Appendix — United Nuclear Corp. v. Thomas

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| Supreme Court, U.S.

— pe Fil. ED

85 - 1279 JAN 28 1986

JOSEPH F. SPANIOL. JR.

—=—

IN THE iA

Supreme Court of the United States

OCTOBER TERM, 1985

UNITED NUCLEAR CORPORATION,

KERR-MCGEE CORPORATION,

QUIVIRA MINING COMPANY and

HOMESTAKE MINING COMPANY OF CALIFORNIA,

re Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

APPENDICES TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETER J. NICKLES *

RICHARD A. MESERVE

FREDERICK G. HEROLD

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

G. STANLEY CROUT

SUNNY J. NIXON

STEPHENSON, CARPENTER, CROUT

& OLMSTEAD

P.O. Box 669

142 W. Palace Avenue

Santa Fe, New Mexico 87501

(505) 982-4611

* Counsel! of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

) >

TABLE OF CONTENTS

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APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 83-1014, 83-1041, 83-1206, 83-1300

AMERICAN MINING CONGRESS, UNITED NUCLEAR CORPORA-

TION, HOMESTAKE MINING COMPANY, QUIVIRA MINING

COMPANY, KERR-MCGEE CORPORATION, SIERRA CLUB,

THE ENVIRONMENTAL DEFENSE FUND, INC., NATIONAL

RESOURCES DEFENSE COUNCIL, SOUTHWEST RESEARCH

AND INFORMATION CENTER, and JEAN SLATTERY,

Petitioners,

Vv.

LEE M. THOMAS, Administrator,

Environmental Protection Agency, and

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

STATE OF COLORADO,

Intervener.

[Filed Sept. 3, 1985]

Petition for Review of the Standards

Promulgated by the Environmental Protection Agency

Before LOGAN and McWILLIAMS, Circuit Judges, and

BOHANON, District Judge.*

* Honorable Luther L. Bohanon, Senior United States District

Judge for the District of Oklahoma, sitting by designation.

LOGAN, Circuit Judge.

These consolidated cases involve challenges to the En-

vironmental Protection Agency’s (EPA) standards for

the cleanup and disposal of uranium mill tailings origi-

nating from designated inactive mill sites. The EPA

established these standards pursuant to its authority

under the Uranium Mil! Tailings Radiation Control Act

of 1978 (‘UMTRCA), as amended, 42 U.S.C. $$ 2022 and

7901-7942. The UMTRCA required the EPA to promul-

gate standards that could be applied generally to protect

the environment and-the public health and safety from

radioactive and nonradioactive hazards posed by uranium

mill tailings at both active and inactive processing sites.

Under the statutory scheme the federal government and

the affected state share the costs of the remedial action

taken to control mill tailings, see 42 U.S.C. § 7917, with

the possibility of later reimbursement from private par-

ties. id. § 7925. The EPA standards that we review here

pertain only to inactive mill sites. In a companion case

released this day we review regulations relating to active

mill sites. See American Mining Congress v. Thomas,

—— F.2d (10th Cir. 1985) (Active Sites Case).

The following parties filed petitions for review of these

standards: the American Mining Congress, a trade asso-

ciation; joint petitioners United Nuclear Corporation,

Kerr-McGee Corporation, Kerr-McGee Nuclear Corpora-

tion, and Homestake Mining Company; joint petitioners

Sierra Club, Environmental Defense Fund, Natural Re-

sources Defense Council, Southwest Research and Infor-

mation Center and Jean Slattery; and the State of Colo-

-ado as intervenor. In addition, the State of Wyoming

filed an amicus brief.

The final product of the milling process for uranium

ore is uranium-rich “yelloweake,” U.O.. The milling

process also produces a residue of either slime or coarse

sand. This residue, which comprises the uranium mill

tailings piles, contains radioactive material, the most

significant of which is radium. Radium decays to produce

radon. Radon is an inert gas, some of which escapes

from the tailings particles into the atmosphere. Airborne

radon degrades into a series of short half-life decay

products that are hazardous if inhaled. [f the radon gas

does not escape the mill tailings piles, its decay products

remain in the piles and produce gamma radiation, which

may be harmful to people and animals living near the

mill tailings piles. Uranium mill tailings also contain

potentially dangerous nonradioactive materials such as

arsenic and selenium. These toxic and radioactive mate-

rials may be ingested with food or water. 48 Fed. Reg.

590, 592 (1983). See generally 1 Environmental Protec-

tion Agency, Final Environmental Impact Statement for

Remedial Action Standards for Inactive Uranium Proc-

essing Sites 3-68 (1982) [hereinafter FEIS-IN].

To deal with the perceived dangers presented by

uranium mill tailings, Congress enacted the UMTRCA.

When it passed this legislation in 1978, it stated, in a

section titled “Congressional findings and purposes”:

“uranium mill tailings located at active and inactive

mill operations may pose a potential and significant

radiation health hazard to the public, and that the

protection of the public health, safety, and welfare

. require[s] that every reasonable effort be made

to provide for the stabilization, disposal, and control

in a safe and environmentally sound manner of such

tailings in order to prevent or minimize radon

diffusion into the environment and to prevent or

minimize other environmental hazards from such

tailings.”

42 U.S.C. § 7901(a).

In the UMTRCA, Congress gave the Department of

Energy (DOE) and the Nuclear Regulatory Commission

(NRC) responsibility for implementing a remedial pro-

gram to clean up and dispose of the mill tailings. See id.

<< 7911-7924. The EPA is responsible for promulgating

the general standards that the implementing agencies

must meet. See id. §§ 2022(a), 7918(a).

The EPA issued proposed general standards for the

remedial program in two parts: cleanup standards and

disposal standards. The EPA intended the cleanup stand-

ards to reduce the detrimental health consequences of

tailings that have been dispersed from the tailings piles

or used in construction. 45 Fed. Reg. 27,370, 27,370

(1980). The EPA intended that the disposal standards

place the tailings piles “in a condition which will be safe

for a long time.” Jd.

On April 22, 1980, the EPA Administrator published

for comment “Proposed Cleanup Standards for Inactive

Uranium Processing Sites.” 45 Fed. Reg. 27,370 (1980).

These proposed standards were “for cleanup of open lands

and buildings contaminated with residual radioactive

materials (mainly tailings) from inactive uranium proc-

essing sites.’ Id. The EPA made them immediately

effective as interim standards pending comment, review,

and promulgation of the final standards. The EPA also

issued a draft environmental impact statement to support

the proposed standards.

The proposed cleanup standards established allowable

levels of radium concentration in soil contaminated by

dispersed tailings. The standards also set permissible

levels of radon decay product concentration and gamma

radiation ir occupied or occupiable buildings affected by

the tailings.’

1 The propesed standard for soil contamination read:

“(a) tae average concentration of radium-226 attributable to

residual radioactive material from any designated processing

site in any 5 cm thickness of soils or other materials on open

In addition, these proposed standards contained excep-

tions to strict compliance if certain criteria were met.

Id. at 27,375. At qualifying sites, the implementing

agency was to perform remedial action that would come

as close as possible to meeting the standard to which

the exception applied. Jd.

The EPA issued the second set of proposed standards,

the disposal standards, on January 9, 1981. 46 Fed. Reg.

2556 (1981). The disposal standards placed limits on

the radon release to the atmosphere from the tailings

piles and also placed limits on water contamination from

the piles. Jd. These standards required that the tailings

be disposed of in a manner “that provides a reasonable

expectation that these limits will be satisfied for at least

one thousand years.” * Id.

land within 1 foot of the surface, or in any 15 cm thickness

below 1 foot, shall not exceed 5 pCi gm.”

45 Fed. Reg. at 27,374. A curie is the amount of radioactive ma-

terial that produces 37 billion nuclear transformations per second.

One picocurie (pCi) = 10° Ci. Id.

The proposed standard for buildings stated that the levels of

radioactivity in any occupied or occupiable building shall not exceed,

due to residual radioactive materials from any designated processing

site, either: (1) 0.015 WL as an average annual indoor radon

decay product concentration, including background; or (2) 0.02

milliroentgen/hour of indoor gamma radiation above background.

Id. at 27,374-75. A WL or working level is “any combination of

short-lived radon decay products in one liter of air that will result

in the ultimate emission of alpha particles with a total energy of

130 billion electron volts.” Jd. at 27,374.

2 Specifically, the proposed standard for the radon emission limit

from the tailings pile read: “(a) The average annual release of

radon-222 from a disposal site to the atmosphere by residual radio-

active materials will not exceed 2 pCi/m*-sec.” 46 Fed. Reg. at

2562. A footnote to the standard read:

“The radon emitted from a tailings site after disposal will

come from the tailings and from materials covering them.

Radon emissions from the covering materials should be esti-

mated as part of developing a disposal plan for each site... .

After disposal], the radon emission standard is satisfied if the

emission rate is less than or equal to 2 pCi/m*-sec plus the

emission rate expected from the disposal materials.”

In the proposed disposal standards the EPA left little

doubt that it foresaw covering the tailings piles as the

most viable means to achieve the proposed radon emis-

sion standards. The EPA stated,

“In the draft EIS we analyze the health and en-

vironmental protection benefits and the costs of sev-

eral levels of controlling tailings, assuming a variety

of potential control methods. We find that radon

emission levels of an ‘average’ pile can be reduced

to approximately the levels characteristic of ordinary

land by applying a soil cover at costs in a range of

about 1 to 14 million (1979) dollars.”

Id. at 2559.

One of the standards established limits for concentra-

tions of toxic substances in underground sources of drink-

ing water. Another water standard required that sub-

3 This standard provides:

“(b) Substances released from residual radioactive materials

after disposal will not cause

(1) The concentration of that substance in any underground

source of drinking water to exceed the level specified in Table

A, or

(2) An increase in the concentration of that substance in

any underground source of drinking water, where the concen-

tration of that substance prior to remedial action exceeds the

level specified in Table A for causes other than residual radio-

active materials. This subsection shall appiy to the dissolved

portion of any substance listed in Table A at any distance

greater than 1.0 kilometer from a dispusal site that is part of

an inactive processing site, or greater than 0.1 kilometer if

the disposal site is a depository site.

Table A

Milligrams /liter:

SEITE. neohiuicd- cident annsinateaehaneninlnbaoasiaabarntaciaosaahatenendicbeiaes 0.05

I eae ee eee ade ameiieiian 1.0

ERE PLS OR RE a Rs SACO IR 0.01

RIS AE TET Aon ae Rates a0T Et SUS le OW Ape OO CEE 0.05

[Continued }

stances released from the disposal site “after disposal will

not cause the concentration of any harmful dissolved sub-

stance in any surface waters to increase above the level

that would otherwise prevail.” /d. at 2562.

The EPA received extensive comments on both the pro-

posed cleanup ar.d disposal standards. See Ii FEIS-IN

(‘summary of comments and responses). The comments

were wide ranging—the industry petitioners argued that

there was insufficient evidence of risk of harm to warrant

the standards, while the environmental groups argued that

the proposed standards did not provide adequate protec-

tion against the risks posed by the tailings. Both sides

buttressed their arguments with technical studies and

expert analysis.

Congress in 1982 discussed amendments to the

UMTRCA to extend the deadline for the promulgation of

final standards and enacted an amendment on January 4,

1983. See Act of Jan. 4, 1983, Pub. L. No. 87-415, sec.

18, 96 Stat. 2067, 2077 (1983) (codified at 42 U.S.C.

§ 2022(a)) (generally referred to as the “1982 amend-

ment”). Anxious to institute standards for the mill

tailings, Congress also provided that should the EPA

miss the extended deadline, remedial action would com-

3 [Continued }

Re ial bc Regt B rats RICO DM ART. p35 Me datet TA Co. 0.05

RR ee METAR Ri Ri rsa Fi ik Maat finn BVA ata ee 0.002

RRR eel note A en: Bo 0.05

Pm COE ID iis och sce eee 10.0

ee eae EES OS OES, RATA BE BLA: 0.01

FTN AILS Bata nln A Sel nha NO td A 0.05

pCi/liter:

Combined radium-226 and radium-228 ................ 5.0

Gross alpha particle activity

(including radium-226 but

excluding radon and uranium) ........... Shecatees 15.0

SINIIIIIID. Sid nhasschannsend ncsnpubudnibiciainahelatedes cabieplauaie 10.0”

46 Fed. Reg. at 2562-63.

amnesic asaen maaan

mence using the proposed standards. /d.; House Conf.

Rep. No. 884, 97th Cong., 2d Sess. 44-45, reprinted im

1982 U.S. Code Cong. & Ad. News 3603, 3614-15. By

the time Congress passed the amendment its specified

deadline for inactive sites had already passed. See 42

U.S.C. § 2022(a). Important for our purposes is that

Congress also included in the 1982 amendment a sentence

explaining the various factors that it required the EPA

to consider in developing the standards: “In establishing

such standards, the Administrator shall consider the risk

to the public health, safety, and the environment, the

environmental and economic costs of applying such stand-

ards, and such other factors as the Administrator deter-

mines to be appropriate.” /d.

On January 5, 1983, one day after Congress passed the

amendment, the EPA promulgated the final “Standards

for Remedial Actioius at Inactive Uranium Processing

Sites,” which covered both cleanup and disposal require-

ments. 48 Fed. Reg. 590 (1983) (filed Dec. 30, 1982)

(codified at 40 C.F.R. §§ 192.00-.43 (1984)). The final

regulations differed, in some ways quite substantially,

from the proposed standards. In explaining the changes

in general terms the EPA said:

“In response to comments on the proposed stand-

ards for disposal and for cleanup, we have evaluated

a number of alternatives in terms of their costs and

the reductions achievable in potential health effects.

A number of changes have been made, including

raising some of the numerical limits and eliminating

some requirements. The purpose of most of these

changes is to make implementation easier and less

| costly. The changes should not result in any substan-

tial loss of health or environmental protection over

that which would have been provided by the proposed

standards.”

48 Fed. Reg. at 599.

After specifically explaining in a table the various

alternatives it had considered for disposal of the mill

tailings piles, the EPA divided the alternatives into cate-

gories of least cost, optimized cost-benefit, or nondegra-

dation alternatives. Jd. at 591. To justify the less strin-

gent final disposal standards, the EPA said that the

original standards it had proposed were close to non-

degradation standards and that they would have been

difficult to implement because they required cleanup and

control limits close to background levels of radiation. /d.

It also said that “the small incremental health benefits,

when compared to the benefits for less stringent alterna-

tives, do not appear to justify the large additional costs.”

Id. In its final standards, the EPA purported to select

an “optimized cuost-benefit” rather than a “least cost”

alternative. Jd. The fina! standard for control or disposal

of the tailings piles set the radon emission limit at 20

pCi/m’s rather than the proposed 2 pCi/m*s limit.‘ /d.

Furthermore, the EPA changed the flat 1000 year dis-

posal longevity requirement, qualifying it with the lan-

guage, “to the extent reasonably achievable and, in any

ease, for at least 200 years,....” 40 C.F.R. § 198.02(a)

(1984).

The final regulation set the cleanup standard for land,

the maximum concentration level of radium 226, at 5

“§ 192.02 Standards.

Control shall be designed to:

(a) Be effective for up to one thousand years, to the extent

reasonably achievable, and, in any case, for at least 200 years,

and,

(b) Provide reasonable assurance that releases of radon-222

from residual radioactive material to the atmosphere will not:

(1) Exceed an average release rate of 20 picocuries per

square meter per second, or

(2) Increase the annual average concentration of radon-222

in air at or above any location outside the disposal site by more

than one-half picocurie per liter.”

40 C.F.R. $192.02 (1984) (footnotes omitted) (emphasis in

original).

10a

pCi gram averaged over the first 15 centimeters of soil

and at 15 pCi’gram for soil layers more than 15 centi-

meters below the surface.” This standard was an increase

from the 5 pCi/gram level set out in the proposed stand-

ard for subsurface soil. 46 Fed. Reg. at 2562. After

explaining the differences between the proposed and final

regulations for dispersed tailings contaminating the soil,

the EPA stated that it believed the final standards ‘will

result in essentially the same degree of cleanup, and will

be simpler to implement.” 48 Fed. Reg. at 600.

The EPA also adjusted the final standards on the

limits for radioactivity in buildings affected by the mill

tailings. The EPA increased the maximum permissible

level of radon decay product concentration from 0.015 WL

to 0.03 WL, requiring, however, that ‘reasonable effort

shall be made to achieve, an annual average (or equiva-

lent) radon decay product concentration (including back-

ground) not to exceed 0.02 WL.” 40 C.F.R. § 192.12(b)

(1) (1984). The level of gamma radiation allowed by

the final standards is no more than 20 microroentgens

per hour over background level. Jd. § 192.12(b) (2).

Commenting upon the difficulty of assessing water con-

tamination at the various sites and stating a belief that

there was a low probability of additional contamination

“S$ 192.12 Standards

Remedial actions shall be conducted so as to provide reason-

able assurance that, as a result of residual radioactive materials

from any designated processing site:

(a) The concentration of radium-226 in land averaged over

any area of 100 square meters shall not exceed the background

level by more than—

(1) 5 pCi/’g, averaged over the first 15 cm of soil below the

surface, and

(2) 15 pCi/g, averaged over 15 cm thick layers of soil

more than 15 cm below the surface.”

40 C.F.R. § 192.12 (1984) (emphasis in original).

lla

at most sites, the EPA retreated from its proposed water

regulations, stating that it was refusing to enact general

regulations on the subject. 48 Fed. Reg. at 599. The

EPA, however, did recognize the potential for site-

specific water contamination problems. In the cases where

there was a potential for ground water contamination,

the EPA declared that it had provided:

“in the implementation section of these standards,

that judgments on the possible need for monitoring

or remedial actions should be guided by relevant con-

siderations described in EPA’s hazardous waste man-

agement system, and by relevant State and Federal

Water Quality Criteria for existing and anticipated

uses of the aquifer.”

Id. at 599-600. The EPA adopted the same approach to

surface water contamination, leaving the regulatory bur-

den to the DOE and the NRC on a site-specific basis,

although it indicated that it thought surface water would

be adequately protected in any case by its general dis-

posal standards. Jd.

The final standards, like the proposed standards, in-

corporated provisions allowing the implementing agency

to grant exceptions if certain criteria were met. See 40

C.F.R. §§ 192.21-.22 (1984).

The industry petitioners, the environmental groups, and

the State of Colorado raise the following issues for our

consideration: (1) whether the EPA must find that the

mill tailings piles present “sa significant risk” of harm

before promulgating standards under the UMTRCA; (2)

whether the EPA’s radon emission and radium-in-soil

standards are invalid because they are on-site standards

beyond the EPA’s authority to promulgate: (3) whether

the EPA standards unlawfully impose management, de-

sign, and engineering requirements; (4) whether the

PA should engage in a cost-benefit analysis in estab-

lishing the standards for the final regulations, particu-

12a

larly the radon emission standard; (5) whether the

EPA’s standards for the mill tailings piles are arbitrary

and capricious because they are unsupported by the record

and bear no rational relationship to the protection of the

public safety and health and the costs required to imple-

ment them; and (6) whether by abandoning general

water quality standards and standards regarding non-

radiological toxic pollutants the EPA has acted contrary

to the law.

The UMTRCA refers to the Administrative Procedure

Act, 5 U.S.C. $$ 701-706, for standards of judicial review

of rules promulgated under it. See 42 U.S.C. $ 2022(c)

(2). The appropriate standard of review for this type of

informal, notice and comment rulemaking is that an

agency’s action may be set aside if found to be “arbi-

trary, capricious, an abuse of discretion, or otherwise

not in accordance with iaw,” 5 U.S.C. § 706(2) (A). The

Supreme Court recently has reiterated a restrictive view

of the arbitrary and capricious standard, stating:

“The scope of review under the ‘arbitrary and ca-

pricious’ standard is narrow and a court is not to

substitute its judgment for that of the agency.

Nevertheless, the agency must examine the relevant

data and articulate a satisfactory explanation for its

action including a ‘rational connection between the

facts found and the choice made.’ ... In reviewing

that explanation, we must ‘consider whether the de-

cision was based on a consideration of the relevant

factors and whether there has been a clear error of

judgment.’ ... Normally, an agency rule would be

arbitrary and capricious if the agency has relied on

factors which Congress has not intended it to con-

sider, entirely failed to consider an important aspect

of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency,

or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.”

13a

Motor Vehicle Manufacturers Ass’n v. State Farm Mu-

tual Automobile Insurance Co., 463 U.S. 29, 43 (1983)

(citations omitted). In addition, as part of our review,

we also determine: (1) whether the agency acted within

the scope of its authority, and (2) whether the agency

complied with the prescribed administrative procedures.

See Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 415-17 (1971); American Petroleum Institute

v. EPA, 540 F.2d 1023, 1028 (16th Cir. 1976), cert.

denied, 430 U.S. 922 (1977); 5 U.S.C. § 706(A) (2) (C)

& (D).

A preliminary question arises as to what documents we

may review in considering these petitions. The EPA, sup-

ported by the environmental petitioners, has moved to

strike references in the briefs filed by industry peti-

tioners to documents and reports not in the record. In-

dustry petitioners not only allege that those items are

proper for our consideration but have moved to supple-

ment the record to include the documents and reports

that they cite. A decision on the appropriate use of these

materials is important, because, in this case, we are a

reviewing body, not an independent decision maker. We

do not substitute our judgment for the judgment of the

agency simply because we might have decided matters

differently. We agree with the comments in Deukmejian

v. Nuclear Regulatory Commission, 751 F.2d 1287, 1323-

1326 (D.C. Cir. 1984), that the agency’s action must be

reviewed on the basis articulated by the agency and on

the evidence and proceedings before the agency at the

time it acted. Aggressive use of extra-record materials

also would run directly counter to the admonitions of the

Supreme Court in Motor Vehicle Manufacturers Associa-

tion.

Thus, any exception to this general rule against the

use of extra-record materials must be extremely limited.

Nevertheless, a few courts have found exceptions. A

l4a

recent law review article discusses the problem that we,

and all other appellate courts, face in determining whether

and how to use extra-record citations. Stark & Wall,

Setting No Records: The Failed Attempts to Limit the

Record in Review of Administrative Action, 36 Ad. L.

Rev. 333, 335 (1984). The article notes that, on review,

parties have offered extra-record studies and other evi-

dence under a number of justifications, including (1)

that the agency action is not adequately explained and

cannot be reviewed properly without considering the cited

materials, see Citizens to Preserve Overton Park, Inc. v.

Volpe, 491 U.S. 402, 420 (1971); (2) that the record is

deficient because the agency ignored relevant factors it

should have considered in making its decision, see Hiatt

Grain & Feed, Inc. v. Bergland, 446 F. Supp. 457, 467

(D. Kan. 1978), aff'd on other grounds, 602 F.2d 929

(10th Cir. 1979), cert. denied, 444 U.S. 1073 (1980) ;

(3) that the agency considered factors that were left out

of the formal record, see Environmental Defense Fund,

Inc. v. Blum, 458 F. Supp. 650, 661 (D.D.C. 1978); (4)

that the case is so complex and the record so unclear that

the reviewing court needs more evidence to enable it to

understand the issues, see Bunker Hill Co. v. EPA, 572

F.2d 1286, 1292 (9th Cir. 1977); and (5) that evidence

coming into existence after the agency acted demonstrates

that the actions were right or wrong, see American

Petroleum Institute v. EPA, 540 F.2d 1023, 1034 (10th

Cir. 1976), cert. denied, 480 U.S. 922 (1977). As Stark

and Wall observe, when such justifications are offered

the court is forced as a practical matter to examine the

material, whether or not motions to supplement the record

are granted. 36 Ad. L. Rev. at 343-44.

In the instant case one or more of the above justifica-

tions are advanced with respect to virtually all extra-

record citations. We have in fact considered those ma-

terials to see if they fall within any of these possible

justifications. But the fact that we examine these ma-

terials for the limited purposes set forth above does not

15a

mean that the cited items should become a part of the

record in these cases. The references to such extra-record

items, we believe, are substantially akin to the practice of

citation to scientific treatises in ordinary civil cases.

Therefore, we deny the EPA’s motion to strike the refer-

ences; but we also deny all motions to supplement the

record except the EPA’s unopposed motion to supplement

the record with a letter of transmittal dated June 8,

1983, from Christopher Herman of the EPA to Larry

Boggs, counsel for petitioner American Mining Congress

and two accompanying memoranda dated April 27, 1983,

and June 7, 1983.

Iii

The industry petitioners ° contend that the language and

legislative history of tne UMTRCA require the EPA to

find that the mill tailings piles pose a “significant risk”

before the EPA may promulgate regulations dealing with

the mill tailings piles. Petitioners rely on Industrial

Union Department, AFL-CIO v. American Petroleum In-

stitute, 448 U.S. 607 (1980) (hereinafter the Benzene

case). In the Benzene case, Justice Stevens, for the plu-

rality, invalidated OSHA regulations intended to protect

workers from the carcinogenic effects of benzene. Justice

Stevens and three other members of the Court agreed

that under $$ 3/8) and 6/b)(5) of the Occupational

Safety and Heaith Act,’ before the Secretary may promul-

gate any permanent standards for workers’ health and

safety, he must find that their workplace presents a

significant risk of harm. Jd. at 642. In so concluding, the

plurality relied heavily upon the actual language from

$§3(8) and 6(b)(5). Id. at 641-42.

6 In the text of this opinion we refer to American Mining Con-

gress, United Nuclear Corporation, Kerr-McGee Corporation, Kerr-

McGee Nuclear Corporation, and Homestake Mining Company as the

“industry petitioners.” Although we recognize tnat some of their

arguments differ, most do overlap.

729 U.S.C. §§ 652(8) and 655(b) (5).

l6a

We believe that the Benzene case and all the other

OSHA cases requiring a threshold finding of significant

risk are readily distinguishable from the case at hand.

In the UMTRCA Congress commanded the EPA, the

NRC, and the DOE to deal with the problems posed by

uranium mill tailings:

“The Congress finds that uranium mill tailings lo-

cated at active and inactive mill operations may pose

a potential and significant radiation health hazard to

the public, and that the protection of the public

health, safety, and welfare and the regulation of in-

terstate commerce require that every reasonable effort

be made to provide for the stabilization, disposal, and

control in a safe and environmentally sound manner

of such tailings in order to prevent or minimize

radon diffusion into the environment and to prevent

or minimize other environmental hazards from such

tailings.”

42 U.S.C. $ 7901(a) (emphasis added). It would be dis-

ingenuous to hold, after reading Congress’ own state-

ment of its findings and purposes, that the EPA must

make its own determination of whether radon emissions

present a risk significant enough to warrant regulation

under the UMTRCA. Admittedly, the language “may

pose a potential and significant radiation health hazard

to the public” might lead one to question whether Con-

gress was resolute on the degree of danger the mill tail-

ings pose. Yet, even if Congress was unsure of the abso-

lute risk posed by mill tailings, it was sure of its desire

to stabilize and dispose of the tailings and that “every

reasonable effort be made to provide for the stabilization,

disposal, and control in a safe and environmentally sound

manner:. ... fd.

The legislative history of both the UMTRCA and its

1982 amendment confirm our belief that it is unneces-

sary for the EPA to make its own determination that the

tailings pose a significant risk. The House Report on the

17a

UMTRCA stated, “[a]s a result of being for all practical

purposes, a perpetual hazard, uranium mill tailings

present the major threat of the nuclear fuel cycle.” H.R.

Rep. No. 1480, Part 1, 95th Cong., 2d Sess. 11, reprinted

in 1978 U.S. Code Cong. & Ad. News 7433, 7433. Thus,

Congress considered the mill tailings a hazard, despite

evidence brought before it that mill tailings might not

pose an immediate danger to current generations. In

part two of the same House Report the NRC Chairman,

Dr. Joseph M. Hendrie, described how the mill tailings

piles present a hazard to the public health:

“Unlike high-level radioactive waste from the back

end of the nuclear fuel cycle, which contains products

of the fission reaction, mill tailings contain only

naturally occurring radioactive elements, in small

quantities. ...

The health effects of this radon production are tiny

as applied to any one generation, but the sum of

these exposures can be made large by counting far

into the future, large enough in fact to be the domi-

nant radiation exposure from the nuclear fuel cycle.”

Id. at 25, 1978 U.S. Code Cong. & Ad. News at 7452. By

including such passages in its report, Congress showed

it was clearly aware that the mill tailings themselves did

not pose an immediate grave danger to persons in being.

Nevertheless, Congress chose to consider protecting future

generations by enacting the UMTRCA and requiring the

immediate stabilization and disposal of those tailings.

The 1982 amendments did not change the thrust of the

original UMTRCA plan. The changes in the legislation

that pertained to the EPA’s duties under the UMTRCA,

according to the House Conference Report, were not

designed to change the EPA’s basic regulatory approach.

House Conf. Rep. No. 884, supra, at 47, 1982 U.S. Code

Cong. & Ad. News at 3617. Instead, Congress designed

the amendments to set out the factors that the EPA

18a

should consider in developing the standards. The Con-

ference Report indicated that Congress did not find fault

with the EPA’s proposed standards.

“In each instance, the conferees have agreed to in-

clude specific references in the appropriate sections

of the Atomic Enersy Act directing EPA and NRC,

in promulgating such standards or regulations, to

consider the risk to the public health, safety, and the

environment, the environmental and economic costs

of such standards of [sic] regulations, and such other

factors as EPA or NRC, respectively, determine to

be appropriate.

... The conferees note that this language reflects

accurately the current regulatory approach of the

agencies. The language agreed to by the conferees

should not result in any delays in establishment of

remedial action standards. EPA, for example, has

already advised the conferees that it is considering

costs in formulating its inactive site requirements.

. . . Moreover, in adopting the language, the con-

ferees intend neither to divert EPA and NRC from

their principal focus on protecting the public health

and safety nor to require that the agencies engage

in cost-benefit analysis or optimization.

The conferees are of the view that the economic

and environmental costs associated with standards

and requirements established by the agencies should

bear a reasonable relationship to the benefits ex-

pected to be derived. This recognition is consistent

with the accepted approach to establishing radiation

protection standards, and reflects the view of the

conferees that, in promulgating such general en-

vironmental standards and regulations, EPA and

NRC should exercise their best independent technical

judgment in making such a determination. At all

times, the conferees fully intended that EPA and NRC

recognize as their paramount responsibility protec-

19a

tion of the public health and safety and the environ-

ment.”

Id.

In this conference report there was no mention of the

necessity of finding “significant risk’ before promulgat-

ing regulations. We believe it would be outside the ap-

propriate bounds of judicial review for us to require a

showing of significant risk when Congress has been clear

in its approval of the EPA’s approach to mill tailing

regulation.®

8 Two discussions, one in the House and one in the Senate, on the

conference report may imply that the EPA should make a deter-

mination that it must find that radon presents a significant risk.

In one, Congressman Lujan stated:

“In addition, the conferees’ action is intended to lay to rest

suggestions, such as those made by EPA officials to mill oper-

ators in my State, that the preamble to the Mill Tailings Act

represents a congressional predetermination that a significant

risk exists from radon from mill tailings 0: that particular

forms of remedial action must be taken.

128 Cong. Rec. H8816 (daily ed. Dec. 2, 1982).

In the other, Senator Simpson, the bill’s floor manager, discussed

the significance of risks with Senator Wallop.

“Mr. WALLOP: ... It is my understanding that EPA and

NRC have stated that they felt compelled by the Mill Tailings

Act to impese stringent requirements, such as a 2-picocurie

radon emanation standard, irrespective of costs, because of

language in the preamble to the 1978 Mill Tailing Act. From

my reading of the applicable provision, the 1978 act directed

the agencies to take ‘every reasonable effort’ necessary to pro-

tect public health. Implicit in that language is a direction to

exercise reasonable discretion. Have [sic! the amendment

dispelled the misapprehension of the agencies on this point?

Mr. SIMPSON: I say... that, in my best estimate, they

have. The statement of [the] managers clearly states that it is

the agreement of the conferees that EPA and NRC, in promul-

gating standards and regulations, should exercise their best

independent technical judgments. The agencies should deter-

mine the risks associated will [sic] mil) tailings and the

significance of those risks. They should aiso examine various

20a

The industry petitioners argue that the EPA’s radon

“flux” or emission limits and radium-in-soil cleanup

standards exceed the EPA’s statutory authorization be-

cause they operate inside the mill tailings sites. This

regulatory approaches to deal with significant risks that are

identified. Of course, we expect the approach ultimately adopted

to be reasonably related to the risks in terms of costs. In short,

Congress has not directed any specific regulatory program.

On technical issues relating to the regulation of mill tailings,

EPA and NRC should both exercise reasonable judgment on

the appropriate course to accomplish the basic purpose of the

act, which is to protect the public health and safety from

unreasonable risks.”

128 Cong. Ree. $13,055-56 (daily ed. Oct. 1, 1982).

We recognize the assistance in interpretation that these discus-

sions of the amendments provide. We are constrained, however,

by the language of the UMTRCA and the conference report tu find

that no showing of significant risk is necessary. A colloquy be-

tween two House or Senate members cannot change the conference

report, it merely is of assistance in interpreting it. See Remarks

by Congressman Udall, 128 Cong. Rec. H8824 (daily ed. Dec. 2,

1982) (*... we cannot with a colloquy change the law. We cannot

change the conference repurt. We can indicate what it means and

how it is interpreted by Members who served on it.”). To hold

that the EPA must determine that the tailings piles pose a signifi-

cant risk before rcgulating would change the entire structure of

the statute.

It is more reasonable to interpret the quoted comments to mean that

the EPA must consider the significance of the risk in weighing the

costs and benefits of the alternative standards, a subject we discuss

in Part VI. We do not believe that Congress intended the UMTRCA

to require the EPA to go through a two-phase analysis of: (1)

determining the significance of risk of radon emissions before

regulating, and (2) after a significance finding, balancing the costs

of the regulations against the benefits (reductions of risks, among

other things) of the alternatives. The language of the statute itself

and the legislative history of the statute and the amendment are

too clear on the need for regulations concerning uranium mill tail-

ings for us to interpret the statute to require a significant risk

fiiding before regulating. Instead, we believe that the alternative

that the EPA selects for regulating the piles should reflect the

significance of the risk that it believes the piles present.

2la

argument that the EPA may not adopt standards that

operate at the mill tailings sites derives from the 1970

Reorganization Plan which transferred the Atomic En-

ergv Commission (now NRC) authority to set generally

applicable environment standards to the EPA. See gen-

erally Quivira Mining Co. v. EPA, 728 F.2d 477, 480

(10th Cir. 1984) (history of reorganization). That act

defined standards to mean “limits on radiation exposures

or levels, or concentrations or quantities of radioactive

materials, in the general environment outside the bounda-

ries of locations under the control of persons possessing

or using radioactive material.” 84 Stat. 2086, 2088

(1970) (eodified at 5 U.S.C. App. § 2(a! (6) at 1132-33).

The AEC (now NRC) was to retain authority over the

licensing of commercial operations using or producing

radioactive materials. 5 U.S.C. App. at 1135.

The American Mining Congress argues that this strict

distinction between the EPA operating outside site bound-

aries and the NRC operating on-site has been maintained

in the UMTRCA. The reference to “outside the bound-

aries,” however, does not appear in the final version of

$ 275 of the UMTRCA. 42 U.S.C. § 2022(b). As finally

enacted that statute requires the EPA to adopt only

“standards of general application,” leaving ‘“implementa-

tion and enforcement” to the NRC in the conduct of its

licensing activities. /d. at § 2022(d). The legislative his-

tory and administrative interpretations prior to the

promulgation of these regulations are less than clear.

Yet Congress’ concern all along has been the procection

of the general public from radiation and other hazards

connected with these operations. See House Conf. Rep.

No. 884, supra, at 47, 1982 U.S. Code Cong. & Ad. News

at 3617. If one of the principal hazards is inert radon

gas that escapes from a pile into the atmosphere and

travels some distance, the obvious remedy is to prevent

that escape. Such remedy requires measures applicable

at the source. We hold that the EPA has not exceeded

its statutory authority in adopting this remedy.

a rn rr

22a

The American Mining Congress argues that the raden

“flux” or emission limits and radium-in-soil cleanup

standards limits are invalid because they influence, and

to a great extent define, the type of engineering or design

standard to be selected by the implementing agency. See

H.R. Rep. No. 1480, Part 1, supra, at 17, reprinted in

1978 U.S. Code Cong. & Ad. News at 7439 (“The EPA

standards and criteria should not interject any detailed

or site-specific requirements for management, technology

or engineering methods . . . on the Department of

Energy.”’}.

As noted above, Congress sought in the UMTRCA to

divide responsibility for disposal and cleanup among the

agencies, with the EPA setting standards for general

application and the DOE and the NRC implementing

those standards. See 42 U.S.C. §§ 7911-7925. This di-

vision of responsibility and authority, however, should not

be read to prevent the EPA from instituting a radon

flux or radium limit that could be translated into a cover-

ing measurement requirement. As we discuss in the next

section, the EPA had to meet a congressional mandate

of some sort of cost-benefit analysis in promulgating the

regulations. To do so it had to be able to estimate the

cost of implementing the regulations. To determine the

cost, the EPA had to have an approximate idea of the

type of remedial action that will be undertaken; other-

wise, its task is impossible. We therefore hold that the

EPA did not exceed its authority by enacting emission

limitations that appear to correlate directly with covering

measurements. Furthermore, because the standards are

general in nature—they apply to all sites—we do not

view them as site-specific “management, technology or

engineering” methods.

23a

All petitioners criticize the EPA’s approach in con-

sidering costs and benefits in developing the standards.

The industry petitioners find fault with what they de-

scribe as the EPA’s failure to consider costs of disposal

and cleanup in comparison with what they perceive as the

limited health benefits of the regulation. The environ-

mental petitioners,’ on the other hand, argue that the

EPA should promulgate strict feasibility standards, with

a very limited review of the costs of implementing those

standards.

The environmental petitioners argue that the UMTRCA

requires the EPA to protect the public health to the

maximum extent possible, constrained only by technical

feasibility, and, to some extent economic feasibility. Feas-

ibility analysis, as the Supreme Court has used that term,

places a less severe restraint on agency action intended

to forestall environmental harm than cost-benefit analysis.

See American Textile Manufacturers Institute, Inc. v.

Donovan, 452 U.S. 490, 507-09 & n.27 (1981). Feasibility

analysis and cost-benefit analysis are mutually exclusive

approaches. /d. at 509. In light of the language of the

1982 amendment to the UMTRCA we must reject the

environmental petitioners’ argument that control of mill

tailings should be as extensive as is capable of being

performed. The amendment foreclosed the EPA’s use

of a feasibility standard in promulgating regulations by

requiring the EPA to consider “the environmental and

economic costs” of applying the standards. 42 U.S.C.

¢ 2022(a). The legislative history also reveals C ongress’

intent to forgo a feasibility standard. The conference

9In the text of this opinion we refer to joint petitioners Sierra

Club, Environmental Defense Fund, Natural Resources Defense

Council, Southwest Research and Information Center, and Jean

Slattery as the “environmental petitioners.” The arguments of the

State of Colorado as intervenor and the State of Wyoming as

aricus generally parallel those of the environmental petitioners.

24a

report noted that there should be a reasonable relationship

between the environmental and economic costs associated

with the standards and the benefits to be derived from

them. House Conf. Rep. No. 884, supra, at 47, 1982 U.S.

Cong. & Ad. News at 3617."°

We agree with the industry petitioners that the

UMTRCA does require a consideration of costs relative

to benefits, a cost-benefit analysis,’ by requiring a reason-

able relationship between costs and benefits. We have

no doubt, after reading the U MTRCA and its legislative

history, that Congiess gave the EPA a clear indication

of its intent to require some sort of cost consideration.

See American Textile Manufacturers, Inc., 452 U.S. at

510-11.

10 Also, discussing the amendments in the Senate with Senator

Schmitt, Senator Simpson rejected feasibility analysis for these

regulations:

Sen. Schmitt: “By requiring a consideration of environmental

and economic costs, is my understanding correct that the

Senator wants the regulatory agencies to consider more than

just the feasibility of their standards and regulations?

Mr. SIMPSON. The Senator’s understanding is correct. The

direction to consider costs requires more than a perfunctory

determination of whether a given cost can be borne by the

uranium industry or a particular licensee.”

128 Cong. Rec. $13,055 (daily ed. October 1, 1982).

11 Senator Simpson indicated that the amendment to the statute

did not require an “itemized cost-benefit approach.” He stated:

“Ag indicated in the statement of managers, standards and

requirements must bear a reasonable relationship to the ex-

pected benefits; that is, the costs to comply should be com-

mensurate with the risks. This is not to say that an itemized

cost-benefit optimization approach is required. In balancing

costs and risks to assure a reasonable relationship between the

two, judgment must be exercised by the agencies.”

128 Cong. Rec. $13,055 (daily ed. Oct. 1, 1982) (colloquy between

Sen. Simpson and Sen. Schmitt).

25a

Nevertheless, although Congress acknowledged a cost-

benefit requirement, it did not define what the EPA must

do to meet that requirement in promulgating regulations.

The label “cost-benefit analysis” encompasses everything

from a strict mathematical balancing formula to a less

strict standard that merely requires the agency to recog-

nize both the costs and benefits of specific proposed

alternatives and consider the differences in choosing an

appropriate alternative. “Labels are neither important

nor determinative.” American Petroleum Institute v.

EPA, 540 F.2d 1023, 1037 (10th Cir. 1976), cert. denied,

430 U.S. 922 (1977).

We read the UMTRCA to provide that the EPA must

consider the costs involved in the regulations and, with

the guidance of Congress’ intent, find that these costs

bear a reasonable relationship to the benefits derived.

See House Conf. Rep. No. 884, supra, at 47, 1982 US.

Code Cong. & Ad. News at 3617. The EPA must consider

Congress’ intent to protect the public health and safety

and the environment in its decision, because this intent

refines the cost-benefit standard by assigning the values

or weights that the EPA must use in its determination

of a balance ot benefits and costs. /d. (Congress con-

sidered protection of these things to be “paramount”’) ;

see generally American Petroleum Institute, 540 F.2d at

1028 (“the guiding star is the intent of Congress... .

All issues must be viewed in the light of that intent.’’).

The EPA labeled its final standard for control of the

tailings piles as an “optimized cost-benefit” alternative.

48 Fed. Reg. at 591. The legislative history of the statute

specifically stated that an optimized cost-benefit analysis

was not necessary. It also stated that even a cost-benefit

analysis was not required.

In the House Conference Report, discussing the 1982

amendment, it states,

“The language agreed to by the conferees should not

result in any delays in establishment of remedial

26a

action standards. EPA, for example, has already

advised the conferees that it is considering costs in

formulating its inactive site requirements. ... More-

over, in adopting the language, the conferees intend

neither to divert EPA and NRC from their principal

focus on protecting the public health and safety nor

to require that the agencies engage in cost-benefit

analysis or optimization.”

House Conf. Rep. No. 884, supra, at 47, reprinted in

1982 U.S. Code Cong. & Ad. News at 3617 (emphasis

added). The topic sentence of the next paragraph states,

however, that “|t|he conferees are of the view that the

economic and environmental costs associated with stand-

ards and requirements established by the agencies should

bear a reasonable relationship to the benefits expected to

be derived.” /d. This language, in the context of the

entire legislative history of the 1982 amendments, sce

infra notes 10 and 11, convinces us that Congress in-

tended cost-benefit analysis, but less strict than an op-

timized cost-benefit analysis.

VII

We must examine each standard to determine whether

the EPA properly considered in its analysis each factor

required by Congress. Moreover, we must determine

whether the EPA’s record supports the EPA’s action.

See Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir.)

‘en banc), cert. denied, 426 U.S. 941 (1976).

The industry petitioners criticize the EPA’s change in

and justification for: its radon emission standard (al-

legedly from a risk of lung cancer to a risk of misuse) :

its linear-nonthreshold calculations of radon risk; and

its projected life-savings from the promulgation of the

regulations. They also criticize the insubstantial benefits

27a

of the regulations, which they say bear no rational rela-

tionship to their substantial costs.

We do not believe that misuse is an unreasonable

justification for the standard, particularly in light of the

fact that misuse of the tailings helped lead to the enact-

ment of the UMTRCA. See H.R. Rep. No. 1480, Part 1,

supra, at 11, 1978 U.S. Code Cong. & Ad. News at 7434."

We do not believe that the EPA shifted its justification

for the radon standard in a manner that desied any

party the opportunity to comment on the alleged newly

asserted justification, misuse of tailings. In its descrip-

tion of the proposed standard for “Control of Tailing

Piles” the EPA stated: “Many interrelated factors affect

the long-term performance of tailings pile disposal meth-

ods. They include external natural phenomena, such as

earthquakes, floods, windstorms, and glaciers, internal

chemical and mechanical processes, and human activities.”

46 Fed. Reg. at 2558 (emphasis added). Thus, given the

legislative history of the Act and the EPA’s own language

in the proposed standards, misuse, as a justification for

the standards, was sufficiently foreshadowed in the pro-

posed scheme; the parties here were not deprived of notice

or an effective opportunity to respond. See Small Refiner

Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547

(D.C. Cir. 1983); Beirne v. Secretary of Department of

Agriculture, 645 F.2d 862, 865 (10th Cir. 1981).

12 The Report stated :

“From the early 1940’s through the early 1970’s there was

little official recognition of the hazards presented by these

tailings. Federal regulation of the industry was minimal. As

a consequence, mill tailings were left at sites, mostly in the

Southwest, in an unstabilized and unprotected condition. Some

of these tailings were used for construction purposes in the

foundations and walls of private and public buildings. There,

through the concentrated emission of radon gas, the hazard

of the tailings and public exposure increased substantially.”

H.R. Rep. No. 1480, Part I, supra, at 11, 1978 U.S. Code Cong. & Ad.

News at 7434.

28a

This court recognizes the industry concerns over the

costs that must be incurred to prevent, using the EPA’s

calculations, approximately 170 to 240 potential lung can-

cer deaths per century in the United States from uncon-

trolled mill tailings from all inactive sites. 48 Fed. Reg.

at 593; I FEIS-IN at 67. We think there is reasonable

authority to support the EPA’s method of risk calcula-

tion in regard to its potential lung cancer death esti-

mate.’’ See Reserve Mining Co. v. EPA, 514 F.2d 492,

D07 n.20 (8th Cir. 1975) (en bane) (“Indeed, a number

of the disputes involve conflicting theories and experi-

mental results, about which it would be judicially pre-

sumptuous to offer conclusive findings.”’).

The industry petitioners also criticize the EPA’s “es-

timate that people living continuously next to some of the

piles may have lifetime excess lung cancer risks as high

as 4 chances in 100.” 48 Fed. Reg. at 593, 598. They

criticize these figures on several bases,"* arguing that:

(1) few people, if any, are subjected to this risk; (2)

18 This estimate is based upon a linear nonthreshold theory of

radiation danger. This theory presupposes that a linear extrapola-

tion of high dose radiation data yields an accurate estimate of low-

level radiation risk. Many question this theory of radiation risk.

See Management of Commingled Uranium Mill Tailings: Hearings

Before the Subcomm. on Procurement and Military Nuclear Sys-

tems of the House Comm. on Armed Services, 97th Cong., 2d Sess.

176, 186-87 (1982) (comments on proposed EPA standards). Never-

theless, we believe that, in making policy decisions, the EPA may

adopt a linear nonthreshold calculation to compute risks from low

levels of radiation. See McGarity, Substantive and Procedural

Discretion in Administrative Resolution of Science Policy Ques-

tions: Regulating Carcinogens in EPA and OSHA, 67 Geo. L.J.

729, 733-34 (1979).

The industry petitioners also draw our attention to the fact

that uranium tailings sites are a “trivial” source of radon in com-

parison to nat» . and agricultural releases. This fact may well

be true, but it does not prove that uranium mill tailings sites are

not a source of radiation risk that Congress instructed the EPA

to address.

29a

the estimate is unreasonable in its assumption that some-

one would live continuously near a tailings pile; (3) the

radon daughter concentrations to which nearby individ-

uals are allegedly exposed, which the EPA listed in the

Final Environmental Impact Statement, do not correlate

with the radon concentrations in the study the EPA

cites; (4) the EPA based the radon measurements on

inadequate sampling data; and (5) the risk measure-

ments include background radiation, not just radon from

the tailings piles. We address separately these rguments.

The EPA has made a “4 in 100” excess risk of lung

eancer calculation for those residing near the inactive

sites in its radon risk calculation.” This figure defines

both the risk created by the inactive mill tailings and

the benefit to be derived from instituting the radon emis-

sion standard—avoidance of that risk. We believe the

evidence in the record reasonably supports this risk esti-

mate figure.

Most of the inactive uranium mill tailing sites are lo-

cated in rather sparsely populated areas. Congress no

doubt was aware of this fact when it enacted the

UMTRCA and designated the specific sites to which the

regulations would apply.'* Sze 42 U.S.C. § 7912. There

are, however, piles located near cities with sizeable local

1° At one point in the text preceding the final regulations, the

EPA stated this risk to be about 3 chances in 100. 48 Fed. Reg.

at 597. We analyze the risk estimate as 4 chances in 100, however,

because that is what the EPA ultimately concluded to be the risk.

Id. at 593, 598.

16 The Final Environmental Impact Statement states that:

“We have estimated local and regional exposure at 6 of the

24 inactive sites (SW81). Although this sample is limited, it

includes all important urban sites except Canonsburg, Pa. The

remaining piles are in remote areas and collectively have only

about one tenth of the local and regional population exposures

that these six piles collectively have.”

I FEIS-IN at 59.

30a

populations, such as Salt Lake City, Utah, and Grand

Junction, Colorado. See I FEIS-IN at 60, Table 4-3. In

addition, as the EPA points out, population distributions

may change, as a consequence exposing more people to the

dangers of radon. I FEIS-IN at 59 (‘Although we have

ignored population changes since 1970, a future increase

in population at several of the urban sites seems likely.”).

Therefore, although we may agree with the industry pe-

titioners that few people are currently exposed to radon

from the piles, this fact does not necessarily negate the

need for regulation, especially in light of Congress’ pre-

sumed knowledge regarding the population density in

areas surrounding the designated sites."

We also reject industry petitioners’ assertion that it

is unreasonable that someone would live continuously

near a pile. Supposedly rational people in our society

continuously expose themselves to risks of greater mag-

nitude than those involved here: workers with nuclear

materials, underground coal miners, and many others.

Some do it for money, some because they underestimate

the risk. Radon emission from these piles will occur for

thousands of years unless prevented. Public awareness

of the dangers may wane. The industry petitioners’ criti-

cism does not undermine the validity of the risk assess-

ment; it only points to the limited number of persons

who currently may be subject to the risk.

Industry petitioners are correct that there were some

discrepancies between the exposure level estimates used

to calculate the risk factor included in the Final En-

vironmental Impact Statement, and the referenced study

conducted by consultants Ford, Bacon and \Davis Utah,

Inc." See Letter from Christopher Herman, Attorney,

17 See 42 U.S.C. § 7912 (processing site designations}.

18 The EP. readily acknowledged the discrepancy in the figures

used in Table 4-5 of the Final Environmental Impact Statement.

See Letter from Christopher Herman, Brief of American Mining

Congress, Addendum F. These discrepancies are as follows:

[ Continued }

8la

Air, Noise and Radiation Division, United States Fn-

vironmental Protection Agency, Brief for American Min-

ing Congress, Addendum F. Although these discrepancies

alter the risk estimates, we do not think that the devia-

tion is sufficiently significant to render the EPA’s upper

limit risk estimate to be unsupported by available data.

Precision is desirable, yet these discrepancies do not rise

to a level that would require invalidation of an esti-

mate as an arbitrary decision.

Industry petitioners criticize the EPA for calculating

risk from figures they allege were derived from inade-

quate sampling data and data that included background

levels of radiation, instead of figures based solely on the

radon emitted from the inactive sites. We do not find

these flaws fatal to the EPA’s conclusions. The sampling

data compiled by the researchers for the EPA is ade-

quate to support the EPA’s estimates.” An estimate of

18 [Continued |

Cited Recalculated *

Exposure Exposure

City Level Level

Salt Lake City ** 0.045 WL 0.04 WL

Grand Junction 0.045 WL 0.04 WL

Durango ~ 0.026 WL 0.02 WL

Rifle *** 0.007 WL 0.0085 WL

Gunnison 0.008 WL 0.007 WL

* These exposure levels are in turn used to calculate absolute and

relative risk estimates.

** The EPA suggested that this discrepancy resulted from the

change in the equilibrium factor from the Draft to the Final Envi-

ronmetnal Ympact Statement.

*** The EPA also conceded that it overstated the distance from

the piles to the nearest residents. It used a figure of 0.5 miles when

it should have used 0.1 miles.

19 The American Mining Congress faults the Ford, Bacon study’s

radon measurements because the figures are based on “a single 24-

hour sample.”” They contend that because of the “variability of

outdoor radon levels measurements must be taken over an extended

period of time.” They indicate that they would approve of forty-

32a

risk may reasonably include possible background risk—

to exclude it could lead to unrealistic assumptions regard-

ing the dangers that the sites do present.

The industry petitioners’ arguments against the EPA’s

radium-in-soil concentration standard, 40 C.F.R. § 192.12

eight hour samples taken at three-week intervals over a twelve-

month period.

This arguinent misrepresents the scope of the Ford, Bacon study.

It is true that each of the study’s radon measurements in all the

various locations at each mill tailings site appears to have extended

over a twenty-four hour period. See, e.g., Joint Appendix at 36, 39,

54, 77, 136. Yet it is also true that the EPA consultants used

numerous sampling locations at each tailings pile site when they

conducted these twenty-four hour measurements. See e.g., id. at

36, 41 (fifteen locations in Durango); 54, 62 (eight locations in

Grand Junction); 77, 83 (twenty-six locations in Salt Lake City) ;

136 (three locations at Spook site in Converse, Wyoming). Any

statistician would appreciate that larger sample sizes yield more

reliable data. But at some point a study must compromise perfec-

tion because of cost and limited time and resources. Here the

consultants extrapolated their data using models that took into

account existing information on the topography, weather patterns,

and local climate of each site as well as the current location and

configuration of tailings and residue at each site. See, e¢.g., id. at

40, 58-59, 79. We think that in these circumstances such a model

was an acceptable substitute for periodic samples taken over an

extended period of time. The American Mining Congress does not

question the validity of the data which comprised the model. It

only questions the methodology.

We are not scientists; we are generalist judges deciding whether

the methods used were reasonable. We have not been presented

with any reasons to distrust a twenty-four hour sample but not a

forty-eight hour sample. Given the other information in the con-

sultants’ study about variations in radon release at different hours

of the day, see, e.g., id. at 39, a cycle covering an entire day and

night does not seem arbitrary. Likewise, given information that

climate and weather patterns may affect radon release, a model

that takes inte account variations over an entire year at the par-

ticular site seems quite reasonable.

38a

(a) (1984), are similar. They say the standards are in-

valid because (1) the EPA’s assumptions about the like-

lihood of significant exposures from the concentrations

do not support the standard; and (2) the EPA’s assump-

tions about the relationship between radium concentra-

tions in the soil and indoor radon exposure and potential

health effects are arbitrary.

As the EPA points out, contaminated soil under or

near a building contributes significantly to indoor radon.

48 Fed. Reg. at 600. The EPA admits in the FEIS-IN,

and the industry petitioners point out, that the actual ex-

posure to radon from contaminated soil may vary from

the levels that the EPA assumed. Even considering the

possible inaccuracies of the EPA’s assumptions, there is

nothing in the record or arguments presented to convince

us that the EPA acted arbitrarily or capriciously in

promulgating this standard to deal with a significant

danger the tailings piles present.

The State of Colorado claims that the EPA provided

inadequate notice and opportunity for comment on the

one hundred square meter sample area for the radium

concentration standard. Although this sort of area des-

ignation admittedly could influence the effectiveness of

the standard, it is not the sort of change that necessi-

tates a new round of comment.

In its final standard the EPA increased the allowable

level of indoor radon concentration from 0.015 WL to a

maximum level of 0.03 WL, stressing that reasonable

effort should be made to achieve a radon concentration

level of 0.02 WL. See 40 C.F.R. § 192.12(b) (1) (1984).

The EPA justified this change on the basis that it would

ease implementation of the final standard. See 48 Fed.

teg. at 600. It further stated that “the final standard

deals adequately with complications introduced by the

presence of any high concentration of naturally-occurring

34a

radionuclides, and avoids unnecessary and costly remedial

actions that produce only marginal improvements.” *° Jd.

The environmental petitioners criticize the final stand-

ard for allowing an unjustified increase in risk, repre-

sented by the changes from the proposed to the final

standard. The proposed standards of 0.015 WL had an

estimated residual risk of lung cancer of 0.8 in 100. I

FEIS-IN at 108, Table 7-1. The “reasonable effort” level

of the final standard, 0.02 WL, had an estimated residual

risk of lung cancer of 1.3 in 100. 7d. Contrary to the

environmental petitioners’ argument, the EPA did evalu-

ate the residual risk of lung cancer of the ceiling level

of radon decay product, 0.03 WL including background,

by considering a range of levels between 0.0 WL above

background and 0.05 WL above background. 7d. The

FEIS-IN shows a residual risk of lung cancer of 5 in

100, which appears to be the top side risk at 0.05 WL

above background. Although this is a significant increase

in the risk, we cannot say the EPA acted arbitrarily or

capriciously or beyond its authority in allowing the higher

level and its attendant risk.

“°Tn a claim related to this indoor radon concentration standard,

the State of Colorado asserts that the EPA exceeded its authority to

set standards of general application and usurped the authority of

the states and implementing agencies by allowing the use of seal-

ants, filtration and ventilation devices to provide reasonable assur-

ance of reductions from 0.083 WL to below 0.02 WL. See 10 C.F.R.

$3 192.20(b) (3) (1984). The regulation provides that:

“Residual radicactive materials should be removed from build:

ings exceeding 0.02 WL so that future repiacement buildings

will not pose a hazard [unless removal is not practical-—see

S$ 192.21(c) |. However, sealants, filtration, and ventilation de-

vices may provide reasonable assurance of reductions from

0.93 WL to below 0.02 WL.”

10 C.F.R. § 192.20(b) (3) (1984) (emphasis added). We do not

read this language as compelling any particular action; instead we

read it as suggesting possible alternatives to reduce radon concen-

tration levels.

35a

Accepting the EPA’s risk calculation estimates and

thus its conclusion that the control of the tailings piles

will reduce health risks and provide benefits Congress

desired, we must now determine whether there existed a

reasonable relationship between the estimated benefits of

control of the tailings piles and the costs of providing

those benefits. We start with the obvious premise that

there can be no reasonable relationship in the abstract.

As we indicated earlier, Congress’ intent serves to define

the reasonableness of any relationship between costs and

benefits. Given Congress’ admonition that the EPA recog-

nize as its “paramount responsibility protection of the

public health and safety and the environment,” House

Conf. Rep. No. 884, supra, at 47, 1982 U.S. Code Cong. &

Ad. News at 3617, we review the EPA’s adoption of the

20 pCi/m*/see radon emission standard.

In the Final Environmental Impact Statement the EPA

analyzed the “Benefits Derived From Controlling Ura-

nium Mill Tailings Piles,” specifically considering the

benefits that would be provided under various remedial

alternatives—ranging from “No Standards” to the EPA’s

originally “Proposed Standard.” See I FEIS-IN at 99,

Table 6-6. The benefits enumerated were: the probable

reduction or elimination of human misuse of the tailings

after control; the permanence of the controls inhibiting

misuse and erosional spreading; the reduction in vulner-

ability of the site to flooding; the reduction in the residual

risk of lung cancer; the deaths avoided; and the surface

water protection provided. The alternative the EPA ulti-

mately selected in the final regulations, a 20 pCi m*/sec

standard,*' provides significant benefits, meeting Con-

gress’ concern that the standard protect the public health,

safety, and environment. The selected standard and its

“1 See I FEIS-IN at 128-29 (Alternative B selected).

ran errr

36a

corresponding control method,“ see [| FEIS-IN at 91,

according to the Fina] Environmental Impact Statement,

will most likely prevent misuse of the tailings for over

a thousand years, prevent erosional spreading for many

thousands of years, leave no sites vulnerable to flooding,

reduce residual risk of lung cancer by over 95%, avoid

190 deaths in the first 100 years of protection, and pro-

tect surface water from contamination for many thou-

sands of years. I FEIS-IN at 99, Table 6-6,

The environmental] petitioners criticize the validity of

thé final radon emission standard for not “preventing or

minimizing” diffusion of radon into the atmosphere. See

42 US.C. §7901ia) & {b) (lj). in the same vein, they

also criticize the tenfold increase in the level of emissions

permitted by the final standard, an increase from 2 pci

m*s to 20 pCi m’s, Despite this significant increase, we

believe that the EPA, through its fina] radon standard,

has sought to prevent or minimize radon emission, thus

meeting the Congress’ mandate. See I FEIS-IN at 99,

Table 6-6, at 101. Given the reduction in risk provided

by the final standard, we do not believe that the “tenfold

increase” in the level of emissions allowed by the final

standard makes that standard unreasonable, even jn

light of the change. We hold that the final standard js

Within a zone of reasonableness, see Small Refiner Lead

Phase-Down Task F orce, 705 F.2d at 525, and a logical]

outgrowth of the proposed standard, id. at 547.

All of the petitioners find fault with the EPA’s sug-

gested longevity requirement for the final radon emis-

sion standard—that the standard control emissions to the

extent reasonably achievable, have an effective life of

1000 years, and in any case, for at least 200 years. 40

C.F.R. § 192.02(a) (1984). The industry petitioners con-

-_—_—_————..

““ EPA’s selected alternative correlates to a three meter earth

cover requirement. I FEIS-IN at 91, Table 6-2. In addition Alter-

native B assumes three of the piles will be moved for flood contro]

reasons. See id. at 91; B-16.

37a

sider the thousand-year longevity goal unrealistic. The

environmental petitioners consider the reduced two hun-

dred-year minimum inadequate, especially in light of the

thousand-year proposed standard. We cannot say the

final standard fails to accomplish Congress’ goal of long-

term stabilization in view of Congress’ comrnand to take

costs into consideration. The final standard meets Con-

gress’ desire to avoid the health risks presented by the

tailings piles and provide a remedial program that will

result in long-term stabilization of the piles.

Congress stressed that the “remedial action must be

done right the first time.” H.R. Rep. No. 1480, supra,

at 40, 1978 U.S. Code Cong. & Ad. News at 7467. Given

Congress’ expressed desire to have a remedial program

that will stabilize the tailings piles and additionally, not

require continuous allocations of funds, id., we believe the

EPA acted reasonably in promulgating a standard based

primarily upon the adoption of a passive measure, an

earth covering. The industry petitioners particularly are

critical of EPA’s refusal to consider remedial measures

that are more dependent upon active controls such as

“maintenance” and “monitoring” by the impiementing

agencies. The EPA did consider such an alternative. I

FEIS-IN at 102, Alternative E. But it rejected that al-

ternative upon review of the benefits it would provide.

Id, at 98-104, 128-29. Arguably, EPA could have placed

more reliance upon the maintenance and monitoring ac-

tivities of the implementing agencies. Congress, how-

ever, did not require it to do so and instead indicated its

preference for a more perma..ent remedial program. The

IePA’s understanding of its duty under the statute to

rely principally upon passive control is sufficiently ra-

tional to withstand our review. See Chemical Manufac-

turers Association v. National Resources Defense Council,

Inc., 53 U.S.L.W. 4193, 4196 (U.S. Feb. 27, 1985).

EPA’s cost estimates for remedial action at the mill

sites and for off-site cleanup were 158 and 38 million

: 38a

(1981) dollars, respectively. EPA stated that the DOE

had estimated its additional costs for program develop-

ment and management (“overhead”) at 118 million

(1981) dollars. The total estimated expenditure was 314

million (1981) dollars. These figures include both cleanup

(off-site) and disposal (on-site) costs. 48 Fed. Reg. at

996. We recognize the tremendous costs that this cleanup

program represents. Nevertheless, we cannot condemn as

arbitrary the EPA’s determination that these costs bear

a reasonable relationship to the benefits to be provided.

In fact, in enacting the UMTRCA Congress was wel]

aware of the potential costs of the program. Assessing

the economic impact of the legislation in 1978, the House

Report stated:

“This legislation is not expected to have any sig-

nificant inflationary impact. Over the next 7 years,

22 tailing sites will be treated at a total cost rang-

ing anywhere from $15 million to $200 million, de-

pending largely upon whether tailings will be treated

and stored at their present location or, instead,

moved to newly prepared disposal sites. Little of this

cost is expected to be incurred during the next 3

years because of the time required to identify and

prepare disposal sites. Additional costs may be borne

by individual states if new disposal sites are re-

quired. But even taking these additional costs into

account, the impact of the legislation on inflation and

overly [sic] economic performance is expected to be

immeasurable [sic].”

H.R. Rep. No. 1480, supra, at 47, 1978 U.S. Code Cong.

& Ad. News at 7474. We must defer to the EPA’s find-

ing of a reasonable relationship between the costs and the

benefits of the remedial action program for disposal of

the mill tailings at the inactive sites. As we have said

before in another context, “[wJe are convinced that EPA

made a serious, careful, and comprehensive study of the

39a

costs which compliance will impose... . If Congress

believes that the cost is too high, it can amend the Act.

All we say is that EPA has complied with the statutory

mandate.” American Petroleum Institute v. EPA, 540

F.2d 1023, 1038 (10th Cir. 1976), cert. denied, 430 U.S.

922 (1977).

Vill

There is one area in which we agree with some of the

petitioners or the intervenor that the EPA sitandards are

not in compliance with the law or are inadequate and

require remand.

In its final standards the EPA abandonedl its proposed

general standards for limits of concentrations of toxic

substances in surface and ground water.** Sce 48 Fed.

Reg. at 591, 594; see also 46 Fed. Reg. at 2562 (text of

proposed standards). The EPA concluded that potential

contamination of surface and ground water should be

dealt with on a site-specific basis. 40 C.F.R. § 192.20/a)

(2) (1984); see also 48 Fed. Reg. at 594 (discussion of

final rules). In place of the proposed standard for control

of waterborne pollutants the EPA included a guideline,

stating that the DOE should assess each site individually

and establish any corrective or preventive programs neces-

sary to meet relevant state and federal water quality

standards. 48 Fed. Reg. at 591. It stated that those

programs should be consistent, to the maximum extent

practicable, with the Sclid Waste Disposal Act (SWDA),

42 U.S.C. $§ 6901-6986. 48 Fed. Reg. at 591; 40 C.FR.

§ 192.20(a) (2) & (3) (1984).

We agree with the environmental petitioners and the

State of Colorado that by its actions the EPA violated

its duty under the statute. In its proposed regulations

the EPA stated that there was a problem with water

contamination: “There is evidence of limited ground

water contamination at some of the inactive sites, but

23 See supra note 8.

40a

the prospects for long-term contamination have not been

fully assessed.” 46 Fed. Reg. at 2560. It then proposed

specific standards for water quality generally. Jd. at

2559-63. In the final regulations the EPA acknowledges

there are problems, 48 Fed. Reg. at 593, but states: “We

do not believe that the existing evidence indicates that

ground water contamination from inactive mil] tailings

is or will be a matter of regulatory concern.” Id. at 599.

We do not believe that the EPA, in issuing the final

regulations, declared that it was wrong before; indeed by

stating that potential contamination should be dealt with

on a site specific basis, id. at 594, it acknowledged that

problems exist at some sites.

The draft Environmental Impact Statement gave little

lidication of the possibility that the EPA would reject

the proposed water standards and adopt a “guidance” out-

line for the implementing agencies, abandoning any at-

tempt at specific numerical limits of toxic elements, The

only statement we could find in the draft EIS that could

be construed to indicate consideration of an alternative

similar to that adopted is this: “The proposed ground

water protection standards could be considered too strict

if implementing them would be unreasonably costly or if

they would be impossible to apply.” Environmental Pro-

tection Agency, Draft Environmental Impact Statement

for Remedial Action Standards for Inactive Uranium

Precessing Sites 8-8 (1980). The explanation of the

proposed water quality standard anticipated possible in-

creases in disposal costs to insure against future ground

water contamination, but gave no indication that this

possibility would make the proposed standards infeasible.

46 Fed. Reg. at 2560. Many of the comments submitted

to the EPA during the comment period after publication

of the proposed rules suggested that the EPA abandon

its proposed ground water standards. See, e.g., Il FEIS-

IN at D-36, -37, -44, -45, -46, But, regardless of the

tcnor of some of the comments, the final “guidance”

4la

siandard does not represent a logical outgrowth from the

proposed regulations.

In our view when the EPA acknowledged that ground

water contamination is a problem at some of the in-

active sites, it was required to adopt general standards.”

The UMTRCA provides that the EPA “promulgate stand-

ards of general application.” 42 U.S.C. § 2022(a). The

EPA was not to adopt “site-specific requirements.” H.R.

Rep. No. 1480, Part I, supra, at 16-17, reprinted in 1978

U.S. Code Cong. & Ad. News at 7439. By directing the

DOE to follow “relevant” state and federal quality stand-

ards consistent “to the maximum extent practicable”

with the SWDA, see 48 Fed. Reg. at 591; 40 C.F.R.

3 192.20(a) (2) and (3) (1984), the EPA was unlaw-

fully delegating to the states or to the DOE its own

rulemaking authority or was itself establishing standards

that could vary from site to site.

We do not agree, however, with Colorado’s argument

that an unlawful delegation is involved by the provision

of the regulations allowing exceptions from the standards

in particular circumstances--permitting the implement-

ing agencies, the NRC and the DOE, to “select and per-

form remedial actions that come as close to meeting the

otherwise applicable standard as is reasonable under the

circumstances.” 40 C.F.R. § 192.22(a) (1984). So long

as general standards are in place, permitting exceptions

for special circumstances in which costs might be out-

rageous or compliance impossible is not an abrogation of

the duty to promulgate general standards. A court could

determine, if required to do su, the reasonableness of an

exception granted in a specific case.

The environmental petitioners also complain that the

EPA has a duty to formulate general standards for non-

*4 Of course, a site with no contamination problems would auto-

matically meet any general requirements the EPA might set with-

out further corrective action.

42a

radiological hazards, toxic chemicals in the uranium tail.

ings, see 42 U.S.C. § 2022(a), but has not specifically;

addressed the subject except in conclusory form:

“We have reviewed the available data on toxic

elements in tailings and improved the FEIS-IN in

this respect [Appendix C]. We have concluded that

it is reasonable to expect that hazards from toxic

elements will be adequately limited if control anc

cleanup are carried out according to these fina!

standards.”

48 Fed. Reg. at 597. We are satisfied that the EPA’s

general regulations on radon emissions, requiring contro!

of the movement of and probable covering of the tailings

adequately deal with the nonradiological hazards of the

toxic chemicals, except as they may enter waterways o1

underground water supplies. If there is a possibility that

toxic chemicals will enter underground water supplies or

waterways, the statute mandates that the problem be

dealt with by general standards. On remand, the EPA

will have to treat these toxic chemicals that pose a ground

water risk as it did in the active mill site regulations.

We reject all challenges to the regulations except as

discussed in Part VIII above. The following regulation,

concerning water contamination is set aside: 40 C.F.R.

§ 192.20(a) (2)-(3) (1984). The case is remanded to the

agency for further consideration of that specific provision.

43a

APPENDIX B

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 83-2226, 83-2227, 83-2277, 83-2504, 83-2524,

84-1349, 84-1352, 84-1482

AMERICAN MINING CONGRESS, UNITED NUCLEAR CORPORA-

TION, HOMESTAKE MINING Company, AMAX, INC.,

SoLAR LopBy, THE ENVIRONMENTAL DEFENSE FUND,

Inc., NATIONAL WILDLIFE FEDERATION, SIERRA CLUB,

At MANGAN, CHAUNCEY KEPFORD and JupITH H

JOHNSRUD,

Petitioners,

Vv.

LEE M. THomas, in his capacity as Administrator of the

United States Environmental Protection Agency, and

ENVIRONMENTAL PROTECTION AGENCY,

Respondents,

STATE OF COLORADO, et al.,

Intervenors.

(Filed Sept. 3, 1985]

Petitions for Review of an Order of the

Environmental Protection Agency

44a

No. 84-1908

UNITED NUCLEAR CORPORATION,

HOMESTAKE MINING COMPANY, and

QUIVIRA MINING COMPANY,

Plaintiffs-A ppellants,

¥e

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

LEE M. THOMAS, and UNITED STATES NUCLEAR

REGULATORY COMMISSION,

Defendants-A ppellees.

Appeal from the United States District Court

for the District of New Mexico

(D.C. CIV No. 83-1602 HB)

Before LOGAN and MeWILLIAMS, Circuit Judges, a

BOHANON, District Judge.*

LOGAN, Circuit Judge.

These consolidated cases involve challenges to the F

vironmental Protection Agency’s (EPA) standards g

erning stabilization and control of byproduct materiz

primarily mill tailings, at licensed commercial uranit

and thorium processing sites (the active mill sites). 7

I; PA established these standards pursuant to its author

under the Uranium Mill Tailings Radiation Control

* Honorable Luther L. Bohanon, United States District Judge -

the District of Oklahoma, sitting by designation.

Lee }

45a

of 1978 (UMTRCA), as amended, 42 U.S.C. $§ 2022 and

7901-7942, the same statute that required the EPA to

promulgate standards applicable to the inactive mill sites.

With the exception of No. 84-1908, jurisdiction in this

court is based upon 42 U.S.C. § 2022(c) (2). No. 84-1908

arises out of a district court action in which plaintiffs

asserted that the active mill site regulations were promul-

gated outside the time limits prescribed by the UMTRCA.

The district court dismissed the suit on the ground that

the exclusive method of review was by petition in the

court of appeals under 42 U.S.C. $ 2022(c) (2); plaintiffs

have appealed that dismissal although they are raising

the identical issue regarding timeliness of promulgation

under their concurrent petition filed under $ 2022 (c) (2).

As in the inactive mill site challenges, sec American

Mining Congress v. Thomas, - F.2d (10th Cir.

1985) [hereinafter Inactive Sites Case}, petitioners may

be divided essentially into two categories: (1) the indus-

try petitioners—the American Mining Congress, a trade

association; and joint petitioners United Nuclear Corpora-

tion (and its subsidiary Quivira Mining Company) and

Homestake Mining Company; and (2) the “environmen-

tal” petitioners—The Environmental Defense Fund, the

National Wildlife Federation, the Sierra Club, the Solar

Lobby, Al Mangan, Chauncey Kepford, and Judith

Johnsrud. Intervenor, tne State of Colorado, aligns itself

on most issues with the environmental petitioners.

AMAX, Ine. aligns itself with the industry petitioners

although it is challenging only the inclusion of molybde-

num as a constituent of the nonradiological hazards desig-

nated in the ground water portion of the regulations.

The substances to be controlled and the UMTRCA’s

legislative background have been discussed briefly in the

companion case filed this day involving regulations for

inactive mill sites. The relevant hazards addressed by

the UMTRCA and its legislative history are the same for

the active and inactive site regulations, so we need not

46a

repeat that discussion here. See Inactive Sites Ca.

———— F'.20 at ‘slip op. part I).

Congress, apparently angered by the EPA’s inactic

imposed time limits upon the EPA’s authority to form

late regulations to govern the active mill sites. A 19.

amendment to the UMTRCA provided, “If the Admin:

trator fails to promulgate standards in final form und

this subsection by October 1, 1983, the authority of t

Administrator to promulgate such standards shall term

nate” in favor of the Nuclear Regulatory Commission, -

U.S.C. § 2022(b) (1). The EPA published proposed stan

ards for the active mill sites in the Federal Register «

April 29, 1983. 48 Fed. Reg. 19,584 (1983). The A

ministrator signed final standards on September 30, 198

und apparently released copies to the public on that da

The regulations did not appear in the Federal Registe

however, until October 7, 1983. 48 Fed. Reg. 45,95

(1983) (codified at 40 C.F.R. § 192.30-.43 (1984) ).

The EPA’s final standards, except those for grour

water, were essentially identical to those adopted for tl

inactive mill sites. Standards to be applied after the si’

closure period were to assure control of radiological ha

ards “for one thousand years, to the extent reasonabi

achievable, and, in any ease, for at least two hundre

years ....” 40 C.F.R. § 192.382(b) (1) (i) (1984). TH

final standards also established radon emission limits nc

to exceed an average release rate of 20 picocuries pe

square meter per second (pCi’m?s). Jd. § 192.32(b) (1

(ii). On-site land that meets the described standard -

not subject to the disposal standards elsewhere in. th

regulations. That described standard, based on the max

mum concentration level of radium-226 averaged ove

areas of 100 square meters, is the same as that at th

inactive mill sites: 5 picocuries per gram (pCi/g) ay

eraged over the first 15 centimeters of soil and 15 pci

for soil lavers more than 15 centimeters below the su

face. Id. § 192.32(b) (2).

47a

The EPA ground water standards for the active mill

sites are in two parts: (1) a primary standard applicable

to new waste storage areas, including lateral expansions

of existing tailings piles, and (2) a secondary ground

water protection standard applicable to both old and new

piles. Jd. $ 192.32(a)(1)-(2). In almost all circum-

stances the primary standard would require a liner under

new impoundments and lateral extensions capable of

preventing migration of waste into the ground and water.

See 48 Fed. Reg. at 45,940-41 (discussion of § 192.32(a)

(1)-(2) requirements). Liners were not required for

existing impoundments, even though new waste could be

added. See id. at 45,931 (discussion of $ 192.32(a) (2)

requirements). The secondary standard in effect requires

that the ground water be protected by reducing the level

of toxic materials in the ground water to concentration

limits permitted by the Solid Waste Disposal Act

(SWDA), 42 U.S.C. $$ 6901-6986. The regulations neces-

sitate monitoring programs. 40 C.F.R. § 192.32(a) (2)

(1984). One SWDA requirement of impermeable cover

material was altered in the final regulations to permit

permeable cover in arid areas where evaporation exceeds

precipitation. Jd. § 192.32(a)(1); see 48 Fed. Reg. at

45,940 (discussion of basis for alteration). The stand-

ards permit exceptions, with the consent of the EPA,

for particular existing piles that cannot meet those stand-

ards except at extraordinary cost. 40 C.F.R. $ 192.521 a)

(2) (iv); see 48 Fed. Reg. at 45,941 (discussion of po-

tential exceptions). The standards add molybdenum and

uranium to the list of hazardous ground water constitu-

ents. 40 C.F.R. § 192.32(a) (2) (1).

For purposes of discussion and analysis we divide the

petitioners’ contentions into four categories: (1) the alle-

gation that the EPA acted beyond its authority because

it did not promulgate the regulations within the time

requirements of the statute; (2) those arguments suffi-

ciently common to challenges to both the inactive and

48a

active mill site regulations that they may be answered,

at least in part, by reference to the comnanion Jnactive

Sites Case; (3) the challenges to the ground water regu-

lations; and (4) AMAX, Ince.’s objection to the addition

of molybdenum as a constituent of hazardous material in

the ground water regulations.

Petitioners United Nuclear Corporation, Homestake

Mining Company, and Quivira Mining Company (here-

inafter United Nuclear) assert that the EPA exceeded

its jurisdictional authority because it promulgated these

regulations after the statutory deadline. In early 1983

Congress passed an amendment to 42 U.S.C. § 2022(b)

(1), which provides as follows:

“If the Administrator [of the EPA] fails to promul-

gate standards in final form under this subsection

by October 1, 1983, the authority of the Administra-

tor to promulgate such standards shall terminate, and

the [Nuclear Regulatory] Commission may take ac-

tions under this chapter without regard to any pro-

vision of this chapter requiring such actions to com-

ply with, or be taken in accordance with, standards

promulgated by the Administrator.”

It is apparently undisputed that the Administrator signed

the final regulations on September 30, 1983, and made

them available to the public on that day. In the preamble

to the regulations the EPA stated, “This standard is

promulgated on the date signed.” 48 Fed. Reg. at 45,946.

The agency filed the regulations with the Office of the

Federal Register on October 6; they appeared in the Fed-

eral Register on October 7, 1983.

The federal district court for the District of New

Mexico dismissed a challenge to the regulations’ timeli-

ness, holding that judicial review of the rules was vested

exclusively in the appropriate court of appeals pursuant

49a

to 42 U.S.C. § 2022(c)12). We have consolidated the

plaintiffs’ appeal of that ruling with the various petitions

for review of the regulations in the proceeding before

us. We agree with the district court that all challenges to

rulemaking aciion of the agency, including assertions that

the agency acted in excess of its statutory authority or

beyond its jurisdiction, should be initiated in the court

of appeals. See FCC v. ITT World Communications, Inc.,

52 U.S.L.W. 4507, 4509 (U.S. April 30, 1984). The Ad-

ministrative Procedure Act authorizes this reviewing

court to set aside agency action that is “in excess of

statutory jurisdiction, authority or limitation.” 5 U.S.C.

§ 70612) 1C).

Courts considering the statutory periods of limitations

for petitions for judicial review of administrative rule-

making, which commonly refer to the date of “promulga-

tion” of rules, e.g., 42 U.S.C. § 2022(c), have held that

review petitions are timely if filed within a designated

period after publication in the Federal Register. See En-

vironmental Defense Fund v. Gorsuch, 713 F.2d 802, 812

(D.C. Cir. 1983); Laminators Safety Glass Ass’n v.

CPSC, 578 F.2d 406, 408 (D.C. Cir. 1978). Relying

principally upon these cases, United Nuclear argues for

a uniform interpretation of the word “promulgate” as

meaning publication in the Federal Register. Under that

interpretation the EPA acted too late and thus beyond

its statutory authority.

We agree with those decisions that measure the limita-

tions period for seeking judicial review as beginning on

the date of publication in the Federal Register. No doubt

many parties affected by a ruie first learn of it upon

publication in the Federal Register. We believe, however,

that “promulgation” does not have a single accepted

meaning in all contexts. We agree with the EPA that

the purpose of the statutory provision was to compel

action by the EPA bef > October 1, 1883. See House

Conf. Rep. No. 884, 97t. ong., 2d Sess. 43-45, reprinted

50a

in 1982 U.S. Code Cong. & Ad. News 3603, 3613-15. In

establishing the deadline discussed here, Congress was

actually extending deadlines that the EPA had missed in

1979 and 1980. See id. The EPA represents, and the

other petitioners do not dispute, that the Administrator

signed the rules on September 30, 1983, and _ released

them to the public on that same day. At least one mean-

ing of promulgate is to make public; the EPA’s action

here effectively achieved that end. We do not think Con-

gress intended to throw away the fruits of EPA’s labors

simply because it did not publish the rule before the end

of September. We hold that the EPA met Congress’

deadline requirement.

IT]

Most of the arguments by the various petitioners are

substantially identical to those in the consolidated Jnactive

Sites Case decided this day.'! On the basis of the analysis

in that opinion, we again hold:

‘a) that a finding by the EPA of a “significant risk”

is not a prerequisite to promulgating the regulations (see

Inactive Sites Cases, F.2d at —— [slip op. part

III]);

(bi that the EPA may promulgate standards to apply

within the boundaries of the mill sites (see id. at

{slip op. part IV]);

pose management, design, and engineering requirements

(see id. at ——- clip op. part V|); and

(d) that the EPA properly considered cost-benefit fac-

tors in establishing standards (see id. at ——— {slip op.

part VI]).

1 Some environmental petitioners challenge the EPA’s failure to

promulgate any regulations controlling radon emissions from the

uranium processing itself, as opposed to the end product tailings.

This issue was not briefed and is not discussed hervin. It has been

held in abeyance by court orders requested by the parties pending

negotiations between the parties.

5la

Most of the various petitioners’ arguments that the

IsPA’s standards for radon emission and‘ radium in the

soil are arbitrary and capricious are also sufficiently dis-

cussed in the opinion on the inactive site regulations.

We need not elaborate on or repeat that discussion here.

Some of the figures with which we must deal are differ-

ent, however, and a few arguments have changed some-

what between the two sets of cases.

In formulating the active site regulations the EPA

estimated more potential lung cancer deaths from the

active mill site tailings, absent regulation, than from the

inactive mill site tailings: 500 deaths versus 170-240

deaths per century. See 48 Fed. Reg. at 45,929 ‘active

sites); id. at 598 (inactive sites). Although its final

regu:ations for the active sites repeated the 4 in 100

lifetime cancer risk for occupants of houses on tailings

in Grand Junction, Colorado—the figure it used in its

inactive site caleulations—the EPA estimates a 2 in 100

‘ifetime risk for people living continuously next to “some

tailings sites.” Jd. at 45,929. The EPA estimated the

cost of active site cleanup at $260 million (1983 dollars)

for tailings existing today at licensed sites, but a tota!

of $310 million to $540 million total cleanup cost to the

uranium milling industry for all tailings now in existence

and te be produced through the year 2000. /d. at 45,945.

For the standard selected for radon emissions, 20

pCi m*s, the range of incrementeél costs per death avoided

is estimated from $130,000 (nationwide for 1000 years)

to $2.5 million (regionally for 100 years). Jd. at

45,944-45. See generally Regulatory Impact Analysis of

Final Environmental Standards for Uranium Mill Tail-

ings at Active Sites 4-1 to 5-39 (detailed EPA costs and

benefits discussion). These are significant costs, if the

EPA’s figures are accurate. But we remain convinced

that Congress placed the responsibility for evaluating

them upon the EPA without imposing a specific cost-

benefit requirement. See Inactive Sites Case, ——~— F.2d

at ——— [slip op. part VI]. Therefore, the industry

petitioners’ arguments that the costs are too high for the

benefits gained, and the environmental petitioners’ argu-

ments that the industry should be forced to incur the

greater costs of standards that would save even more

lives, should be addressed to Congress or to the EPA,

not to this court. See American Petroleum Institute v.

EPA, 540 F.2d 1023, 1038 (10th Cir. 1976), cert. denied,

430 U.S. 922 (1977). The EPA has considered and re-

sponded to both of these complaints in justifying its

actions. See 48 Fed. Reg. at 45,933; see also I] Environ-

mental Protection Agency, Final Environmental Impact

Statement for Standards for the Control of Byproduct

Materials from Uranium Ore Processing A.3-i2 to -14

(1983) (hereinafter FEIS-AC).

In arguing that the EPA acted arbitrarily and ca-

priciously the American Mining Congress relies upon a

1984 report by a subcommittee of the EPA’s Scientific

Advisory Board which stated that the EPA “has not

assembled and presented a risk assessment that provides

a clear and adequate statement of the scientific basis for

developing standards to regulate airborne radionuclide

emissions.’”’ Subcommittee on Risk Assessment for Radio-

nuclides, Scientific Advisory Board, U.S. Environmental

Protection Agency, Report on the Scientific Basis of

EPA’s Proposed National Emission Standards for Haz-

ardous Air Pollutants for Radionuclides 34 (1984). The

EPA objects to our consideration of this report because

it was not in existence at the time the EPA issued its

final regulations.” Also, the EPA points out that this

report addressed the agency’s proposed standards in a

separate rulemaking proceeding under the Clean Air Act,

- The EPA has filed a motion to strike references to extra-record

items cited by the various petitioners. The industry petitioners

have moved to supplement the record with these additional mate-

rials. For the reasons we stated in the Inactive Sites Case,

F.2d at ——- [slip op. part II], we deny the motions to strike and

also deny all contested motions to supplement the record.

53a

that it was not based upon a review of the agency’s

record before us, and that the Scientific Advisory Board

criticisms were aimed generally at the manner in which

the EPA assembled the information for decision-making

rather than being critical of the background documents

themselves. We do not believe that report requires over-

turning the instant regulations. The report itself acknowl-

edges that scientists may differ in regulatory philosophy,

adopting different approaches to risk assessment.*

Industry petitioners also protest strongly that the EPA

acted inconsistently in the way these regulations require

addressing the risks compared with other regulations

promulgated under other acts: e.g., control of radiation

from high toxicity waste. We cannot evaluate here all the

factors that caused the EPA to adopt a different approach

in connection with its rulemaking under other laws, if

indeed it did act differently. The record shows that the

EPA did consider and respond to this inconsistency com-

plaint. See Il FEIS-AC at A.3-2 to -4. We are satisfied

that the EPA acted consistently in formulating regula-

tions for the inactive and active mill sites—except with

respect to the ground water regulations, which we discuss

separately in these opinions. That the EPA may be

faulted for its rulemaking under other acts is not the

3 The report states:

“(I }n the process of risk assessment, many assumptions must

be made. Scientists may be swayed in their choice of assump-

tions by their underlying regulatory philosophy. The choice of

a linear non-threshold dose-response relationship compared to

a linear quadratic or other relationship is a good case in point.

As evidenced by the National Academy of Science’s third re-

port on Biological Effects of Ionizing Radiation (BEIR III),

knowledgeable scientists disagree on which dose-response rel:-

tionship is best.”

Subcommittee on Risk Assessment for Radionuclides, Scientific Ad-

visory Board, U.S. Environmental Protection Agency, Report on the

Scientific Basis of EPA’s Proposed National Emission Standards for

Hazardous Air Pollutants for Radionuclides 7.

5da

kind of internal inconsistency we found to be arbitrary

and capricious in Squaw Transit Co. v. United States,

574 F.2d 492, 495-96 (10th Cir. 1978).

The American Mining Congress and the State of

Colorado make somewhat different arguments that a 5

pCi g radium standard for land adjacent to a tailings

pile is inconsistent with the radon emission standard of

20 pCi’ m*s on the pile itself. See 40 C.F.R. § 192.32(b)

(separate standards listed). We accept the EPA’s answer

that there is no inconsistency and that the radium cleanup

standard was designed to push concentrations in the land

sufficiently low to allow unrestricted use, contrary to

treatment of the tailings piles. See 48 Fed. Reg. at

45,947; II FEIS-AC at A.5-33.

The EPA adopted a two part ground water standard

for active mill sites. 40 C.F.R. § 192.382(a) (1)-(2). The

primary standard, requiring use of a “liner,” applies only

to new waste depositories and to new portions of existing

waste depositories. 48 Fed. Reg. at 45,941. The secondary

standard, applicable to all impoundments, essentially

adopts the standards EPA issued under the Solid Waste

Disposal Act (SWDA) for hazardous wastes. Jd. at

45,940. It requires monitoring and levels of concentra-

tion low enough to meet drinking water standards within

500 meters of the edges of the waste impoundments. Jd.

at 45,940-41.

The American Mining Congress argues that these

ground water standards are unlawful because they apply

within the boundaries of the mill sites, and because they

impose management, design, and engineering require-

ments. These arguments do not impress us. We have

dealt with the on-site question in the context of radium

cleanup and radon emission standards in Part IV of the

Inactive Sites Case, F.2d at We see nothing

that compels a different conclusion in the EPA’s adoption

55a

of ground water standards for active mill sites. The opti-

mal method of preventing pollution of off-site water

supplies is to prevent radiological and other hazardous

substances from entering the ground water. General ap-

plication standards that allow the Nuclear Regulatory

Commission (NRC) to choose the means of implementa-

tion are consistent with the authority Congress vested in

the EPA. Although the regulations require a “liner” for

aew piles and extensions thereof, we understand that

term to refer to any impermeable barrier the NRC may

approve that will prevent seepage. See, e.g., Il FEIS-AC

at A.1-28, A.4-7. The regulations require the industry

to satisfy SWDA drinking water concentration standards

at specified distances from the pile, but they do not dictate

the kind of monitoring system that must be used or the

method by which purity levels must be achieved. These

decisions are left to the implementing agency, the NRC.

See id., at A.1-22, A.6-2.

Section 275(b) of UMTRCA states that the EPA’s

generally applicable standards must provide “protection

of human health and environment consistent with the

standards required under subtitle (C) of the Solid Waste

Disposal Act [SWDA], as amended, which are applicable

to such hazards... .” 42 U.S.C. $ 2022(b)12) (em-

phasis added). The industry petitioners’ principal argu-

ment against the EPA’s ground water regulations is that

the standards adopted were regulations for high-toxicity

low-volume chemical wastes and the EPA should have

analogized to low-toxicity high-volume mining wastes.

Thus, the argument is based upon the contention that the

EPA did not adopt standards for similar hazards. Fur-

ther, the industry petitioners assert that the mill tailings

rest over aquifers unsuitable for use as drinking water

and that it is improper for the EPA to establish drinking

water standards.

Te EPA made findings that conditions at tailing im-

poundments are not sufficiently different from the condi-

56a

tions it considered in developing SWDA standards to

necessitate a change in approach. 48 Fed. Reg. at 45,941;

I] FEIS-AC at A.1-2 to -3. In its SWDA regulations

the EPA refused to draw a distinction between high-

volume low-toxicity mining wastes and low-volume high-

toxicity chemical wastes. See 45 Fed. Reg. 33,140, 33,173-

75 (1980) (dicussion of basis for decision). Apparently

Congress has barred the EPA from applying SWDA regu-

lations to certain mining wastes pending an agency study

that was incomplete at the time the EPA was required

to promulgate final regulations for the active mine sites.

See II FEIS-AC at A.1-2 to -3. Yet, the EPA was under

pressure from Congress to promulgate license site stand-

ards by the October 1 deadline. Congress required the

EPA to adopt general standards applicable to all sites.

The EPA did adopt such standards. In this circumstance,

the EPA acted permissibly in adopting standards equiva-

lent to the drinking water standards.

United Nuclear argues that the EPA’s ground water

standards impermissibly intrude on state control of ground

water, a contention that we summarily reject. If United

Nuclear has standing to raise the question of preemption,

cf. Mountain States Legal Foundation v. Costle, 630 F.2d

704, 767 (10th Cir. 1980) (denying standing to pro-

industry private organization seeking to challenge EPA

air quality regulations), cert. denied, 450 U.S. 1050

(1981), we are satisfied that the UMTRCA’s directive

provides the basis for preemption.

The environmental petitioners argue that the ground

water regulations are inadequate. They first claim the

EPA’s decision not to apply the primary standard to

existing tailings impoundments is unreasonable because

seepage from these sources is already fouling the environ-

ment. The EPA’s response is that the existing impound-

ments are only exempted from the primary standard re-

quiring an impermeable barrier. The impoundments are

sull subject to the secondary standard. 40 C.F.R. § 192.32

57a

(a) (2). Violation of the secondary standard may require

the cperator to cease making new deposits and take cor-

rective action. Jd. § 192.33; see 48 Fed. Reg. at 45,941

(discussion of § 192.33). The EPA says it only adopts

standards, leaving the methods to achieve the standards

to those charged with management of the piles. It also

argues that mandatory stoppage of adding to existing

piles or removal of existing piles to new, lined impound-

ments could increase radon emissions and render addi-

tional large amounts of land permanently contaminated

and unproductive by increasing the number of piles. See

48 Fed. Reg. at 19,594-95; II FEIS-AC at A.4-10. We

accept as rational the EPA’s reasoning on these points.

The environmental petitioners also contend that the

EPA should require cleanup beyond the site boundaries.

The EPA argues in response that the issue is not prop-

erly before us because it was not raised during the

conment period and because the challenge is in reality

one to the SWDA regulations themselves. In addition,

the EPA explains that it determined that existing off-

site contamination should be addressed through its emer-

gency powers under SWDA and the “Superfund”’ statute,

the Comprehensive Environmental Response Cornpensa-

tion and Liability Act, 42 U.S.C. $$ 9604, 9606. It notes

1984 congressional amendments to SWDA that require

some changes in its approach under that act, and admits

it must reevaluate its position under the UMTRCA in

light of that development whic!. occurred after it issued

the active site final regulations. See Brief of Respond-

ents at 93 n.83. We accept as rational this explanation

for not imposing requirements for outside-the-boundaries

cleanup, and we cannot say the EPA’s actions were

arbitrary or capricious.

The environmental petitioners assert that the EPA did

not properly respond to comments during rulemaking,

particularly those concerning “compliance point” monitor-

ing, which suggested that sespage should be monitored in

58a

the vadose zone of rocks or sediment to detect pollution

before it reaches the aquifers. We are satisfied that the

EPA underiook a determined effort to respond to com-

ments during the rulemaking comment period. See gen-

erally II FEIS-AC at A.1-1 to 7-5 ‘summarized com-

ments and responses}. The record shows that the EPA

did respond to comments on ground water compliance

point monitoring generally, and possible vadose zone

monitoring in particular. Jd. at A.4-36 to -37 (compliance

point monitoring), A.6-2 to -3 (vadose zone monitoring).

The response to comments on vadose zone monitoring was

somewhat limited—but apparently because implementation

of ground water monitoring has been left to the Nuclear

Regulatory Commission. See id. at A.1-22, A.6-2. We

cannot say that the ground water monitoring guidelines

laid down by the EPA are irrational or unsuited to the

task. See 48 Fed, Reg. at 45,942 (guidelines listed).

Petitioners Kepford and Johnsrud argue that the EPA

did not give adequate consideration to deep well disposal

of mill tailings. The record shows that the EPA did con-

sider this proposal. See, e.g., 45 Fed. Reg. at 19,590; id.

at 45,931-32; I FEIS-AC at 8-16. The EPA acted within

its powers in rejecting this method, rationally finding it

had potential for more serious ground water contamina-

tion.

In sum, we reject all challenges to the EPA’s ground

water regulations for the active mil] sites,

AMAX, Ine., one of the world’s leading producers of

molybdenum, has petitioned for review of the active site

regulations for the specific purpose of challenging the

EPA’s designation of molybdenum as a “hazardous con-

stitutent” of uranium and thorium mill tailings and

subjecting molybdenum to the ground water protection

standards. No other petitioner has focused any attack

on the identification of particular minerals as nonradio-

59a

logical hazards. Therefore, before considering the merits

of AMAX’s claims we must consider AMAX’s standing

+o raise the issues in its petition. The EPA asserts that

AMAX lacks standing to challenge any aspect of the

UMTRCA active site regulations because it does not own

or operate any licensed uranium mill tailings sites and

therefore is not affected by the regulations. The regula-

tions specifically state that molybdenum is listed as a

hazardous constitutent “only for purposes of controlling

uranium and thorium byproduct materials. EPA does not

intend in this rulemaking to add molybdenum . . . to the

SWDA list of hazardous constituents.” 48 Fed. Reg.

45,926, 45,944 (1983).

Two sections of the United States Code apply directly

to this case. The UMTRCA itself provides that

“{jjudicial review of any rule promulgated under

this section may be obtained by avy interested person

only upon such person filing a petition for review

within sixty days after such promulgation in the

United States court of appeals for the Federal ju-

dicial circuit in which such person resides or has

his principal place of business. . . . The court shall

have jurisdiction to review the rule in accordance

with chapter 7 of Title 5 and to grant appropriate

relief as provided in such chapter.”

42 U.S.C. § 2022(c) (2) (emphasis added). Section 10(a)

of the Administrative Procedure Act, 5 U.S.C. § 702,

states that \

“fa] person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof.”

The concept of standing combines both constitutional

and prudential considerations. See Allen v. Wright, 52

U.S.L.W. 5110, 5114 (U.S. July 3, 1984); Valley Forge

Christian College v. Americans United for Separation of

60a

Church and State, Inc., 454 U.S. 464, 471 (1982);

Ozonoff v. Berzak, 744 F.2d 224, 227 (1st Cir. 1984).

At a minimum, Article III of the constitution requires

“the party who invokes the court’s authority to ‘show

{1] that he personally has suffered some actual or

threatened injury as a result of the putatively il-

legal conduct of the defendant,’ ... and [2] that the

injury ‘fairly can be traced to the challenged action’

and [3] ‘is likely to be redressed by a favorable de-

cision.’ ”

Valley Forge Christian College, 454 U.S. at 472 (cita-

tions omitted).

As a preliminary matter, we note that the reviewing

court, when ruling on a motion to dismiss for lack of

standing, “must accept as true all material allegations of

the complaint, and must construe the complaint in favor

of the complaining party.” Warth v. Seldin, 422 U.S.

490, 501 (1975). Even reading AMAX’s petition and

affidavit generously, we hold that it fails to meet either

the constitutional or prudential requirements of the stand-

ing doctrine.

First, the injury that AMAX claims it would suffer as

a result of the EPA’s listing of molybdenum as a toxic

substance is indirect. Neither AMAX nor its customers

own any uranium mill tailings sites. Therefore, they are

not subject to the UMTRCA or its regulations. AMAX,

however, alleges that state and local agencies that regu-

late AMAX’s customers are likely to restrict or prohibit

the discharge of molybdenum if the EPA classifies mo-

Ivbdenum as a hazardous substance. See Affidavit of Dr.

Gary G. Van Riper (Deputy Director of Environmental

Control, Climax Molybdenum Company, division of

AMAX). If this should occur, AMAX would be unable

to sell its product and would suffer economic injury.

Although an indirect injury can be sufficient to confer

standing on a party, the Supreme Court has stated:

bla

“When a governmental prohibition or restriction im-

posed on one party causes specific harm to a third

party, harm that a constitutional provision or statute

was intended to prevent, the indirectness of the in-

jury does not necessarily deprive the person harmed

of standing to vindicate his rights... . But it may

make it substantially more difficult to meet the mini-

mum requirements of Art. III: to establish that, in

fact, the asserted injury Was the consequence of the

defendant’s actions, or that prospective relief will

remove the harm.”

Warth v. Seldin, 422 U.S. at 504-05 (citation omitted).

Although the challenged regulation was adopted over

two years ago, AMAX does not refer to a single agency

that has restricted or proposed to restrict discharge of

molybdenum as a result of this action. AMAX refers only

to a proposed state regulation in Texas in 1979 classifying

molybdenum as a toxic substance that was used as the

basis for similar regulations in New Orleans, El Paso,

and Dallas. Affidavit of Dr. Gary G. Van Riper at 2-3.

Absent any allegation that a single state or local agency

has considered adopting the EPA’s classification of mo-

lybdenum as a hazardous substance, we believe that

AMAX has failed to demonstrate that it has or will

suffer “concrete and certali harm” as a result of the

EPA’s action. National Collegiate Athletic Ass’n v. Cali-

jano, 622 F.2d 1382, 1386 (10th Cir. 1980); see also

United States v. SCRAP, 412 U.S. 669, 688-89 (1975)

(“A plaintiff must allege that he has been or will in fact

he perceptibly harmed by the challenged agency action,

noi that he can imagine circumstances in which he could

be affected by the agency’s action.”’).

In reaching this conclusion, we are also influenced by

the decision of the United States Court of Appeals for the

District of Columbia Circuit in Association of Investment

Brokers v. SEC, 676 F.2d 857 (D.C. Cir. 1982). In that

case, the petitioners challenged the Securities and Ex-

§2a

chang> Commission’s (SEC) adoption of revisions to

Form U-4, the Uniform Application for Securities Indus-

try Registration. /d. at 858-59. The SEC only required

broker-dealers that it directly regulated to use the form.

Id. at 859. However, forty-six states and several self-

regulatory organizations, including the National Associa-

tion of Securities Dealers, Inc. and the New York Stock

Exchange, also adopted Form U-4. Jd. The petitioners

were not subject to the SEC’s regulation; instead, they

alleged that they were indirectly injured by the SEC

when other regulatory organizetions and states adopted

the SEC revisions. In rejecting standing, the court stated

that “{a!n order to the Commission concerning the form

could require cancellation or modification of provisions

for SECO breker-dealer filings but could not direct the

self-regulatory organizations and the states to follow

suit.” /d. at 862. The situation before us is comparable;

if state and local agencies follow the EPA and classify

molybdenum as a toxic substance. AMAX’s complaint

should be raised before these entities. Indeed, it is pos-

sibie that the EPA’s classification of melybdenum will

‘ause state and local entities to initiate their own investi-

gations of the toxicity of molybdenum. If so, it would

be the rules adopted as the result of such investigations

that might injure AMAX, not the EPA’s actions under

an act that does not regulate AMAX’s business.

iiven if we were to find that AMAX has met the

constitutional requirements for standing, we would have

to deny it standing based on prudential factors. The

Supreme Court recently described the prudential aspects

of a court’s determination of standing:

“Standing doctrine embraces several judicially self-

imposed limits on the exercise of federal jurisdiction,

such as the general prohibition on a litigant’s raising

another person’s legal rights, the rule barring adju-

dication of generalized grievances more appropriately

addressed in the representative branches, and the

63a

rquirement that a plaintiff's complaint fall within

the zone of interests protected by the law invoked.”

Alen ve Wright, 52 U.S.L.W. 5110, 5114 (U.S July 3.

1984).

Although several courts have questioned the continued

viability of the zone of interests aspect of the standing

doctrine, the Supreme Court has continued to apply it.

Id. at 5114. This circuit has been lenient in applying

the “zone of interest” test. We have said that “unless

the legislative history shows the plaintiff to be clearly

not within the statute’s ‘zone of interest,’ and it rarely

does. a court should demand no more than a sensible

relation between some subject of the statute and the

plaintiff's interest in the outcome of the litigation.”

National Collegiate Athletic Ass'n v. Califano, 622 F.2d

at 1986. The EPA specifically disclaims any treatment if

molybdenum as a toxic substance other than for purposes

of mill tailings byproducts disposal. See 45 Fed. Reg. at

45.949, Even generously interpreting the test, particu-

larly in the face of this disclaimer, it is difficult to read

the UMTRCA as a statute that in any Way intends to

regulate producers such as AMAX who do not own or

operate any licensed mill tailings sites,

Although AMAX correctly states that direct regulatory

impact is not required for a petitioner to come within

the interests test, the cases on which it relies involved a

fay more direct regulatory impact than AMAX alleges

that it might incur. In Cotorsky-Kaplan Physical Ther-

api Assoc... Lid. ¥. [’nited States, 507 F.2d 13638 (7th

Cip. 1975). for example, the plaintiffs, five professional

nhysical therapy corporations, were permitted to chal-

lence HEW regulations that conditioned Medicare pay-

ments to home health agencies on their hiring of non-

profit physical therapy corporations. Jd. at 1364-65, As

~ yesult of those regulations, several home health agencies

notified plaintiffs of their intent to terminate their con-

tracts. Jd. In allowing the private corporations to chal-

64a

lenge the regulations, even though they diu not apply

directly to them, the court stated that

‘if, pursuant to what it perceives to be its statutory

authority, a government agency regulates the con-

tractual relationships between a regulated party and

an unregulated party, the latter as well as the

former may have interests that are arguably within

the regulated zone for purposes of testing standing,

”

/d. at 1367. In contrast, neither AMAX, its customers,

nor the state and local agencies that might adopt the

EPA regulations are regulated under the UMTRCA.

In addition, in each of the cases that AMAX cites, the

plaintiff was injured when an agency effectively forbade

a third party from entering into or continuing a bene-

ficial relationship with the plaintiff. See Cotovshky-

Kaplan Physical Therapy Assoc., Ltd. v. United States,

supra; Apter v. Richardson, 510 F.2d 351 (7th Cir. 1975)

(subject on behalf of whom application for government

grant was submitted entitled to challenge denial of

grant).* In the instant case, however, the EPA has

exercised no authority over either AMAX or its cus-

tomers.

Accordingly, based on both constitutional and pruden-

tial factors, we deny AMAX standing and do not consider

its arguments on the merits.

The challenges of all petitioners are rejected; we af-

firm the validity of the active mill site regulations.

4+AMAX also cites New Jersey Chapter Incorporated of the

American Physical Therapy Ass’n v. Prudential Life Ins. Co., 502

F.2d 500 (D.C. Cir. 1974), cert. denied, 420 U.S. 1004 (1975). In

this decision, however, the court never decided the standing issue

because it determined that, regardless of sianding, tne defendants

would prevail on the merits. Jd. at 504.

65a

APPENDIX C

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 192

[A-FRL 2211-8a |

Standards for Remedial Actions at Inactive Uranium

Processing Sites

AGENCY: U.S. Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: We are issuing finai health and environ-

mental standards to govern stabilization, control, and

cleanup of residual radioactive materials (primarily mill

tailings) at inactive uranium processing sites. These

standards were developed pursuant to Section 275 of the

Atomic Erergy Act (42 U.S.C. 2022), as added by Section

206 of the Uranium Mill Tailings Radiation Control Act

of 1978 ‘Pub. L. 95-604), and were proposed in April

1980 and January 1981.

The standards apply to tailings at locations that qualify

for remedial action under Title I of Pub. L. 95-604. The

standards for control provide that the tailings be stabi-

lized in a way that gives reasonable assurance that the

health hazards associated with the tailings will be con-

trolled and limited for a long period of time. They also

establish a requirement to control releases of radon from

tailings piles. The standards for cleanup set limits on_

the radon decay-product concentration and gamma radia-

tion levels in buildings affected by tailings and on the

radium-226 concentiation in contaminated land

In response to comments on the proposed standards for

disposal and for cleanup, we have evaluated a number

of alternatives in terms of their costs and the reductions

achievable in potential health effects. A number of

changes have been made, including raising some of the

numerical limits and eliminating some requirements. The

i i ie ee i

66a

purpose of most of these changes is to make implementa-

tion easier and less costly. The changes should not result

in any substantial loss of health or environmental pro-

tection over that which would have been provided by the

proposed standards.

EFFECTIVE DATE: The final standards take effect on

March 7, 1983.

ADDRESSES: Final Environmental Impact Statement.

Background information is given in the Final Environ-

mental Impact Statement for Remedial Action Standards

for Inactive Uranium Processing Sites. (FEIS), EPA

Report 520/4-82-013-1. Single copies of the FEIS, as

available, may be obtained from the Program Manage-

ment Office (ANR-458), Office of Radiation Programs,

U.S. Environmental Protection Agency, Washington, D.C.

20460; telephone number 703-557-9351.

Docket. Docket Number A-79-25 contains the rulemak-

ing record. The docket is available for public, inspection

between 8:00 a.m. and 4:00 p.m., Monday through Fri-

day, at EPA’s Central Docket Section (A-130), West

Tower Lobby, 401 M Street, S.W., Washington, D.C.

20460. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Dr. Stan-

ley Lichtman, Guides and Criteria Branch (ANR-460),

Office of Radiation Programs, U.S. Environmental Pro-

tection Agency, Washington, D.C. 20460; telephone num-

ber 703-557-8927.

SUPPLEMENTARY INFORMATION:

I. Introduction

On November 8, 1978, Congress enacted the Uranium

Mill Tailings Radiation Control Act of 1978, Pub. L. 95-

604 ‘henceforth designated “the Act’’). In the Act, Con-

gress stated its finding that uranium mill tailings “. . .

may pose a potential and significant radiation health

hazard to the public, ... and... that every reasonable

effort should be made to provide for stabilization, disposal,

67a

and control in a safe and environmentally sound manner

of such tailings in order to prevent or minimize radon

diffusion into the environment and to prevent or minimize

other environmental hazards from such tailings.” The

Administrator of the Environmental Protection Agency

(EPA) was directed to set “. . . standards of general

application for the protection of the public health, safety,

and the environment...” to govern this process of stabili-

zation, disposal, and control.

The Act directs the Department of Energy (DOE) to

conduct necessary remedial actions at designated inactive

uranium processing sites to achieve compliance with the

standards established by EPA. Standards are required

for two types of remedial actions: control and cleanup.

Control is the operation which places the tailings piles in

a condition that will minimize the risk to man for a long

time. Cleanup is the operation which reduces the poten-

tial health consequences of tailings that have been dis-

persed from tailings piles by natural forces or removed

by man and used elsewhere in buildings or land.

In April 1980, we proposed standards for cleanup of

tailings ‘45 FR 27376, April 22, 1980) and made them

effective immediately as interim standards (45 FR 27366,

April 22, 1980). We took this action to allow DOF to

begin remedial work immediately at some contaminated

buildings which posed a high level of risk. In January

1981, we proposed standards for control of tailings piles

(46 FR 2556, January 9, 1981) and issued a Draft En-

vironmental Impact Statement (DEIS) covering both the

control and cleanup standards. Public hearings on the

standards were held in Salt Lake City, Utah, on April

24-25, 1981; in Durango, Colorado, on April 27-28, 1981;

and in Washington, D.C., on May 14-15, 1981.

We received a wide range of responses to the proposed

standards and the DEIS. Sixty-eight substantive com-

ment letters were received and twenty-three individuals

testified or submitted comments at the public hearings.

Comments were received from a broad spectrum of par-

68a

ticipants, including private citizens, public interest groups,

members of the scientific community, representatives of

industry, and State and Federal agencies. We have care-

fully reviewed and considered these comments in prepar-

ing the FEIS and in promulgating these final standards.

The written comments are reproduced in the FEIS, which

also contains our detailed responses. The major issues

raised in public comments, our response to them, and the

detailed changes in the standards are given in Sections

III and IV. Below we simply summarize the major con-

clusions reached as a result of our review.

These standards are established to satisfy the purposes

of the Act to “. . . stabilize and control ... tailings in a

safe and environmentally sound manner and to minimize

or eliminate radiation health hazards to the public.” The

Act does not provide specific criteria to be used in deter-

mining that these purposes have been satisfied. We have

therefore made it our objective to establish standards

that take account of the tradeoffs between costs and

benefits in a way that assures adequate protection of

the public health, safety, and the environment; that can

be implemented using presently available techniques and

measuring instruments; and that are reasonable in terms

of overall costs and benefits. We have been especially

cognizant of the need to differentiate what would be

desirable from what we believe to be necessary to achieve

the purposes of the Act.

Substantial dissatisfaction with the proposed standards

was expressed in written comments and at the public

hearings. In response to these views, we carefully eval-

uated a number of alternatives with respect to the above

factors. Details of each of the alternative control and

cleanup standards we considered are given in the FEIS.

Selected results of our analysis that are pertinent to our

choices for each part of the final standard are given in

Section III of this Notice. The following table contains

a summary of the alternative standards we considered

for control of tailings piles.

69a

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The alternative cleanup and control standards can be

generally categorized as:

(1) Least cost alternatives which provide minimum

acceptable health protection, and depend upon the use of

institutional methods of control;

(2) Optimized cost-benefit alternatives which provide

longer term health protection, without reliance on insti-

tutional controls, but at somewhat higher costs; and

(3) Nondegradation alternatives which attempt to

achieve close to the same environmental consequences as

might occur if the ore had not been mined; these entail

much higher costs, and could result in some undesirable

environmental consequences.

Our analysis was based on assuming that remedial ac-

tions to satisfy “least cost” tailings pile control standards

would entail applying a thin earthen cover and little or

no reinforcement of relatively steep side slopes. Integrity

of the cover would be assured through active mainte-

nance for 100 years. Only minimal flood protection meas-

ures would be applied, and as few as one pile would be

moved to a more stable location. Covers would be pro-

gressively thicker and less dependent upon care under the

more stringent alternatives, with more gradual slopes

and greater use of rock for reinforcement. Under the

“nondegradation” alternatives, up to half of the piles

would be moved to satisfy either water protection or lon-

gevity requirements.

The alternative cleanup standards would require pro-

gressively more complete removal of tailings from more

buildings. Remedial methods that do not involve tailings

removal may be used on a limited basis under all but

“nondegradation” alternatives.

The more stringent land cleanup alternatives require

more complete removal of contaminated material, imply-

ing that larger areas may be cleaned up at each contam-

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inated location and somewhat greater numbers of sites

qualify for cleanup. r

We concluded that the standards we originally pro-

posed approach a “nondegradation” alternative that

would, in at least some cases, be difficult to implement,

since they specify cleanup and control limits close to

background levels. More importantly, the small incre-

mental health benefits, when compared to the benefits for

less stringent alternatives, do not appear to justify the

large additional costs.

We selected an “optimized cost-benefit” rather than a

“least cost” alternative for the final standards, in part

because it provides much greater protection of health at

only a small increase above the least cost alternatives,

and in part because it does not place primary reliance on

institutional methods of control. The final standards pro-

vide for:

(1) Control systems for tailings piles—Control and

stabilization which will ensure, to the extent reasonably

achievable, an effective life of 1000 years, and in any

ease, for at least 200 years. This control and stabiliza-

tion will be designed to provide a barrier which will ef-

fectively minimize the potential for misuse and spread

of the tailings, limit the average radon emission —

the surface of tailings piles to no more than 20 pCi m°s,'

protect against flooding, and protect from wind and water

erosion. We have also provided an alternative equivalent

to the radon emission limit that is stated in terms of

the maximum radon concentration in air at locations off

the pile.

1A curie is the amount of radioactive material that produces 37

billion nuclear transformations (e.g., Cecays of radium into radon)

per second. A picocurie (pCi) is a trillionth of a curie. One pico-

curie of material produces just over two transformations per

minute. pCi/m*s is a unit for the release rate of radioactivity from

a surface (m=meter, s=second). pCi g is a unit for the radio-

activity concentration in a mass of material (g - gram).

72a

(2) Flood control—Diking or other flood protection

controls given first consideration, rather than moving

piles, when there is a risk from floods.

(3) Control of waterborne pollutants—DOE should

assess each site and establish any corrective or preventive

programs found necessary to meet relevant State and

Federal Water Quality Standards and to be consistent,

to the maximum extent practicable, with the Solid Waste

Disposal Act, as amended.

(4) Cleanup of buildings—An objective for reduction

of radon decay products of 0.02 WL,* with a maximum

limit of 0.03 WL.

(5) Cleanup of dispersed tailings—Limitations of soil

racium content to 5 pCi g (above background) averaged

over the top 15 centimeters of soil, and to 15 pCi g av-

eraged over any 15 centimeters of soil below this.

(6) Cleanup of off-site land—Remedial actions applied

only to situations that constitute a hazard; in those cases,

cleanup equivalent to the above standard for dispersed

tailings.

The Table below provides a summary comparison of

the proposed and final standards. The following sections

provide a more detailed discussion of the basis for the

final standards.

It should be noted that these standards in no way are

intended to establish precedents for other situations or

regulations involving similar environmental objectives,

but with different economic and or technological circum-

stances. For example, our forthcoming proposed stan-

dards for active uranium mills will be based on an inde-

pendent analysis of operating and future mills, which

~ A “working level” (WL) is any combination of short-lived radon

decay products in one liter of air that will result in the ultimate

emission of alpha particles with a total energy of 130 billion elec-

tron volts. Working level is a measure of the concentration of

radioactivity in the air, not of how rniuch radiation a person actually

receives.

73a

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74a

may result in different standards. Similarly, our reme-

dial action standard for contaminated buildings should

not be taken as an appropriate design goal for indoor

radon decay product concentration in new housing, or

as a remedial action goal appropriate for all circum-

stances.

II. Summary of Background Information

Beginning in the 1940’s, the U.S. Government pur-

chased uranium for defense purposes. As a result, large

quantities of tailings were created by the uranium mill-

ing industry. These tailings are a sand-like material, and

are attractive for use in construction and soil condition-

ing. Most of these mills are now inactive, and the ulti-

mate disposal of their tailings has not yet taken place.

In addition. tailings have been dispersed from the piles

at most of the sites by natural forces, or have been re-

moved by man for use in or around buildings, or on land.

The Act provides for the cleanup of these offsite tailings

as well as for the long-term control of the tailings piles.

Congress designated twenty-two inactive sites, and the

Department of Energy has added two more. The sites

-are located in the West, predominantly in arid areas, ex-

cept for a single site at Canonsburg, Pa. Tailings piles

at these sites range in area from 5 to 150 acres and in

height from a few feet to as much as 230 feet. The

amount of tailings at each site ranges from only residual

contamination to 2.7 million tons. The twenty-four des-

ignated sites combined contain about 26 million tons of

tailings covering a total of about 1,000 acres.

The most important hazardous constituent of uranium

mill tailings is radium, which is radioactive. We esti-

mate that these tailings contain a total of about 15,000

curies of radium. Radium, in addition to being haz-

ardous itself, produces radon, a radioactive gas whose

T5a

decay products can cause lung cancer. The amount of

radium in tailings, and, therefore, the rate at which

‘adon is produced, will decuy to about 10° of the cur-

rent amount in several hundred thousand years. Other

potentially hazardous constituents of tailings include

arsenic, molybdenum, selenium, uranium, and, usually in

lesser amounts, a variety of other toxic substances. The

concentrations of these materials vary from pile to pile.

Radiation and toxic materials may cause a variety of

cancers, and other diseases, as well as genetic damage

and teratogenic effects. Tailings are hazardous to man be-

cause: (1) decay products of radon may be inhaled and

increase the risk of lung cancer; (2) individuals may be

exposed to gamma radiation from the radioactivity in

tailings; and (3) radioactive and toxic materials from

tailings may be ingested with food or water. We believe

the first of these hazards is clearly the most important.

The radiation hazard from tailings lasts for many

hundreds of thousands of years, and some nonradioactive

toxic chemicals persist indefinitely. The hazard from

uranium tailings therefore must be viewed in two ways.

In themselves, the tailings pose a present hazard to hu-

man health. Beyond this immediate, but generally lim-

ited, health threat, the tailings are vulnerable to human

misuse and to dispersal by natural forces for an essen-

tially indefinite period. In the long run, this threat of

expanded, indefinite contamination overshadows the pres-

ent dangers to public health. The Congressional report

accompanying the Act expressed the view that the meth-

ods used for remedial actions should not be effective for

only a short period of time. It stated: “The committee

believes that uranium mill tailings should be treated...

in accordance with the substantial hazard they will pre-

sent until long after existing institutions can be expected

to last in their present forms,” and, that “The Com-

mittee does not want to visit this problem again with

additional aid. The remedial action must be done right

76a

the first time.” (H.R. Rep. No. 1480, 95th Cong., 2nd

Sess., Pt. I, p. 17, and Pt. II, p. 40 (1978).)

For the purpose of establishing standards for the pro-

tection of health, we assume a linear, nonthreshold dose-

effect relationship as a reasonable basis for estimating

risks to the general public from radiation. This means

we assume that any radiation dose poses some risk and

that the risk of low doses is directly proportional to the

risk that has been demonstrated at higher doses. We

recognize that the data available preclude neither a

threshold for some types of damage below which there

are no harmful effects, nor the possibility that low doses

of gamma radiation may be less harmful to people than

the linear model implies. However, the major radiation

hazard from tailings arises from alpha radiation, and

the National Academy of Sciences’ Advisory Committee

on the Biological Effects of Ionizing Radiation (the

BEIR Committee) stated in their 1980 report that for

“". . radiation, such as from internally deposited alpha-

emitting radionuclides, the application of the linear hy-

pothesis is less likely to lead to overestimates of risk, and

may, in fact, lead to underestimates.”

Our quantitative estimates of radiation risk are based

on our review of epidemiological studies, conducted in the

United States and in other countries, of underground

miners of uranium and other metals who have been ex-

posed to radon decay products, and on three reports: The

Effects on Populations of Exposure to Low Levels of

Ionizing Radiation (1972) and Health Effects of Alpha

Emitting Particles in the Respiratory Tract (1976) by

the BEIR Committee, and the report of the United Na-

tions Scientific Committee on the Effects of Atomic Radi-

ation entitled Sources and Effects of Ionizing Radiation

(1977). Details of our risk estimates are provided in

Indoor Radiation Exposure Due to Radium-226 in Flor-

ida Phosphate Lands (EPA 520/4-78-013) and in the

FEIS.

77a

Although the studies of underground miners show

that there is a significant risk of lung cancer from ex-

posure to radon decay products, there is some uncertainty

about its magnitude. Exposures of miners are estimated

from the time spent in each location in a mine and the

measured radon decay product levels at those locations.

However, radon decay product measurements were in-

frequert and often nonexistent for exposures of miners

prior to the 1960's. The uncertainty increases when data

for miners are used te estimate risk to the general popu-

lation because there are differences in age, physiology,

exposure conditions, and other factors between the two

populations. Nevertheless, we believe the information

available provides an estimate of risk which is probably

reliable within a factor of two or three, and that. this

constitutes an adequate basis for these standards.

It is not possible to reduce the risk to zero for people

exposed to radiation or, for that matter, to many other

hazardous materials. In order to decide on an appro-

priate level of a small residual risk, we evaluated the

costs and benefits of different levels of control. We also

considered technical difficulties associated with imple-

menting different levels of control.

The legislative record shows that Congress intended

that EPA set general standards and not specify any par-

ticular method of control. Therefore, our analyses of

control methods, costs, risks, and other pertinent factors

emphasize the general characteristics of uranium mill

tailings and the designated sites. The Act gives other

agencies of the Federal Government the responsibility to

decide how to satisfy these standards at specific sites.

They will issue site-specific Environmental Impact State-

ments or Environmental Assessments. as appropriate,

covering such matters.

The information upon which we based these health and

environmental standards for control and cleanup of tail-

78a

ings from inactive uranium processing sites is summar-

ized below. Additional background information and more

complete presentations are given in our notices of pro-

posed rulemaking (45 FR 27370, April 22, 1980, and 46

FR 2556, January 9, 1981) and in the FEIS.

A. The Risks from Tailings

Uranium mill tailings can affect man through four

principal environmental pathways:

° Diffusion of radon-222, the decay product of radium-

226, from tailings into indoor air. Breathing radon-222,

an inert gas, and its short half-life decay products, which

attach to tiny dust particles, exposes the lungs to alpha

radiation (principally from polonium-218 and polonium-

214:. The exposures involved may b. sarge for persons

who have tailings in or around their houses, or who live

very close to tailings piles. Additional, but smaller, ex-

posures to alpha radiation may result from long-lived

radon-222 decay products (principally lead-210 and polo-

nium-210). Exposure due te radon from tailings in or

around buildings is best estimated from direct measure-

ments of its decay products in indoor air.

* Direct exposure to gamma radiation. Many of the

radioactive decay products in tailings produce gamma

radiation. The'most important are lead-214, bismuth-

214, and thallium-210. Hazards from gamma radiation

are limited to persons in the immediate vicinity cf piles

or removed tailings. Exposure due to gamma radiation

from tailings is readily estimated from direct measure-

ments.

* Dispersal of small particles of tailings material ip

the air. Wind erosion of unstabilized tailings piles cre-

ates airborne tailings material. The predominant dose

is to the bones from eating foods contaminated by thor-

ium-230, radium-226, and lead-210, and is small. Expo-

sure due to airborne transport of radon and particulates

79a

from a pile usually cannot be directly measured, but may

be estimated using meteorological transport models.

°* Waterborne transport of radioactive and toxic ma-

terial. Dispersal of unstabilized tailings by wind or

water, or leaching, can carry radioactive and other toxic

materials to surface or ground water. Current levels of

contamination appear to be low or nonexistent. However,

some long-term future contamination of surface and

ground water and consequent intake by man and ani-

mals is possible. Potential exposures due to the trans-

port of waterborne contaminants are highly site-specific

and can generally only be determined by a careful sur-

vey program.

The following discussion of risks focuses largely on cur-

rent biological effects: however, these current effects

could be expanded by future misuse of tailings by man

and by uncontrolled effects of natural forces. Our stand-

ards reflect consideration of both current and future im-

pacts of tailings.

1, Air Pathways. We estimated the hazards posed by

radon emissions to air from uranium mill tailings piles

and from tailings used in and around houses. For the

first case we used meterological models and considered

people in the neighborhood of the pile, the population in

the local region, and the remainder of the national popu- —

lation. For the second, we drew largely upon experience

from contaminated houses in Grand Junction, Colorado.

Four sources of exposure were considered; inhaled short-

lived radon decay products, gamma radiation, the long-

lived radon decay products, and airborne tailings.

From our analysis we conclude:

(a) Lung cancer caused by the short-lived decay prod-

ucts of radon is the dominant radiation hazard from

tailings. Effects of gamma radiation, of long-lived radon

decay products, and of airborne tailings from the piles

80a

are generally much less significant, although high gamma

radiation doses may sometimes occur.

(b) Individuals who have tailings in or around their

houses often have large exposures to indoor radon and

hence high risks of lung cancer. For example, in 50%

of a sample of 190 houses with tailings in Grand Junc-

tion, Colorado, we estimate that the lifetime excess risk

due to exposure to short-lived radon decay products prior

to remediation may have been greater than 4 chances

in 100.

(ec) Individuals living near an uncontrolled tailings

pile are also subjected to high risks from short-lived ra-

don decay preducts. For example, we estimate that peo-

ple living continuously next to some of the piles may have

lifetime excess lung cancer risks as high as 4 chances

in 100.

(d) Based on models for the cumulative risk to all

exposed populations, we estimate that, without remedial

action, the radon from all the inactive sites considered

together could cause about 170 to 240 potential excess

lung cancer deaths per century. Of these, 55% to 80%

are projected to occur among persons living less than 50

miles from a pile.

There is a substantial uncertainty in these estimates

because of uncertainties in the rate of release of radon

from tailings piles. the exposure people will receive from

its decay products, and from our incomplete knowledge

of the effects on people of these exposures. In addition,

our estimates are based upon current sizes and geograph-

ical distributions of populations. If populations increase

in the future, the estimated impact would be larger.

We concluded that a primary objective of standards for

cieanup of tailings should be to remove or reduce existing

and potential risks due to radon decay products indoors.

Such risks from indoor radon decay products arise in

two ways—in existing buildings where tailings were

8la

used in construction and cause elevated levels, and from

land contaminated sufficiently to cause elevated levels in

new construction. A secondary objective should be to

reduce high exposures to gamma radiation due to tail-

ings in buildings or on land away from the tailings piles.

We concluded that a primary objective of standards for

control of tailings should be isolation and stabilization to

prevent their misuse by man and dispersal by natural

forces, such as wind, rain, and flood waters. A second

objective should be to reduce radon emissions from tail-

ings piles. A third objective should be the elimination of

significant exposure to gamma radiation from tailings

piles.

2. Water Pathways. Although water contamination

does not now appear to be a significant source of imme-

diate radiation exposure at the piles, both radionuclides

and nonradioactive toxic substances, such as arsenic,

molybdenum, and selenium, could be leached or other-

wise removed from tailings and contaminate water re-

sources. If this occurred, it could then affect crops, ani-

mals, and people. Such contamination could, in principle,

be caused by either past or future releases from the tail-

ings. Tailings piles at inactive sites have already lost

most of the water deposited in them during mill opera-

tions through evaporation and seepage. However, ele-

vated concentrations of radioactive or toxie substances

in ground water have been observed at only a few of the

designated sites (four are identified in the FEIS), and

in some standing water ponds (but not in running water).

Any future water contamination would arise from the

effects of rain or through flooding of a pile, from pene-

tration of a pile from below by ground water, or from

leaching of tailings transported off a pile.

A theoretical analysis performed for the Nuclear Reg-

ulatory Commission (NRC) of a larger model pile

showed that contamination of ground water by selenium,

82a

sulfate, manganese, and iron might exceed current drink-

ing water standards over an area 2 kilometers wide and

8 to 30 kilometers long. However, more than 95% of

this projected contamination was attributable to initial

seepage of process water discharged to the pile during

mill operations. The movement of contaminants through

a pile and subsoil to ground water depends on a com-

bination of complex chemical and physical properties, as

well as on local precipitation and evaporation rates.

Chemical and physical processes can effectively remove

or retard the flow of many toxic substances passing

through subsoil. However, some contaminants such as

arsenic, molybdenum, and selenium, can occur in forms

that are not removed. Typically, ground water can move

as slowly as a few feet per year, and only in coarse or

eracked materials does the speed exceed one mile per

year. For these reasons, contaminants from tailings may

not affect the quality of nearby water supply wells for

decades or longer after they are released. However, once

contaminated, the quality of water supplies cannot usu-

ally ve easily restored simply by eliminating the source

‘although, in some cases removing or isolating the tail-

ings may contribute to improving water quality).

Based on results from the NRC generic model for

mill tailings piles, it is likely that the few observed cases

of ground water contamination resulted from seepage of

the original liquid waste discharges from the mill. Addi-

tional future contamination of ground water should be

much smaller, and in most cases would be expected to be

minimized by measures required to control misuse of tail-

ings by man and dispersal by wind, ‘ain, and fiood

waters. These measures should also effectively eliminate

the threat of contamination of surface water by runoff

or from leaching of tailings transported off piles, and

provide reasonable protection of surface and ground

water from contamination by flooding. However, at a

few specific sites, especially in areas of high rainfall or

83a

where ground water tables intersect the piles, special con-

sideration of possible future contamination of grounu

water may be needed.

Though a few sites appear to have some existing con-

tamination due to the presence of tailings

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