Petition for Writ of Certiorari — American Mining Mining Congress Congress v. Thomas (Nos. 85-1280, 85-1279)
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1985
AMERICAN MINING CONGRESS.
Petitioner,
LEE M. THOMAS, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY
and
ENVIRONMENTAL PROTECTION AGENCY
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
ANTHONY J. THOMPSON,
(" unsel of Record
Of Counsel: JOHN G. DEGOOYER
LARRY A. Boccs CHARLES E. SLITER
American Mining Congress HAMEL & PARK
1920 N Street, N.W. 888 Sixteenth Street, N.W.
Washington, D.C. 20036 Washington, D.C. 20006
(202) 861-2876 (202) 835-8000
Counsel for Petitioner
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8202
.
QUESTION PRESENTED
Whether Congress, in authorizing a program under
the Atomic Energy Act (AEA) for the regulation of
uranium mill tailings in the Uranium Mill Tailings
Radiation Control Act of 1978 (UMTRCA), intended
to expand the scope of EPA’s regulatory jurisdiction
(i) when Congress defined EPA’s authority under
UMTRCA by using the same terminology that had
been used to define that agency’s authority under the
AEA prior to UMTRCA, and (ii) when such a change
would have meant granting to EPA jurisdiction re-
served exclusively by the AEA to the Nuclear Reg-
ulatory Commission or the Secretary of Energy.
PARTIES TO THE PROCEEDING
Petitioner is the American Mining Congress, a na-
tional trade association whose members produce most
o1 the Nation’s metals, coal, uranium and other min-
eral products. *
“In the court below, the American Mining Congress filed two
petitions for review of EPA’s regulations. In Nos. 83-1014, ete.,
772 F.2d 617 (10 Cir. 1985), the following were also petitioners:
United Nuclear Corporation, Homestake Mining Company, Qui-
vira Mining Company, Kerr-McGee Corporation, Sierra Club,
The Environmental Defense Fund, Inc., National Resources De-
fense Council, Southwest Research and Information Center, and
Jean Slattery. In Nos. 83-2226, etc., 772 F.2d 640 (10th Cir.
1985), the following were also petitioners: United Nuclear Cor-
poration, Homestake Mining Company, Amax, Inc., Solar Lobby,
The Environmental Defense Fund, Inc., National Wildlife Fed-
eration, Sierra Club, Al Mangan, Chauncey Kepford and Judith
H. Johnsrud. The State of Colorado intervened in both cases.
iil
TABLE OF CONTENTS
Page
IE MRMIOEMEE cacscansocnnssvesceinvecasunsssnscnssncsessss i
PARTIES TO THE PROCEEDING ......cccccccccccccccccccccccccces il
ee. sacunsczecvonacansscacscesscausens iv
NS ]
Neen ene en ceed secactbuseccabwacsaweeccaves 2
STATUTES AND REGULATIONS INVOLVED ..............0000. 2
\
Neen ne eee uasunasndehavacsoneancvens 3
REASONS FOR GRANTING THE WRIT .............ccccscscsess 10
Nee eee. canudaguavccévavecndaceassve 20
APPENDIX
Court of Appeals ‘‘Inactive Sites’ Decision,
September 3, 1985, in Nos. 83-1014, ete. .... la
Court of Appeals ‘‘Active Sites’? Decision,
September 3, 1985, in Nos. 88-2226, etc. .... 42a
Court of Appeals Order, October 30, 1985,
Denying Rehearing in Nos. 88-1014, etc. .... 64a
Court of ao Order, October 30, 1985,
Denying Rehearing in Nos. 83-2226, etc. .... 66a
EPA “Inactive Sites’’ Preamble and
See ls aecakcnesén- sAsananasinsessossesenesas 68a
EPA ‘‘Active Sites’” Preamble and
ria cs cacsncuevaccnsxadususiavndacscsscsesccaces 128a
Reorganization Plan No. 3 of 1970) ...... 203a
rath cckcscccususdiannansacnesnsvessesacs 218a
EPA General Counsel Memorandum, October
ee sels ssscanndnssdnxsassscanncsvessanes 242a
EPA Comments on NRC Proposed Conforming
Requirements ........ iss ca cainicbsanscnencisns 246a
EPA Comments on NRC ANPR on Ground-
water Protection Standards ................ccccee 25la
9 aisle oat
ie 6s. ors wed en lt
Naar See eee lee
TABLE OF AUTHORITIES
CASES: Page
Atlantic Cleaners & Dyers, Inc. v. United States, 286
Pac UE RINE. setae aaenatextnenasnaanvecncerbentsnnsociaaeas 12
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837 LARP aHoron. “Dealer 16
Colorado Public Interest Research Group, Inc. v.
Train, 507 F.2d 748 (10th Cir. 1974) ...... 15
Train v. Colorado Public Interest Research Group,
a: 2hf SE... eerie ae passim
United Shoe Workers of America, AFL-CIO v. Bedell,
Woe F206 178 CD. CO BGT) vncicsciscsccscessicons 12
United States v. 101.80 Acres of Land, 716 F.2d 714
See SAD FD Wiaceensietrecshakensoningsestiguentivsaminectes 12
STATUTES:
Atomic Energy Act of 1946, Pub. L. No. 79-585, 60
es UE CIID aiteenceatssncenaceranricncsccreniaisicouaan 5
Atomic Energy Act of 1954, Pub. L. No. 83-703, 68
Stat. 919, 42 U.S.C. §§2011 et seg. (1982)... 5
Energy Reorganization Act of 1974, Pub. L. No. 93-
438, 88 Stat. 1233, 42 U.S.C. §§5801 et seq.
PRED - ). saichcatecsicin chcsadsealiaignsaisbaniahacebacakuiians 6
Nuclear Waste Policy Act of 1982, Pub. L. No. 97-
425. 96 Stat. 2201. 42 U.S.C. §§1014]
HEME” — tatctdsubicisentimaeamaeaseanatoeba: 1]
Reorganization Plan No. 3 of 1970, 84 Stat. 2086
S U.S.C. ABD. B. TRGE CIGBE) .cccccseccscsccacsess passim
Uranium Mill Tailings Control Act of 1978,
Publ. Lays 95-604, 92 Stat. 3021 (1978),
42 U.S.C. §§ 7901 et seg. (1982) .................. passim
Be Meiers MIRED CROED Saciscscenstntineiscacccnaendiducans 2
OAs tate eee iiss icstsssthatantncconns 7, 9, 00
G2 UGA. GR BC aBTe CEGBE) oascvsccssnnccccecsensessenans i)
42 U.S.C. $6 BOGL-BOGG (CIGER) oonciccescccccccsccccisns. O
42 U.S.C. §§ 2111-2114 (1962) ............. Perea ee o
Table of Authorities Continued
Page
GE UB. § BERG CRGGR) wa vveivesvcsvececcssecscccssceccancasccans 7, 18
42 U.S.C. § S200), Cv) (1962) oncccecccccccccccccccccccccece 5
SE UBC. & TOUR) CGT) ersnecnxessesssciscearsicsisscccracrs 7
RULES AND REGULATIONS:
38 Fed. Reg. 24,936 (September 11, 1973) ........... 1]
38 Fed. Reg. 32,965 (November 29, 1973) coccccccs.. 1]
48 Fed. Reg. 599 (January 5, 1983). ...............0000.. 3
48 Fed. Reg. 45,935-45,936 (October 7, 1983) ..... s
48 Fed. Reg. 45,940 (October 7, 1983) ....ccecccccees. S
48 Fed. Reg. 45,942 (October 7, 1988) oo... 8
49 Fed. Reg. 46,421 (November 26, 1984) oo... 18
49 Fed. Reg. 46,425-46,428 (November 26, 1984) 18
50 Fed. Reg. 41,853 (October 16, 1985) oo... 18
40 C.F.R. § 192.32(aX1) (1985) .o.......cccccccccccccccececee &
40 C.F.R. § 192.32(a)2) (1985) ooo. cccccccccccecesecee 8
40 C.F.R. § 192.32(o)1)ii) (1985) oe. 8
40 C.F. § 19B.SBNZ) CIGBB) | cccccvcicciccvscecdcccccicccns 8
LEGISLATIVE AUTHORITY:
H.R. Rep. No. 1480, Part 1, 95th Cong., 2d Sess.
reprinted in 1978 U.S. Code Cong. & Ad. News
PE GEE shcadetaiceatinncsenatcnddaiat ease 13
H.R. Rep. No. 1480, Part 2, 95th Cong., 2d Sess.
reprinted in 1978 U.S. Code Cong. & Ad. News
PE ETE. Sunhidsseccainciawohviciaeeenacun tatiana 13
S. Rep. No. 1325, 88th Cong., 2d Sess., reprinted
in 1964 U.S. Code Cong. & Ad. News 3105
Se cine ince eaten ee tee ie er 3, 5
116 Cong. Rec. 33,871-33,884 (1970) ooo. 6
124 Cong. Rec. $15323 (daily ed. September 18, 1978
Table of Authorities Continued
De velopment, Growth, and State of the Atomic En-
ergy Industry: Hearings Before the Joint Com-
mittee on Atomic Energy, 84th Cong.., Ist Sess.
(1955) MITTITITTTITT TTT TITTLE
Pre-Hearing Questions and Answers Relating to the
July 16, 1985 Hearing on H.R. 2236 and S.
1044: Financing Remedial Actions at Active
Uranium poe Thorium Proce ssing Sites Before
the House Committee on Interior and Insular
Affairs Subcommittee on Energy and the Envi-
ronment and the Senate Committee on Energy
and Natural Resources Subcommittee on Energy
Research and Deve lopment, Witness: James E
Vaughan, Jr., Acting Assistant Secretary for
Nuclear Energy, U.S. Department of Energy
Uranium Mill Tailings Control Act of 1978: Hearings
on H.R. 11698, H.R. 12229, H.R. 12938, H.R.
12535, H.R. 13049, H.R. 13382 and H.R. 18650
Before the Subcommittee on Eneray and Power
of the House Committee on Interstate and For-
eign Commerce, 95th Cong., 2d Sess. (August 2,
1978)
MISCELLANEOUS:
Department of Energy, ‘““Herrington Determines U.S.
Uranium Industry Not Viable; Orders Steps to
Assist Industry,” Press Release No. R-85-120
GRPURINIE Bey ROIDD cack cacahicnnccvaacacianancanencasincs
Energy Information Administration, Domestic Ura-
nium Mining and Milling Industry: 1984 Via-
bilit ty Assessment, DOE) EIA- 0477 (W ashingt on,
de, I ede cratiicetencsascces
Environmental! Protection Agency Comments,
January 15, 1985, on NRC Proposed
Conforming Requirements —............c.ccceseeeeeeeeees
Environmental Protection Agency Comments, fg “ch
8 1985, on NRC ANP R on Groundwater Pro-
et BS Rea RR UE Ip Fee
Page
Vii
Table of Authorities Continued
Environmental Protection Agency, Final Environ-
mental Impact Statement for Remedial Action
Standards for Inactive Uranium Processing
Sites, Volume I (October 1982) oo..ccccccccccccccees.
Environmental Protection Agency, 40 C.F.R. 190 En-
vironmental Radiation Protection Requirements
for Normal Operations of Activities in the Ura-
nium Fuel Cycle: Final Environmental State-
ment, EPA 520/4-76-016
(November 1, 1976) ......ccccccccccccccccsccccssscccccceess
Harold P. Green and Alan Rosenthal. Government of
the Atom, The Integration of Powers, New York
EMUNEE* s sncatcauaabsaskateaceavtcadadie cadena ee ie
Memvrandum of October 16, 1981, from Robert M.
Perry, General Counsel, to Kathleen M. Ben-
nett, Assistant Administrator for Air, Noise, and
Radiation, ‘Authority to Promulgate Generally
Apnlicable Standards Pursuant to Uranium Mi]
Tailings Radiation Control Act” ceccccccccccccesess.
1A Sutherland Statutory Construction, § 22.33
iss TNR, BOTH) ncsncencsacssssesarccescceaccaaccceecnccccere
Page
~]
1]
14
® ,
J INTHE “**
Supreme Court of the United States
OCTOBER TERM, 1985
No.
AMERICAN MINING CONGRESS,
Petitioner.
wa
LEE M. THOMAS, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY
and
ENVIRONMENTAL PROTECTION AGENCY
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Petitioner, American Mining Congress, petitions for
a writ of certiorari to review the separate but related
judgments of the United States Court of Appeais for
the Tenth Circuit, both entered on September 3, 1985.
insofar as the question presented in this petition is
concerned, the issues involved in these separate judg-
ments of the Tenth Circuit are identical.
OPINIONS BELOW
The opinion of the court below, in American Mining
Congress, et al. v. Lee M. Thomas, et al. (Nos. 83-
1014, etc.), upholding EPA’s “Inactive Sites” regu-
bho
lations, is reported at 772 F.2d 617 (10th Cir. 1985).
App. at la-4la. The opinion of the court below, in
American Mining Congress, et al. v. Lee M. Thomas,
et al. (Nos. 83-2226, etc.), upholding EPA’s “Active
Sites” regulations, is reported at 772 F.2d 640 (10tu
Cir. 1985). App. at 42a-63a.
EPA’s ‘Inactive Sites’? regulations, together with
the preamble thereto, are reported at 48 Fed. Reg.
590 (January 5, 1983). App. at 68a-122a. The reg-
ulations are now codified at 40 C.F.R. §§ 192.00-
192.23 (1985). EPA’s “Active Sites’ regulations, to-
gether with the preamble thereto, are reported at 48
Fed. Reg. 45,926 (October 7, 1983). App. at 123a-
202a. The regulations are now codified at 40 C.F.R.
§§ 192.30-192.43 (1985).'
JURISDICTION
The judgments of the court below in both cases
were entered on September 3, 1985 and involve the
identical question presented in this petition. The
American Mining Congress timely filed a petition for
rehearing which was denied by the court below on
October 30, 1985. App. at 64a-67a. The jurisdiction
of this Court is invoked under 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS INVOLVED
Relevant portions of Reorganization Plan No. 3 of
1970, 84 Stat. 2086 (1970), 5 U.S.C. App. pp. 1182-
1137 (1982), are reproduced infra. App. at 203a-217a.
Relevant portions of Title I of the Uranium Mill Tail-
ings Radiation Control Act of 1978 (UMTRCA), Pub.
1All citations to 40 C.F.R. §§ 192.00-192.23 and 192.30-192 43
are to the 1985 edition.
L. No. 95-604, 92 Stat. 3021 (1978), as codified at
42 U.S.C. §§ 7901-7925 (1982), are reproduced infra.
App. at 233a-241a. Relevant portions of the Atomic
Energy Act of 1954, Pub. L. No. 83-703, 68 Stat.
919 (1954), 42 U.S.C. §§ 2011 et seg,. as amended by
Title II of UMTRCA and by the NRC Authorization
Act of 1982 and 1983, Pub. L. No. 97-415, 96 Stat.
2067 (1983), are reproduced infra. App. at 218a-233a.
EPA’s Standards for Remedial Actions at Inactive
Uranium Processing Sites, 40 C.F.R. §§ 192.00-
192.23, and EPA’s Environmental Standards for Ura-
nium and Thorium Mill Tailings at Commercial Proc-
essing Sites, 40 C.F.R. §§ 192.30-192.43, are
reproduced infra. App. at 113a-122a and 196a-202a,
respectively.
STATEMENT
The American Mining Congress petitions on behalf
of its members who produce substantially all of this
Nation’s domestic uranium. The Congress has de-
clared: ‘‘The maintenance of a viable domestic [fura-
nium] mining and milling industry is an essential part
of a sound nuclear industry and is also vital to the
long-range defense and security interests of the
United States.’ Yet the regulations at issue in this
case place the very existence of this vital industry in
jeopardy by imposing upon it unnecessary, detailed
regulatory controls and staggering compliance costs
“Unless otherwise indicated, all citations to the United States
Code are to the 1982 edition.
‘S. Rep. No. 1325, 88th Cong., 2d Sess., reprinted in 1964
U.S. Code Cong. & Ad. News 3105, 3115 (1964); 42 U.S.C. §
2201(v).
+>
in order to eliminate an insignificant risk of harm to
the public health.‘
In the Uranium Mill Tailings Radiation Control Act
of 1978 (UMTRCA) Congress amended the Atomic
Energy Act of 1954 (AEA) and expressly authorized
the post-operational contro] of uranium mill tailings.°
In the process, certain regulatory authority was di-
vided among three federal agencies—the Environ-
mental Protection Agency (EPA), the Nuclear
Regulatory Commission (NRC), and the Department
of Energy (DOE). UMTRCA’s language and legisla-
ture history establish that this division of authority
is to be consistent with Congress’ overall nuclear reg-
ulatory scheme. Under this scheme EPA’s jurisdiction
is limited to promulgating general environmental
standards applicable outside the boundaries of sites
licensed under the Atomic Energy Act. The decisions
of the court below, however, have affirmed EPA’s
improper assumption of regulatory jurisdiction inside
the boundaries of such sites.
1. The Atomic Energy Act
The United States Government by a carefully
planned series of decisions created, developed and
‘These costs, which the Department of Energy estimates to
be abeut $4.4 billion, will be incurred not by a healthy industry,
but by one recently declared nonviable by the Secretary of En-
ergy. U.S. Department of Energy, ‘Herrington Determines U.S.
Uranium Industry Not Viable; Orders Steps to Assist Industry,”
Press Release R-85-120 (September 26, 1985); Energy Infor-
mation Administration, Domestic Uranium Mining and Milling
Industry: 1984 Viability Assessment, DOE/EIA-0477 (Washing-
ton, D.C. Sept. 1985) (study conducted pursuant to 42 U.S.C. §
2210b).
‘Uranium mill tailings are the waste product resulting from
the processing of uranium bearing ores.
regulated an atomic energy program. Initially, these
efforts were limited to military programs, but after
World War II, the Government undertook the de-
velopment of a commercial atomic energy industry.
This effort proceeded under the direction of the pow-
erful Joint Committee on Atomic Energy in Congress
and the Atomic Energy Commission (AEC).* To sup-
port this program, the Government created and nur-
tured a private domestic uranium mining and milling
industry.’
In the Atomic Energy Acts of 1946 and 1954, Con-
gress gave the AEC authority both to promote atomic
energy and to oversee the processes used to create
it.* Pursuant to this grant of authority, the AEC had
exclusive jurisdiction to license and regulate the pos-
session and distribution of source, byproduct and spe-
cial nuclear materials." Moreover, the 1954 Act
expressly authorized the AEC to issue regulations for
the protection of the public health and safety in con-
nection with licensee operations. 42 U.S.C. § 2201(b),
App. at 231a-233a.
"See generally Harold P. Green and Alan Rosenthal, Govern-
ment of the Atom, The Integration of Powers, New York 1968,
pp. 25-30.
‘See generaliy Development, Growth, and State of the Atomic
Energy Industry: Hearings Before the Joint Committee on Atomic
Energy, 84th Cong., 1st Sess. (1955); S. Rep. No. 1325, 88th
Cong., 2d Sess., reprinted in 1964 U.S. Code Cong. & Ad. News
3105, 3114-3115 (1964).
“Pub. L. No. 79-585, 60 Stat. 755 (1946); Pub. L. No. 83-
703, 68 Stat. 919 (1954), 42 U.S.C. §§ 2011 et seq.
"42 U.S.C. §§ 2091-2095, 2111-2114, and 2071-2077.
2. Reorganization Plan No. 3 of 1970
Reorganization Plan No. 3 of 1970 created the En-
vironmental Protection Agency and transferred to
that new agency the AEC’s authority to issue radia-
tion protection standards for protection of the general
public. 5 U.S.C. App. pp. 1132-1137, App. at 203a-
217a. The authority transferred to EPA was, how-
ever, limited to the promulgation of “generally ap-
plicable environmental standards,’ which the Plan
defined as
[L]imits on radiation exposures or levels, or
concentrations or quantities of radioactive
materials, in the general environment outside
the boundaries of locations under the control
of persons possessing or using radioactive
material.
Id. at 1138, App. at 205a (emphasis added). In his
accompanying message, the President emphasized that
the AEC was to “retain responsibility for the imple-
mentation and enforcement of radiation standards
through its licensing authority.’ 7d. In ratifying the
Plan, Congress adopted this division of jurisdiction
between EPA and the AEC (now the NRC).!° Jd.; see
also 116 Cong. Rec. 33,871-33,884 (1970).
3. Uranium Mill Tailings Radiation Contrel Act
of 1978
As originally enacted, the Atomic Energy Act did
not expressly authorize the post-operational control
In 1974, Congress abolished the AEC and transferred its
licensing and regulatory functions to the NRC. See Energy Re-
organization Act of 1974, Pub. L. No. 93-438, 88 Stat. 1233
(1974), 42 U.S.C. §§ 5801 et seq.
~
of uranium mill tailings. In 1978, Congress provided
for such authority under the AEA when it enacted
UMTRCA. Pub. L. No. 95-604, 92 Stat. 3021 (1978).
This Act authorized EPA, DOE and NRC to achieve
the ‘“‘stabilization, disposal and control in a safe and
environmentally sound manner’”’ of uranium mill tail-
ings at inactive and active mill sites. 42 U.S.C. §
7901, App. at 238a,-234a.
Under the regulatory scheme, EPA was to pro-
mulgate “‘standards of general application for the
protection of public health, safety and the environ-
ment from radiological and non-radiological hazards
associated with’ uranium mill tailings. 42 U.S.C. §§
2022(a) and 2022(b\1), App. at 219a-220a and 220a-
221a. DOE was then to select and perform remedial
actions at designated inactive (not currently licensed)
sites, with the concurrence of NRC, to assure com-
pliance with EPA’s general standards. 42 U.S.C. §
7918(a), App. at 239a. By the same token, at active
(licensed) sites the NRC was to implement and en-
force EPA’s general environmental standards through
the adoption of on-site engineering, design and man-
agement requirements. 42 U.S.C. §§ 2114 and 2022(d),
App. at 229a-23la and 222a-228a.
4. EPA’s Regulations
Although promulgated separately, EPA’s inactive
and active site regulations are essentially identical.’
“EPA promulgated groundwater protection standards only for
active sites. It decided not to do so for inactive sites based on
its determination that there was no evidence of a significant
risk of harm to health or the environment. EPA, Final Envi-
ronmental Impact Statement for Remedial Action Standards for
Inactive Uranium Processing Sites, Volume 1, p. 50 (October
Compare 40 C.F.R. §§ 192.00-192.12, App. at 114a-
117a, with 40 C.F.R. §§ 192.80-192.33,App. at 197a-
201a.
EPA’s groundwater standards for active sites, con-
sist of a primary standard and a secondary standard.
The primary standard requires installation of a liner
beneath all new tailings piles and beneath lateral ex-
tensions of existing piles. 40 C.F.R. § 192.32(a)(1),
App. at 198a. EPA’s secondary standard requires that
concentration levels of various potentially hazardous
constituents in groundwater at the edge of tailings
piles not exceed certain numerical limits. 40 C.F.R.
§ 192.32(a\(2), App. at 199a. 48 Fed. Reg. at 45,942,
App. at 182a.
EPA’s radiological standerds require that tailings
disposal site controls be designed to assure that radon
emissions from the surface of tailings piles be reduced
to certain numerical limits. 40 C.F.R. § 192.32(b)(1)(ii),
App. at 200a. The primary purpose of this standard
is to require a thick earthen cover over tailings piles.
48 Fed. Reg. at 45,935-45,936, 45,940 (October 7,
1983), App. at 158a-159a, 173a-174a. EPA also re-
quires cleanup of radium in soil within the licensed
mill site area. 40 C.F.R. § 192.32(b)(2), App. at 200a-
201a.
All tailings piles are located inside the boundaries
of mill or disposal sites. Thus, EPA’s regulations op-
erate inside the boundaries of these sites and impose
specific engineering, design and management require-
ments.
1982). Instead, EPA directed that any remedial action at the
inactive sites be based upon the implementing agencies’ eval-
uation of site-specific conditions. 48 Fed. Reg. 599, App. at
103a-105a.
5. The Proceedings Below
The American Mining Congress (AMC), on behalf
of its members, filed timely petitions for review of
the inactive and active sites regulations in the court
below pursuant to 42 U.S.C. § 2022(c\2). AMC con-
tended that the statutory language, legislative history,
and regulatory scheme of UMTRCA evince Congres-
sionai intent that EPA’s authority be limited to the
promulgation of generally applicable standards for the
prctection of the general environment outside the
boundaries of mili tailings sites. AMC argued that
EPA lacks jurisdiction under the Atomic Energy Act
to promulgate standards that operate inside the
boundaries of mill tailings sites or that impose en-
gineering control methods, because this authority was
conferred by Congress upon DOE and NRC—not
EPA.”
On September 8, 1985, the court below rendered
judgment in both cases and, on the issue presented
in this petition, held that EPA’s regulations are within
that agency’s authority. The court justified this con-
clusion as follows: first, the phrase ‘“‘outside the
boundaries’’ does not appear in UMTRCA,; second, the
legislative history and administrative interpretations
on the issue of EPA’s jurisdiction ‘‘are less than
clear;’’ and third, EPA’s assumption of such juris-
diction is consistent with the general policy of UM-
AMC also asserted that EPA’s standards were invalid be-
cause EPA did not make a finding that mill tailings present a
significant risk of harm to public health or the environment, as
required by UMTRCA. Other petitioners below, United Nuclear
Corporation, et al., are filing a Petition for a Writ of Certiorari,
which addresses this question. AMC joins in their petition to
this Court. See Supreme Court Rule 19.4.
10
TRCA to protect public health. 772 F.2d at 630, 646,
App. at 2la-22a, 50a.
REASONS FOR GRANTING THE WRIT
The decisions below raise important questions under
the Atomic Energy Act, as amended, requiring res-
olution by this Court. By summarily affirming EPA’s
assumption of regulatory jurisdiction inside the
boundaries of mill tailings sites, the decisions do viol-
ence to Congress’ comprehensive and pervasive re-
gime for the regulation of uraniuin mill tailings under
the AEA, as amended. In reaching its erroneous re-
sult, the court below ignored plain statutory language,
clear legislative history, and unambiguous adminis-
trative interpretations of the statute by the agencies
themselves. Moreover, the court below disregarded a
relevant decision of this Court establishing the prin-
ciple that changes in the pervasive regulatory scheme
embodied in the AEA are not to be inferred absent
clear indication of legislative intent. Train v. Colorado
Public interest Research Group, Inc., 426 U.S. 1 (1976)
(Train v. Colorado PIRG). Finally, the decisions cre-
ate the potential for disruption and chaos in the reg-
ulatory process that will cause irreparable harm to
the Nation’s uranium industry and to the public in-
terest.
I
EPA’s standard setting authority under the Atomic
Energy Act is strictly limited by the 1970 Reorgan-
ization Plan to ‘‘generally applicable environmental
standards,’ which are limits on exposures “‘in the
general environment outside the boundaries of loca-
tions under the control of persons possessing or using
11
radioactive material.”’ 5 U.S.C. App. p. 1133, App.
at 205a (emphasis added). NRC, as successor to the
AEC, is “‘responsible for implementation and enforce-
ment of radiation standards through its licensing au-
thority.’ Jd. This division of authority is well settled.
In authorizing a program under the Atomic Energy
Act for the regulation of uranium mill tailings, Con-
gress in UMTRCA manifested its intent to continue
the limitation on EPA’s authority under the AEA. It
did so by granting EPA authority to promulgate
‘standards of general application’ for the protection
of the public health, safety and the environment, and
by granting NRC the authority for ‘‘[i]mplementation
and enforcement of the standards.’’ 42 U.S.C. §§
2022(a), (b) and id), and 2114, App. at 219a-221a,
222a-223a, and 229a-23la. By using the same ter-
minology in UMTRCA as employed in the 1970 Re-
organization Plan,'* Congress manifested its intent to
Train v. Colorado PIRG, 426 U.S. at 24 n. 20; AEC-EPA
Memoranda of Understanding With Respect to AEC Facilities,
38 Fed Reg. 24,936 (September 11, 1973) and 38 Fed. Reg.
32,965 (November 29, 1973); EPA, 40 C.F.R. 190 - Environ-
mental Radiation Protection Requirements for Normal Opera-
tions of Activities in the Uranium Fuel Cycle: Final
Environmental Statement, EPA 520/4-76-016 (November 1,
1976) (“Two points are relevant to EPA’s authority to set en-
vironmental radiation standards. First, . . . the standards can
apply only outside the boundaries of facilities producing radio-
active effluents. . . .’) (emphasis added). Most recently, this
division of jurisdiction was recognized in another amendment to
the AEA. See Nuclear Waste Policy Act of 1982, Pub. L. No.
97-425, 96 Stat. 2201, 2228, 42 U.S.C. § 10101, 10141 (1982).
4942 U.S.C. §§ 2022(a) and 2022(b\1), App. at 219a and 220a,
use the phrase “‘standards of general application for the pro-
tection of the public health, safety and the environment,”’ while
12
continue for mill tailings the pre-existing division of
jurisdiction:
[I]t is well settled that, absent evidence to
the contrary, words cv phrases taken from
prior legislation will be given the same
meaning, since there is hardly a basis for
assuming that the lawmakers had anything
else in mind. This consideration is even more
compelling where, as here, the provision con-
taining the word in question is part of a stat-
ute that is merely a continuation of earlier
legislative schemes.
United Shoe Workers of America, AFL-CIO v. Bedell,
506 F.2d 174, 183 (D.C. Cir. 1974).
This natural presumption of congressional intent is
nowhere rebutted and indeed is affirmed by the leg-
islative history of UMTRCA, as well as administrative
interpretations by the agencies prior to this contro-
versy.
The Report of the House Committee on Interior
and insular Affairs expressly states that EPA’s au-
the 1970 Reorganization Plan, as ratified by Congress, uses the
phrase “‘such generally applicable environmental standards for
the protection of the general environment.’’ (emphasis added).
That no meaningful difference was intended by Congress in these
two phrases is indicated by the similar, although not identical,
language of 42 U.S.C. §§ 2022(b\(2) and 2114(aX2), App. at 221la
and 230a, which use the phrases ‘‘such generally applicable
standards” and ‘‘applicable general standards,” respectively, in
describing EPA’s authority. (emphasis added).
See also Atlantic Cleaners & Dyers, Inc. v. United States,
286 U.S. 427, 433 (1932); United States v. 101.80 Acres of Land,
716 F.2d 714, 723, n. 13 (9th Cir. 1983); 1A Sutherland Sta-
tutory Construction § 22.33 (C. Sands 1972).
13
thority is limited to promulgation of ‘‘generally ap-
plicable standards’’ for the protection of the general
environment “‘outside the boundaries”’ of mill tailings
sites and that NRC ‘“‘must set all . . . requirements
relating to management concepts . . . including
[among other things] lining for tailings ponds, depth,
and types of tailings covers. .. .’’
The Report of the House Interstate and Foreign
Commerce Committee quotes with approval an Au-
gust 9, 1978, letter from the Administrator of EPA
stating that under UMTRCA the Agency would ‘“‘re-
tain its generally applicable standards-setting au-
thority under the Atomic Energy Act” (i.e, as
transferred by the 1970 Reorganization Plan), and
NRC would establish ‘“‘management requirements.’’'
Moreover, the testimony of William D. Rowe, EPA
Deputy Assistant Administrator for Radiation Pro-
grams, and Joseph M. Hendrie, Chairman of NRC,
before the House Commerce Committee reflect the
understanding of both agencies that EPA’s jurisdic-
tion to promulgate ‘‘generally applicable standards’’
was to be exercised outside the boundaries of mill
tailings sites and that NRC’s jurisdiction was to be
exercised inside the boundaries."
H.R. Rep. No. 1480, Part 1, 95th Cong., 2d Sess. 16-17, 21,
reprinted in 1978 U.S. Code Cong. & Ad. News 7433, 7438-
7439, 7444 (1978).
"H.R. Rep. No. 1480, Part 2, 95th Cong., 2d Sess. 46, re-
printed in 1978 U.S. Code Cong. & Ad. News 7450, 7473 (1978)
(emphasis added).
‘*Uranium Mill Tailings Control Act of 1978: Hearings on H.R.
11698, H.R. 12229, H.R. 12938, H.R. 12535, H.R. 13049, H.R.
13382 and H.R. 13650 Before the Subcommittee on Energy and
14
Furthermore, the agencies’ interpretations of the
term ‘generally applicable standards” in UMTRCA
are also unambiguous and confirm their understand-
ing that their jurisdiction Was so divided. In a 1981]
legal opinion, EPA’s General Counsel affirmed that
EPA’s authority under UMTRCA was “modelled
closely on comparable authority contained in the
Atomic Energy Act as transferred to EPA in Re-
organization Plan No. 3 of 1970 and should be under-
stood, therefore, in the light of the same term as used
in that Plan.’’'’ Similarly, NRC’s counsel has stated:
It is also plain from the legislative history of
UMTRCA that Congress intended the Com-
mission to be lead federal agency in regu-
lating uranium mill tailings and that Congress
sought to preserve the traditional regulatory
relationship between NRC and EPA... . Un-
der UMTRCA, the NRC was designated as
the principal regulator of mill tailings while
EPA was authorized to promulgate general
environmental standards for mill tailings
Power of the House Committee on Interstate and Foreign Com-
merce, 95th Cong., 2d Sess. 366, 392-393, 396, 397 (August 2,
1978) (emphasis added). For example, Mr. Rowe testified: “Gen-
eral{ly] applicable s.andard is defined in the Atomic Energy Act.
This is where the language comes from, and it is the section
that we use to set the standards outside the boundaries.”’ Mr.
Hendrie testified that ‘inside the site boundary” is “the proper
province of the NRC.” Jd. at 393, 396 (emphasis added).
‘Memorandum of October 16, 1981, from Robert M. Perry,
General Counsel, to Kathleen M. Bennett, Assistant Adminis-
trator for Air, Noise, and Radiation, ‘‘Authority to Promulgate
Generally Applicable Standards Pursuant to Uranium Mill Tail-
ings Radiation Control Act,” (emphasis added), App. at 242a-
244a.
. : .
consistent wath its authority unaer Reorgan-
zation Plan No. 3 of 1970.
Notwithstanding this unequivocal evidence that
Congress intended in UMTRCA to limit EPA’s au-
thority over mill tailings consistent with its general
authority under the Atomic Energy Act, the court
below summarily affirmed EPA’s assumption of ju-
risdiction inside the boundaries of mill tailings sites.
Barely mentioning, much less evaluating, the merits
of this fundamental jurisdictional issue, the court jus-
tified its decision by simply noting that the words
‘outside the boundaries” do not appear in UMTRCA,
that the legislative history and administrative inter-
pretations of the statute are ‘“‘less than clear,’”’ and
that the general purpose of UMTRCA appears to be
served by EPA’s regulations. 772 F.2d at 630, 646,
App. at 2la-22a, 50a.
As demonstrated above, the court’s statement that
the legislative history and administrative interpre-
tations are “‘less than clear” is plainly wrong. For
reasons also addressed above, the absence of the
phrase ‘“‘outside the boundaries”’ is irrelevant.?! And
NRC Brief at 92-93 (emphasis added), Kerr-McGee Corp., +
NRC, 673 F.2d 1124 (10th Cir. 1982) (opinion withdrawn
and rehearing granted, October 6, 1982).
“‘As in the decisions below, the Tenth Circuit in Colorad
PIRG v. Train relied upon the absence of specific statutory
language:
The statute does not say ‘“‘some”’ radioactive materials . . .
No exceptions having been set forth in the statute as con
cerns radioactive materials, it would follow that the term
‘radioactive materials’’ means a// radioactive materials. and
16
the reliance of the court below on the general purpose
of the statute to uphold EPA’s jurisdiction is equally
inappropriate because Congress has specifically ad-
dressed the question and made its intent clear. The
court below cannot substitute its judgment for that
of Congress. Chevron, U.S.A., Inc. v. Naturai Re-
sources Defense Council, 467 U.S. 837, __, 104 S.
Ct. 2778, 2781-82 (1984).
II
Almost ten years ago, in Train v. Colorado PIRG,
supra, this Court specifically addressed, at EPA’s re-
quest, the same fundamental issue presented here.
Strictly speaking, the decisions below are not in con-
flict with the holding of this Court in that case, be-
cause the issue there presented concerned the intent
of Congress in the Federal Water Poilution Contro!
Act (FWPCA). However, the decisions below are in
conflict with the basic principles governing the re-
lationship of EPA, NRC and DOE under the Atomic
Energy Act—principles recognized and relied upon by
this Court in Train v. Colorado PIRG.*
In that case, a citizens group sought to compel EPA
to regulate radioactive effluents from nuclear power
plants under the FWPCA. EPA had disclaimed such
authority, because these materials were regulated un-
we so hold.
507 F.2a 743, 747 (10th Cir. 1974) (emphasis in original). This
Court in reversing made clear that such simplistic reasoning was
unacceptable, where relevant evidence of congressional intent is
available as it is here. Train v. Colorado PIRG, 426 U.S. at 9-
10.
“426 U.S. at 24 n. 20 (quoting the 1970 Reorganization Plan)
17
der the Atomic Energy Act. Relying on the “‘plain
language” of the FWPCA (and ignoring the legis-
lative history of that act as well as the comprehensive
regulatory scheme of the Atomic Energy Act), the
Tenth Circuit held that EPA must regulate all ra-
dioactive materials under the FWPCA, including those
regulated under the Atomic Energy Act. In reversing,
this Court stated:
To have included these materials under the
FWPCA would have marked a significant al-
teration of the pervasive regulatory scheme
embodied in the AEA. Far from containing
the clear indication of legislative intent that
we might expect before recognizing such a
change in policy, the legislative history re-
flects, on balance, an intention to preserve
the pre-existing regulatory plan.
Id. at 24 (emphasis added) (footnote omitted).
This reasoning is equally controlling here. Certainly,
the pervasive regulatory scheme established under the
Atomic Energy Act is the same. Here, as there, a
significant change in the regulatory scheme should be
recognized only if a clear indication of legislative in-
tent to do so is discerned. In both instances, the
statutory language and legislative histories reveal an
intent to continue the existing reguletory scheme of
the Atomic Energy Act. Indeed, in the instant case
the evidence that no change was intended under UM-
TRCA is overwhelming.
18
Ili
The potential for disruption created by the decisions
below is real and substantial. With the division of
regulatory jurisdiction among EPA, NRC, and DOE
disrupted, conflicts between the agencies are inevi-
table, and the uranium industry—and the public—will
suffer. Indeed, a dispute has already arisen between
NRC and EPA about the administration of the UM-
TRCA program thet may keep it in turmoil for years
to come. NRC has asserted authority under Section
84(c) of UMTRCA, 42 U.S.C. § 2114(c), to modify
EPA’s standards in individual licensing proceedings
without EPA’s concurrence. 49 Fed. Reg. 46,421 (No-
vember 26, 1984); 50 Fed. Reg. 41,853 (October 16,
1985). Further, NRC has not adopted EPA’s ground-
water standards and has issued only an advanced no-
tice of proposed rulemaking to consider the extent to
which it will conform its existing regulations to EPA’s
groundwater standards. 49 Fed. Reg. 46,425-46,428
(November 26, 1984). EPA disputes NRC’s authority
to alter EPA’s standards in licensing proceeding's
without its concurrence. EPA also asserts that NRC
should adopt EPA’s groundwater standards in their
entirety without change.*’ In short, the decisions of
the court below, by disrupting the long-standing re-
lationships among EPA, NRC and DOE under the
“EPA Comments, January 15, 1985, on NRC Proposed Con-
forming Requirements, App. at 246a-250a. EPA Comments,
March 8, 1985, on NRC ANPR on Groundwater Protection
Standards, App. at 251la-259a.
Atomic Energy Act, promote a result that Congress
specifically sought to avoid in UMTRCA.*4
The impact of these cases is also far-reaching.
EPA’s regulations will affect every uranium milling
operation in the United States—past, present and fu-
ture—and according to recent testimony of DOE of-
ficials before Congress, the costs for existing active
sites alone may be about $4.4 billion, excluding costs
of groundwater reclamation.”° These costs will be im-
posed upon an essential, but now nonviable, industry,
and could lead literally to its demise. This, we submit,
is a result detrimental to the nation’s security and
energy needs, clearly not in the public interest, and
manifestly contrary to the intent of Congress.
24Senator Domenici, a co-sponsor of a related bill (S.2548),
indicated during debate that a ‘“‘basic principle” of the bill was
to create a regime avoiding potential conflict of jurisdiction be-
tween the agencies. Senator Domenici stated:
A basic principle of the amendment is the creation of a
unified regime for mill tailings so that the various distinct
materials which make up a single mill tailings pile need not
be subject to fregmented [sic], duplicative and potentially
conflicting regulatory activities by different government
agencies.
124 Cong. Rec. $15323 (daily ed. September 18, 1978).
2>Pre-Hearing Questions and Answers Relating to the July 16,
1985 Hearing on H.R. 2236 and S. 1004: Financing Remedial
Actions at Active Uranium and Thorium Processing Sites Before
the House Committee on Interior and Insular Affairs Subcom-
mittee on Energy and the Environment and the Senate Committee
on Energy and Natural Resources Subcommittee on Energy Re-
search and Development, Witness: James W. Vaughan, Jr., Act-
ing Assistant Secretary for Nuclear Energy, U.S. Department
of Energy, at 3.
20
CONCLUSION
For these reasons the petition for a writ of
certiorari should be granted.
Respectfully submitted,
ANTHONY J. THOMPSON,
Counsel of Record
Of Counsel: JOHN G. DEGOOYER
Larry A. Bocas CHARLES E. SLITER
American Mining Congress HAMEL & PARK
1920 N Street, N.W. 888 Sixteenth St., N.W.
Washington, D.C. 20036 Washington, D.C. 20006
(202) 861-2876 (202) 835-8000
Counsel for Petitioner
APPENDIX
la ’
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Nos. 83-1014
83-1041
83-1206
83-1300
AMERICAN MINING CONGRESS, UNITED NUCLEAR
CORPORATION, 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,
V.
LEE M. THOMAS, ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY, AND ENVIRONMENTAL PROTECTION
AGENCY,
Respondents.
STATE OF COLORADO,
Intervenor
FILED
September 3, 1985
Petition fer Review of the Standards Promulgated by
the Environmental Protection Agency
Anthony J. Thompson (Charles E. Sliter, Robert F. Rek-
laitis, Edward S. Shipper, Jr., and Edward A. McCabe,
of counsel, with him on the briefs) of Hamel, Park, McCabe
& Saunders, Washington, D.C., for American Mining Con-
gress.
2a
Peters J. Nickles (Charles H. Montange, Richard A. Mes-
erve, and William F. Greaney, also of Covington & Bur-
ling, Washington, D.C., and G. Stanley Crout, Sunny J.
Nixon and Michael S. Yesley of Stephenson, Carpenter,
Crout & Olmstead, Santa Fe, New Mexico, with him on
the briefs) for United Nuclear Corporation, Kerr-McGee
Nuclear Corporation, Kerr-McGee Corporation, and Home-
stake Mining Company.
Roger Beers (Kathryn Burkett Dickson, also of Beers &
Dickson, San Francisco, California, and Robert E. Yuhnke,
Environmental Defense Fund, Boulder, Colorado, with him
on the briefs) for Sierra Club, Environmental Defense
Fund, Natural Resources Defense Council, Southwest Re-
search and Information Center, and Jean Slattery.
David W. Zugschwerdt, Attorney (F. Henery Habicht, II,
Acting Assistant Attorney General, Jose R. Allen,
Attorney, also of Department of Justice, Washington, D.C.,
and A. James Barnes, Acting General Counsel, William F.
Pedersen, Associate General Counsel, and Charles S.
Carter, Assistant General Counsel, of counsel, Environ-
mentai Protection Agency, Washington, D.C., with him on
the briefs) for Respondents.
Duane Woodard, Attorney General, Charles B. Howe, Dep-
uty Attorney General, Richard F. Forman, Solicitor Gen-
eral, and Richard L. Griffith, Assistant Attorney General,
Denver, Colorado, filed briefs for the State of Colorado.
Walter Perry, III, Senior 4.ssistant Attorney General, Den-
nis M. Boal, Assistant Attorney General, James M. El-
lerbe, Legal Intern, Cheyenne, Wyoming, filed an amicus
curiae brief for the State of Wyoming.
Before LOGAN and McWILLIAMS, Circuit Judges, and
BOHANON, District Judge.*
LOGAN, Circuit Judge.
“Honorable Luther L. Bohanon, Senior United States
District Judge for the District of Oklahoma, sitting by
designation.
3a
These consolidated cases involve challenges to the En-
vironmental Protection Agency’s (EPA) standards for the
cleanup and disposal of uranium mill tailings originating
from designated inactive mill sites. The EPA established
these standards pursuant to its authority under the Ura-
nium Mill Tailings Radiation Control Act of 1978 (UM-
TRCA), as amended, 42 U.S.C. §§ 2022 and 7901-7942.
The UMTRCA required the EPA to promulgate standards
that could be applied generally to protect the environment
and the public health and safety from radioactive and non-
radioactive 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 tail-
ings, see 42 U.S.C. § 7917, with the possibility of later
reimbursement from private parties, 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 Min-
ing Congress v. Thomas, 772 F.2d 640 (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-MeGee Nuclear Corporation, and
Homestake Mining Company; joint petitioners Sierra Club,
Environmental Defense Fund, Natural Resources Defense
Council, Southwest Research and Information Center and
Jean Slattery; and the State of Colorado as intervenor. In
addition, the State of Wyoming filed an amicus brief.
I
The final product of the milling process for uranium ore
is uranium-rich “‘yellowcake,’’ U,0.. 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
4a
particles into the atmosphere. Airborne radon degrades
into a series of short half-life decay products that are
hazardous if inhaled. If 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. Ura-
nium mill tailings also contain potentially dangerous non-
radioactive materials such as arsenic and selenium. These
toxic and radioactive materials may be ingested with food
or water. 48 Fed. Reg. 590, 592 (1983). See generally I
Environmental Protection Agency, Final Environmental
Impact Statement for Remedial Action Standards for In-
active Uranium Prucessing Sites 3-68 (1982) [hereinafter
FEIS-IN}.
To deal with the perceived dangers presented by ura-
nium 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 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 ... requires] that every rea-
sonable effort be made to provide for the sta-
bilization, disposal, and control in a safe and
environmentally sound manner in order to pre-
vent or minimize radon diffusion into the envi-
ronment 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 En-
ergy (DOE) and the Nuclear Regulatory Commission (NRC)
responsibility for implementing a remedial program to clean
up and dispose of the mill tailings. See id. §§ 7911-7924.
The EPA is responsibie 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 re-
medial program in two parts: cleanup standards and dis-
posal standards. The EPA intended the cleanup standards
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.”’
id.
On April 22, 1980, the EPA Administrator published for
comment ‘‘Propused Clearup Standards for Inactive Ura-
nium Processing Sites.”’ 45 Fed. Reg. 27,370 (1980). These
proposed standards were ‘‘for the cleanup of open lands
and buildings contaminated with residuai radioactive ma-
terials (mainly tailings) from inactive uranium processing
sitesy’’ Jd. The EPA made them immediately effective as
interim standards pending comment, review, and promul-
gation 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 dis-
persed tailings. The standards also set permissible levels
of radon decay product concentration and gamma radiation
in occupied or occupiable buildings affected by the tailings.’
The proposed standard for soil contamination read:
‘“(a) the average concentration of radium-226 attributable to
residual radioactive material from any designated processing site
in any 5 em thickness of soils or other materials on open 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 material
that procuces 37 billion nuclear transformations per second. One ,1-
cocurie (pCi) = 10-" Ci. Id.
The proposed standard for buildings stated that the levels of radio-
activity 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. /d. at 27,874-75. A WL or
working level is ‘ny 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.” /d. at 27,374.
i
6a
In addition, these proposed standards contained excep-
tions to strict compliance if certain criteria were met. /d.
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 froin 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 ex-
pectzcion that these limits will be satisfied for at ieast one
thousand years.’ Id.
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 emission
standards. The EPA stated,
“In the draft EIS we analyze the health and
environmental protection benefits and the costs
of several 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 char-
acteristic of ordinary land by applying a soil cover
at costs in a range of about 1 to 14 million (1979)
dollars.”’
‘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 radioactive 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 emis-
sions from the covering materials should be estimated 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.”’
Id. at 2559.
One of the standards established limi
tions of toxic substances in underground sources of drink-
ing water.’ Another water standard required that
A
ts for concentra-
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
undergrour.d source of drinking water, where the concentration of
that substance prior to remedial action exceeds the level specified
in Table A for causes other than residual radioactive materials
This subsection shail apply to the dissolved portion of any sub
stance listed in Table A at any distance greater than 1.0 kilometer
Irom a disposal site that is part of an inactive processing site, or
ra : ’ , 7 | > q ‘ ‘ . >
greater ian ‘'.1 Kilometer if the disposa ite 1S a depository site
'
lable A
Vi ivrTran ~ fer
Arsen )
Bariun )
, ‘
(Cadmium : U0]
Chromium sons eaees 0.05
vO. eee ANB EP RL eS ETE LON Se LEE FM EIT ET | USE EY YS U.U5
Mercury ).002
Molybdenum .... eee rare 0.05
1).
Nitrogen (in nitrate)
0.0]
ERTIES OU OS ke) OPE ep ier ae anes ies) See TARR ae De me LR EEL AD 0.05
an
pCr/iiter:
Combined radium-226 and radium-228 .................sscsceees 5.0
Gross alpha particle activity
(including radium-226 but
excluding radon and uranium) .............cceeeeeeeseeeeeeeees 15.0
CIGD | Scavevcscuvaseda i Neasateadnarts cc redsabemarvamdensamseratea es 10.0"
46 Fed. Reg. at 2562-63
Sa
substances released from the disposal site “‘after disposal
will not cause the concentration of any harmful dissolved
substance in any surface waters to increase above the level
that would otherwise prevail.” Jd. at 2562.
The EPA received extensive comments on both the pro-
posed cleanup and disposal standards. See IJ 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 protection
against the risks posed by the tailings. Both sides but-
tressed their arguments with technical studies and expert
analysis.
Congress in 1982 discussed amendments to the UM-
TRCA 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 amendment’’). Anxious
to institute standards for the mill tailings, Congress also
provided that should the EPA miss the extended deadline,
remedial action would commence using the proposed stand-
ards. Id.; House Conf. Rep. No. 884, 97th Cong., 2d Sess.
44-45, reprinted in 1982 U.S. Code Cong. & Ad. News
3592, 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 amend-
ment a sentence explaining the various factors that it re-
quired 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 en-
vironment, the environmental and economic costs of ap-
plying such standards, and such other factors as the
Administrator determines to be appropriate.”’ Jd.
On January 5, 1983, one day after Congress passed the
amendment, the EPA promulgated the final ‘Standards
9a
for Remedial Actions at Inactive Uranium Processing
Sites,’’ which covered both cleanup and disposal require-
ments. 48 Fed. Reg. 590 (1983) (filed Dec. 30, 1982) (cod-
ified 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 gen-
eral terms the EPA said:
“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 po-
tential health effects. A number of changes have
been made, including raising some of the nu-
merical 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 substantial loss
of health or environmental protection over that
which would have been provided by the proposed
standards.”’
48 Fed. Reg. at 590.
After specifically explaining in a table the various al-
ternatives it had considered for disposal of the mill tailings
piles, the EPA divided the alternatives into categories of
least cost, optimized cost-benefit, or nondegradation alter-
natives. Id. at 591. To justify the less stringent final dis-
posal standards, the EPA said that the original standards
it had proposed were close to nondegradation standards
and that they would have been difficult to implement be-
cause they required cleanup and control limits close to
background levels of radiation. Jd. It also said that ‘“‘the
small incremental health benefits, when compared to the
benefits for less stringent alternatives, do not appear to
justify the large additional costs.”’ Jd. In its final stand-
ards, the EPA purported to select an ‘‘optimized cost-
benefit” rather than a “‘least cost’ alternative. Id. The
final standard for control or disposal of the tailings piles
set the radon emission limit at 20 pCi/m’s rather than the
10a
proposed 2 pCi/m’s limit.* Jd. Furthermore, the EPA
changed the flat 1000 year disposal longevity requirement,
qualifying it with the language, ‘‘to the extent reasonably
achievable and, in any case, for at least 200 years, ....”’
40 C.F.R. § 192.02(a) (1984).
The final regulation set the cleanup standard for land,
the maximum concentration level of radium 226, at 5 pCi/
gram averaged over the first 15 centimeters of soil and
at 15 pCi/gram for soil layers more than 15 centimeters
below the surface.° This standard was an increase from
the 5 pCi/gram level set out in the proposed standard 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
“*8 192.02 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 omited) (emphasis in original).
“*§ 192.12 Standards
Remedial actions shall be conducted so as to provide reasonable
assurance that, as a result of residual radioactive materials from
any designated processing site:
(a) The concentration of radium-222 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 em below the surface.’
40 C.F.R. § 192.12 (1984) (emphasis in original).
lla
that it believed the final standards ‘‘will result in essen-
tially 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 ra-
don 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 equivalent) radon
decay product concentration (including background) not to
exceed 0.02 WL.” 40 C.F.R. § 192.12(b) (1) (1984). The
level of gamma radiation allowed hy the final standards
is no more than 20 microroentgens per hour over back-
ground level. Id. § 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 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 de-
clared that it had provided:
“in the implementation section of these stand-
ards, that judgments on the possible need for
monitoring or remedial actions should be guided
by relevant considerations described in EPA’s
hazardous waste management system, and by rel-
evant 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 burden
to the DOE and the NRC on a site-specific basis, although
it indicated that it thought surface water would be ade-
quately protected in any case by its general disposal stand-
ards. Id.
12a
The final standards, like the proposed standards, incor-
porated 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 miil
tailings piles present ‘‘a 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, design, and en-
gineering requirements; (4) whether the “PA should en-
gage in a cost-benefit analysis in establishing the standards
for the final regulations, particularly 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 relation-
ship to the protection of the public safety and health and
the costs required to implement 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 in-
formal, notice and comment rulemaking is that an agency’s
action may be set aside if found to be “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law,” 5 U.S.C. § 706(2A). The Supreme Court
recently has reiterated a restrictive view of the arbitrary
and capricious standard, stating:
“The scope of review under the ‘arbitrary and
capricious’ standard is narrow and a court is not
to substitute its judgment for that of the agency.
Nevertheless, the agency must examine the rel-
13a
evant data and articulate a satisfactory expia-
nation for its action including a ‘rational
connection between the facts found and the choice
made.’ ... In reviewing that explanation, we
must ‘consider whether the decision was based
on a consideration of the relevant factors and
whether there has been a clear error of judg-
ment.’ ... Normally, an agency rule would be
arbitrary and capricious if the agency has relied
on factors which Congress has not intended it to
consider, 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.”
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29, 43 (1983) (citi Lions
omitted). In addition, as part of our review, we also de-
termine: (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-
417 (1971); American Petroleum Institute v. EPA, 540 F.2d
1023, 1028 (10th Cir. 1976), cert. denied, 4830 U.S. 922
(1977); 5 U.S.C. § 706(2KA) (C) & (D).
II
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 petitioners
to documents and reports not in the record. Industry
petitioners not only allege that those items are proper for
our consideration but have moved to supplement the record
to include the documents and reports that they cite. A
decision on the appropriate use of these materials is im-
portant, because, in this case, we are a reviewing body,
not an independent decision maker. We do not substitute
- a :
l4a
our judgment for the judgment of the agency simply be-
cause 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 pro-
ceedings 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 Association.
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 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 of-
fered extra-record studies and other evidence under a num-
| ber of justifications, including: (1) that the agency action
is not adequately explained and cannot be reviewed prop-
erly without considering the cited materials, see Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420
(1971); (2) that the record is deficient because they agency
ignored relevant factors it should have considered in mak-
ing its decision, see Hiatt Grain & Feed, Inc. v. Bergland,
446 F.Supp. 457, 467 (D. Kan. 1978), affd 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 dem-
onstrates that the actions were right or wrong, see Amer-
ican Petroleum Institute v. EPA, 540 F.2d 1023, 1034 (10th
15a
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 ma-
terial, 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 justifi-
cations are advanced with respect to virtually all extra-
record citations. We have in fact considered those mate-
rials to see if they fail within any of these possible jus-
tifications. But the fact that we examine these materials
for the limited purposes set forth above does not 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 references; 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 Christo-
pher Herman of the EPA to Larry Boggs, counsel for
petitioner American Mining Congress and two accompa-
nying memoranda dated April 27, 1983, and June 7, 1983.
Ill
The industry petitioners® contend that the language and
legislative history of the 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 Institute,
448 U.S. 607 (1980) (hereinafter the Benzene case). In the
Benzene case, Justice Stevens, for the plurality, invalidated
OSHA regulations intended to protect workers from the
‘In the text of this opinion we refer to American Mining Congress,
United Nuclear Corporation, Kerr-McGee Corporation, Kerr-McGee Nu-
clear Corporation, and Homestake Mining Company as the “‘industry
petitioners.’ Although we recognize that some of their arguments dif-
fer, most do overlap.
l6a
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 Health Act’, before
the Secretary may promulgate 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 ac-
tual language from §§ 3(8) and 6(b) (5). Jd. 641-2.
We believed that the Benzene case and all the other
OSHA cases requiring a threshold finding of significant
risk are readiiy 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
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 and the
regulation of interstate 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 tail-
ings in order to prevent or minimize radon dif-
fusion 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 disin-
genuous to hold, after reading Congress’ own statement
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 Congress was resolute on
the degree of danger the mili tailings pose. Yet, even if
29 U.S.C. §§ 652(8) and 655(b\5).
l7a
Congress was unsure of the absolute 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 ....” Jd.
The legislative history of both the UMTRCA and its
1982 amendment confirm our belief that it is unnecessary
for the EPA to make its own determination that the tail-
ings pose a significant risk. The House Report on the
UMTRCA stated, ‘‘[ajs 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 im-
mediate 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, mil! tailings con-
tain only naturally occurring radioactive ele-
ments, 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, !arge enough in fact
to be the dominant radiation exposure from the
nuclear fuel cycle.”’
Id. at 25, 1978 U.S. Code Cong. & Ad. News at 7433,
7452. By including such passages in its report, Congress
showed it was clearly aware that the mill tailings them-
selves did not pose an immediate grave danger to persons
in being. Nevertheless, Congress chose to consider pro-
tecting future generations by enacting the UMTRCA and
18a
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, ac-
cording to the House Conference Report, were not de-
signed to change the EPA’s basic regulatory approach.
House Conf. Rep. No. 884, supra, at 47, 1982 U.S. Code
Cong. & Ad. News at 3592, 3617. Instead, Congress de-
signed the amendments to set out the factors that the
EPA should consider in developing the standards. The
Conference Report indicated that Congress did not find
fault with the EPA’s proposed standards.
“In each instance, the conferees have agreed to
include specific references in the appropriate sec-
tions of the Atomic Energy Act directing EPA
and NRC, in promulgating such standards or reg-
ulations, to consider the risk to the public health,
safety, and the environment, the environmental
and economic costs of such standards of [sic] reg-
ulai.ons, and such other factors as EPA or NRC,
respectively, determine to be approprite.
... The conferees note that this language re-
flects accurately the current regulatory approach
of the agencies. The language agreed to by the
conferees should not result in any delays in es-
tablishment of remedial action standards. EPA,
for example, has already advised the conferees
that it is considering costs in formulating its in-
active site requirements. ... Moreover, in adopt-
ing the language, the conferees intend neither to
divert EPA and NRC from their principal focus
on protecting the public health and safetv nor to
require that the agencies engage in cost-benefit
analysis or optimization.
The conferees are of the view that the eco-
nomic and environmental costs associated with
standards and requirements established by the
19a
agencies should bear a reasonable relationship to
the benefits expected to be derived. This recog-
nition is consistent with the accepted approach
to establishing radiation protection standards, and
reflects the view of the ccnferees that, in pro-
mulgating such general environmental standards .
and regulations. EPA and NRC should exercise
their best independent technical judgment in
making such a determination. At all times, the
conferees fully intend that EPA and NRC rec-
ognize as their paramount responsibility protec-
tion of the public health and safety and the
environment.”
Id.
In this conference report there was no mention of the
necessity of finding “‘significant risk’’ before promulgating
regulations. We believe it would be outside the appropriate
bounds of judicial review for us to require a showing of
significant risk when Congress has been clear in its ap-
proval of the EPA’s approach to mill tailing regulation.
‘Two discussions, one in the House and one in the Senate, on the
conference report may imply that the EPA should make a determination
that it must find that radon presents a significant risk. In one, Con-
gressman Lujan stated:
“In addition, the conferees’ action is intended to lay to rest sug-
gestions, such as those made by EPA officials to mill operators
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 or that particular forms of remediai action
must be taken.”
128 Cong. Rec. H8816 (daily ed. Dec. 2, 1982).
In the other, Senator Simpson, the bill’s fisor 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 Mil! Tailings Act to
impose stringent requirements, such as a 2-picocurie radon ema-
nation standard, irrespective of costs, because of language in the
preamble to the 1978 Mill Taiiing Act. From my reading of the
20a
IV
The industry petitioners argue that the EPA’s radon
‘‘flux’’ or emission limits and radium-in-soil cleanup stand-
applicable provision, the 1978 act directed the agencies to take
‘every reasonable effort’ necessary to protect public health. Implicit
in that language is a direction to exercise reasonable discretion.
Have [sic] the amendment dispeiled 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 agree-
ment of the conferees that EPA and NRC, in promulgating stand-
ards and regulations, should exercise their best independent
technical judgments. The agencies should determine the risks as-
sociated will [sic] mill tailings and the significance of those risks.
They should also examine various 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 pur-
pose of the act. which is to protect the public health and safety
from unreasonable risks.”
128 Cong. Rec. $13,055-56 (daily ed. Oct. 1, 1982).
We recognize the assistance in interpretation that these discussions
of the amendments provide. We are constrained, however, by the lan-
guage of the UMTRCA and the conference report to find that no
showing of significant risk is necessary. A colloquy between 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 report.
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 significant risk before regulating would change the
entire structure of the statute.
{t 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
2la
ards exceed the EPA’s statutory authorization because they
operate inside the mill tailings sites. This 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 Energy Commission (now
NRC) authority to set generally applicable environment
standards to the EPA. See generally 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 quan-
tities of radioactive materials, in the general environment
outside the boundaries of locations under the control of
persons possessing or using radioactive material.’’ 84 Stat.
2086, 2088 (1970) (codified 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 pro-
ducing 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 bounda-
ries,’ however, does not appear in the final version of §
275 of the UMTRCA. 42 U.S.C. § 2022(b). As finally en-
acted that statute requires the EPA to adopt only “‘stand-
ards of general application,” leaving ‘‘implementation and
enforcement”’ to the NRC in the conduct of its licensing
activities. Jd. at § 2022(d). The legislative history and ad-
ministrative interpretations prior to the promulgation of
these regulations are less than clear. Yet Congress’ con-
cern all along has been the protection of the general public
from radiation and other hazards connected with these
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 tailings for us to interpret the statute to re-
quire a significant risk finding 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.
22a
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 adopt-
ing this remedy.
Vv
The American Mining Congress argues that the radon
‘flux’? or emission limits and radium-in-soil cleanup stand-
ards 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 ap-
plication and the DOE and the NRC implementing those
standards. See 42 U.S.C. §§ 7911-7925. This division of
responsibility and authority, however, should not be read
to prevent the EPA from instituting a radon flux or rad-
ium limit that could be translated into a covering meas-
urement 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 regula-
tions. To do so it had to be able to estimate the cost of
implementing the regulations. To determine the cost, tne
EPA had to have an approximate idea of the type of
remedial action that will be unde”’ 1ken; otherwise, its task
is impossible. We therefore ho ‘hat 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 na-
23a
ture—they apply to all sites—we do not view them as
site-specific ‘“‘management, technology or engineering”
methods.
VI
All petitioners criticize the EPA’s approach in consid-
ering costs and benefits in developing the standards. The
industry petitioners find fault with what they describe 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 environmental 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 max-
imum extent possible, constrained only by technical fea-
sibility, and, to some extent economic feasibility. Feasibility
analysis, as the Supreme Court has used that term, places
a less severe restraint on agency action intended to fo-
restall 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 ap-
proaches. /d. at 509. In light of the language of the 1982
amendment to the UMTRCA we must reject the environ-
mental 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
‘In 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 amicus generally parallel
those of the environmental petitioners.
24a
history also reveals Congress’ intent to forgo a feasibility
standard. The conference 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 UM-
TRCA does require a consideration of costs relative to
benefits, a cost-benefit analysis,'' by requiring a reasonable
relationship between costs and benefits. We have no doubt,
after reading the UMTRCA and its legislative history, that
Congress gave the EPA a clear indication of its intent to
require some sort of cost consideration. See American Tex-
tile Manufacturers, Inc., 452 U.S. at 510-11.
Nevertheless, although Congress acknowledged a cost-
benefit requirement, it did not define what the EPA must
do to meet that requirement in promulgating regulations.
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 to consider more than just
the feasibility of their standards and regulations?
Mr. SIMPSON. The Senator's understanding is correct. The di-
rection to consider costs requires more than a perfunctory deter-
mination 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).
Senator Simpson indicated that the amendment to the statute did
not require an “itemized cost-benefit approach.” He stated:
“As indicated in the statement of managers, standards and re-
quirements must bear a reasonable relationship to the expected
benefits; that is, the costs to comply should be commensurate with
the risks. This is not to say that an itemized cost-benefit optim-
ization approach is required. In balancing costs and risks to assure
a reasonable relationship between the two, judgment must be ex-
ercised by the agencies.”’
128 Cong. Rec. 513,055 (daily ed. Oct. 1, 1982) (cotloquy between
Sen.Simpson and Sen. Schmitt).
25a
The label ‘‘cost-benefit analysis’’ encompasses everything
from a strict mathematical balancing formula to a less
strict standard that merely requires the agency to rec-
ognize 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 U.S. Code Cong.
& Ad. News at 3617. The EPA must consider Congress’
intent to protect the public health and safety and the en-
vironment 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
of benefits and costs. Jd. (Congress considered 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-benefits”’ alternative. 48 Fed. Reg. at 591. The leg-
islative 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 re-
medial action standards. EPA, for example, has
already advised the conferees that it is consid-
ering costs in formulating its inactive site re-
quirements. ... Moreover, in adopting the
language, the conferees intend neither to divert
26a
EPA and NRC from their principal focus on pro-
tecting 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 3592, 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.”’ Jd. This language, in the context of the entire
legislative history of the 1982 amendments, see infra notes ~
10 and 11, convinces us that Congress intended cost-ben-
efit analysis, but less strict than an optimized 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 bane),
cert. denied, 426 U.S. 941 (1976).
A
The industry petitioners criticize the EPA’s change in
and justification for: its radon emission standard (allegedly
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 of the regulations,
which they say bear no rational relationship to their sub-
stantial costs.
We do not believe that misuse is an unreasonable jus-
tification for the standard, particularly in light of the fact
that misuse of the tailings helped lead to the enactment
of the UMTRCA. See H.R. Rep. No. 1480, Part 1, supra,
bho
~) 1
ie)
at 11, 1978 U.S. Code Cong. & Ad. News at 7433, 7434.'-
We do not believe that the EPA shifted its justification
for the radon standard in a manner that denied any part
the opportunity to comment on the alleged newly asserted
justification, misuse of tailings. In its description of the
proposed standard for ‘‘Control of Tailing Piles’ the EPA
stated: ‘‘Many interrelated factors affect the long-term
performance of tailings pile disposal methods. 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 !anguage in the proposed stand-
ards, misuse, as a justification for the standards, was suf-
ficiently foreshadowed in the proposed scheme; the parties
here were not deprived of notice or an effective oppor-
tunity 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).
This court recognizes the industry concerns over the costs
that must be incurred to prevent, using the EPA's cal-
culations, approximately 170 to 240 potential lung cancer
deaths per century in the United States from uncontrolled
mill tailings from ali inactive sites. 48 Fed. Reg. 593; I
FEIS-IN at 67. We think there is reasonable authority to
support the ‘PA’s method of risk calculation in regard to
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. Fed-
eral 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 emis-
sion 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 7433, 7434.
28a
J its potential lung cancer deaths estimate.'* See Reserve
Mining Co. v. EPA, 514 F.2d 492, 507 n.20 (8th Cir. 1975)
(en banc) (‘‘Indeed, a number of the disputes involve con-
flicting theories and experimenta! results, about which it
would be judicially presumptuous to offer conclusive find-
ings.’’).
The industry petitioners also criticize the EPA’s “esti-
mate 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) the es-
timate is unreasonable in its assumption that someone
would live continuously near a tailings pile; (83) the radon
daughter concentrations to which nearby individuals are
allegedly exposed, which the EPA listed in the Final En-
vironmental Impact Statement, do not correlate with the
radon concentrations in the study the EPA cites; (4) the
EPA based the radon measurements on inadequate sam-
pling data; and (5) the risk measurements include back-
ground radiation, not just radon from the tailings piles.
We address separately these arguments.
This estimate is based upon a linear nonthreshold theory of radiation
danger. This theory presupposes that a linear extrapolation of high
dose radiation data yields an accurate estimate of low-level radiation
risk. Many questions this theory of radiation risk. See Management of
Commingled Uranium Mill Tailings: Hearings Before the Subcomm. on
Procurement and Military Nuclear Systems of the House Comm. on
Armed Services, 97th Cong., 2d Sess. 176, 186-87 (1982) (comments on
proposed EPA standards). Nevertheless, 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 Pol-
icy Questions: 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 comparison to
natural 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 EPA has made a ‘4 in 100” excess risk of lung
cancer 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 emission stand-
ard—avoidance of that risk. We believe the evidence in
the record reasonably supports this risk estimate 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.'® See 42 U.S.C. § 7912. There are, however, piles
located near cities with sizable local 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 petitioners that few people
are currently exposed to radon from the piles, this fact
does not necessarily negate the need for regulation. es-
pecially in light of Congress’ presumed knowledge regard-
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. Jd. at 593,
598.
‘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.”’
| FEIS-IN at 59.
30a
ing the population density in area 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 magnitude than those
involved here: workers with nuclear materials, under-
ground 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’ criticism does not under-
mine the validity of the risk assessment; it only points to
the limited number of persons who currently may be sub-
ject 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 Environ-
mental Impact Statement, and the referenced study con-
ducted by consultants Ford, Bacon and Davis Utah, Inc."
‘See 42 U.S.C. § 7912 (processing site designations).
“The EPA 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, Ad-
dendum F. These discrepancies are as follows:
Recalculated*
City Cited Exposure Level Exposure 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 Environmental
3la °
See Letter from Christopher Herman, Attorney, Air, Noise
and Radiation Division, United States Environm: nta! Pro-
tection Agency, Brief for American Mining Congress, Ad-
dendum F. Although these discrepancies alter the risk
estimates, we do not think that the deviation is sufficiently
significant to render the EPA’s upper limit risk estiinate
to be unsupported by available data. Precision is desirable,
yet these discrepancies do not rise to a level that would
require invalidation of an estimate as an arbitrary decision.
Industry petitioners criticize the EPA for calculating
risk from figures they allege were derived from inadequate
sampling data and data that included background levels of
radiation, instead of figures based solely on the radon emit-
ted 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 adequate to support
the EPA’s estimates.'’ An estimate of risk may reasonably
Impact 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.
“The American Mining Congress faults the Ford, Bacon study's radon
measurements because the figures are based on ‘a single 24-hour sam-
ple." 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-eight hour samples taken
at three-week intervals over a twelve-month period.
This argument 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 numberous
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 sam-
ple sizes yield more reliable data. But at some point a study must
compromise perfection 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,
32a
include possible background risk—to exclude it could lead
to unrealistic assumptions regarding the dangers that the
sites do present.
B
The industry petitioners’ arguments against the EPA’s
radium-in-soil concentration standard, 40 C.r.R. § 192.12(a)
(1984), are similar. They say the standards are invalid
because (1) the EPA’s assumptions about the likelihood of
significant exposures from the concentrations do not sup-
port the standard; and (2) the EPA’s assumptions about
the relationship between radium concentrations 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 exposure to
radon from contaminated soil may vary from the levels
that the EPA assumed. Even considering the possible in-
accuracies 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
and local climate of each site as well as the current location and con-
figuration 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 ac-
ceptable substitute for periodic samples taken over an extended period
of ttme. The American Mining Congress does not question the validity
of the data which comprised the model. It only questions the meth-
odology.
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 consultants’ 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 pat-
terns may affect radon release, a model that takes into account vari-
ations over an entire year at the particular site seems quite reasonable.
8 33a
4
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 con-
centration standard. Although this sort of area designation
admittedly could influence the effectiveness of the stand-
ard, it is not the sort of change that necessitates a new
round of comment.
Cc
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 ef-
fort 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 im-
plementation of the final standard. See 48 Fed. Reg. at
600. it further stated that ‘‘the final standard deals ad-
equately with complications introduced by the presence of
any high concentration of naturally-occurring radio-
nuclides, and avoids unnecessary and costly remedial ac-
tions that produce only marginal improvements.’ Jd.
“In 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 sealants, filtration
and ventilation devices to provide reasonable assurance of reductions
from 0.03 WL to below 0.02 WL. See 40 C.F.R. § 192.20(b\3) (1984).
The regulation provides that:
‘Residual radioactive materials should be removed from buildings
exceeding 0.03 WL so that future replacement buildings will not
pose a hazard [unless removal is not practicai--see § 192 21(c)].
However, sealants, filtration, and ventilation devices may proride
reasonable assurance of reductions from 0.03 WL to below 0.02
WL.”
40 C.F.R. § 192.20(b3) (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 concentration levels.
a ee
34a
The environmental petitioners criticize the final standard
for allowing an unjustified increase in risk, represented by
the changes from the proposed to the final standard. The
proposed standard 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. Jd. Contrary to the environmental petitioners’
argument, the EPA did evaluate the residual risk of lung
eancer 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. Jd. 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 signif-
icant increase in the risk, we cannot say the EPA acted
arbitrarily or capriciously or beyond its authority in allow-
ing the higher ievel and its attendant risk.
D
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 reason-
able relationship between the estimated benefits of control
of the tailings piles and the costs of providing those ben-
efits. We start with the obvicus premise that there can
be no reasonable relationship in the abstract. As we in-
dicate earlier, Congress’ intent serves to define the rea-
sonableness of any relationship between costs and benefits.
Given Congress’ admonition that the EPA recognize as its
‘paramount responsibility protection of the pubtic health
and safety and the environment,’’ House Conf. Rep. No.
884, supra, at 47, 1982 U.S. Code Cong. & Ad. News at
3592, 3617, we review the EPA’s adoption of the 20 pCi/
m-/sec radon emission standard.
In the Final Environmental Impact Statement the EPA
analyzed the “Benefits Derived From Controlling Uranium
Mill Tailings Piles,’ specificaily considering the benefits
35a
that would be provided under various remedial alterna-
tives—ranging from ‘‘No Standards” to the EPA’s origi-
nally *‘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 con-
trol; the permanence of the controls inhibiting misuse and
erosional spreading; the reduction in vulnerability of the
site to flooding; the reduction in the residual risk of lung
cancer; the deaths avoided; and the surface water protec-
tion provided. The alternative the EPA ultimately selected
in the final regulations, a 20 pCi/m*/sec standard,*! pro-
vides significant benefits, meeting Congress’ concern that
the standard protect the public health, safety, and envi-
ronment. The selected standard and its corresponding con-
trol method, see I FEIS-IN at 91, according to the Final
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
vears of protection, and protect surface water from con-
tamination for many thousands of years. I FEIS-IN at 99,
Table 6-6.
The environmental petitioners criticize the validity of the
final radon emission standard for not ‘“‘preventing or min-
imizing”’ diffusion of radon into the atmosphere. See 42
U.S.C. § 7901(a) & (bX1). In the same vein, they also
criticize the tenfold increase in the level of emissions per-
mitted 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 final 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
See | FEIS-IN at 128-29 (Alternative B selected).
EPA's selected alternative correlates to a three meter earth cover
requirement. I FEIS-IN at 91, Table 6-2. In addition Alternative B
assumes three of the piles will be moved for flood control reasons. Se
d. at 91; B-16
36a
101. Given the reduction in risk provided by the final
standard, we do not believe that the ‘‘tenfold increase’’in
the level of emission allowed by the final standard makes
that standard unreasonable, even in light of the change.
We hold that the final standard is within a zone of rea-
sonableness, see Small Refiner Lead Phase-Down Task
Force, 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 emission
standard—that the standard control emissions to the ex-
tent 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 consider the
thousand-year longevity goal unrealistic. The environmen-
tal petitioners consider the reduced two hundred-year min-
imum 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’ command to take costs into consiuer-
ation. The final standard meets Congress’ desire to avoid
the health risks presented by the tailings piles and provide
a remedial prograrn that will result in long-term stabili-
zation 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 7433, 7467.
Given Congress’ expressed desire to have a remedial pro-
gram 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 implementing
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. Jd.
37a
at 98-104, 128-29. Arguably, EPA could have placed more
reliance upon the maintenance and monitoring activities of
the implementing agencies. Congress, however, did not
require it to do so and instead indicated its preference for
a more permanent remedial program. The EPA’s under-
standing of its duty under the statute to rely principally
upon passive control is sufficiently rational to withstand
our review. See Chemical Manufacturers Association v. Na-
tional 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 (1981)
dollars, respectively. EPA stated that the DOE had esti-
mated its additional costs for program development 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 596. We recognize
the tremendous costs that this cleanup program repre-
sents. 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 well 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
significant inflationary impact. Over the next 7
years, 22 tailing sites will be treated at a total
cost ranging anywhere from $15 million to $200
million, depending largely upon whether tailings
will be treated and stored at their present lo-
cation or, instead, moved to newly prepared dis-
posal 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 required. But even
taking these additional costs into account, the
impact of the legislation on inflation and overly
—
38a
[sic] economic performance is expected to be im-
measurable [sic].”’
H.R. Rep. No. 1480, supra, at 47, 1978 U.S. Code Cong.
& Ad. News at 7433, 7474. We must defer to the EPA’s
finding 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, ‘‘[w]e are convinced that EPA
made a serious, careful, and comprehensive study of the
costs which compliance will impose .... If Congress be-
lieves that the cost is too high, it can amend the Act. All
we say is that EPA has complied with the statutory man-
date.’’ American Petroleum Institute v. EPA, 540 F.2d
1028, 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 standards are
not in compliance with the law or are inadequate and
require remand.
In its final standards the EPA abandoned its proposed
general standards for limits of concentrations of toxic sub-
stances in surface and ground water.** See 48 Fed. Reg.
at 591, 594; see also 46 Fed. Reg. at 2562 (text of proposed
standards). The EPA concluded that potential contami-
nation of surface and ground water should be dealt with
on a site-specific basis. 40 C.F.R. § 192.20(aX2\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 necessary to meet rel-
evant state and federal water quality standards. 48 Fed.
Reg. 591. It stated that those programs should be con-
sistent, to the maximum extent practicable, with the Solid
See supra note 3.
39a
Waste Disposal Act (SWDA), 42 U.S.C. §§ 6901-6986. 48
Fed. Reg. at 591; 40 C.F.R. § 192.20/ay2) & (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 contam-
ination: ‘There is evidence of limited ground water con-
tamination at some of the inactive sites, but 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 contamina-
tion from inactive mill tailings is or will be a matter of
regulatory concern.” Jd. 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 con-
tamination 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
indication of the possibility that the EPA would reject the
proposed water standards and adopt a “guidance” outline
for the implementing agencies, abandoning any attempt at
specific numerical limits of toxic elements. The only state-
ment we could find in the draft EIS that could be con-
strued to indicate consideration of an alternative similar
to that adopted is this: ‘‘The proposed ground water pro-
tection standards could be considered too strict if imple-
menting them would be unreasonable costly or if they
would be impossible to apply.’’ Environmental Protection
Agency, Draft Environmental Impact Statement jor Re-
medial Action Standards for Inactive Uranium Processing
Sites 8-8 (1980). The explanation of the proposed water
quality standard anticipated possible increases 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
40a
of the comments submitted to the EPA during the com-
ment period after publication of the proposed rules sug-
gested that the EPA abandon its proposed ground water
standards. See, e.g., If FEIS-IN at D-36, -37, -44, -45, -
46. But regardless of the tenor of some of the comments,
the final ‘“‘guidance”’ standard 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 inactive
sites, it was required to adopt general standards.** The
UMTRCA provides that the EPA “promulgate standards
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. and Ad. News at 7433, 7439. By directing the DOE
to follow ‘“‘relevant’’ state and federal quality standards
consistent ‘‘to the maximum extent practicable’’ with the
SWDA, see 48 Fed. Reg. at 591; 40 C.F.R. § 192.20(a)(2)
and (3) (1984), the EPA was unlawfully 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 implementing
agencies, the NRC and the DOE, to “select and perform
remedial actions that come as close to meeting the oth-
erwise applicable standard as is reasonable under the cir-
cumstances.” 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 outrageous
or compliance impossible is not an abrogation of the duty
to promulgate general standards. A court could determine,
‘Of course, a site with no contamination problems would automati-
cally meet any general requirements the EPA might set without further
corrective action.
4la
if required to do so, 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-
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 con-
trol and cleanup are carried out according to
these final standards.”’
48 Fed. Reg. at 597. We are satisfied that the EPA’s
general regulations on radon emissions, requiring control
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 or
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.
IX
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.
42a
UNITED STATES COURT OF APPEALS
THE TENTH CIRCUIT
Nos. 83-2226
83-2227
83-2277
83-2504
83-2524
84-1349
84-1352
84-1482
AMERICAN MINING CONGRESS, UNITED NUCLEAR
CORPORATION, HOMESTAKE MINING COMPANY, AMAX, INC.,
SOLAR LOBBY, THE ENVIRONMENTAL DEFENSE FUND, INC.,
NATIONAL WILDLIFE FEDERATION, SIERRA CLUB, AL
MANGAN, CHAUNCEY KEPFORD and JuUbITH H. JOHNSRUD,
Petitioners,
Lee M. Tuomas, in his capacity as Administrator of the
United States Environmental Protection Agency, and
ENVIRONMENTAL PROTECTION AGENCY,
Respo dents.
STATE OF COLORADO, ef al.,
Intervenors.
FILED
September 3, 1985
Petitions for Review of an Order of the
Environmental Protection Agency
No. 84-1908
43a
UNITED NUCLEAR CORPORATION, HoMESTAKE MINING
CoMPANyY, and QUIVIRA MINING COMPANY,
Plaintiffs-Appellants.
Vs
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)
Anthony J. Thompson (Edward A. McCabe. Charles E.
Sliter, Robert F. Reklaitis and Edward S. Shipper, it:,
also of Hamel & Park, Washington, D.C.: of counsel Larry
A. Boggs, Senior Counsel, American Mining Congress,
Washington, D.C., with him on the briefs) for the Amer-
ican Mining Congress.
Peter J. Nickles (Richard A. Meserve, also of Covington
& Burling, Washington, D.C.; G. Stanley Crout, Sunny J.
Nixon, Michael S. Yesley, and Rebecca Dempsey of Ste-
phenson, Carpenter, Crout & Olmsted, Santa Fe, New
Mexico, with him on the briefs), for United Nuclear Cor-
poration, Homestake Mining Company, and Quivira Mining
Company.
Robert E. Yuhnke, Regional Counsel (James B. Martin,
Staff Attorney, also of the Environmental Defense Fund,
Boulder, Colorado; Roger Beers and Kathryn Burkett
Dixon of Beers & Dixon, San Francisco, California; and
Frances M. Green, Staff Counsel, National Wildlife Fed-
eration, Boulder Colorado, with him on the briefs) for the
Environmental Defense Fund, the National Wildlife Fed-
eration, the Sierra Club and Al Mangan.
Barry S. Neuman, Attorney (F. Henry Habicht. II. As-
sistant Attorney General, Land and Natural Resources Di-
—
dda
vision, Margaret N. Strand, Martin W. Matzen and John
A. Bryson, Attorneys, Environmental Defense Section,
U.S. Department of Justice, Washington, D.C., of counsel
A. James Barnes, General Counsel, Gerald Yamada, Acting
General Counsel, William F. Pedersen, Associate General
Counsel, Charles S. Carter, Assistant General Counsel, and
Christopher C. Herman, Office of General Counsel, En-
vironmental Protection Agency, Washington, D.C., with
him on the briefs) for Respondents.
Adonis A. Neblett, Assistant Attorney General (Duane
Woodard, Attorney General, Charles B. Howe, Deputy
Attorney General, and Richard H. Forman, Solicitor Gen-
eral. Denver, Colorado, with him on the briefs) for Inter-
venor State of Colorado.
Chauncey Kepford and Judith Johnsrud, State College,
Pennsylvania, filed briefs as pro se petitioners.
Richard O. Austermann, Senior Counsel Regulatory Af-
fairs. Amax. Inc., Golden, Colorado, filed briefs for
Petitioner Amax, Inc.
Before LOGAN and McWILLIAMS, Circuit Judges, and
BOHANON, District Judge.*
LOGAN, Circuit Judge.
*Honorable Luther L. Bohanon, United States District
Judge for the District of Oklahoma, sitting by designation.
I
These consolidated cases involve challenges to the En-
vironmental Protection Agency’s (EPA) standards govern-
ing stabilization and control of byproduct materials,
primarily mill tailings, at licensed commercial uranium and
thorium processing sites (the active mill sites). The EPA
established these standards pursuant to its authority under
the Uranium Mill Tailings Radiation Control Act 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
45a e
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 promulgated 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 dis-
missal although they are raising the identical issue re-
garding timeliness of promulgation under their concurrent
petition filed under § 2022(c)\2).
As in the inactive mill site challenges, see American
Mining Congress v. Thomas, 772 F.2d 617 (10th Cir. 1985)
[hereinafter Jnactive Sites Case], petitioners may be divided
essentially into two categories: (1) the industry petitioners
-- the American Mining Congress, a trade association; and
joint petitioners United Nuclear Corporation (and its sub-
sidiary Quivira Mining Company) and Homestake Mining
Company; and (2) the ‘‘environmental’’ petitioners—The
Environmental Defense Fund, the National Wildlife Fed-
eration, the Sierra Club, the Solar Lobby, Al Mangan,
Chauncey Kepford, and Judith Johnsrud. Intervenor, the
State of Colorado, aligns itself on most issues with the
environmental petitioners. AMAX, Inc. aligns itself with
the industry petitioners although it is challenging only the
inclusion of molybdenum as a constituent of the nonra-
diological hazards designated in the ground water portion
of the regulations.
The substance to be controlled and the UMTRCA’s leg-
islative background have been discussed briefly in the com-
panion 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 repeat that dis-
cussion here. See Inactive Sites Case, 772 F.2d 621 at (part
I).
Congress, apparently angered by the EPA’s inaction,
imposed time limits upon the EPA’s authority to formulate
46a -
regulations to govern the active mill sites. A 1983 amend-
ment to the UMTRCA provided, “If the Administrator
fails to promulgate standards in final form under this sub-
section by October 1, 1983, the authority of the Admin-
istrator to promulgate such standards shall terminate’ in
favor of the Nuclear Regulatory Commission. 42 U.S.C. §
2022(b\1). The EPA published proposed standards for the
active mill sites in the Federal RegisTer on April 29, 1983.
48 Fed. Reg. 19,584 (1983). The Administrator signed final
standards on September 30, 1983, and apparently released
copies to the public on that day. The regulations did not
appear in the Federal Register, however, until October 7,
1983. 48 Fed. Reg. 45,926 (1983) (codified at 40 C.F.R. §
192.30-.43 (1984)).
The EPA’s final standards, except those for ground
water were essentially identical to those adopted for the
inactive mill sites. Standards to be applied after the site
closure period were to assure control of radiological haz-
ards ‘“‘for one thousand years, to the extent reasonably
achievable, and, in any case, for at least two hundred years
.... 40 C.F.R. § 192.32(b\1Xi) (1984). The final standards
also established radon emission limits not to exceed an
average release rate of 20 picocuries per square meter per
second (pCi/m2s). Jd. § 192.32(b\1 ii). On-site land that
meets the described standard is not subject to the disposal
standards elsewhere in the regulations. That described
standard, based on the maximum concentration level of
radium-226 averaged over areas of 100 square meters, is
the same as that at the inactive mill sites: 5 picocuries
per gram (pCi/g) averaged over the first 15 centimeters
of soil and 15 pCi/g for soil layers more than 15 centi-
meters below the surface. Jd. § 192.32(b)(2).
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.
Id. § 192.32(aX1)-(2). In almost all circumstances the pri-
mary standard would require a liner under new impound-
47a
° a
ments 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) require-
ments). Liners were not required for existing impound-
ments, even though new waste could be added. See id. at
45,931 (discussion of § 192.32(a)(2) requirements). The sec-
ondary standard in effect requires that the ground water
be protected by reducing the level of toxic materials
the ground water to concentration limits permitted by the
Solid Waste Disposal Act (SWDA), 42 U.S.C. §$§ 6901-6986.
The regulations necessitate monitoring programs. 40 C.F.R.
§ 192.32(aX2) (1984). One SWDA requirement of imperme-
ahle 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 standards
permit exceptions, with the consent of the EPA, for par-
ticular existing piles that cannot meet those standards ex-
cept at extraordinary cost. 40 C.F.R. § 192.32(a)(2) (iv);
see 48 Fed. Reg. at 45,941 (discussion of potential excep-
tions). The standards add molybdenum and uranium to the
list of hazardous ground water constituents. 40 C.F.R. §
192.382(a\(2\1).
For purposes of discussion and analysis we divide the
petitioners’ contentions into four categories: (1) the alle-
gations that the EPA acted beyond its authority because
it did not promulgate the regulations within the time re-
quirements of the statute; (2) those arguments sufficiently
common to challenges to both the inactive and active mill
site regulations that they may be answered, at least in
part, by reference te the companion Inactive Sites Case;
(3) the challenges to the ground water regulations; and (4)
AMAX, Ine.’s objection to the addition of molyodenum as
a constituent of hazardous material in the ground water
regulations.
[I
Petitioners United Nuclear Corporation, Homestake
Mining Company, and Quivira Mining Company (herein-
48a
after United Nuclear) assert that the EPA exceeded its
jurisdiction authority because it promulgated these regu-
lations 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 pro-
mulgate standards in final form under this sub-
section by October 1, 1983, the authority of the
Administrator to promulgate such standards shall
terminate, and the (Nuclear Regulatory] Com-
mission may take actions under this chapter with-
out regard to any provision of this chapter
requiring such actions to comply 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 pro-
mulgated 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’ timeliness, hold-
ing that judicial review of the rules was vested exclusively
in the appropriate court of appeals pursuant to 42 U.S.C.
§ 2022(c\2). 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 action
of the agency, including assertions that the agency acted
in excess of its statutory authority or beyond its jurisdic-
tion. should be initiated in the court of appeals. See FCC
+ ITT World Communications, Inec., 52 U.S.L.W. 4507,
4509 (U.S. April 30, 1984). The Administrative 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. § 706(2) (C).
49a
Courts considering the statutory periods of limitations
for petitions for judicial review of administrative rulemak-
ing, which commonly refer to the date of “promulgation”
of rules, ¢.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 Environmental De-
fense 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 limi-
tations period for seeking judicial review as beginning on
the date of publication in the Federal Register. No doubt
many parties affected by a rule first learn of its upon
publication in the Federal Register. We believe, however,
that “promulgation” does not have a single accepted mean-
ing in all contexts. We agree with the EPA that the pur-
pose of the statutory provision was to compel action by
the EPA before October 1, 1983. See House Conf. Rep.
No. 884, 97th Cong., 2d Sess. 43-45, reprinted in 1982
U.S. Code Cong. & Ad. News 3592, 3603, 3613-15. In
establishing the deadline discussed here, Congress was ac-
tually 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 meaning of
promulgate is to make public; the EPA’s action here ef-
fectively achieved that end. We do not think Congress
intended to throw away the fruits of EPA’s labor simply
because it did not publish the rule before the end of Sep-
tember. We hold that the EPA met Congress's deadline
requirement.
50a
Ill
Most of the arguments by the various petitioners are
substantially identical to those in the consolidated Inactive
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, 772 F.2d 627 at [part III));
(b) that the EPA may promulgate standards to apply
within the boundaries of the mill sites (see id. at 629 [part
IV]);
(c) that the EPA’s standards do not unlawfully impose
management, design, and engineering requirements (see id.
at 630 [part V]); and
(d) that the EPA properly considered cost-benefit factors
in establishing standards (see id. at 630 [part VI).
Most of the various petitioners’ arguments that the
EPA'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 different, how-
ever, and a few arguments have changed somewhat be-
tween the two sets of cases.
In formulating the active site regulations the EPA es-
timated 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
Some environmental petitioners challenge the EPA’s failure to pro-
mulyate 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 herein. It has been heid in abeyance
by court orders requested by the parties pending negotiations between
parties.
dla
593 (inactive sites). Although its final regulations for the
active sites repeated the 4 in 100 lifetime cancer risk for
occupants of houses on tailings in Grand Junction, Colo-
rado—the figure it used in its inactive site calculations—
the EPA estimates a 2 in 100 lifetime risk for people
living continueusly next to “some tailing 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 total of $310 million to $540 million
total cleanup cost to the uranium milling industry for all
tailings now in existence and to be produced through the
year 2000. Id. at 45,945. For the standard selected for
radon emissions, 20 pCi/m*s, the range of incremental costs
per death avoided is estimated from $130,000 (nationwide
for 1000 years) to $2.5 million (regionally for 100 years).
Id. at 45,944-45. See generally Regulatory Impact Analysis
of Final Environmental Standards jor Uranium Mill Tail-
ings at Active Sites 4-1 to 5-39 (detailed EPA costs and
benefit discussion). These are significant costs, if the EPA's
figures are accurate. But we remain convinced that Con-
gress placed the responsibility for evaluating them upon
the EPA without imposing a specific cost-benefit require-
ment. See Inactive Sites Case 772 F.2d at 630 [part VI].
Therefore, the industry petitioners’ arguments that the
costs are too high for the benefits gained, and the envi-
ronmental petitioners’ arguments that the industry should
be forced to incur the greater costs of standards that
would save even more lives, should be addressed to Con-
gress 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 responded to both of these complaints
in justifying its actions. See 48 Fed. Reg. at 45,9233: xe
also IIT Environmental Protection Agency, Final Environ-
mental Impact Statement for Standards Jor the Control of
Byproduct Materials from Uranium Ore Processing A.3-
12 to -14 (1983) hereinafter FEIS-AC.
In arguing that the EPA acted arbitrarily and capri-
clously 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 ad-
equate statement of the scientific basis for developing
standards to regulate airborne radionuclide emissions.”
Subcommittee on Risk Assessment for Radionuclides, Sci-
entific Advisory Board, U.S. Environmental Protection
Agency, Report on the Scientific Basis of EPA's Proposed
National Emission Standards for Hazardous Air Pollu-
tants 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, 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 infor-
mation for decision-making rather then being critical of
the background documents themselves. We do not believe
that report requires overturning the instant regulations.
The report itself acknowledges that scientists may differ
in regulatory philosophy, auopting different approaches to
risk assessment.’
The EPA has filed a motion to strike references to extra-record
items cited by the various petitioners. The Industry petitioners have
moved to suprlement the record with these additional materials. For
the reasons we state in the Inactive Site Case, 772 F.2d at 626 [part
II], we deny the motions to strike and also deny all contested motions
to supplement the record.
The report states:
“[I]n the process of risk assessment, many assumptions must be
made. Scientists may be swayed in their choice of assumptions 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 report on Biological Effects
of Ionizing Radiation (BEIR III), knowledgeable scientists disagree
53a
Industry petitioners also protest strongly that the EPA
acted inconsistently in the way these regulations require
addressing the risks compared with other regulations pro-
mulgated under other acts: e.g., control of radiation from
high toxicity waste. We cannot evaluate here all the fac-
tors that caused the EPA to adopt a different approach
in connection with its rulemaking under other laws, if in-
deed it did act differently. The record shows that the EPA
did consider and respond to this inconsistency complaint.
See II FEIS-AC at A.3-2 to -4. We are satisfied that the
EPA acted consistently in formulating regulations 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 ru-
lemaking under other acts is not the kind of internal in-
consistency we found to be arbitrary and capricious in
Squow Transit Co. v. United States, 574 F.2d 492, 495-96
(10th Cir. 1978).
The American Mining Congress and the State of Col-
orado make somewhat different arguments that a 5 pCi/g
radium standard for land adjacent to a tailings pile is
inconsistent with the radon e.nission 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 not inconsistency and that the radium cleanup standard
was designed to push concentrations in the land suffi-
ciently 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.
IV
The EPA adopted a two part ground water standard
for active mill sites. 40 C.F.R. § 192.32(a) (1) - (2). The
primary standard, requiring use of a “liner,” applies only
on which dose-response relationship is best.”
Subcommittee on Risk Assessment for Radionuclides. Scientific Advi-
sory Board, U.S. Environmental Protection Agency, R: port on the Sei
entific Basis of EPA's Proposed National Emission Standards for
Hazardous Air Pollutants tor Radionuclides ii
54a
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. Id. at 45,940. It re-
quires monitoring and levels of concentration 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 requirements. These
arguments to 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,
772 F.2d at 629. We see nothing that compels a different
conclusion in the EPA’s adoption of ground water stand-
ards for active mill sites. The optimal method of pre-
venting pollution of off-site water supplies is to prevent
radiological and other hazardous substances from entering
the ground water. General application standards that allow
the NRC to choose the means of implementation are con-
sistent with the authority Congress vested in the EPA.
Although the regulations require a “liner” for new 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., II FEIS-AC at A.1-28, A.4-
7. The regulations require the industry to satisfy SWDA
drinking water concentration standards at specified dis-
tances 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 aire
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 gen-
erally applicable standards must provide “protection of hu-
man health and environment consistent with the standards
required under subtitle (C) of the Solid Waste Disposa!
Act [SWDA], as amended, which «are applicable to such
hazards....” 42 U.S.C. § 2022(b\2) (emphasis added). The
industry petitioners’ principal argument 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. Further, the industry petitioners as-
sert 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.
The EPA made findings that conditions at tailing im-
poundments are not sufficiently different from the con-
ditions it considered in developing SWDA standards to
necessitate a change in approach. 48 Fed. Reg. at 45,941:
II 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)
(discussion of basis for decision). Apparently Congress has
barred the EPA from applying SWDA regulations to cer-
tain mining wastes pending an agency study that was in-
complete at the time the EPA was required to promulgate
final regulations for the active mine sites. See I! FEIS-
AC at A.1-2 to -3. Yet, the EPA was under pressure from
Congress to promulgate license site standards by the Oc-
tober 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 equivalent to the drink-
ing water standards.
United Nuclear argues that the EPA’s ground water
standards impermissibiy intrude on state controi 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
754, 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
: a. vo
SRE be SST, ee Maa AS PSE
56a
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 te apply the primary standard to ex-
isting tailings impoundments is unreasonable because see-
page from these sources is already fouling the environment.
The EPA’s response is that the existing impoundments
are only exempted from the primary standard requiring
an impermeable barrier. The impoundments are still sub-
ject to the secondary standard. 40 C.F.R. § 192.32(a)(2).
Violation of the secondary standard may require the op-
erator to cease making new deposits and take corrective
action. Id. § 192.33; see 48 Fed. Reg. at 45,941 (discussion
of § 192.33). The EPA says it only adopts standards, leav-
ing the methods to achieve the standards to those charged
with management of the piles. It also argues that man-
datory stoppage of adding to existing piles or removal of
existing piles to new, lined impoundments could increase
radon emissions and render additional large amounts of
land permanently contaminated and unproductive by in-
creasing 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 properly
before us because it was not raised during the comment
period and because the challenge is in reality one to the
SWDA regulations themselves. In addition, the EPA ex-
plains that it determined that existing off-site contami-
nation should be addressed through its emergency powers
under SWDA and the ‘‘Superfund”’ statute, the Compre-
hensive Environmental Response Compensation and Lia-
bility 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 which occurred after it issued the active site
57a
Py
final regulations. See Brief of Respondents at 93 n.83. We
accept as rational this explanation for not imposing re-
quirements for outside-the-boundaries cleanup, and we can-
not say the EPA’S actions were arbitrary or capricious.
The environmental petitioners assert that the EPA did
not properly respond to comments during rulemaking, par-
ticularly those concerning “‘compliance point’ monitoring,
which suggested that seepage should be monitored in the
vadose zone of rocks or sediment to detect pollution before
it reaches the aquifers. We are satisfied that the EPA
undertook a determined effort to respond to comments
during the rulemaking period. See generally I] FEIS-AC
at A.1-1 to 7-5 (Summarized comments 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. Td. 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 be-
cause 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 monitor-
ing guidelines laid down by the EPA are irrational or
unsuited to the task. See 48 Fed. Reg. at 45,942 (guidelines
listed).
Petitioners Kepford znd 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., 48 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 mill sites.
Vv
AMAX, Inc., one of the world’s leading producers of
molybdenum, has petitioned for review of the active site
oga
regulations for the specific purpose of challenging the
EPA’s designation of molybdenum as a “hazardous con-
stituent”’ of uranium and thorium mill tailings and sub-
jecting molybdenum to the ground water protection
standards. No other petitioner has focused any attack on
the identification of particular minerals as non-radiological
hazards. Therefore, before considering the merits of
AMAX’s claims we must consider AMAX’s standing to
raise the issues in its petition. The EPA asserts that
AMAX lacks standing to challenge any aspect of the UM-
TRCA active site regulations because it does not own or
operate any licensed uranium mill tailings sites and there-
fore is not affected by the regulations. The regulations
specifically state that molybdenum is listed as a hazardous
constituent ‘‘only for purposes of controlling uranium and
thorium byproduct materials. EPA does not intent 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
‘“{jludicial review of any rule promulgated under
this section may be obtained by any 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 judicial circuit in which such person re-
sides 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 rele-
a9a 5
s
vant 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
Church and State, Inc., 454 U.S. 464, 471 (1982); Ozonosf
v. Berzak, 744 F.2d 224, 227 (1st Cir. 1984). At a mini-
mum, 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 illegal conduct of the defendant,’
and [2] that the injury ‘fairly can be traced to
the challenged action’ and [3]‘is likely to be re-
dressed by a favorable decision.’ ”’
Valley F
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