Opposition Brief — United Nuclear Corp. v. Thomas

Nos. 85-1279, 85-1280 and 85-6404

Iu the Supreme Court of the Wuiteh States: 5

OCTOBER TERM, 1985

MAY 18 1986

UNITED NUCLEAR CORPORATION, ET AL., PETIPIONERS SPANIOL, UR.

CLERK

v. tk

ENVIRONMENTAL PROTECTION AGENSY

meee

AMERICAN MINING CONGRESS, PETITIONER

Vv

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

CHAUNCEY KEPFORD, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

\.

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

CHARLES FRIED

Solicitor General

F. HENRY HABICHT IT

Assistant Attorney General

JACQUES B. GELIN

EDWARD J. SHAWAKER

DAVID W. ZUGSCH WERDT

FRANCIS S. BLAKE Attorneys

General Counsel Washington, D.C. 20530

ALAN W. ECKERT Department of Justice

CHARLES S. CARTER (202) 633-2217 |

CHRISTOPHER C. HERMAN

Attorneys

Environmental Protection Agency

Washington, D.C. 20460

QUESTIONS PRESENTED

1. Whether the Uranium Mill Tailings Radiation

Control Act of 1978 requires the Administrator of

the Environmental Protection Agency (EPA) to

make a finding of significant risk in promulgating

standards under the Act (No. 85-1279).

2. Whether that Act authorizes the EPA Admin-

istrator to establish general standards that apply

within the boundaries of disposal sites for uranium

mill tailings (No. 85-1280).

3. Whether, in promulgating standards under

that Act, the EPA Administrator gave adequate con-

sideration to alternative measures focusing on pro-

tection of the public health and the environment after

1,000 years (No. 85-6404).

4. Whether there was improper Executive Branch

influence on the promulgation of the EPA standards

governing inactive sites (No. 85-6404).

(I)

TABLE OF CONTENTS

Page

EE 2

SE 2

a 2

tani nsnaucsasnseedtnsenncseccnsicnnveuncentenses - 2

Argument ...........----.. DRI Reid ihdtsestrcincinistetemnersimeicetioncsnsonenssnqness 13

Neen eo cinewebeninsbnssinesnecnssessonas 27

TABLE OF AUTHORITIES

Cases:

American Textile Mfrs. Inst. v. Donovan, 452 U.S.

Neen ee eo cpsnenebasnenenenanscennes 18

Anaconda Co. v. Ruckelshaus, 482 F.2d 1301... aes 25

Andrus Vv. Sierra Club, 442 U.S. 347 .....................--- 25

Appalachian Power Co. Vv. EPA, 447 F.2d 495........ 25

Buckeye Power, Inc. v. EPA, 481 F.2d 162, cert.

Fcc tibsncseansncussnsasvensecessocsnecsesess 25

Duquesne Light Co. v. EPA, 481 F.2d 1, vacated,

425 U.S. 987 and 427 U.S. 902 -...... Te rt ER 24

Environmental Defense Fund, Inc. v. EPA, 489

Teen cansunnaptivenndansonces 25

Indiana & Michigan Elec. Co. v. EPA, 509 F.2d

SE ol rricnticnas nc cl ee 25

Industrial Union Dep’t v. American Petroleum

Se aa cemennnspiantenennasennonse 17

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d

mem, Gone. @emeen, 417 U.. 92) .............................. ‘

Simpson Vv. United States, 435 U.S. 6 -.....022--..022--.-... 16

South Terminal Corp. Vv. EPA, 504 F.2d 646 _.......... 24

United States v. Wrightwood Dairy Co., 313 U.S.

Te os nsnassdensunbsasnaunranusen 16

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519.... 26

(II)

iv

Statutes and regulations: Page

Act of Jan. 4, 1983, Pub. L. No. 97-415, 96 Stat.

2067 et seq.:

IE Cag We MR CITED viene cteinenciecncntivcsesnnienn 6,15

ee a Te ns I nace ccceensictittneehie nines 14

fk (Ee | RARER En remem ONE 7

Atomic Energy Act of 1954, 42 U.S.C. (& Supp.

it GF SRSA Aten eCCmen Heme ome anne re 5

ee as ME seein une a a 5

National Environmental Policy Act of 1969,

§ 102(2) (C), 42 U.S.C. 4832(2) (C) ..........0....... 24, 25

Occupational Health and Safety Act of 1970, 29

a Cae A. BED Ge OS O08, ....s...................... 17

Solid Waste Disposal Act, 42 U.S.C. (& Supp. II)

I Me Ie ahaha di lconsdin clan iacatsisicianabiahheiiotinn 4,9

Uranium Mill Tailings Radiation Control Act of

1978, Pub. L. No. 95-604, 92 Stat. 3021 et seq..... 4

Be I, I edn i 2

eR ak Eo | Re Oe ae ane passim

§ 2(b) (1), 42 U.S.C. 7901 (b) (1)....... ee nok tee 14

§ 2(b) (2), 42 U.S.C. 7901 (b) (2) -....... ee... 5

ee eg Ue Mrs WI ID Skins teeicecectininsnecaninns 7

§ 102(a) (1), 42 U.S.C. 7912 (a) (1) ..... nn... 7

§ 102(e) (1), 42 U.S.C. 7912 (e) (1) ~...20 ee. 7

§§ 102-108, 42 U.S.C. 7912-7918 ......... 5

PUD 5 le rs, TN sna escesennccc es 5

§ 108 (a) (1), 42 U.S.C. 7918 (a) (1) 2. 5

Sel, & U.S.C. S024 (6) (3) ...........-...--......-00005.. 5

I ad a passim

SE ENC em an Oe Ei 2, 5,6

ee nN oT es 6, 14, 19

4 U.S.C. 2082 (5) ..................... Se Seah 6

Ce Cees ee CED oc 6, 7, 19

ie eh : | earn 11

Reorg. Plan No. 3 of 1970, 3 C.F.R. 1072 (1966-

I SII ix. ettecctsiiateebicchalnbiesose Soenpiotnasannaiediadmmatalcns 12, 20, 21

40 C.F.R.

eS ee ee an! 2

Pt. 1500:

Section 1502.14(a) hepoadaadaieina es 25

Miscellaneous: Page

124 Cong. Rec. (1978):

i IE shacks eenaprneancedtnnuateniitidesitiveblnsinvessotntsinetabaint 23

A Tia casi cafind enieneseiabedibcbenbgpeoueeieentaanbai 23

I I<. sachets cesbdeeticlnpbcaantnidnosnbieaesieielanesinniand 14

"gn IPERS eetrae seen ner evo ore ease serves kWse 23

i I oi. 0 ik ad ccicealneenananiennsiatiabemunenccainaabinaanoas 23

i IIT asad sh ta claid aipddblbeekennmencensecetibaunnnanseloeauneeree 23

128 Cong. Rec. (daily ed. Oct. i, 1982) :

I Sack ticetorehnrs Snticcineasetenccmspioebonnninitie es 15

BRINE sarc-cs so ct pda caddcar eotnerepibocinndssoeeamscnementtpsiniiioe’ 16

i IE Goons adgcaieetcneticeancsmmeenanreau 16

ME _giRnneSipen re ST ESR AIR es MESH 16

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

pp. FROBOB- EGBG} q........<.....c...00.0+.2- sat CA 16

pp. H8824-H8825 ............ Fone EU N eeA Morton. LER! 16

128 Cong. Rec. E5059-E5061 (daily ed. Dec. 10,

I Sei ics at ARR aah ciel cai ein intenstastcapatigsablancadanioneainaeaealiae 16

a Se Sy ND oo ccseaeeneanne 25

Se I I oie cxseiccceccccccncccadipeeoneanens 7

46 Fed. Reg. (1981):

I oa cacescslcs i ssccan lamlesaaplincinsanticn eben raiaaaied 7

SER a Rasen ON ore ermine beat wtartnem en ro 8

48 Fed. Reg. (1983) :

SS TI icc catis becca sins eueceadupsoor cabbie nectnnoaiatandiiiaaiids 2,8

is TIE phcedearssncbdosetniviosticgcslapelnceaceaeninicanbieesiiadiiaai 3

i I sis acacdoticceeane accahinin cee auadiiaghaceaeianeieeaaleaak 8

SIE Ssiivsesssnonsnannenbhalianncnonbinnaceniealsuaeeetanbiadicoiice 2,9

Oe FRIED. icirichaccvietceetcnjsinpiccsadcaleipcliaher beattainknUnioceattntatiien 3,9

ER ey AU LIL Rea Oal ene SIC 4

H.R. 13382, 95th Cong., 2d Sess. (1978) ...........-....... 20

H.R. 13650, 95th Cong., 2d Sess. (1978) —............. 21, 22, 23

H.R. Conf. Rep. 97-884, 97th Cong., 2d Sess.

(| SCRE ER Ne eeee eee 15

H.R. Rep. 95-1480, 95th Cong., 2d Sess. (1978) :

A RAE ER er ONION 5 1 RO PIER A os Sele EE er 14, 21

NN 14, 22

VI

Miscellaneous—-Continued : Page

1 Office of Radiation Programs, U.S. Environmen-

tal Protection Agency, EPA 520/4-82-013-1,

Final Environmental Impact Statement for

Remedial Action Standards for Inactive Ura-

nium Processing Sites (40 CFR 192) (1982)... 3,4

2 Office of Radiation Programs, U.S. Environmen-

tal Protection Agency, EPA 520/1-83-008-2,

Final Environmental Impact Stzitement for

Standards for the Control of Eyproduct Mate-

rials from Uranium Ore Processing (40 CFR

I hbielnbabibbanedionse 11

S. 2099, 98th Cong., 2d Sess. (1978) ...........0..000022.2-- 23

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1279

UNITED NUCLEAR CORPORATION, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY

No. 85-1280

AMERICAN MINING CONGRESS, PETITIONER

v.

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 85-6404

CHAUNCEY KEPFORD, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

(1)

2

OPINIONS BELOW

The opinions of the court of appeals (Pet. App.

la-42a, 48a-64a)' are reported at 772 F.2d 617 and

772 F.2d 640.’

JURISDICTION

The judgments of the court of appeals were en-

tered on September 3, 1985. Petitions for rehearing

were denied on October 30, 1985 (Pet. App. 209a-

210a, 2lia-212a). The petitions for writs of certio-

rari were filed on January 28, 1986. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254

1).

a STATUTE INVOLVED

Relevant portions of the Uranium Mill Tailings

Radiation Control Act of 1978, 42 U.S.C. 2022,

7901, are reproduced at Pet. App. 213a-216a.

STATEMENT

1, a. Uranium and thorium mill tailings are a

waste byproduct of the processing of uranium ore.

After processing, the ore yields a uranium-rich com-

pound called “yellow cake” and a residue (typically

of coarse sand) constituting the mill tailings. The

yellow cake is a very small percentage (about

0.15%) of the original material. Pet. App. 128a.

The rest of the ore thus must be disposed of as mill

1 Unless otherwise noted, “Pet. App.” references are to the

separately bound appendix to the petition in No. 85-1279.

2 The Agency standards at issue in those proceedings and

the Environmental Protection Agency (EPA) Administrator’s

preamble to those rulemaking proceedings are reported at 48

Fed. Reg. 590 (1983) (Pet. App. 65a-121la), and 48 Fed. Reg.

45926 (1983) (Pet. App. 122a-2082). The standards are

codified at 40 C.F.R. Pt. 192, Subpts. A-E.

a eee ee

3

tailings. Uranium ore processing operations pro-

duced about 160 million tons of tailings between 1948

and 1970. About 25 million tons, one-sixth of this

total, are stored in piles at 24 inactive sites,* 1 Office

of Radiation Programs, U.S. Environmental Protec-

tion Agency, EPA 520/4-82-013-1, Final Environ-

mental Impact Statement for Remedial Action Stand-

ards for Inactive Uranium Processing Sites (40

CFR i92), 15-18, 20-21 (Table 3-1) (1982) [here-

inafter cited as Jnactive Sites FETS]. Tailings piles

at the inactive si‘cs cover an estimated total of 1,000

acres, in areas of from 5 to 150 acres at individual

sites, and range in height from a few feet to as

much as 230 feet. The quantity of tailings at indi-

vidual inactive sites ranges from trace amounts to

approximately 2.7 million tons. Pet. App. 74a; 48

Fed. Reg. 592 (1988).

The rest of the mill tailings are at “active sites”:

primarily operating uranium mills licensed by the

Nuclear Regulatory Commission (NRC) or by the

state in which they are located.* By early 1988, the

total amount of stored tailings at the active sites

had reached about 175 million metric tons, with the

size of individual] tailings piles ranging from 2 to 30

million metric tons. That quantity is expected to at

least double by the year 2000. Pet. App. 128a-129a;

48 Fed. Reg. 45927 (1983).

b. Mill tailings contain hazardous materials, both

radioactive and nonradioactive. The most significant

* Inactive sites include both inactive mill sites and deposi-

tory sites (42 U.S.C. 2022(a)).

* As of January 1983, there were 14 such licensed uranium

mills in operation. Although the regulations at issue here also

apply to thorium mill tailings, the only major thorium mill

licensed is not operating. 48 Fed. Reg. 45927.

a

4

of these materials is radium, a product of radioactive

decay.” The decay of radium, in turn, produces

radon, a radioactive gas that can escape from the

tailings into the environment. The amount of radon

gas released into the air remains constant for many

thousands of years—essentially indefinitely. Inactive

Sites FEIS 15-18.°

The radioactive constituents of uranium miil tail-

ings, such as radium and radon, have been deter-

mined to be carcinogenic and can contribute to ge-

netic and fetal damage. These hazards arise because

(1) the radioactive decay products of radon may be

inhaled, increasing the risk of lung cau.cer; (2) in-

dividuals may be exposed to penetrating gamma radi-

ation from the tailings; and (3) radioactive and

toxic materials may be ingested with food or water.

Pet. App. 74a-75a; 48 Fed. Reg. 45928 (1983).

2. a. On November 8, 1978, Congress enacted the

Uranium Mill Tailings Radiation Control Act of 1978

(UMTRCA), Pub. L. No. 95-604, 92 Stat. 3021 et

seq. Its action was based on the specific finding (§ 2

(a), 42 U.S.C. 7901(a) ) that:

uranium mill tailings located at active and in-

active 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 inter-

state commerce require that every reasonable ef-

fort be made to provide for the stabilization, dis-

posal, and control in a safe and environmentally

5 Other potentially hazardous mill tailings constituents in-

clude arsenic, molybdenum and selenium (Pet. App. 75a; 48

Fed. Reg. 45928 (1983) ).

® Some of the non-radioactive toxic chemicals also persist

indefinitely (48 Fed. Reg. 45928 (1983) ).

5

sound manner of such tailings in order to pre-

vent or minimize radon diffusion into the envi-

ronment and to prevent or minimize other en-

vironmental hazards from such tailings.

The Act accordingly established a program for reme-

dial action at both active and inactive sites (§ 206

(a), 42 U.S.C. 2022).

The Act conferred the principal responsibility for

the actual implementation of the inactive mill site

remedial action program on the U.S. Department of

Energy (DOE) and its Secretary (§§ 102-108, 42

U.S.C. 7912-7918). The United States Environmental

Protection Agency (EPA) and its Administrator

were directed to promulgate general standards for

the implementation of the DOE remedial program

($§ 206(a), 108(a), 42 U.S.C. 2022, 7918(a) ).

The Act also sought to “control * * * tailings [at

active sites] in a safe and environmentally sound

manner and to minimize or eliminate radiation

health hazards to the public” (§ 2(b) (2), 42 U.S.C.

7901(b} (2)). It did so, first, by expanding the defi-

nition of “by-product material” under the Atomic

Energy Act of 1954 (AEA), 42 U.S.C. (& Supp. IT)

2011 et seq., to include uranium and thorium mill

tailings, thereby bringing such tailings within the

scope of NRC’s licensing authority under that Act

(§ 201, 42 U.S.C. 2014(e)(2) (see 42 U.S.C. 2111-

2114)). Second, UMTRCA required NRC to regu-

iate mill operations and disposal sites, through the

NRC-administered licensing process of the AEA, so

as to control mill tailings in accordance with general

standards promulgated by EPA. Congress required

* DOE must also consult with the Secretary of the Interior,

and obtain the concurrence of the NRC in remedial! actions

selected (§ 108(a) (1), 42 U.S.C. 7918(a) (1)).

6

EPA to “promulgate * * * standards of general ap-

plication for the protection of the public health,

safety, and the environment from radiological and

nonradioactive hazards associated with the possession,

transfer, and disposal of” tailings at licensed disposal

sites (which may be existing mill tailings sites or

other sites to which tailings may be moved).

§ 206(a), 42 U.S.C. 2022(b) (1).

b. As originally enacted, Section 206(a) of

UMTRCA, 42 U.S.C. 2022, imposed upon EPA a one-

year deadline for the development of final remedial

action standards for inactive sites, and an 18-month

deadline for the final active site standards. When

the Administrator failed to meet either of these dead-

lines, Congress, reflecting its dissatisfaction with the

delay, amended Section 206 to extend the deadline

for inactive site standards to October 1, 1982, and to

require, in the event the extended deadline was not

met, that remedial action should commence, utilizing

the standards which had been proposed by the Ad-

ministrator in April 1980. The amendment also re-

quired the Administrator to promulgate final active

site standards by October 1, 1983, and provided that,

if the Administrator failed to take final action by

that date, authority to promulgate active site stand-

ards would pass to the NRC. Act of Jan. 4, 1983,

Pub. L. No. 97-415, §18(a)(1), 96 Stat. 2077,

amending 42 U.S.C. 2022(a). At the same time,

Congress added a sentence to Section 206(a) of

UMTRCA (42 U.S.C. 2022(b)) to clarify the range

of factors it intended the Administrator 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

7

and economic costs of applying such standards,

and such other factors as the Administrator de-

termines to be appropriate.

§ 22(b) (2), 96 Stat. 2080, amending 42 U.S.C.

2022(b) (1).

3. EPA had already proposed inactive site stand-

ards when the 1982 amendments to UMTRCA were

enacted. In Aprii 1980, the Administrator proposed

“cleanup” standards to govern the cleanup of tailings

which had been transported from a “processing site”

to a nearby “vicinity property”. 45 Fed. Reg. 27370.°

Proposed standards for disposal of tailings removed

from vicinity properties and for those located in the

original] tailings piles were published in January 1981

(46 Fed. Reg. 2556).

The proposed standards applicable to the perma-

nent stabilization of the tailings piles included a

radon emission limitation (expressed technically as a

radon “flux” standard) of 2 picocuries per square

meter per second (2 pCi/m’s), together with a re-

quirement that the means used to limit radon flux be

designed to provide a reasonable expectation that re-

leases would be controlled for 1,000 years. These

standards also included limitations on releases of

contaminants to groundwater and surface waters

which reflected generally prevailing EPA water qual-

ity standards. The proposed standards applicable to

offsite land and buildings generally provided for

cleanup of offsite land to a level of 5 pCi/g of con-

tamination, and of buildings to a level of .015 work-

° A “processing site” is the premises on which a processing

mill and its attendant tailings piles are located, and “vicinity

properties” are offsite locations to which tailings from the mill

have been dispersed. See §§ 101(6), 102(a) (1) and (e) (1),

42 U.S.C. 7911(6), and 7912(a) (1) and (e) (1).

8

ing levels.” The proposed standards also provided an

exception procedure allowing DOE, under certain de-

scribed circumstances, to engage in remedial actions

which did not meet the applicable standards, so long

as such actions came “as close to meeting the [dis-

posal] standard[s] * * * as is reasonable” under the

circumstances. 46 Fed. Reg. 2563 (1981).

On January 5, 1983, after consideration of the ex-

tensive comments received, the Administrator promul-

gated final standards for Remedial Actions at Inac-

tive Uranium Processing Sites (Pet. App. 65a-121a;

48 Fed. Reg. 590).'° He noted (Pet. App. 65a-66a) :

The purpose of most of [the] changes [from the

proposed standards] is to make implementation

easier and less costly. The changes should not

result in any substantial loss of health or envi-

ronmental protection over that which would have

been provided by the proposed standards.

The Administrator proposed active site standards

for mill tailings at currently licensed milling sites on

April 29, 1983 (48 Fed. Reg. 19584). Permanent

® Working levels (WL) is a measure of concentration of

radioactivity in air.

10The principal changes from the proposed standards

were to set the radon emission limit at 20 pCi/m*s rather

than at 2 pCi/m?s; to qualify the proposed 1,000-year longevity

requirement by adding the phrase “to the extent reasonably

achievable”, and by adding a 200-year minimum longevity re-

quirement; to set the cleanup standard for land at 15 pCi/g

(instead of 5 pCi/g) for soil layers more than 15 centimeters

below the surface; to establish a goal of .62 WL annual aver-

age indoor random concentration (and a maximum of .03

WL), instead of the proposed standard of .015 WL; and to

delete proposed provisions which, in effect, prohibited any

degradation of surface waters or groundwater by contaminants

from the tailings.

9

disposal of the waste was to be designed to provide

reasonable assurance that the average radon emis-

sions from the tailings pile would not exceed 20

picocuries per square meter of the pile per second

(20 pCi/m’s).** The proposed standards provided for

protection of groundwater to a level generally com-

parable to the protection required for surface im-

poundments under EPA regulations promulgated pur-

suant to the Solid Waste Disposal Act, 42 U.S.C. (&

Supp. IT) 6901 et seq.

On September 30, 1983, after considering all com-

ments,” the Administrator promulgated the final ac-

tive site standards. Pet. App. 122a-208a; 48 Fed.

Reg. 45926."* In so doing, he concluded that uranium

mill tailings “pose a present hazard to human health”

and pose an additional substantial hazard for “an

essentially indefinite period,” due primarily to the

long-term radiation hazards (Pet. App. 130a)."* His

11 The size of the pile subject to this standard could be re-

duced by cleaning up the surrounding area to a standard of

5 pCi/g of radium for surface soil and 15 pCi/g of subsur-

face soil.

12 Several hundred written comments were received, in addi-

tion to orai testimony from 34 witnesses at hearings held in

Washii.gton, D.C. and Denver, Colorado. ‘(Comments were

received from a broad spectrum of participants, including

private citizens, public interest groups, members of the scien-

tific community, representatives of industry, and State and

Federal agencies.” Pet. App. 125a-126a.

13 Changes were made to several aspects of the groundwater

protection requirements in respense to comments (48 Fed.

Reg. 45927 (1983)).

14 Indeed, he concluded that ‘‘[i]n the long run the future

risks to health of indefinitely extended contamination from

misused and dispersed tailings due to inadequate control

10

estimates of the magnitude of the health risks were

based on a widely-accepted scientific hypothesis that

any radiation dose poses some risk, and that the risk

from low doses is directly proportional to the risk that

has been demonstrated at higher doses (id. at 131a).

The final standards are based, however, on the rec-

ognition that “[i]t is not possible to reduce the risk

to zero” and that deciding on the appropriate stand-

ard required an evaluation of the practicality, bene-

fits, and technical difficulties associated with different

levels of control (id. at 133a).

The final active site standards are divided into two

parts. The first part applies to the management of

tailings piles during and after cessation of milling

operations but prior to completion of final disposal

(Pet. App. 203a). The second part specifies the con-

ditions to be achieved by final disposal (id. at 2052).

The final active site disposal standards require long-

term controls over emissions of radon gas from tail-

ings piles: final disposal systems must provide rea-

sonable assurance that average radon emissions from

the “disposal area” do not exceed 20 pCi/m’s for

1,000 years after disposal ‘‘to the extent reasonably

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

(id. at 205a-206a).° Reducing radon emissions to

overshadows the short-term danger to pubiic health” (Pet.

App. 13a).

15 As in the proposed rule, the “disposal area” is defined

according to how much cleanup would render land suitable

for general use. This cleanup standard, as in the proposai

(see note 11, supra), is 5 pCi/g for surface soil and 15

pCi/g for subsurface soil; any area that is cleaned up to

these levels will not be considered a “disposa! area’ subject

to the post-disposal radon emission standard or the primary

groundwater protection requirements. Pet. App. 205a-206a.

11

this level eliminates more than 95 percent of the lung

cancer risk associated with mill tailings. 2 Office of

Radiation Programs, U.S. Environmental Protection

Agency, EPA 520/1-83-008-2, Final Environmental

Impact Statement for Standards for the Control of

Byproduct Materials from Uranium Ore Processing

(40 CFR 192), at A.1-24 (1988) (response to com-

ment 7) [hereinafter cited as Active Sites FEIS].**

4. Petitioners and others challenged both sets of

standards by filing timely petitions for review pur-

suant to 42 U.S.C. 2022(c) (2)."" In support of their

challenges, petitioners raised numerous legal and

technical objections, including the arguments pressed

here. The court of appeals rejected all of petition-

ers’ objections in separate opinions issued on Septem-

ber 3, 1985."*

The court of appeals, relying on the statutory find-

ings, held that EPA was not required to find that the

mill tailings piles pose a “significant risk” before

promulgating regulations under the UMTRCA (Pet.

App. 136a). It also found unpersuasive United Nu-

clear Corporation’s (UNC) arguments, identical to

those urged here, that the 1982 amendments and their

16 EPA estimated that ‘without control, the radon released

directly from all tailings currently in existence at presently

(1983) licensed sites would cause about 500 lung cancer

deaths per century. * * * By the year 2000 * * * without con-

trol, the amount of tailings existing then would cause approxi-

mately 600 lung cancer deaths per century (Pet. App. 136a).

17 Petitioner Kepford petitioned for review only of the active

site regulations (Pet. App. la, 43a).

18 Tt did find that the inactive site standards were inade-

quate in not providing for groundwater protection, and re-

manded the case to the agency “for further consideration of

that specific provision” (Pet. App. 39a-42a).

12

legislative history signaled a significant change in the

congressional approach to risk evaluation (Pet. App.

17a-19a, 50a).

The court of appeals noted that the “strict distinc-

tion between the EPA operating outside site bound-

aries and the NRC operating on-site” (Pet. App. 21a)

originated in the standard-setting authority trans-

ferred to EPA from NRC’s organizational predeces-

sor, the Atomic Energy Commission, by the 1970 Re-

organization Pian which created KPA.’ However,

the court concluded that neither the statutory lan-

guage, the legislative history, nor the underlying con-

gressional purpose supported the contention that “this

strict distinction” also applied in the case of the

standard-setting authorized by UMTRCA (Pet. App.

21a, 50a, 54a-55a).

Finally, the court of appeals rejected petitioner

Kepford’s complaint that EPA did not adequately

consider the alternative of deep well disposal of mill

tailings, noting that “EPA acted within its powers

in rejecting this method, rationally finding it had

potential for more serious ground water contamina-

tion” (Pet. App. 58a). The court of appeals did not

find it necessary to address specifically petitioner

Kepford’s contentions concerning the asserted im-

proper involvement of the Office of Management and

Budget in the standard development process.

19 The Reorganization Plan, in pertinent part, defined the

standard-setting authority in terms of “limits on radiation

exposures or levels, or concentrations or quantities of radio-

active material, in the general environment outside the bound-

aries of locations under the control of persons possessing or

using radioactive material.” Reorganization Plan No. 8 of

1970, 3 C.F.R. 1072 (1966-1970 comp.).

13

ARGUMENT

The decisions of the court of appeals are correct

and do not conflict with any decision of this Court

or of any other court of appeals. Accordingly, they

do not warrant review by this Court. Contrary to

petitioners’ assertions, the court of appeals applied

the plain meaning of the statute; its decisions are in

keeping with the legislative history, and the court did

not err in recognizing that the Act vested EPA with

a substantial measure of discretion to establish limi-

tations for uranium mill tailings. The standards in

question were promulgated after careful review of all

comments and a detailed analysis of scientific evi-

dence; they are well supported by the administrative

record.

l.a. No significant risk finding is required under

UMTRCA because Congress made that finding in en-

acting the statute. UMTRCA contains explicit con-

gressional findings that because “uranium mill tail-

ings located at active and inactive mill operations

may pose a potential and significant radiation health

hazara to the public * * * the protection of the public

health, safety, and welfare * * * require that every

reasonable effort be made to provide for the stabiliza-

tion, disposal, and control * * * of such tailings in

order to prevent or minimize radon diffusion into the

environment and to prevent or minimize other envi-

ronmental hazards from such tailings.” §2(a), 42

U.S.C. 7901(a). Based precisely on these findings,

Congress determined “to provide * * * a program

of assessment and remedial action at [inactive and

active] sites, * * * in order to stabilize and control

such tailings in a safe and environmentally sound

manner and to minimize or eliminate radiaticn health

14

hazards to the public.” §2(b)(1), 42 U.S.C. 7901

(b) (1). |

The legislative history confirms the plain statutory

findings: “The [House] committee is convinced that

all tailings pose a potential and significant radiation

health hazard to the public.” H.R. Rep. 95-1480,

95th Cong., 2d Sess. Pt. 2, at 29 (1978). Because of

this hazard, Congress directed the Administrator of

EPA to formulate standards to be implemented by

the remedial action program the Act established.

§ 206(a), 42 U.S.C. 2022(a).

In 1983, Congress revised Section 206(a) of

UMTRCA to direct the Administrator to “consider”

risks, costs and “other factors as the Administrator

determines to be appropriate,” in setting standards

within this basic framework. Pub. L. No. 97-415,

§ 22(b) (1), 96 Stat. 2080. Those revisions changed

neither the recital of risks in the legislative preamble,

nor the directive to regulate set out in Section

206(a). Indeed, Congress at the same time set a

tight deadline for completing this regulatory task.

Congress was intent upon endorsing and expediting

an approach already being followed; it did not revise

the basic criteria which were to control the Admin-

“© The House Committee report further noted that: “[T]he

dangers which accompany [the mill tailings radioactive decay

process] will continue for a billion years. As a result of being

for all practical purposes, a perpetual hazard, uranium mill

tailings present the major threat of the nuclear fuel cycle.”

H.R. Rep. 95-1480, supra, Pt. 1, at 11. Senator Randolph, a

leading sponsor of UMTRCA in the Senate, stated that “the

hazardous wastes from uranium mills present a long-ignored

threat to the health and safety of our citizens. Although these

mill tailings are far less toxic than spent fuel or high level

waste, they persist for long periods of time.” 124 Cong. Rec.

36696 (1978).

15

istrator’s task.*" As the Conference Committee ex-

plained (H.R. Conf. Rep. 97-884, 97th Cong., 2d Sess.

47 (1982)):

The conferees note that this language reflects ac-

curately the current regulatory approach of the

agenc[y]. The language agreed to by the con-

ferees should not result in any delays in estab-

lishment ef remedial action standards.

The principal purpose of the Senate’s addition of

references to specific factors in Section 206(a) of

UMTRCA was to provide an explicit basis in statu-

tory language for the Administrator’s consideration

of implementation costs in setting standards.” The

21 Thus, the amendments to Section 206(a} provided that.

should the Administrator fail to issue final remedial action

standards by the new deadline, the standards he had already

proposed would become effective for the interim period be-

tween that date and “such time as the Administrator promul-

gates such standards in final form.” 96 Stat. 2077.

22 As explained by Senator Simpson, the bill’s floor manager

and chairman of the subcommittee responsible for the bill

(128 Cong. Rec. $13052 (daily ed. Oct. 1, 1982)):

[t]he conferees have agreed to include specific references

in the appropriate sections of the Atomic Energy Act

‘directing EPA and NRC, in promulgating such standards

and regulations, to consider the risk to public health and

safety, and the environment, the economic costs of such

standards or regulations, and such other factors as EPA

or NRO, respectively, determine to be appropriate. Es-

sentially, we intend by this requirement that these agen-

cies must balance the costs of compliance against the

projected benefits to assure that there is a reasonable

relationship between the two.

The remarks of Senator Schmitt—upon which petitioners

United Nuclear Corporation (UNC) et al. rely (Pet. 17-18)—

are much less significant. Senator Schmitt was not a “co-

16

Amendment in no way purports to alter the clear

intent of the enacting Congress “that every reason-

able effort be made to provide for the stabilization,

disposal, and control * * * of such tailings in order

to prevent or minimize radon diffusion * * * and

* * * other environmental hazards from such tail-

ings,” and the direction to the EPA Administrator

to issue specifically described remedial action stand-

ards to accomplish this result.** §2(a), 42 U.S.C.

7901(a).

sponsor of the 1982 UMTRCA Amendments,” as petitioners

assert. He simply sponsored an unrelated provision to restrict

uranium imports, ultimately rejected by the House as not

germane. See 128 Cong. Rec. $138292-S13293 (daily ed. Oct. 1,

1982) ; 128 Cong. Rec. H8802-H8809 (daily ed. Dec. 2, 1982).

Accordingly, the remarks cited by petitioners—which were

printed in the Congressional Record (128 Cong. Rec. $13293

(daily ed. Oct. 1, 1982) ) but not delivered on the floor—should

be disregarded to the extent that they are inconsistent with

the explanation of the bill’s floor manager, Senator Simpson.

See, e.g., Simpson V. United States, 485 U.S. 6, 13-14 (1978) ;

United States v. Wrightwood Dairy Co., 315 U.S. 110, 125

(1942) ;

A similar pattern reoccurred in the House. The interpre-

tations of the floor managers, Representative Udall and

Ottinger, were consistent with the views of the Conference

Report, while the inconsistent views of Representative Lujan

of New Mexico, a member of the Conference Committee, were

placed in the record as “extensions of remarks” one week after

the floor debate. Compare 128 Cong. Rec. H8824-H8825 (daily

ed. Dec. 2, 1982), with 128 Cong. Rec. E5059-E5061 (daily ed.

Dee. 10, 1982).

*3 Senator Hart, the ranking minority member of Senator

Simpson’s subcommittee explained in floor debate (128 Cong.

Rec. §$13292 (daily ed. Oct. 1, 1982) ): “none of these amend-

ments affects the Findings and Purposes section of the

Uranium Mill Tailings Act’.

17

b. UNC relies upon this Court’s decision in /n-

dustrial Union Dep’t v. American Petroleum Inst.,

448 U.S. 607 (1980), as support for the proposition

“that new standards designed to abate insignificant

risks are ‘unreasonable’” (Pet. 14). The court of

appeals correctly concluded that Jndustrial Union is

inapplicable in the instant context. The Court’s con-

clusion there turned on the language of the Occupa-

tional Health and Safety Act of 1970 (OSHA), 29

U.S.C. (& Supp. IT) 651 et seg. As the Court ex-

plained (448 U.S. at 642 (emphasis in original) ):

By empowering the Secretary to promulgate

standards that are “reasonably necessary or ap-

propriate to provide safe or healthful employment

and places of employment,” [Section 3(8) of]

the Act [(29 U.S.C. 652(8))] implies that, be-

fore promulgating any standard, the Secretary

must make a finding that the workplaces in ques-

tion are not safe. * * * [Aj workplace can

hardly be considered “unsafe” unless it threatens

the workers with a significant risk of harm.

Therefore, before he can promulgate any perma-

nent health or safety standard, the Secretary is

required to make a threshold finding that a place

of employment is unsafe—in the sense that sig-

nificant risks are present and can be eliminated

or lessened by a change in practices.

Thus, the plurality’s holding in Industrial Union

was based on OSHA’s specific statutory scheme,

which gave the Secretary of Labor broad authority

to regulate work place safety according to priorities

that he was to determine (448 U.S. at 643-644).

In sharp contrast, in enacting UMTRCA, Con-

gress explicitly found that mill tailings at active

and inactive sites “may pose-a potential and signifi-

18

cant radiation health hazard to the public, and that

the protection of the public health, safety, and wel-

fare * * * require that every reasonable effort be

made to provide” methods to reduce that risk (§ 2

(a), 42 U.S.C. 7901(a)). In light of that finding,

there was no need for any agency reaffirmation of

the risk identified by Congress.** As the court of

appeals observed (Pet. App. 16a): “[iJn_ the

UMTRCA Congress commanded the EPA, the NRC,

and the DOE to deal with the problems posed by

uranium mill tailings.”

2. Petitioner American Mining Congress (AMC)

errs in contending that EPA may only establish

standards that apply outside the boundaries of miil

tailings sites.” The statute does not prohibit EPA

from setting standards that apply within the bound-

aries of disposal sites, so long as they are generally

applicable rather than site-specific.

Although the starting point for determining the

meaning of a statute is its language (American

Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 508

(1981)), AMC is unable to point to any language

in the statute that supports its construction.

*4 In any event, in the standard setting process, EPA in fact

extensively analyzed the risks involved and found them to be

significant. See pages 9-10, supra.

*5 Petitioner contends that this restriction has been violated

in three respects: EPA’s radon emissiun limit (or “flux”

standard), which regulates the rate of radon releases from

mill tailings piles; the radium-in-soil cleanup standard; and

the “primary” and “secondary” ground-water standards, all

of which operate inside the current boundaries of mill tailings

disposal sites (AMC Pet. 7-8). The radium-in-soil cleanup

standard, however, is designed to permit the release of land

for unrestricted use; such land thereafter will no longer be

“within” the site.

19

UMTRCA simply does not contain the “off-site” lim-

itation urged by AMC. EPA is instead required to

promulgate “standards of general application” to

protect “the public health, safety, and the environ-

ment from radiological and non-radiological hazards

associated with” mill tailings. § 206(a), 42 U.S.C.

2022(a) and (b)(1). Nothing in this mandate even

remotely suggests that such standards may not ap-

ply within the boundaries of disposal sites. On the

contrary, when this language is read in conjunction

with the Act’s statement of findings and purposes,”

the plain meaning is that EPA may promulgate reg-

ulations that apply within the boundaries of such

sites, when appropriate to protect public health and

the environment.

AMC relies heavily on the requirement that EPA’s

standards must be “of general application.” But

this requirement prohibits EPA from promulgating

site-specific standards; it does not prohibit regula-

tions that apply within the boundaries of disposal

sites. EPA’s regulations ave not site-specific; they

are generic standards that apply to all disposal sites.

EPA therefore has violated no statutory mandate.

b. The legislative history is consistent with the

plain meaning of the statute. Indeed, the legislative

history shows that Congress deliberately chose not

to limit EPA’s authority in the manner suggested

by AMC.

In 1970, President Nixon signed Reorganization

Plan No. 3, transferring to EPA some of the func-

26 ‘TE ]very reasonable effort [must] be made to provide

for the stabilization, disposal, and control in a safe and en-

vironmentally sound manner of * * * tailings in order to

prevent or minimize radon diffusion into the environment.”

42 U.S.C. 7901 (a).

20

tions of the Atomic Energy Commission (subse-

quently reorganized in 1974 as the Nuclear Regula-

tory Commission). 3 C.F.R. 1072 (1966-1970 comp.).

EPA was given the authority to set “generally ap-

plicable environmental standards”, including “limits

on radiation exposures or levels, or concentrations or

quantities of radioactive materials, in the general

environment outside the boundaries of locations un-

der the control of persons processing or using radio-

active material.” §2(a)(6) (8 C.F.R. at 1073)

(emphasis added). The Reorganization Plan left un-

altered the AEC’s authority within such boundaries.

AMC argues (at 10-16) that, in enacting

UMTRCA, Congress intended to codify all aspects of

the division of responsibility between EPA and AEC

(now NRC) set forth in Reorganization Plan No. 3,

including the limitation on EPA’s authority to set

standards that apply only “in the general environ-

ment outside the boundaries” of licensed sites (id.

at 10 (emphasis in petition) ).*7 But this is not what

happened.

In the House several bills worked their way

through two different committees. Congressman

Udall introduced H.R. 13382, 95th Cong., 2d Sess.

(1978), which was referred to his Subcommittee on

*7 AMC asserts (Pet. 11 n.14), that since UMTRCA as en-

acted uses the phrase “standards of general application,” and

Reorganization Plan No. 3 uses the phrase “generally appli-

cable environmental standards,” the reach of the standard-

setting authority under both statutes is identical. The signifi-

cant fact, however, is that the Reorganization Plan’s explicit

reference to standards which impose limits “in the general

environment outside the boundaries” is conspicuously absent

from UMTRCA. This omission demonstrates a deliberate con-

gressional decision not to replicate the Reorganization Plan

limitations in the UMTRCA.

21

Energy and the Environment of the Committee on

Interior and Insular Affairs. Section 206 of that

subcommittee’s draft, dated July 27, 1978, added

Section 275 to the Atomic Energy Act. It would have

required EPA to “promulgate generally applicable

standards for the protection of the general environ-

ment” from radiological and nonradiological hazards

of mill tailings. It also specified that “such stand-

ards [shall] * * * impose limits on exposures or lev-

els, or concentrations or quantities of hazardous ma-

terials in the general environment outside the bound-

aries of’ processing or disposal sites (H.R. 13382,

supra, at 15-16 (emphasis added) )—the identical

language found in Reorganization Plan No. 3 (38

C.F.R. 1072 (1966-1970 comp.) ).

But, as reported by the full committee on August

11, 1978, the Udall bill (now numbered H.R. 13650,

95th Cong., 2d Sess.), no longer contained the lan-

guage restricting EPA to “off-site” standards. The

revised committee draft instead required EPA’s

standards to protect the environment outside such

sites.”

That this change in language was deliberate and

substantive is indicated by three factors. First, the

Committee Report accompanying the bill conspic-

uously omits any reference to a site boundary limita-

tion on EPA’s authority. Nor is any such limitation

mentioned in the summary of the bill, which merely

refers to EPA’s authority to protect the environment

outside site boundaries. H.R. Rep. 95-1480, supra,

Pt. 1, at 29. Second, in piace of limiting EPA to “off-

28 As reported, the bill required EPA to “promulgate * * *

generally applicable standards and criteria for protection of

the general environment outside the boundaries” of processing

and disposal sites. H.R. Rep. 95-1480, supra, Pt. 1, at 10.

22

site’ standards, the report precluded EPA from

promulgating “site-specific” requirements for “man-

agement, technology or engineering’”—functions to

be left to the NRC as the implementing agency (id.

at 17). Third, the House report enlarged the types

of requirements EPA would be authorized to estab-

lish; most relevant here, the report specifically indi-

cated that EPA could regulate radon hazards by

limiting the “quantities of the substances released

[by a mill tailings pile] over a period of time”

(ibid.) This is, of course, the radon emission (flux)

standard approach which EPA decided to employ; it

necessarily applies within the site boundaries, and

the House report makes clear that EPA was to have

the authcrity to issue such requirements (id. at 16-

17, 21).

Concurrently with the proceedings in Congress-

man Udall’s committee, Congressman Dingell’s Sub-

committee on Energy and Power of the Interstate

and Foreign Commerce Committee was also consid-

ering: H.R. 13650, wheve the pertinent legislative his-

tory was essentially duplicated. The subcommittee

print dated August 4, 1978, required EPA to set

standards “of general application” that “shall apply

outside the boundaries * * *. However, this site

boundary limitation was eliminated from the full

Committee draft. In its place, as in the Interior

Committee report, is simply a statement that

“stresses that the EPA standards are not to be site-

specific.” H.R. Rep. 95-1480, supra, Pt. 2, at 46.

Thus, in both committees, the concept of a geog-

graphy-based limitation on EPA’s standard-setting

authority evolved into a functional distinction based

on EPA’s and NRC’s respective standard-setting and

licensing roles: EPA would establish standards of

23

general applicability, and NRC would implement and

enforce those standards on a site-specific basis.”

The Senate consideration of its bill is to the same

effect. Senator Randolph, a co-sponsor of the Senate

bill, in explaining its provisions to the Senate,

pointed out that the relevant section-by-section anal-

ysis provides that the EPA Administrator is “to pre-

scribe general standards of performance, not specific

management requirements and not site specific” (124

Cong. Rec. 36697 (1978) ). As examples of the kinds

of “genera! standards” EPA was expected to pro-

mulgate, Senator Randolph cited “general require-

ments that sites be designed and managed to prevent

any contact of the tailings by human or animal life

* * * general performance standards for stabiliza-

tion of tailings * * * [and] [l]imitations on * * *

emissions or other introduction of * * * constituents

of mill tailings in the air or ground or surface

waters” (ibid.). Such standards obviously would

have to apply inside site boundaries.

The legislative history thus clearly supports the

Administrator’s construction of the Act, if any aids

to interpretation are necessary. Both houses of Con-

gress accepted a final bill that eliminated the very

proscription against ‘“‘on-site” regulation that AMC

29 Following the House’s passage of H.R. 13650, that bi!.

was put before the Senate (124 Cong. Rec. 36687 (1978)),

which had already considered its own bill. Senator Garn,

Chairman of the Nuclear Regulatory Subcommittee of the

Senate Committee on Energy and Natural Resources, proposed

an amendment (S. 2099, 95th Cong., 2d Sess. (1978)) in the

nature of a substitute to the House-passed bill (124 Cong. Rec.

36688 (1978) ). The Garn amendment was adopted and passed

by the Seuate (id. at 36699). The House then approved the

Senate bill, with amendments not relevant here (id. at 38230).

24

claims to find in the law.*° Both houses of Congress

specifically mention on-site control measures, includ-

ing a radon emission (flux) standard, as among the

tools at EPA’s disposal. As ultimately enacted, the

law delineates a sensible division of responsibility be-

tween EPA and NRC that is based on their respective

functions (general standard setting vs. site-specific

licensing and implementation), while recognizing that

EPA’s regulations apply on-site as necessary to

achieve the Act’s goals of protecting against the

potentially serious and long-term nature of the hazard

involved.

3.a. Petitioner Kepford argues (at 16-18) that,

in promulgating the challenged standards, the EPA

Administrator failed to give adequate consideration

to the disposal of uranium mill tailings in abandoned

deep mines, or other long-term control strategies, in

violation of Section 102(2)(C) of the National Envi-

ronmental Policy Act of 1969 (NEPA), 42 U.S.C.

4332(2)(C).

Every court of appeals that has considered the

question has concluded that NEPA’s procedural re-

quirements relating to the preparation of an Environ-

mental Impact Statement (EIS) do not apply to

EPA’s regulatory activities.*' Here, the standards at

30 Indeed, as finally enacted, the legislation does not even

limit EPA’s authority to protection of the general environment

“outside the boundaries,” as the Udall Committee bill had

provided; instead, it broadly directs EPA to protect against

the hazards associated with mill tailings.

31 F.g., Portland Cement Ass’n Vv. Ruckelshaus, 486 F.2d

375, 379-387 (D.C. Cir. 1973), cert. denied, 417 U.S. 921

(1574) ; South Terminal Corp. v. EPA, 504 F.2d 646, 676 (1st

Cir. 1974) ; Duquesne Light Co. v. EPA, 481 F.2d 1, 9 (3d

Cir. 1973), vacated, 425 U.S. 987 and 427 U.S. 902 (1976);

lke recseAlis Mingle

25

issue have been promulgated by the Administrator

pursuant to a substantive statutory mandate and

statutory procedures that are clearly designed to “en-

sure full and adequate consideration of environmen-

tal issues.” Environmental Defense Fund, Inc. v.

EPA, 489 F.2d 1247, 1257 (D.C. Cir. 1973). Peti-

ticner’s argument that the Administrator’s standards

must be vacated for failure to comply with NEPA’s

requirement for consideration of alternatives accord-

ingly is without merit.”

In any event, NEPA requirements were satisfied

here. EPA did consider requiring the disposai of mill

tailings in abandoned deep mines, the only extremely

long-term disposal technique suggested by petitioner

Kepford, but rejected it in light of the serious risk

of contamination to regional groundwater resources

associated with that technique. Pet. App. 145a. The

court of appeals found that EPA acted rationally in

reaching this conclusion (Pet. App. 58a); NEPA thus

would not require that it be further considered.**

Appalachian Power Co. v. EPA, 477 F.2d 495, 508 (4th Cir.

1973) ; Buckeye Power, Inc. v. EPA, 481 F.2d 162, 174 (6th

Cir. 1973), cert. denied, 425 U.S. 934 (1976); Indiana &

Michigan Elec. Co. v. EPA, 509 F.2d 839, 843 (7th Cir. 1975) ;

Anaconda Co. Vv. Ruckelshaus, 482 F.2d 1301, 1305-1306 (10th

Cir. 1973).

82 The Agency has, since May 7, 1974, voluntarily undertaken

the preparation of environmental impact statements as a part

of its standard-setting process. This policy was implemented

with the caveat that “[t]he voluntary preparation of impact

statements, however, in no way subjects the Agency to the

requirements of section 102{2) (C) of [NEPA].” 39 Fed. Reg.

37419. This policy was specifically invoked by the Agency in

the draft Environmental Impact Statement.

33 See Council for Environmental Quality Regulations at 40

C.F.R. 1502.14(a). The CEQ regulations are entitled to defer-

ence in construing the requirements of NEPA. Andrus v.

Sierra Club, 442 U.S. 347, 358 (1979).

26

Since petitioner has suggested no other extreme long-

term control strategy that merited further considera-

tion by EPA, its failure to discover and extensively

consider other control strategies for periods exceeding

1,000 years does not require that the standards be

vacated. See Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense Council, Inc., 435 U.S.

519, 553-554 (1978).

b. Although petitioner Kepford challenges no pro-

vision of the EPA standards at issue here as sub-

stantively defective, he argues (Pet. 2-8) that the

regulations must be vacated and remanded for re-

consideration because the Office of Management and

Budget may have infiuenced EPA to inappropriately

consider costs in determining the final form of the

standards. In support of this argument, petitioner

refers only to materials that relate to the EPA Ad-

ministrator’s standards for inactive uranium mill

tailings sites. Pet. 4-5; Kepford Pet. Apps. E, F.

Petitioner lacks standing to object to those standards

here, since he did not challenge the inactive site reg-

ulations before the court of appeals.** In order to

relate the cited materials to the proceedings below in

the case in which he did participate, petitioner simply

notes that “standards for active tailings [sic] were

also under consideration by EPA at that time.” Pet.

4. Petitioner’s argument at best rests on no more

than speculative inferences that the alleged improper

influences on the inactive site regulations also af-

fected the active site regulations. Hence, this conten-

tion, which was not presented in its present form

below, does not warrant this Court’s review.

34 This issue was not raised by any other petitioner in the

separate proceedings before the court of appeals concerning

those standards.

27

CONCLUSION

The petitions for writs of certiorari should be

denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F.. HENRY HABICHT IT

Assistant Attorney General

JACQUES B. GELIN

EDWARD J. SHAWAKER

DAVID W. ZUGSCHWERDT

Attorneys

FRANCIS 8. BLAKE

General Counsel

ALAN W. ECKERT

CHARLES §S. CARTER

CHRISTOPHER C. HERMAN

Attorneys

Environmental Protection Agency

MAY 1986

b= U. S. GOVERNMENT PRINTING OFFicE; 1966 491507 20213