produced by the extrac-

tion or concentration of uranium or thorium

from any ore processed primarily for its

source material content.

A literal reading of this definition would encompass

the above-ground wastes produced by any processing

of ore primarily for its source material content. The

scant legislative history which is pertinent supports

this conclusion. (infra., p. 11).

™ Section 1le.(2), 42 U.S.C. § 2014e.(2).

” For purposes of this analysis, there is no need to consider

the question of whether the depleted underground ore bodies left

over from in situ leaching fall within the definition of tailings or

waste. An earlier staff analysis concluded that the UMTRCA does

not appear to require regulation of the subterranean ore bodies

depleted by the in situ extraction process. See memorandum from

Howard K. Shapar to the Commission, dated May 7, 1979. This

memorandum also concluded, consistent with the text of this

analysis, that the definition of byproduct material in the

UMTRCA covers the management of the wastes from in situ ex-

traction that occur above ground (including such wastes before

they are re-injected). Regulatory authority over the surface mate-

rial is a sound legal basis for imposing license conditions dealing

with the possible contamination of groundwater by residues from

that material or from the in situ operations.

The NRC’s definition of section 11e.(2) byproduct material is con-

sistent with the foregoing. 10 CFR § 40.4(a-1) (1979). The regula-

tory definition repeats the statutory definition in section 11e.(2)

from uranium solution extraction processes. Underground ore

The UMTRCA also amended the Atomic Energy Act by

adding a new section 84 (42 U.S.C. § 2114) which gives

the NRC unambiguous regulatory authority over the

nonradiological as well as the radiological hazards as-

sociated with the processing, possession and transfer

of tailings or wastes as defined in section 1 1le.(2) of that

Act."® The exercise of this authority must conform with

the applicable general standards published by the Ad-

ministrator of the Environmental Protection Agency

(EPA) under new section 275 which was also added to

the Atomic Energy Act by the UMTRCA."’ Moreover,

the Commission must assure that its general require-

ments for the management of tailings or wastes (as de-

fined in section 1le.(2)) are, to the maximum extent

practicable, at least comparable to requirements appli-

cable to the possession, transfer, and disposal of simi-

lar hazardous material regulated by the Administrator

bodies depleted by such solution extraction operations do not con-

stitute ‘byproduct material’ within this definition.” This definition

could, of course, be revised if necessary to cover specifically the

possible contamination of groundwater from in situ operations.

*® Section 84 provides in part: “a. The Commission shall in-

sure that the management of any byproduct material, as defined

in section 11e.(2), is carried out in such manner as —

(1) the Commission deems appropriate to protect the

public health and safety and the environment from ra-

diological and nonradiological hazards associated with

the processing and with possession and transfer of such

material”.

42 U.S.C. § 2014a.(2).

of EPA under the Solid Waste Disposal Act, as

amended.”

The new Section 275 to the Atomic Energy Act pro-

vides, among other things, that the Administrator of

EPA shall publish”

standards of general application for the pro-

tection of the Public health, safety, and the

environment from radiological and non-

radiological hazards associated with the pro-

cessing and with the possession, transfer, and

disposal of byproduct material, as defined in

section 1le.(2) of this Act, at sites at which

ores are processed primarily for their source

material content or which are used for the dis-

posal of such byproduct material.

The UMTRCA also amended Section 274 of the Atomic

Energy Act to provide for additional criteria for the dis-

continuance by the NRC of its regulatory responsibili-

ties over byproduct material, as defined in section

lle.(2), and the assumption thereof by an Agreement

State.” Although the Agreement State area itself is be-

yond the scope of this analysis, included in the

42 U.S.C. § 2014a.(3).

'® Section 275 was added to the Atomic Energy Act by Section

206 of the UMTRCA. The quoted language is from Section

275b.(1), 42 U.S.C. § 2022b.(1).

Atomic Energy Act in several significant respects, the most rele-

vant for present purposes being the additional [sic] of a new sec-

tion 2740.

requirements which an Agreement State must satisfy

for NRC’s jurisdiction to be discontinued are:*'

[require] compliance with standards which

shall be adopted by the State for the protec-

tion of the public health, safety, and the envi-

ronment from hazards associated with such

material which are equivalent, to the extent

practicable, or more stringent than, standards

adopted and enforced by the Commission and

the Administrator of the Environmental Pro-

tection Agency .. . * * * and

[require procedures which] * * * ”

require for each license which has a signifi-

cant impact on the human environment a

written analysis * * * of the impact of such li-

cense, including any activities conducted pur-

suant thereto, on the environment, which

analysis shall include — * * * an assessment of

any impact on any waterway and groundwa-

ter resulting from such activities. (emphasis

supplied).

2. The Legislative History

Colloquies during the floor debate in the Senate reveal!

an understanding, at least between the Senators in-

volved, that the tailings or wastes from in situ opera-

tions ordinarily are covered by the regulatory program

of NRC under the Atomic Energy Act as amended by

*! Section 2740.(2), 42 U.S.C. § 20210.(2).

™ Section 2740.(3Xc), 42 U.S.C. § 20210.(3XCXii).

the UMTRCA. In an exchange concerning in situ oper-

ations, Senators Wallop and Hart made it clear that in

situ or solution extraction is within NRC jurisdiction,

but may be appropriate for exemption from the land

transfer requirements (Section 83) of the UMTRCA:

Mr. WALLOP. Mr. President, I would like to

obtain a clarification from the distinguished

Senator from Colorado, the chairman of the

Nuclear Regulation Subcommittee, of several

points regarding title II of the bill as passed

by the other body. First, I understand that the

other body revised the bill to permit the Nu-

clear Regulatory Commission to exclude a

uranium mill tailings disposal site from the

requirement of a license if it determines that

the site will not constitute an unreasonable

risk to the public health and safety. This is the

same discretionary authority now possessed

by the Commission for other types of byprod-

uct material. It occurs to me that this discre-

tionary authority to grant exemptions from

licensing would be particularly appropriate

in the case of the so-called solution mining

projects, in which uranium is brought to the

surface by means of a fluid solution and is ex-

tracted with the remaining material pumped

back below the surface. * * *

Mr. HART. The distinguished Senator from

Wyoming is entirely correct on each of the

points he raised. The licensing exemption au-

thority for mill tailings disposal sites could be

exercised for sites where uranium mining and

extraction is limited to solution techniques. In

fact, the Commission may well exercise this

exemption authority for other disposal sites

where such an exemption would not consti-

tute an unreasonable risk to public health and

safety. * * * #8

Senators Hart and Wallop also engaged in a discussion

to the effect that “so-called solution mining projects, in

which uranium is brought to the surface by means of a

fluid solution and is extracted with the remaining ma-

terial pumped back below the surface, would not gen-

erally be considered for transfer status under the new

section 83b” of the Atomic Energy Act, which generally

requires government ownership of land and tailings

upon termination of the milling operations. Senator

Wallop expressed his understanding that such projects

would not generally be considered for transfer status

under section 83b. Senator Hart agreed, saying:™

Contrasted with conventional mining and

milling methods which cause significant sur-

face disturbance and require extensive recla-

mation, solution mining techniques allow for

the recovery of relatively small and widely

scattered deposits of uranium with minimal

disturbance of the land and provide for waste

materials to be reinjected into the original lo-

cations below the land surface from which the

uranium was removed. Therefore, the neces-

sity of transferring surface and subsurface

* Cong. Rec., daily edition, October 14, 1978, at p. S19037.

* Cong. Rec., daily edition, October 13, 1978, at p. S18748.

title may not exist where uranium mining and

extraction is limited to solution techniques.

These exchanges show that during the legislative pro-

cess, these two Senators understood that the regula-

tory program established under the UMTRCA would

apply to all aspects of in situ operations. These ex-

changes indicate that these Senators expected the

NRC to regulate the wastes from in situ operations,

but believed that the requirements (in Section 83) for

the transfer to the government of tailings and their

disposal site from such operations would at least ap-

propriately be the subject of the license exemption au-

thorized in section 83b.”

* Section 83b. of the Atomic Energy Act provides in perti-

nent part that:

The Commission shall require . . . that prior to the ter-

mination of any license {which results in the produc

tion of any byproduct material, as defined in Section

lle(2)) . . . title to the land .. . shall be transferred to

... the United States, or ... the State in which such

land is located, at the option of such States”... . “Un-

less the Commission determines prior to such termina-

tion that transfer of title to such land and such

byproduct material is not necessary or desirable to pro-

tect the public health, safety, or welfare or to minimize

or eliminate danger to life or property.”

Section 81 of the Atomic Energy Act (42 U.S.C. § 2111) authorizes

the Commission to exempt certain classes or quantities of byprod-

uct material” from the requirements for a license set forth [in Sec-

tion 81) when it makes a finding that “the exemption .. . of such

material . . . will not constitute an unreasonable risk to the com-

mon defense and security and to the health and safety of the pub-

lic.”

There is also legislative history which is relevant in

another context for purposes of this analysis. Each of

the House Committee reports on the UMTRCA take

note of the NRC’s use of NEPA in regulating uranium

milling:

“As already noted, the NRC now regulates

these tailings at active mills indirectly

through its licensing of source material mill-

ing under the Atomic Energy Act of 1954,

largely as a result of the enactment of the Na-

tional Environmental Policy Act of 1969.”

The Commission, in keeping with its respon-

sibilities and authorities under the Atomic

Energy Act and the National Environmental!

Policy Act, is the lead agency in regulation,

oversight, and management of uranium mill

tailings-related activities.”’

If byproduct material as defined in section 1le.(2) is exempted

from licensing under Section 81, section 84 of that Act (42 U.S.C.

§ 2114) authorizes the Commission to require the persons, offic-

ers, or instrumentalities so exempted from licensing “to conduct

monitoring, perform remedial work, and to comply with such

other measures as it may deem necessary or desirable to protect

health or to minimize danger to life or property. . . .”

* H. REP. 95-1480, Pt. 2, 95th Cong., 2d Sess., 28 (1978).

There was no Senate Committee report on Title [I (Uranium Mill

Licensing and Regulations) of the UMTRCA. There is a Senate

Committee Report (S.Rep. 95-1266, Oct. 3, 1978) on remedial ac-

tion program for inactive sites, however.

*” H. REP. 95-1480, Pt. 1, 95th Cong., 2d Sess., 15 (1978).

One of the committee reports goes even further, de-

scribing the NRC’s environmental duties under the

UMTRCA as follows:

With respect to nonradiological matters, the

NRC, through its environmental review under

the NEPA mandate, would impose controls

consistent with those imposed by EPA on sim-

ilar materials contained in other solid wastes

subject to EPA authority.”

Ill. NEPA Obligations

The NRC staff in its uranium mill (conventional and

in situ) licensing actions has followed the practice of

imposing conditions to mitigate health and environ-

mental impacts as shown to be reasonably necessary

by the environmental review process under NEPA. The

imposition of such license conditions is an application

of Commission Policy which is rooted in the interpre-

tation of the obligations placed on NRC by NEPA. Prior

to EPA the Commission’s regulatory responsibility

was essentially confined to scrutiny of and protec-

tion against hazards from radiation and did not en-

compass consideration of non-radioiogical environ-

mental issues.” Passage of NEPA, however, made “. . .

environmental protection a part of the mandate of

every federal agency and department ... [The Com-

mission] is not only permitted, but compelled, to take

* Id., at 16.

” New Hampshire v. A.E.C., 406 F.2d 170, 175 (ist Cir.

1969), cert. denied, 395 U.S. (1969).

environmental values into account. . .” and to consider

environmental issues just as it considers other matters

within its mandate. Calvert Cliffs’ Coordinating Com-

mittee v. A.E.C., 449 F.2d 1109, 1112 (D.C. Cir. 1971).

Shortly after the Calvert Cliffs’ decision, the Commis-

sion issued new NEPA regulations which, in pertinent

part, required the preparation of an environmental

it. The basic issue, for purposes of this analysis, is

whether NEPA authorizes the Commission to exercise

the regulatory power it unquestionably has — the

power to license and regulate in situ operations in a

fashion that will minimize to the extent practical the

adverse environmental impacts which could result by

the contamination of groundwater from such opera-

tions.” This issue must be resolved in the affirmative

under the leading judicial interpretations of NEPA.

Section 102 of NEPA, 42 U.S.C. § 4332, is a direction to

all agencies that“. . . to the fullest extent possible . . .

the policies, regulations and public laws of the United

States shall be interpreted and administered in ac-

cordance with the policies [of NEPA].” The Supreme

* The Commission, as stated previously in the text, has stat-

utory authority to condition its licenses, 42 U.S.C. § 2233. Implicit

in the power to issue a license is the power to issue the license

with reasonable conclusions.

provide that the “lead agency shall include appropriate conditions

in . . . permits or other approvals.” (40 C_F.R. § 1505.3).

Court stated in Kleppe v. Sierra Club, 427 U.S. 390, 409

(1976) that:

... NEPA announced a national policy of

environmental protection and placed a re-

sponsibility upon the Federal Government

to further specific environmental goals by

‘all practicable means, consistent with other

essential considerations of national policy.’

NEPA § 101(b), 42 U.S.C. 4331(b).

As Judge Wright said in Calvert Cliffs’, 449 F.2d supra

at 1128: “Clearly, it is pointless to ‘consider’ environ-

mental costs without also considering action to avoid

them.” If the Commission is to administer the Atomic

Energy Act, as amended, in accordance with the “na-

tional policy of environmental protection”, Kleppe, su-

pra., then it must have the authority to use its license

conditioning power when necessary to protect the en-

vironment just as even, prior to NEPA, it used that

power to protect against threats to radiological safety.

Cf Calvert Cliffs’, supra.

Where, as here, an agency has a “jurisdictional toe-

hold” over a licensed activity, its authority to use that

*' These words were used by Judge Leventhal in Henry v.

F_P.C., 513 F.2d 395, note 33 on p. 407 (D.C. Cir. 1975). In Henry,

the “jurisdictional toehold” was based on F.P.C. jurisdiction over

a tap and value interconnection. By contrast, the NRC exercises

licensing and regulatory jurisdiction over in situ operations which

produce source material and section 11le.(2) byproduct material.

Thus, the decision in Kitchen v. F.C.C., 464 F.2d 801 (D. C. Cir.

1972) which deals with a matter (telephone exchange building)

over which the FCC had never exercised regulatory jurisdiction is

clearly inapposite here.

power to protect the environment has been unequivo-

cally recognized by the courts. For example, in Henry v.

F-PA., supra. at 406-407, a case in which the F.P.C.

(now FERC) had such a “jurisdictional toehold”, Judge

Leventhal wrote:

NEPA requires an integrated view of the en-

vironmental damage that may be caused by a

situation, broadly considered, and its purpose

is not to be frustrated by an approach that

would defeat a comprehensive and integrated

consideration by reason of the fact that partic-

ular . . . agencies have particular occasions for

and limits on their exercise of jurisdiction.

+ * *

What is required is that the FPC, in deciding

whether to grant, deny or condition certifi-

cates of public convenience and necessity for

admittedly jurisdictional facilities, take into

account the environmental costs of the gasifi-

cation projects as a whole.

Similarly. the First Circuit decision in Public Service

Co. v. N.R.C., 582 F.2d 77 (1st Cir. 1978) is in point. The

utility in that proceeding challenged the propriety of

NRC’s order to reroute transmission lines. The court,

after agreeing that the Commnission had the requisite

jurisdiction (under the Atomic Energy Act) over the

transmission lines, Public Service Co., supra., note 7 at

81, and 85), rejected the view that NEPA permitted the

Commission to consider the environmental impacts of

various transmission lines routes, without acting to

minimize those impacts. (/d., note 17 at 85). The Court

said in this regard (/d., at 85-86):

Once having found that the Commission has

jurisdiction over the transmission lines, we

think it clear that, under the dictates of

NEPA, it was obliged to minimize adverse en-

vironmental impact flowing therefrom. * * *

The Commission has statutory authority to

condition licenses. * * * In this instance, the

Commission used one of its statutory powers

in the furtherance of NEPA, whose mandate

the Commission must follow. The Commission

is under a dual obligation: to pursue the objec-

tives of the Atomic Energy Act and those of

the National Environmental Policy Act. ‘The

two statutes and the regulations promulgated

under each must be viewed in para (sic) mate-

ria’ Citizens for Safe Power v. NRC, 524 F.2d

1291, 1299 (C_A.D.C., 1975).

IV. Conclusion

The NRC has licensing and regulatory jurisdiction un-

der the Atomic Energy Act over in situ operations

which produce source material. Under that Act, as

amended, by the UMTRCA, the Commission has the

responsibility and authority to assure that byproduct

material as defined in section 11e.(2), (i.e. tailings or

wastes produced by the extraction or concentration of

uranium or thorium from any ore processed primarily

for its source material content), is managed so as to

protect the public health and safety and the environ-

ment from radiological and nonradiological hazards

associated with the processing and with the possession

and transfer of such »:aterial. Potential contaminants

of groundwater resu.ting from in situ operations are

clearly within the scope of the NRC’s regulatory con-

trol under the Atomic Energy Act, as amended, by the

UMTRCA. Moreover, this regulatory authority rein-

forces the NEPA authorization and directive for the

Commission to exercise its licensing and regulatory

authority in a fashion that will minimize to the extent

practical the adverse environmental impacts resulting

from the activities which it licenses, one of which is in

situ operations.

In view of the foregoing, the NRC is authorized to im-

pose conditions in a license for the in situ extraction of

source material for the purpose of controlling possible

contamination of groundwater from residues which are

an integral part of that licensed operation.

ATTACHMENT B

THE EXTENT OF PREEMPTION OR CONCUR-

RENT JURISDICTION OVER URANIUM MILL

TAILINGS IN NON-AGREEMENT STATES

a 10 :

The question has arisen as to whether non-Agreement

State authority over the non-radiological hazards of

uranium mill tailings has been preempted by the Fed-

eral Government and, if not, what, if any, authority

regarding the regulation of tailings is shared be-

tween the NRC and the non-Agreement States. These

questions have not been comprehensively addressed

by the NRC since the passage of the Uranium Mill Tail-

ings Radiation Control Act of 1978.' The extreme com-

plexity of the issue has been compounded by the

passage of the so-called remedial amendments to the

Mill Tailings Act? which, while clarifying that NRC was

not to have concurrent jurisdiction with Agreement

States during the three-year period before all the Act’s

provisions become fully effective, served to further

confuse the situation with respect to non-Agreement

States. The impetus for the present analysis is the re-

cent discussion, in a series of meetings and letters,

with the Governor and other officials of the State of

Wyoming regarding the appropriate regulatory role of

the State versus that of the NRC and the reestablish-

ment of a cooperative working relationship between

the two.*

The scope of this analysis is limited to authority to reg-

ulate non-radiological hazards of mill tailings since

there appears to be neither confusion nor controversy

about the clear intent of Congress, as expressed in the

Atomic Energy Act of 1954, as amended by the Mill

' Pub. L. No. 95-604, 92 Stat. 3021 (1978) (hereinafter “Mill

Tailings Act”).

* Pub. L. No. 96-106, 122.93 Stat. 799 (1979).

* Worthy of particular note are the February 27, 1980 letter

from Governor Herschler to Chairman Ahearne and the Decem-

ber 1, 1979 memorandum to Governor Herschler from Wyoming

Attorney General John D. Troughton, entitled “Proposed DEQ

Regulations on Mill Tailings and In Situ Mining — Jurisdiction of

DEQ Relative to that of NRC” (hereinafter. “Opinion of the Wyo-

ming Attorney General”).

Tailings Act, to provide for an exclusive federal regula-

tory role over the radiological hazards of uranium mill

tailings. Though our analysis diverges from that of the

Wyoming Attorney General on other issues, there is

complete agreement on this point.

This memorandum is organized to present first a dis-

cussion, in summary form, of the preemption doctrine

in order to provide an analytical framework. This is fol-

lowed by a detailed discussion of those provisions of

the Atomic Energy Act and the Mill Tailings Act which

must be interpreted in order to reach a conclusion as

to whether there is preemption or concurrent jurisdic-

tion over the nonradiological hazards of uranium mill

tailings. Finally, we conclude that the question is so

close that the Commission could reasonably choose ei-

ther interpretation, but that the better legal view is

that non-Agreement States and the NRC have concur-

rent jurisdiction to regulate the non-radiological haz-

ards of mill tailings, both before and after the

November 8, 1981 date upon which the Mill Tailings

Act becomes fully effective. As will be shown, the case

for concurrent jurisdiction before November 8, 1981 is

based upon express Congressional preservation of

state authority; after that date it is based on absence

of indications that Congress intended to “occupy the

field” so completely as to preclude the possibility of

concurrent state regulation. Even where there is con-

current jurisdiction, particular state regulation must,

of course, give way to federal authority in the event of

conflict such that “compliance with both federal and

state regulations is a physical impossibility.” Florida

Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,

142-43 (1963).

The P tion D sl

The doctrine of preemption is based on Article VI of the

Constitution, Clause 2, which elevates federal law

above that of the states. It provides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwith-

standing.

Conversely, however, since the Federal Government is

one of limited powers, the Tenth Amendment to the

Constitution preserves to the states all powers not spe-

cifically delegated to the United States nor expressly

prohibited to the states. Accordingly, the starting point

in any preemption analysis must be whether the Con-

gressional enactment providing for federal regulation

in a particular field has been undertaken pursuant to

the powers delegated to the United States by the

* The doctrine of preemption is firmly established in a long

line of decisions of the Supreme Court. No attempt is made to cite

them here. For simplicity, the overview presented here is freely

paraphrased from the comprehensive summary of Supreme Court

precedent set forth in Northern States Power v. Minnesota, 447

F.2d 1143 (8th Cir. 1971), affd mem. 405 U.S. 1035 (1972).

Constitution. Since the instant memorandum is

prompted by confusion as to the proper interpretation

of the Mill Tailings Act rather than its validity, this

point need not be discussed further. In any event, it ap-

pears clear that the constitutional power to regulate

interstate commerce provides adequate authority for

federal regulation of uranium milling and mill tailings.

Having established that the Federal Government has

the power to regulate in a given area, the inquiry must

focus upon whether Congress has acted in a manner so

as to exclude the states from asserting concurrent ju-

risdiction over the same subject matter. At the outset

it should be understood that the existence of concur-

rent jurisdiction means that the states may regulate

the very same subject as the Federal Government, i.e.,

the nonradiological hazards of uranium mill tailings.

This may be by imposition of standards more demand-

ing (but not inconsistent with) minimum federal

standards or by regulation of aspects of the subject not

addressed by the federal scheme. Concurrent jurisdic-

tion can exist only if “both regulations can be enforced

without impairing the federal superintendence of the

field.” Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132, 142 (1963).

In cases where states have attempted to exercise

concurrent jurisdiction the first question is whether

the two regulatory schemes present irreconcilable con-

flict. As previously noted, state regulation must

give way in the face of such conflict. In the instant sit-

uation, this inquiry too may be bypassed because the

problem is one of anticipation — is there room for the

non-Agreement States® to assert regulatory authority

over the non-radiological hazards of uranium mill tail-

ings in a manner which does not conflict with the Mill

Tailings Act and the NRC regulations promulgated un-

der that Act.*®

In the absence of inevitable collision between state and

federal regulatory schemes. it must be determined

whether Congress has manifested an intention to ex-

clude the possibility of concurrent state regulation.

The Mill Tailings Act does not contain language of “ex-

press preemption.’ Of course, if language expressly

* This paper focuses on the situation in non-Agreement

States. In Agreement States no doubt remains as to the preemption/

concurrent jurisdiction status. By virtue of the 1979 “remedial

amendments” to the Mill Tailings Act it is clear that Agreement

States have exclusive authority over all aspects of uranium mill

tailings regulation until November 8, 1981 (though they must

meet the requirements of section 2740. of the Atomic Energy Act

as amended to the extent practicable” during this period). There-

after, if these states have entered into amended agreements in

accordance with the Mill Tailings Act, they will retain the exclu-

sive authority (subject to the conditions of section 2740.). Should

they elect not to assume the exclusive Agreement State authority

over mill tailings, (i.e., not amend their agreements), they would

stand in the same position as non-Agreement States insofar as

regulation of mill tailings is concerned

®* To date, the process of development of NRC regulations to

implement the Mill Tailings Act has focused largely on the radio-

logical hazards of mill tailings.

’ An example of such preemptive language is found in section

106(d) of the Marine Protection, Research, and Sanctuaries Act of

1972, 33 U.S.C. § 461(d) (1976), which states:

after the effective date of this subchapter, no State shall adopt or

enforce any rule or regulation relative to any activity regulated

by this subchapter.

preserving state authority were contained in the Mill

Tailings Act, the inquiry would also be at an end for

there would clearly be no preemption. Whether or not

such language is found or remains in the Atomic En-

ergy Act and the Mill Tailings Act as both have been

amended is a close question of the proper interpreta-

tion of those acts, including particularly § 204(h)(1) of

the Mill Tailings Act as amended, which will be dis-

cussed below.

Assuming that Congress has neither expressly pre-

served nor expressly prohibited the exercise of state

authority over a given subject matter, federal preemp-

tion may be implied in certain circumstances. Thus,

the ultimate question to be answered in this memoran-

dum is this: Does the Mill Tailings Act impliedly

preempt non-Agreement State regulation of the non-

radiological hazards of uranium mill tailings (a matter

clearly subject to NRC regulation), or are these non-

Agreement States free to exercise concurrent jurisdic-

tion to the extent that their laws and regulations are

consistent with those of the Federal Government?

Any discussion of the doctrine of implied preemption

should be prefaced with the caveat that this is an ex-

tremely confusing area of law. In discussing the issue

with regard to preemption in the nuclear field, one

commentator stated:

Although the general criteria for finding

preemption are easily stated, the application

to particular cases has been, to say the least,

variable. Among other things, the decisions

display inconsistent treatment of the degree

of conflict necessary to support a finding of

preemption and reliance on a broad range of

presumptive factors — for example, the perva-

siveness of the federal scheme of regulation,

the dominance of the national interest in a

particular field of regulation, and the possibil-

ity that that state law might produce a result

inconsistent with the federal statute — as the

basis for an inference that Congress intended

to occupy a field to the exclusion of state au-

thority. In one class of cases of particular in-

terest here, involving state statutes designed

to protect public health and safety, the Court

has reiterated the now familiar maxim that a

federal statute will not be deemed to preempt

state action unless there is a direct conflict or

a clearly mainfested congressional intent to

that effect.*

Although the tests for implied preemption are summa-

rized in any number of Supreme Court cases,’ a clear

and concise summary appears in the 8th Circuit’s de-

cision in Northern States Power, dealing with preemp-

tion in the nuclear field:

Key factors in the determination of whether

Congress has by implication, preempted a par-

ticular area so as to preclude state attempts

* Murphy & La Pierre, nuclear “Moratorium” Legislation in

the States and the Supremacy Clause: A Case Of Express Pre

emption 75-76 (Atomic Industrial Forum, Inc., November 1975)

(footnotes omitted).

* See, eg., Rice v. Santa Fe Elevator Corp., 331 U.S. 218

(1947); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).

at dual regulation include, inter alia: (1) the

aim and intent of Congress as revealed by the

statute itself and its legislative history .

(2) the pervasiveness of the federal regulatory

scheme as authorized and directed by the leg-

islation and as carried into effect by the ad-

ministrative agency. .. (3) the nature

of the subject matter regulated and whether

it is one which demands “exclusive federal

regulation in order to achieve uniformity vital

to national interests.” ... ; and ultimately

(4) “whether, under the circumstances of [a]

particular case |state| law stands as an obsta-

cle to the accomplishment and execution of

the full purposes and objectives of Con-

gress.”"°

A finding of Federal preemption is the exception rather

than the rule" and the exercise of Federal supremacy

is not lightly to be presumed." As a general rule, “con-

flicting law, absent repeal or exclusivity provisions,

should be pre-empted . . . ‘only to the extent necessary

to protect the achievement of the aims of”* the federal

law, since “the proper approach is to reconcile ‘the

operation of both statutory schemes with one another

rather than holding [the state scheme] completely

” Northern State. Power Co. v. Minnesota, 447 F.2d 1143,

1146 (8th Cir. 1971) (footnotes omitted).

"' Cosmetic, Toiletry and Fragrance Assoc. v. Minnesota, 440

F.Supp. 1216, 1220 (D. Minn. 1977).

“ Schwartz v. Texas, 344 U.S. 199, 202-203 (19652).

ousted.’”” This approach is especially appropriate

where the State authority subject to preemption is an

exercise of the “historic police powers of the State,”

such as those powers designed to protect the public

health, safety, or welfare.'*

In this connection, it must be noted that State police

powers to regulate environmental hazards and protect

water supplies have been given considerable deference

in Federal law. Various Federal statutes have given

express deference to State laws concerning water allo-

cation."° The courts have also recognized that the

States have a legitimate police power interest in envi-

ronmental matters."* The States’ inherent authorities

concerning matters regarding water quality and sup-

ply is of special significance in the arid Western States

where uranium milling occurs. Wyoming, for instance,

views itself as the trustee of the State’s waters for the

people.” State authority of this nature will not be

“ Merrill, Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S.

117, 127 (1973), quoting Silver v. New York City Stock Exchange,

373 U.S. 341 (1963).

™ See, eg., Rice v. Santa Fe Elevator Corp., 331 U.S. 218

(1977), Kelly v. Washington, 302 U.S. 1, 10 (1937); Cloverleaf But-

ter Co. v. Patterson, 315 U.S. 148, 162 (1942); Florida Avocado

Growers v. Paul, 373 U.S. 248, 259 (1963).

See, e.g., 43 U.S.C. $§ 383, 617 (1976).

See, eg., Askew v. American Waterways Operators, 411

U.S. 325 (1973); Steuart Transportation Co. v. Allied Towing, 12

ERC 2035 (8th Cir. 1979); Exxon v. New York City, 372 F.Supp.

335 (S.D. N.Y. 1974).

" Hunziker v. Knowlton, 322 P.2d 141, 78 Wyo. 241, reh.

den. 324 P.2d 266, 78 Wyo. 241.

preempted unless there is clear and manifest Congres-

sional intent to do so."

NRC/AEC Statutory Authority

it] t to Urani Mill Taili

a. The Atomic Energy Act

Prior to enactment of the Mill Tailings Act, the Com-

mission’s authority over uranium milling was limited

to licensing the source material produced in the mill-

ing process. Regulatory authority was asserted over

the generation of tailings because it was an integral

part of the milling process,” but no other authority to

“ De Canas v. Dica, 424 U.S. 351, 357 (1976); see also, Jones

v. Rath Packing Co., 430 U.S. 519, 525 (1977); Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1977). See generally, Catz &

Leonard, The Demise of the Implied Preemption Doctrine, 4 HAS-

TINGS CONST. L.Q. 295 (1977).

*” The Commission relied upon subsections 161b. and i.(3) of

the Atomic Energy Act of 1954 to impose conditions upon the ura-

nium miller’s license to receive and transfer source material. Spe

cifically, these provisions authorize the Commission to:

b. establish by rule, regulation, or order, such stand-

ards and instructions to govern the possession

and use of special nuclear material, source mate

rial, and byproduct material as the Commission

may deem necessary or desirable to promote the

common defense and security or to protect health

or to minimize danger to life or property.

f. prescribe such regulations or orders as it may

deem necessary .. . (3) to govern any activity au-

thorized pursuant to the Act, including standards

and restrictions governing the design, location,

and operation of facilities used in the conduct of

regulate uranium mill tailings was claimed by the

Commission. In a memorandum dated December 7,

1960, the AEC’s Acting General Counsel explored the

issue of Commission jurisdiction over uranium mill

tailings under the Atomic Energy Act of 1954. The

thrust of this memorandum was that any potential

health hazards posed by tailings would be attributable

to the radium content — not the “unimportant”™ quan-

tities of uranium or thorium present in the tailings.”

Since the Commission has no authority to regulate ra-

dium in the tailings, the net result was the [sic] there

was no AEC regulation of uranium mill tailings.

As the NRC became increasingly concerned with the

potential hazards of uranium milling and mill tail-

ings, however, it began to take a more agressive role

in regulating these matters” in implementation of its

such activity, in order to protect health and to

minimize danger to life or property.

* Section 62 of the Atomic Energy Act of 1954 provides that

“.. licenses shall not be required for quantities of source mate-

rial which, in the opinion of the Commission, are unimportant.”

?! This memorandum (and a related one) were adopted as the

position of a subsequent AEC general counsel in 1971, and are

reprinted in Use of Uranium Mill Tailings for Construction Pur-

poses; Hearings Before the Subcomm. on Raw Materials of the

Joint Comm. on Atomic Energy, 92d Cong., 1st Sess. 19 et seg.

(1971).

™ See e.g., U.S. NUCLEAR REGULATORY COMMISSION,

FUEL PROCESSING AND FABRICATION BRANCH, BRANCH

POSITION ON 'JRANIUM MILL TAILINGS MANAGEMENT

(May 13, 1977); U.S. NUCLEAR REGULATORY COMMISSION,

ASSESSMENT OF ENVIRONMENTAL IMPACTS OF URA-

NIUM MILLS IN AGREEMENT STATES, 43 Fed. Reg. 17,879

(April 26, 1978).

responsibilities under the National Environmental

Policy Act of 1969. At the time the Mill Tailings Act was

passed, a cognizant congressional committee noted:

... {T]he NRC now regulates these tailings at

active mills indirectly through its licensing of

source material milling under the Atomic En-

ergy Act of 1954, largely as a result of the en-

actment of the National Environmental Policy

Act of 1969.”

Once the active milling operations ceased and the un-

derlying Commission source material license was ter-

minated, there was “no longer a ‘clear legal basis for

further Commission regulatory control of the mill tail-

ings’, according to Dr. Hendrie”, Chairman of the

NRC.*

b. The Mill Taili Act

The Mill Tailings Act was intended to fill this regula-

tory gap.” Title II strengthens both the NRC and the

Agreement State regulatory requirements regarding

uranium milling and mill tailings. This title of the Mill

See also, memorandum from Howard K. Shapar, Assistant

General Counsel, Licensing and Regulation to John A. McBride,

Director, Division of Materials Licensing, entitled “Commission’s

Regulatory Authority over Uranium Mill Tailings” (September

22, 1965).

*™ H.R. REP. NO. 95-1480, Pt. 2, 95th Cong, 2d Sess. 28

(1978).

* Id., at 29.

* See H.R. REP. NO. 95-1480, Pt. I, 95th Cong. Sess. 12

(1978).

Tailings Act amends the Atomic Energy Act of 1954 to

provide direct NRC authority over uranium mill tail-

ings and wastes, now defined as “byproduct material”

under section 11e.(2) of the Atomic Energy Act.” Other

salient provisions of title II include a scheme for Fed-

eral or State ownership of tailings disposal sites once

milling activities cease, authority for the NRC to re-

quire bonding or other financial surety to ensure sta-

bilization and reclamation of tailings and milling sites

by its milling licensees, and the concept of national

minimum standards for tailings management and dis-

posal to be established by NRC and EPA and to apply

in both Agreement and non-Agreement States.

Section 201 of the Mill Tailings Act amends section

lle. of the Atomic Energy Act of 1954 by adding a

new category of byproduct material: “the tailings or

wastes produced by the extraction or concentration of

uranium or thorium primarily for its source material

content.”” In essence, this expanded definition oper-

ates to place uranium mill tailings and wastes into the

existing regulatory scheme in the Atomic Energy Act

of 1954. Section 81 of that Act, as amended, provides

that —

[Injo person may transfer or receive in inter-

state commerce, manufacture, produce, trans-

fer, acquire, own, possess, import, or export

any byproduct material, except to the ex-

tent authorized by this section [authorizing

* 42U.S.CA. § 2014(eX2) (1979).

*” Id.

Commission licenses or exemptions], section

82 [governing exports], and section 84 [cover-

ing milling and mill tailings).”

The definition of section 11le.(2) byproduct material fo-

cuses on “tailings or wastes produced by the extraction

or concentration of uranium, or thorium from an ore

processed primarily for its source material content”™ so

as to exclude from NRC regulation mill tailings that

contain uranium produced as a side stream of an oper-

ation primarily intended to extract a mineral other

than uranium.”

The scope of NRC’s regulatory responsibility over sec-

tion 11le.(2) byproduct material is pervasive, as indi-

cated by reference to the operative provisions of the

Mill Tailings Act. Section 205 of that Act adds a new

section 84 to the Atomic Energy Act of 1954, outlining

“Authorities of Commission Respecting Certain By-

product Material.” Under this section, the Commission

must insure that the management of section 1 le(2) by-

product material is “carried out in such a manner as

... the Commission deems appropriate to protect the

public health and safety and the environment from ra-

diological and nonradiological hazards associated with

% 42 U.S.CA. § 2111 (1979).

® 42 U.S.C.A. § 2014(eX2) (1979) (emphasis added).

°° As discussed in the accompanying memorandum regarding

in-situ extraction of uranium, the Commission’s regulations fur-

ther delimit the definition of section 11e(2) byproduct material to

include discrete surface wastes resulting from uranium solution

extraction processes, but to exclude underground ore bodies de-

pleted by such solution extraction operations. 10 CFR § 40.4(a-1).

the processing and with the possession and transfer of

such material,” (emphasis added) and conforms to the

general standards for tailings management prescribed

by the EPA and the Commission.”

Significantly, this marks the first time the Atomic En-

ergy Act of 1954, as amended, gives the Commission

specific authority over nonradiological and environ-

mental matters.” Prior to enactment of the Mill Tail-

ings Act, NRC authority under the Atomic Energy Act

of 1954 had been limited to radiological, public health

and safety, common defense and security, and antitrust

matters, although the agency was, of course, required

to consider nonradiological issues pursuant to the Na-

tional Environmental Policy Act of 1969.*% The pro-

posed regulations implementing the Mill Tailings Act

do not at this time focus heavily on nonradiological en-

vironmental concerns. The regulations rather empha-

size traditional Commission concerns, such as radon

emanation from the tailings or wastes, but do to a

lesser extent address certain newer areas of interest,

such as seepage of toxic materials into groundwater.™

** 42 U.S.CA. § 2022(d) (1979).

® Prior to the enactment of NEPA, it was held that the AEC

lacked statutory authority under the Atomic Energy Act of 1954

to deny or condition licenses on nonradiological environmental

grounds. New Hampshire v. AEC, 406 F.2d 120 (1st Cir. 1969),

cert. den. 395 U.S. 962 (1969).

* Calvert Cliffs’ Coordinating Committee v. AEC, 449 F.2d

1109 (D.C. Cir.) cert. den. 404 U.S. 942 (1971).

* 44 Fed. Reg. 50,021 (1979), proposing a new Appendix A to

10 C.F.R. Part 40.

It should be noted that the role of other agencies in the

regulation of the environmental hazards associated

with uranium milling and mill tailings is not affected.

Section 275e. of the Atomic Energy Act of 1954 (added

by the Mill Tailings Act) provides:

Nothing in this Act applicable to byproduct

material, as defined in section 11e.(2) of this

Act, shall affect the authority of the Adminis-

trator under the Clean Air Act of 1970, as

amended, or the Federal Water Pollution Con-

trol Act, as amended.

Under these acts the EPA Administrator is empowered

to authorize state implementation and enforcement of

certain provisions of these acts. There is no indication

of intent in the legislative history of the Mill Tailings

Act to take away this authority of the Administrator.”

Thus, EPA, and the states which administer these acts,

retain permitting and regulatory authority over air or

water pollutants emitted by uranium milling opera-

tions or tailings to the same extent as before passage

of the Mill Tailings Act.

The NRC and the EPA are to set national Federal

standards applicable in both Agreement States and

non-Agreement States.* The legislative history of the

Act indicates that the intent is to insure that —

% Indeed, the ultimate committee report stresses that the

Mill Tailings Act is not to affect the applicability of any of the

environmental laws. H. R. REP. NO. 95-1480, Pt. 2, 95th Cong.,

2d Sess. 46 (1978).

% 42 U.S.C.A. §$§2114, 2022, 2021(0) (1979).

. . mills located in a non-Agreement State are

not subject to different requirements than

their competitors which are located in an

Agreement State.*’

To this end, the Agreement States must also, when is-

suing uranium milling or mill tailings licenses or reg-

ulations, follow procedures comparable to those of the

NRC.* Similarly, Agreement State financial surety re-

quirements applied to milling licensees must be suffi-

cient to ensure compliance with those standards

established by the Commission.”

Another, possibly more significant, indicator of the

NRC’s predominance in the area of uranium milling

and mill tailing regulation is the NRC’s retention of

authority over certain aspects of long term tailings

management in Agreement States. This retention of

authority over materials under Agreement State regu-

lation is a marked departure from the Agreement

State program as originally enacted, which envisaged

a clear separation of Commission and Agreement

* H.R. REP. NO. 95-1480, Pt. 2, 95th Cong., 2d Sess. 45

(1978).

% 42 U.S.C.A. $§ 2021(0X 1-3) (1979). The procedures include

steps to enhance public participation and an environmental re-

view. Under 42 U.S.C.A. § 2021(j) (1979), the NRC must under-

take periodic reviews to ensure that the Agreement States are

complying with these requirements, and a State’s failure to com-

ply may mean termination or suspension of all or part of its agree-

ment.

% 42 U.S.C.A. §2201(x) (1979).

State authority.” Under sections 83c. and 275c. of the

Atomic Energy Act of 1954, as amended by the Mill

Tailings Act, before any uranium milling license (in-

cluding an Agreement State license) may be termi-

nated, the NRC must have first made a determination

that all applicable requirements pertaining to tailings

stabilization and decontamination have been met.“

Moreover, under sections 83a. and b., the following au-

thority is reserved to the Commission after November

8, 1981: (1) the authority to establish such terms and

conditions as the Commission determines necessary to

assure that the licensee complies with decontamina-

tion, decommissioning, and reclamation standards the

Commission may establish;* (2) the authority to re-

quire transfer of title of the tailings and their disposal

site to the Federal or, at the option of the State, State

government;* (3) the authority to permit use of surface

or subsurface estates, or both, of land transferred to

the United States or a State;“ (4) the authority to

” According to the legislative history of the 1959 amend-

ments to the Atomic Energy Act of 1954 establishing the Agree-

ment State program,

It is not intended to leave any room for the exercise of

dual or concurrent jurisdiction by States to control ra-

diation hazards by regulating byproduct, source, or

special nuclear materials. The intent is to have the ma-

terial regulated either by the Commission, or by the

State and local government, but not by both. S. REP.

No. 870, 86th Cong., Ist Sess. 9 (1959).

" 42US.CA. §$§ 211%c), 2021(c) (1979).

@ 42U.S.CA. § 2113(aX1) (1979).

* 42U S.CA. § 2113(bX 1) (1979).

“ 42U.S.CA. §$§ 2113(bX1,7) (1979).

require transfer of tailings and their disposal site con-

nected with a mill that was in operation before the ef-

fective date of the land transfer requirements of

section 83 of the Atomic Energy Act of 1954; (5) the

authority to require the Federal agency or State hav-

ing custody of the tailings and their disposal site to un-

der take monitoring, maintenance, and emergency

measures as the Commission may deem necessary;

and (6) the authority to enter into arrangements to en-

sure that tailings on Indian lands are properly moni-

tored and maintained.*’

The foregoing discussion makes clear that Congress in-

tended the Federal Government tc assume a pervasive

and preeminent role with regard to the hazards of ura-

nium mill tailing [sic] — both radiological and non-

radiological. The question of implied preemption then

turns upon whether this role established for the Fed-

eral Government so completely “occupies the field” as

* 42 U.S.CA. § 2113(bX4) (1979).

“ 42U S.CA. § 2113(bX5) (1979).

*’ 42 U.S.CA. § 2113(bX8) (1979).

“ The implied preemption standard of “occupancy of the

field” (see, e.g., Flordia [sic] Lime and Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 135 (1963)) is measured by the more detailed

factors set forth in cases such as Northern States Power v. Min-

nesota, 447 F.2d 1143 (8th Cir. 1971). See pp. 3-8, supra.

to leave no room for concurrent non-Agreement State

regulation. Before attempting to reach a conclusion on

this, we will first examine the available indicia as to

whether Congress intended to preserve or preclude

non-agreement state authority. Because one of the key

(and most confusing) factors — section 201(h)(1) of the

Mill Tailings Act as amended — applies only until No-

vember 8, 1981, the situation must be examined sepa-

rately for the periods before and after that date.

It should be noted at the outset that the authors of the

Mill Tailings Act were generally careful to identify

Agreement States when they wished to distinguish be-

tween Agreement and non-Agreement States. For ex-

a-nple, section 275d. of the Atomic Energy Act of 1954“

as added by the Mill Tailings Act, refers to “States

exercising authority pursuant to section 274b.(2) of

this Act.” By implication, the failure to identify a pro-

vision as applying only to Agreement States means

that reference to “a State” or “any State” means just

what it says — either an Agreement or a non-Agree-

ment State.”

It appears that certain authorities are available to any

State under the Mill Tailings Act. As described above,

limitations on exclusive NRC authority leave room for

State regulation. The most salient of these limitations

is the definition of byproduct material in section

1le(2), which leaves to the States the regulation of

* 42 U.S.CA. § 2022(d) (1979).

See 2A Sutherland, STATUTORY CONSTRUCTION,

§ 47.23 (4th ed., C.D. Sands 1975).

tailings or wastes produced by the extraction or con-

centration of uranium or thorium from ore not pro-

cessed primarily for its source material content, and

allows the State authority over below-ground (e.g.,

mining) aspects of in situ extraction. Also, by virtue of

section 275e. of the Atomic Energy Act of 1954," as

added by the Mill Tailings Act, States may continue to

exercise whatever authority they have to administer

certain provisions of the Clean Air Act or the Federal

Water Pollution Control Act.

Other authorities appear to be generally available to

the States under the Mill Tailings Act. Under section

83(b\(1) of the Atomic Energy Act of 1954," as added

by the Mill Tailings Act, a State — apparently Agree-

ment or non-Agreement — may opt to take custody of

tailings and their disposal site. Similarly, under sec-

tion 161x. of the Atomic Energy Act of 1954, as added

by the Mill Tailings Act, the NRC must, when imposing

financial surety requirements, take into consideration

“other financial arrangements which are required by

other Federal agencies or State agencies and/or other

local governing bodies. . . .” (Emphasis added.)

The remainder of the statutory provisions that might

bear upon non-Agreement State authority are ex-

tremely confusing, and to a certain extent, self-contra-

dictory. Two of them, relied upon in the opinion of the

Wyoming Attorney General as support for his opinion

*' 42 U.S.CA. § 2202(e) (1979).

™ 42 U.S.CA. § 21 14(bX1) (1979).

® 42 U.S.C.A. § 2201(x) (1979) (emphasis added).

that non-Agreement States have concurrent jurisdic-

tion with the NRC over non-radiological hazards of

uranium mill tailings until November 3, 1981, may be

discussed together at the outset — section 274k. of the

Atomic Energy Act of 1954 and section 204(g) of the

Mill Tailings Act. (It will be recalled that section 274 of

the Atomic Energy Act authorizes and establishes the

Agreement State program and that section 204 of the

Mill Tailings Act amends section 274 to provide for

Agreement State regulation of mill tailings).

Section 274k provides that:

Nothing in this section shall be construed to

affect the authority of any State or local

agency to regulate activities for purposes

other than protection against radiation haz-

ards. (Emphasis added.)

Section 204(g) provides that:

Nothing in any amendment made by this sec-

tion shall preclude any State from exercising

any other authority as permitted under the

Atomic Energy Act of 1954 respecting any by-

product material, as defined in section 1 le.(2)

of the Atomic Energy Act of 1954. (Emphasis

added.)

These two provisions operate to preserve State author-

ity only as against other provisions in sections 204

or 274, respectively, which apply to the Agreement

State program — not to any other NRC authority over

milling or mill tailings. Section 274k. of the Atomic En-

ergy Act of 1954 and section 204(g) of the Mill Tailings

Act merely prevent anything in section 274, as

amended — i.e., the Agreement State program — from

affecting State authority over non-radiological haz-

ards.™ Sections 84 and 275 of the Atomic Energy Act of

1954 (added by §§ 202(a) and 206a, respectively, of the

Mill Tailings Act) give NRC and EPA clear immediate

authority over nonradiological (as well as radiological!)

matters, and are not limited by any reservation of prior

State authority in section 274k. of the Atomic Energy

Act of 1954 or section 204(g) of the Mill Tailings Act.

to preserve non-Agreement State authority over the

non-radiological hazards of uranium mill tailings.

Most confusing is section 204(h)(1) of the Mill Tailings

Act, which purports to preserve prior State authority

“ The Opinion of the Wyoming Attorney General fails to

point out that section 274k. of the Atomic Energy Act of 1954 and

section 204(g) of the Mill Tailings Act apply only to the Agreement

State provisions of section 274 and amendments thereto, making

them of no value in reserving State authority against sections 84

and 275 of the Atomic Energy Act of 1954:

|Congress’| failure to repeal Section 2021(k) of the AEA

_ the judicial touchstone for decisions recognizing state

regulatory authority over non-radiological hazards — or

to appeal |sic] or amend Section 204(g) of UMTRCA

which preserves to the states the authority over tail

ings permitted them under the AEA prior to amend-

ments to the cooperative agreement section thereof |

leaves non-agreement states in essentially the same

position they were in with respect to tailings prior to

1978. (Opinion at 9.)

It also appears to erroneously assume that sections 84 and 275 do

not take effect until 1981. (Opinion at 6.)

respecting section 1le.(2) byproduct material for the

three-year period before the Act becomes fully effec-

tive. As originally enacted, section 204(h)(1) stated:

On or before the date three years after the

date of enactment of this Act, notwithstand-

ing any amendment made by this title, any

State may exercise any authority under State

law respecting byproduct material, as defined

in section 11e.(2) of the Atomic Energy Act of

1954, in the same manner, and to the same ex-

tent, as permitted before the enactment of

this Act.

On its face, this provision would have preserved any

State authority under State law regarding tailings for

came fully effective in 1981. Read literally, this would

include authority over radioactive and nonradioactive

hazards of mill tailings. This was the understanding

of the Commission, for when it suggested remedial

amendments to eliminate concurrent NRC-Agreement

State jurisdiction of uranium mill tailings (but not

change the situation in non-Agreement States), its sec-

tion-by-section analysis explained:

In non-Agreement States, the NRC would

have immediate authority to implement the

regulatory program in Title II. Although sec-

tion 204(h)\(1) preserves prior State authority

for three years, in case of conflict between

Federal and State law, the Federal would pre-

vail.”

Although the legislation as originally drafted by the

Commission was introduced by Senator Domenici and

passed by the Senate,” it was subsequently amended

by Representative Udall! to ensure that the new re-

quirements of the Mill Tailings Act pertaining to

Agreement State regulation and licensing of uranium

willing and mill tailings would be applied to the max-

imum extent practicable during the three-year period

before the Act becomes fully effective.*’ Section 204(h)(1)

as amended reads in part as follows:

During the three-year period beginning on the

date of the enactment of this Act, notwith-

274 of the Atomic Energy Act of 1954) respect-

ing (A) byproduct material, as defined in sec-

tion 11e.(2) of the Atomic Energy Act of 1954,

or (B) any activity which results in the pro-

duction of byproduct material as so defined, in

the same manner and to the same extent as

permitted before the date of enactment of this

Act, except that such State authority shall be

exercised in a manner which, to the extent

* Cong. Rec. $15,006 (Oct. 24, 1979) (statement of Sen. Do-

menici incorporating NRC’s section-by-section analysis).

*’ Cong. Rec. H 9772 (Oct. 26, 1979) (statement of Rep.

Udall).

practicable is consistent with the requirements

of section 2740. of the Atomic Energy Act of

1954 (as added by section 204(e) of this

Act)... .™

Obviously the drafters of the Udall amendments to the

remedial amendments were not thinking in terms of

preserving non-Agreement State authority over mill

tailings: they were intent upon making the Agreement

States follow the new requirements of the Mill Tailings

Act to the maximum extent practicable.”

* Pub. L. No. 96-106, § 22(b), 93 Stat. 799 (1979) (emphasis

added).

°° In explaining his amendment, which also amended section

204(e) to provide that section 2740. “shall apply only to the maxi-

mum extent practicable during the three year period beginning

on the date of enactment of this Act,” Mr. Udall stated:

“My amendment changes the Senate Amendment to pro-

vide that specified effective standards and procedures

in the act would be effective immediately to the maxi-

mum extent practicable. Further the Nuclear Regula-

tory Commission is declared to retain authority to

assure that agreement States in exercizing |sic| their

licensing activities implement the requirements to the

maximum extent practicable. (Empahsis (sic| added)

Cong. Rec. H 9772 (October 26, 1979).

Upon return of the measure to the Senate, Senator Domenici ac-

cepted the Udall amendment and indicated his understanding

that the new language was to apply to the Agreement States:

Mr. President, I am willing to accept this modification to

my amendment. However, because this is a new addition

to the statutory language, some further explanation

may be in order. First, as the legislative history to

the Mill Tailings Act recognized, there may be several

reasons why it is not practicable for a particular Agree

ment State to meet one or more of the new requirements

The result is a provision which does not admit of any

reading which gives full effect to all of the language

used. Three possible interpretations, each strained, ap-

pear possible.

of the act within the 3-year interim period. For exam-

certain of the requirements, or action of the State leg-

islature may be needed to provide all the necessary

funding to meet the new requirements. Because some

standards for the control of mill tailings, a period of

time may be required for the Agreement States to in-

corporate the new standards into thier [sic] ongoing

regulatory programs. These are just a few examples of

factors which could make it not practicable for an

Agreement State to meet one or more of the new re

quirements during the 3-year interim period.

With regard to NRC’s role during the interim period,

this amendment would not give the Commission any

new authority over individual State licensing determi-

nations. Thus, the Commission would not have the

authority to issue, deny or revoke licenses in the Agree-

ment States. Rather, NRC’s role during the interim

period will be to assist the Agreement States in upgrad-

ing their regulatory programs to meet the new require-

ments. One approach which has already been used

effectively in this process is the offer of NRC technical

assistance to the State on a consultant basis. Another

useful tool is the grant program established by the Mill

Tailings Act. The amendment provides an added di-

rective to the Commission to work in cooperation with

the Agreement States to improve the effectiveness of

their regulatory efforts as soon as possible.

Cong. Rec. S. 14356 (October 29, 1979).

100

First, the provision could be construed as applying to

Agreement States only. While this would give effect to

the intention of the language added by the remedial

amendments (see footnote 59, supra) it would require

reading “any State” to mean “Agreement State,” and

would implicitly repeal the earlier preservation, inso-

far as non-Agreement States are concerned, of previ-

ously existing authority over the non-radiological

hazards of ‘ailings. The sparse legislative history con-

tains no indication that the Commission in proposing

the remedial amendments or the Congress in acting

upon them intended this latter result. Moreover, as

previously noted, Congress was generally careful to in-

dicate clearly when references to Agreement States

were intended.

Second, the provision could be read, in its entirety, as

applying to all states. The introductory reference to

“any State” would support such a reading, but the nec-

essary consequence, if the remainder of the provision

is read literally, would be that non-Agreement States

would be bound to apply “to the extent practicable”

other provisions which, when enacted, were intended

to apply only to Agreement States. Moreover in non-

Agreement States this obligation would endure only

until November 8, 1981, where as in Agreement States

the requirements would become ever more stringent

after that date. The legislative history provides no sup-

port for such a result, and no sound legislative purpose

for such a scheme is apparent.

The third alternative is to read the general preserva-

tion of authority in section 204(h)(1) as applying to any

101

state and limiting the applicability of the provision for

compliance with the requirements of section 2740. “to

the extent practicable” to Agreement States. In effect,

this requires the insertion of a phrase into the lan-

guage added by Representative Udall so that it reads

along the following lines:

except that such State authority, when exer-

cised by an Agreement State, shall be exer-

cised in a manner which. .. .

Such an approach to the interpretation of section

204(h)\(1) would (a), maintain the original reservation

of authority to all states, as originally intended,” (b)

eliminate concurrent jurisdiction in / greement States,

as was clearly intended,“ and impose interim require-

ments only upon the Agreement States, which is all

that Congress appears to have actually contem-

plated.” The problem with this approach, obviously, is

that it requires reading into the statute words which

are not there.

The leading commentator on statutory construction

observes that “words may be inserted in or added to a

statute where that is necessary in order to effectuate

the legislative intent or manifested statutory mean-

ing”™ but notes that the Federal Courts (in contrast

to a great many State courts) deny thems>lves that

® See n. 52, supra, and accompanying text.

61 Id.

® See n. 55, supra, and accompanying text.

® 2 A Sutherland, STATUTORY CONSTRUCTION, § 47.38

(4th ed., C. D. Sands 1973).

102

power.“ The Supreme Court has said “Our problem is

to construe what Congress has written. After all, Con-

gress expresses its purpose in words. It is for us to as-

certain — neither to add nor to subtract, neither to

delete nor to distort.” 62 Cases of Jam v. United States,

340 U.S. 593, 596 (1951). This pronouncement was

made, however, in a case where the Court was asked to

reach a result which would “distort the ordinary mean-

ing of the statute.” Jd. at 600.

"he Situation Before November 8, 1981 — Conclusion

Each of the three possible constructions of section

204(h)(1) present problems. None will give full effect to

all the parts of the statute; only the third option will

give full effect to the available indicia of legislative in-

tent. Though the question is extremely close, we be-

lieve that the better legal view is to read the section as

applying — as it says — to any state, thus expressly pre-

serving to non-Agreement States until November 8,

1981, authority over the non-radiological hazards of

uranium mill tailings. The attendant difficulty of im-

plementing the unintended and illogical requirement

that non-Agreement States implement the provisions

of section 2740. “to the extent practicable” can be obvi-

ated by adopting the third option presented, or by ex-

ercising discretion in interpreting and enforcing the

applicability of that proviso to the non-Agreement

States. In light of the manifest legislative intent of the

remedial amendments, it would not appear to be an

* Id. at n. 4.

103

abuse of discretion for the Commission to decline to en-

force the use of 2740. procedures by non-Agreement

States during the short remaining life of section

204(h\(1) (.e., to find that it is not practicable for non-

Agreement States to comply with these precedures

|sic] until November 8, 1981).

b. The situation after November 8, 1981

As we have seen, there is no provision in either the

Atomic Energy Act of 1954 as amended or the Mill

Tailings Act as amended which indicates an express

Congressional intent to preserve or prohibit non-

Agreement state authority over the non-radiological

hazards of uranium mill tailings after November 8,

1981, the date on which section 204(h)(1) ceases to

have effect. Thus the question of concurrent jurisdic-

tion versus implied preemption after that date turns

upon whether Congress has “occupied the field.” Like

the other questions examined in this paper, it is a close

one.

The Case for total preemption

The Mill Tailings Act creates a comprehensive Federal

scheme that is designed to establish a uniform na-

tional program for regulating the radiological and

non-radiological hazards of uranium mill tailings reg-

ulation. This intent is woven through the overall regu-

latory scheme as described in detail at pages 12-18,

supra. For example, even in Agreement States, (which

previously were given all the Commission’s authority

104

over materials transferred pursuant to section 274b. of

the Atomic Energy Act of 1954), the NRC is given a

lead role in standard-setting and direct authority con-

cerning long term tailings management. Further evi-

dence of the pervasive nature of the Commission’s

authority over all of the hazards associated with ura-

nium milling and mill tailings may be found in the leg-

islative history of the Mill Tailings Act which makes

numerous references to the general intent to establish

a uniform Federal regulatory regime covering all as-

pects of uranium mill tailings management.

Indeed, the statutory provisions describing the role of

the NRC in the regulatory scheme for uranium mill

tailings are far more detailed than those for nuclear

reactors. Using the tests set forth in Northern States

Power, it is not difficult to argue that (1) in enacting

the Mill Tailings Act, the Congress intended to estab-

lish a Federal scheme to regulate all hazards associ-

ated with uranium mill tailings.; (2) this scheme, when

incorporated into the Atomic Energy Act of 1954, is

® For example:

This section amends section 274 of the Atomic Energy

Act to provide for adherence by Agreement States to

control, stabilization, and disposal. H.R. Rep. No. 95-

1480, Pt. 2, 95th Cong., 2d Sess. 44 (1978). (emphasis

added.)

* Compare section 83 and 84 of the Atomic Energy Act of

1954, 42 U.S.C.A. § 2113, 2114 (1979) governing uranium mill

tailings management with sections 102 and 103 of the Atomic En-

ergy Act of 1954, 42 U.S.C.A. § 2132, 2133 (1976) governing the

licensing of nuclear reactors.

105

sufficiently pervasive to oust State regulation; (3) the

subject matter — the long term hazards associated with

the nuclear fuel cycle — is one that demands exclusive

Federal regulation in order to achieve uniformity vital

to national interests; and (4) that State law (which if

left to reign freely would inevitably induce local varia-

tions in the regulation of uranium mill tailings) does

stand as an obstacle to the purposes and objectives of

Congress.

Moreover, there is no completely convincing reason to

distinguish between radiological and nonradiological

hazards for reasons of preemption. The NRC’s new re-

sponsibilities under the Mill Tailings Act regarding en-

vironmental and nonradioactive hazards of uranium

milling operations and mill tailings are made an inte-

gral part of the Atomic Energy Act’s comprehensive

plan for Federal preeminence in nuclear regulation.

Using the same logic as was employed in Northern

States Power, one could conclude that the fact that the

Congress expressly gave Agreement States authori-

ties over environmental and nonradiological hazards

associated with mill tailing®’ must mean that these

*? Section 2740.(3XC) of the Atomic Energy Act of 1954, 42

U.S.C.A. § 2021(0X3XC) states that the Agreement States, when

licensing uranium milling operations or mill tailings, shall:

require for each license which has a significant impact

on the human environment a written analysis . . . of the

ducted pursuant thereto, on the environment, which

analysis shall include —

106

authorities are no longer generally available under

state police powers.® In short, this argument holds

that allowing non-Agreement States to exercise con-

current jurisdiction over nonradiological hazards of

uranium mill tailings would be tantamount to allowing

the non-Agreement States the privileges in this regard

allowed under the Agreement State program without

requiring an agreement and all the conditions and

safeguards that attach thereto.

Thus, this argument goes, it is clear under the Mill

Tailings Act that there is a manifested congressional

intent to preempt all residual State police power au-

thority over uranium mill tailings — radiological and

nonradiological. This intent is sufficient to overcome

the presumption against preemption of historic State

(i) an assessment of the radiological and nonradio-

logical impacts to the public health of the activi-

ties to be conducted pursuant to such license;

(ii) an assessment -f any impact on any waterway

and groundw.. ~esulting from such activities;

(iii) consideration of alternatives, including alterna-

tive sites and engineering methods, to the activi-

ties to be conducted pursuant to such license; and

(iv) consideration of the long-term impacts, including

tion impacts, associated with activities to be con-

ducted pursuant w such license, including the

management of any byproduct material, as de

fined in section 11e.(2). . . . (emphasis added.)

* The additional buttressing argument can be made that by

delineating certain responsibilities the states were to retain, Con-

gress had focused upon the subject and decided that authority not

mentioned was not to be retained.

107

police powers.” As was stated in the United States v.

City of New York case, where such State law stands as

an obstacle to the accomplishment of the full purposes

and objectives of Congress, “the local legislation is not

insulated by its wisdom or nobility; for the purposes of

the Supremacy Clause, the merit of the local enact-

ment is irrelevant.””

TY f ‘urisdicti

A convincing argument can also be made, however,

that while there is Federal preemption of State author-

ity over radiological hazards associated with uranium

mill tailings, there is concurrent NRC-State authority

over the nonradiological hazards (recognizing that, in

the event of conflict, the NRC authority is paramount).

This argument for NRC preemption of State regula-

tory authority concerning radiological matters, with

concurrent State-NRC jurisdiction over nonradiologi-

cal and environmental matters, assumes that radiolog-

should be treated differently than nonradiological haz-

ards for purposes of preemption.

Traditionally, only radiological matters have been

held preempted in the case law regarding nuclear

preemption. The scheme of the Atomic Energy Act of

1954 indicates that Congressional intent regarding

preservation of State authority over nonradiological!

® Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).

" 463 F Supp. at 608, citing Franklin National Bank v. New

York, 347 U.S. 373, 378-79 (1954).

108

matters, as evidenced by section 274k., although per-

haps limited by the grant of Federal authority in this

area by the Mill Tailings Act, remains vital in terms of

permitting concurrent State-NRC jurisdiction over

such nonradiological hazards.”' Further, the legislative

history of the Mill Tailings Act indicates that radiolog-

ical hazards were of primary concern.” At one point, a

committee report describing the Mill Tailings Act spe-

cifically segregated NRC’s nonradiological duties, as

follows:

With respect to nonradiological matters, the

NRC, through its environmental review under

the NEPA mandate, would impose controls

consistent with those imposed by EPA on sim-

ilar materials contained in other solid wastes

subject to EPA authority.”

In addition, it can be argued the Mill Tailings Act does

not provide a truly comprehensive Federal scheme re-

garding nonradiological matters. More importantly, as

discussed at pages 19-20 supra, certain authorities are

available to any state under the Mill Tailings Act. The

definition of section 1le(2) byproduct material is

somewhat vague (as indicated by NRC’s need to clarify

" 42 U.S.C. § 2021(k) (1976). As mentioned above, however,

section 274k. preserves States’ authority over nonradiologica!

matters only as against other provisions regarding the Agreement

State program — not as against NRC authorities over mill tailings.

™ HLR. REP. NO. 95-1840, Pt. 1, 95th Cong., 2nd Sess., 11

(1978). See note 17, supra. Indeed, it is worth noting that the title

of the Act is the Uranium Mill Tailings Radiation Control Act of

1978. (Emphasis added.)

™ Id. at 16 (emphasis added).

109

it in the definition in 10 CFR 40.4(a-1)). Further, the

definition excludes uranium mill tailings generated

from a side stream of milling not done primarily to ob-

tain source material. Thus, the state police power does

cover some mill tailings identical to those described in

section 11e(2) but for their origin.

Other authorities reserved to the states are their con-

tinued exercise of authority to administer certain pro-

visions of the Clean Air Act and the Federal Water

Pollution Control Act, and the authority under section

83(b)(1) of the Atomic Energy Act of 1954, as added by

the Mill Tailings Act, to opt to take custody of tailings

and their disposal site. It is equally clear that under

section 161x. of the Atomic Energy Act of 1954, as

added by the Mill Tailings Act, the NRC must, when

imposing financial surety arrangements, consider

other financial arrangements which are required by

state and local governments.

Thus it seems that the various gaps in the otherwise

pervasive Federal scheme covering the nonradiological

hazards connected with uranium milling and mill tail-

ings cause the argument for preemption in this area to

powers, such as those at stake here, will not be found

to be preempted absent a showing of clear congres-

sional intent to this effect. It can readily be argued in

the instant case, that the extent of federal authority

over nonradiological hazards of uranium milling and

mill tailings is insufficient to overcome the presump-

tion against preemption, and that for this reason, the

110

NRC and the non-Agreement States would be able to

exercise concurrent jurisdiction in this area.

The si , fer N ber 8.1981 — Conclusi

The arguments for and against a conclusion that the

Congress has so “occupied the field” as to preempt the

possibility of any non-Agreement State regulation of

the nonradiological hazards of uranium mill tailings

are fairly evenly in balance. Both legal and practical

considerations, however, lead us to the conclusion that

the better view is that Congress has not preempted the

field, and that the states may therefore exercise con-

current jurisdiction. First is the practical considera-

tion that the authority given to the NRC (and the EPA)

is extremely broad, and that any exercise of it will pre-

vail over any conflicting state regulatory action. In

other words, the federal regulatory agencies ‘.ave the

power to ensure that state regulation in this area can-

not serve to frustrate the Congressional purpose. Sec-

ond, while the Mill Tailings Act provides for federal

regulatory authority over the nonradiological hazards

of uranium mill tailings, the thrust of the legislative

history and the NRC implementing regulations is di-

rected toward radiological hazards. As a legal matter,

this undercuts the argument that the field of regula-

tion of nonradiological hazards has been so fully occu-

pied as to leave no room for the states.

Applying the four tests enumerated in Northern States

Power, supra, (and the other preemption cases), we

find the more persuasive view to be that (1) the Mill

111

Tailings Act and its legislative history do not provide

clear evidence of Congressional intent to oust non-

Agreement States of all authority over the nonradio-

logical hazards of uranium mill tailings, (2) the federal

regulatory scheme, while broad, is not all-encompass-

ing, (3) the subject of uranium mill tailings regulation

does n

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