# Petition for Writ of Certiorari — American Mining Mining Congress Congress v. Thomas (Nos. 85-1280, 85-1279) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1408%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 ## Text iG Court U $. Supre a 1 ED ria ys - oy £, SPANIOL, JR nil r+ | ~ JOSE. i gienk a ae 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1408%3A1. Public record. Not legal advice.