Opposition Brief — American Mining Mining Congress Congress v. Thomas (Nos. 85-1280, 85-1279)

Supreme Court, U.S.

FILE D

| APR 1986

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

JOSEPH F. SPANIGL, JR.

CLERK

In The

Supreme Court of the United States

October Term, 1985

ray

Vv

AMERICAN MINING CONGRESS, AND UNITED

NUCLEAR CORPORATION, ET ALIA, CHAUN-

CEY KEPFORD (PRO SE),

Petitioners,

v.

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

AND

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

iy.

Vv

Petitions for Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

O-—

INTERVENOR—RESPONDENTS

ENVIRONMENTAL DEFENSE FUND’S AND

SIERRA CLUB’S BRIEF IN OPPOSITION

ty

Vv

Ropert E. YUHNKE

Counsel of Record

Environmental Defense Fund

1405 Arapahoe Avenue

Boulder, CO 80302

(303) 440-4901

Counsel for Intervenor-Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

TABLE OF CONTENTS

Tame Ce AU cee ete oe

Ce I ceca neers

STATUTES AND REGULATIONS INVOLVED .......

STATEMENT OF THE CASE _.

A. The Evidentiary Reeord Supports Congress’

Decisions to Require Standards 20...

1. Radiological Risks Associated With Tail-

Ue Aen Co teens a eee

2. Risks From Nonyradioactive Toxie Sub-

Smee Es LOR EB IE ree a

B. Statutory and Regulatory Background |...

REASONS WHY UNC’S AND AMC’S PETITIONS

SHOULD BE DENTED |... eereeeien |

A. The Decision Below Is Not At Odds With The

Statutory Command Or With Prior Decisions

ee oi eee ee emanate

1. No Ageney Finding of Significance is Re-

ae serra tectenc lec ceecseneer careers

2. EPA Did Not Exceed Its Statutory Au-

I sere ee ee enone

B. The EPA Standards Will Be Implemented

Without Causing Conflict Among Federal

pe MRE ae ee eae jeaeecaibecacae

THE KEPFORD (PRO SE) PETITION

1. OMB ’s Role In The Rulemaking —.

2. Cost-Benefit Analysis Not Consistent

Whe VME. oo Seilaetonates

bse Fs)” ARMM rt Se WE eres Uns Nees ae ee

il

TABLE OF AUTHORITIES

CASES:

American Textile Manufacturers Institute v. Don-

even, 432 US. 466 (HG) 2. eee 24

Industrial Union Department, AFL-CIO v. Ameri-

can Petroleum Institute, 448 U.S. 607 (1980) ......... 10

Kerr-McGee Nuclear Corp. v. NRC, 673 F.2d 1124

(30th Cie. TORR) nc eee 27

Northeast Marine Terminal Co. v. Caputo, 4382

Uo. GG (19681) 0. ae

Rodriguez v. Compass Shipping Co., 451 U.S. 596

SAUD sicicicticecnntaeeueicen sdnenuliadscaeeanmnaamaie uae tate 15

Train v. Colorado Public Interest Research Group,

Ruc., 426 Us. 2 CASTS) 5.05 oe 18, 19

Watt v. Alaska, 451 USB. 23 (981) — 12

FEDERAL STATUTES:

Occupational Safety and Health Act of 1970, as

amended,

a USC. $661 o seg. eee 10

ae USL. $1) 2.2... 11

Reorganization Plan No. 3 of 1970

84 Stat. 2086, 5 U.S.C. App., 1132 (1982)... 16

Uranium Mill Tailings Radiation Contiol Act of

1978, as amended,

42 U.S.C. $§ 2014 et seq.; 42 U.S.C. $$ 7901-7942 2

42 UC. $ 9028(a) ce eee 13, 14, 29

42 USC. 69000(b) 8, 9.13, 14

43 U.S.C. ¥ 7901(b) (1), (2) ...... eee 13

ill

TABLE OF AUTHORITIES—Continued

Pages

FreperaAL REGULATIONS AND Notices:

40 C.F.R. Part 192, Subparts A-E . 3,9

45 Fed. Reg. 65521 (1980) ........ 27

oo feu, meg, 2609 (1981) 22

gL 2, 22

48 Ped. Reg. 45926 (1983) ccc cccccccccssesscssseseessee 2, 3,9

oy eee mee, Soece (1984) 20

OO Bea. Meg, 41852 (1985) 19

LEGISLATIVE History:

Uranium Mill Tailings Control Act of 1978:

Hearings on H.R. 11698, H.R. 1229, H.R.

12938, H.R. 13049, H.R. 13650 Before the Sub-

committee on Energy and Power of the House

Committee on Interstate and Foreign Com-

merece, 95th Cong., 2d Sess. 400 (1978) 8

H.R. Rep. No. 1480 (Part 1), 95th Cong.. 2d

Sess. (1978), reprinted in 1978 U.S. Code,

nc ececcccseeesserece 7, 13, 16, 25

H.R. Rep. No. 1480 (Part IT), 95th Cong., 2d

Sess. (1978), reprinted in 1978 U.S. Code

Cong. & Ad. News ............ Tc 51 Ree ahh nee 8, 14.17

H.R. Rep. No. 97-884. 97th Cong., 2d Sess. 47

(196%) ............... I ek etsy ccna 15, 25, 26, 27, 28

H.R. 13650, 124 Cong. Ree, 36687 (1978) 17,18

H.R. 13650, 124 Cong. Ree. 38230 (1978) 18

Hearings Before the Subcommittee on Over-

sight and Investigations, Committee on En-

ergy and Commerce, H.R. 98-98, September

ce Peas Maca 21

TABLE OF AUTHORITIES— Continued

Pages

MISCELLANEOUS:

D.C. Thomas & K. G. MeNeill, Risk Estimates

for the Health Effects of Alpha Radiation

(1982) {prepared for Atomic Energy Control

Ir tr ee lee 6

Draft Environmental Impact Statement for

Remedial Action Standards for Inactive

Uranium Processing Sites (KPA, December,

TE Snticammamadedias PE A ie ICO SOF ol 21

1 Final Environmental Impact Statement for

Remedial Action Standards for Inactive

Uranium Processing Sites (EPA, October 1982) 22, 23

1 Final Environmental Impact Statement for

Standards for the Control of Byproduct Ma-

terials from Uranivm Ore Processing (EPA,

IIS SIND acsecietrsactseterenetaneceoimeniecae 4,5, 7, 22

Final Regulatory Impact Analysis (EPA, Sep-

| _: a aIEIN NT OMER ETOP 5 eR Te PRY Oe ee 23

National Academy of Sciences, The Effects

on Populations of Exposure to the Low Lev-

els of Ionizing Radiation (1980) occ 6

Nuclear Regulatory Commission, 1 Final Gen-

eric Environmental Impact ‘Statement on

Uranium Milling (September, 1980) 000. 4,6

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

In The

Supreme Court of the United States

October Term, 1985

ray

Vv

AMERICAN MINING CONGRESS, AND UNITED

NUCLEAR CORPORATION, ET ALIA, CHAUN-

CEY KEPFORD (PRO SE),

Petitioners,

Vv.

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

AND

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

Petitions for Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

ray

ae

INTER VENOR—RESPONDENTS

ENVIRONMENTAL DEFENSE FUND’S AND

SIERRA CLUB’S BRIEF IN OFPOSITION

f.

Vv

The American Mining Congress (‘‘AMC’’), United

Nuclear Corporation, et al (‘‘UNC’’), and Chauncey Kep-

ford (pro se) each separately petition for a writ of cer-

tiorari to review two closely related judgments of the

United States Court of Appeals for the Tenth Circuit.

2

The sudgments below were entered on September 3, 1985.

Rehearing was denied on October 30, 1985.

The Environmental Defense Fund and Sierra Club

were petitioners and intervenor-respondents in the cases

below. For the reasons stated ‘ierein, the Environmental

Defense Fund and Sierra Club respectfully urge that

UNC’s and AMC’s petitioners for a writ of certiorari be

denied, and that Chauncey Kepford’s pe granted.

_ ray

OPINIONS BELOW

The op'nion of the court below, upholding (with one

exception not relevant here) the Environmental Protec-

tion Ageney’s standards for cleaning up uraninm mill tail-

ings at abandoned tailings sites, is reported at 772 F.2d

616. The opinion of the court below, upholding the agen-

ey’s standards for disposal of uranium mill tailings at

active mill sites, is reported at 772 F.2d 640. The En-

vironmental Protection Agency notices of final rulemak-

ing were published at 48 Fed. Reg. 590 (January 5, 1983)

and 48 Fed. Reg. 45926 (October 7, 1983). These materials

have been reproduced by both UNC and AMC, and filed

with their petitions.

aff >,

STATUTES AND REGULATIONS INVOLVED

Relevant portions of the Uranium Mail Tailings Radi-

ation Control Act of 1978, codified as amended at 42 U.S.C.

§ 2014 and at seattered sections thereafter, and at 42 U.S.C.

§§ 7901-7942, are reprinted in petitioners’ appendices. The

Environmental Protection Agenecy’s Standards for Rem-

edial Actions at Inactive Uranium Processing Sites (‘‘In-

active Site Standards’’) and the ageney’s Environmental

Standards for Uranium and Thorium Mill Tailings at

3

Licensed Commercial Processing Sites are codified at 40

C.F.R. Part 192 and are reprinted in petitioners’ appen-

dices,

STATEMENT OF THE CASE

The petitions filed by American Mining Congress and

United Nuclear Corporation have one attribute in com-

mon: both misrepresent the seriousness of the health risks

associated with uncontrolled uranium mill tailings.’ As

a consequence, it is necessary to set the record straight to

understand the threat to the publie presented by radiation

and other toxic substances released to the environment as

byproducts of the process for extracting uranium oxide

from uranium ore.

A. The Evidentiary Record Supports

Congress’ Decision to Require Standards

Most uranium mills produce partially refined uranium,

ealled ‘‘yelloweake,’’ by processing finely crushed uranium

ore through a series of acid baths that leach out 80 to 90

percent of the uranium isotopes. Since the uranium con-

tent of the ore averages only about 0.15 percent, virtually

the entire bulk of the ore that is mined and processed is

discarded as waste known as ‘‘tailings.’’ 48 Fed. Reg.

45926, 45927. With the exception of the extracted uranium,

most of the radioactivity in the mined ore remains in the

tailings because radium, thorium and other isotopes in tie

chain of radioactive decay are not extracted.2 The tail-

1. Currently, only one major thorium mill is licensed,

while there are twenty-six active uranium mills. This brief uses

the term “uranium mill tailings” or “miil tailings’ to refer to

the waste product of both uranium and thorium mills.

2. Most of the’uranium recovered from crude ore is uran-

ium-238, which naturally decays over time to lead-206 (a stable,

or nonradioactive element). Most of the intermediate decay

(Continued on following page)

4

ings also contain residues of a variety of hazardous sub-

stances that are used in the extraction process or that are

produced as a result of exposing all the minerals in the

ore to an acid bath. In short, the tailings bear little re-

semblance to the physically and chemically stable ore-bear-

ing formation from which they are derived?

As of January 1983, there were twenty-seven licensed

uranium mills, of which fourteen were operating. 48 Fed.

Reg. 45927. By that date, 175 million metric tons of

uranium mill tailings had accumulated at the active mill

sites. 7d. Based on Department of Energy statistics, the

Environmental Protection Agency (HPA) estimated that

an additional 175 million metric tons of tailings will be

generated in this country by the year 2000. Finally, an-

other twenty-six million metric tons of tailings remain to

be disposed of at the twenty-six abandoned mill sites desig-

nated for clean-up under the Uraninm Mill Tailings Radi-

ation Control Act (UMTRCA). 48 Fed. Reg. 592.

1. Radiological risks associated with tailings

While mill tailings emit both radioactive particulates

and gamma radiation to the ambient atmosphere, total

exposure estimates show that the release of radon gas to

the atmosphere is the single greatest hazard to human

health. 48 Fed. Reg. 593 Radon is a radioactive, but

chemically inert, gas that is produced by the radioactive

(Continued from previous page)

products in the uranium series become part of the tailings.

Thorium-230 is the radionuclide with the longest half-life, and

it decays to form radium-226, and then to radon-222. 1 Final

Environmentat Impact Statement for Standards for the Control of

Byproduct Materials from Uranium Ore Processing 3-2 to 3-3

(Sept. 1983) (hereinafter ctied as Active Site EIS).

3. See Nuclear Regulatory Cornmission, 1 Final Generic

Environmental Impact Statement on Uranium Milling at 4 (Sept.

1980) (hereinafter cited as Generic Impact Statement)

5

decay of radium, which in turn is the product of the decay

of thorium. Radon has a half-life of 3.8 days so that after

12 days, 90% of it will decay to poionium, a solid that

stays put. When radon is formed in the undisturbed for-

mations from which uranium ore is extracted, most of it

decays and remains locked in the earth before it can dif-

fuse to the atmosphere. But when radium in the uranium

ore is bought to the surface and pulverized in the mill for

processing, radon is released directly to the atmosphere.

Radon is released iu inuch higher concentrations from tail-

ings piles than it is from undisturbed soil and rock: radon

emissions from an acre of tailings are about 200 to 900

times greater than from an acre of undisturbed soil. 1 Ac-

five Site EIS at 3-5. As a result, the air above and down-

wind of piles contains much higher radon concentrations

than wonld otherwise be present as a result of background

emissions from the earth. 7d.

Radon gas presents a unique hazard to human health

because it diffuses readily into the atmosphere from tail-

ings and exposes the cell layer lining the lung to a econcen-

trated dose of radiation. Monitoring studies performed

downwind from abandoned tailings piles show radon levels

5 to 12 times greater than ‘‘normal’’ background con-

centrations.

Radon undergoes eight radioactive deeay events bhe-

fore it transforms into nonradioactive lead. Three of these

decay events produce alpha particles* and oceur within

one hour after the first. Unlike radon, these ‘‘daughter’’

4. Alpha particles are composed of four nuclear particles

(neutrons and protons) and therefore have many times greater

mass and weight than do gamma or beta radiation. Thus, alpha

particles can do significant damage to any cell they penetrate,

including causing changes in the genetic code of a cell which

can make it become cancerous.

ee

6

isotopes are electrically charged and, if inhaled, will stick

to the bronchial epithelium—an especially vulnerable tis-

sue.” For persons exposed to above-normal radon levels,

the lungs are continually bombarded by exeess alpha radi-

ation as radon and its daughters decay.

Consequently, radon is recognized as a potent car-

einogen. As EPA coneluded, epidemiological studies of

underground miners demonstrate that there is a substan-

stantially increased risk of lung cancer due to elevated

exposure to raden decay products. 4° Fed. Reg. 45928.

Working from the best available scientific evidence, EPA

developed a methodology for correlating excess risk of

fatal lung cancers with radon exposure. While EPA con-

ceeded that its estimates of risk from inhalation of radon

decay products exceed those of some agencies, EPA’s risk

estimate is essentially identical to that prepared by a sub-

committee of the National Academy of Seiences® and is

about 20% lower than that of the Atomie Energy Control

Board of Canada.’ Jd. EPA also concluded that a Jinear

dose response eurve should be used in quantifying risk

from radon, even though a linear dose respouse curve may

vnderestimate visk at low exposure levels.

rom its analysis, EPA reached several conclusions

of importance here. First, lung cancer attributable to

radon exposure is the dominant radiation hazard from

tailings. The risk of fatal lung cancer for persons exposed

continuously to radon concentrations found near a tailings

pile is as high as 2 persons in 100. Jd. at 45929. Second,

5. See 1 Generic Impact Statement at C-4.

6. National Academy of Sciences, The Effects on Popula-

tions of Exposure to Low Levels of lonizing Radiation (1980).

7. D.C. Thomas & K.G. McNeill, Risk Estimates for the

Health Effects of Alpha Radiation (1982) (prepared for Atomic

Energy Control Board of Canada).

7

based on models for the cumulative risk to aii exposed pop-

ulations, the radon released from inactive tailings piles,

uneonirolled existing piles at active mill sites and new

tailings expected to be added by year 2000 would cause

more than 800 lung cancer deaths per century. IJd.; 48

Fed. Reg. 593. And third, EPA showed that its standard

for tailings disposal would reduce the risk for maximally

exposed populations to only about 1 in 1000. 48 Fed. Reg.

45937.

2. Risks from nonradioactive toxic substances

While the thread of ground water contamination en-

gendered less scientifie debate, the risk associated with

nonradioactive texie substances is no less real. Mill tail-

ings can contain, depending upon the ore source and the

chemical reagents used in the milling process, high cen-

centrations of toxie substances such as arsenic, lead, selen-

ium, and molybdenum. 1 Active Site EIS at 3-8. And be-

cause the tailings consist of both liquids and sclids, toxic

substances can leach from a disposal site and can migrate

through the underlying soil to contaminate ground water.

Indeed, ground water contamination is known to have oc-

curred at cight inactive and seven active uranium mill sites

and may be occurring at others, where monitoring investi-

gations have not yet been condnueted. 48 Fed. Reg. 45931.

As a consequence, the EPA’s standards establish a regn-

latory program for detecting and cleaning up ground water

coutamination.

B. Statutory and Regulatory Background

‘*BProm the early 1940’s through the 1970’s there was

little official recognition of the hazards presented by these

tailings. Federal regulation of the industry was mini-

mal.’’® Nevertheless, evidence was accumulatir? that the

8. H.R. Rep. No. 1480 (Part 1), 95th Cong., 2d Sess. 11

(1978), reprinted in 1978 U.S. Code, Cong. & Ad. News at 7433.

8

front end of the nuclear fuel cycle posed real risks to

human health and the environment. The health risks

linked to misuse of tailings in the construction of houses

and other structures gave an added impetus for congres-

sional action. And by the time Congress began hearings

on uranium mill tailings, the record was compelling. In

testimony before Congress, EPA stated that radon gas is

‘fa very carcinogenic material,’’ and that even if con-

trolled to twice background the risk of lung cancer ‘‘is 100

times higher than the risk we get from the air pollutants

vinyl chloride or benzene which are very carcinogenic.’

[EPA ultimately selected a standard that reduces radon

emissions only to a level that is tenty times background. |

In response to the evidence before it, Congress deter-

mined that *‘[l]egislation is needed now to stabilize and

eontrol all such tailings in a safe and environmentally

sound manner and to minimize or eliminate radiation

health hazards to the public.’’' Title I of the Uranium

Mill Tailings Radiation Control Act of 1978 established

a program for reclamation of mill tailings at inactive mill

sites by the U.S. Department of Energy. To deal with

active mill sites, Title If direeted EPA to establish stand-

ards of general application ‘‘for the protection of {he pub:

lic health, safety, and the environment from radiological

and nonradiological hazards associated with’? uranium

processing and disposal of byproduct materials (tailings).

42 U.S.C. § 2022(b) (1).

9. Uranium Mill Tailings Control Act of 1978: Hearings on

H.R. 11698, H.R. 1229, H.R. 12938, H.R. 12535, H.R. 13049, H.R.

13650 Before the Subcommittee on Energy and Power of the

House Committee on Interstate and Foreign Commerce, 95th

Cong. 2d Sess. 400 (1978).

10. H.R. Rep. 1480 (Part 2), 95th Cong. 2d Sess. 29 (1978),

reprinted in 1978 U.S. Code, Cong. & Ad. News at 7456.

9

On January 3, 1983, EPA issued final standards for

disposal of tailings at inactive mill sites. EPA set nu-

merical limitations on radon emissions from the piles and

also set standards for cleaning up homes and other strue-

tures constructed with tailings. 48 Fed. Reg. 590-604; 40

C.F.R. Part 192, Subparts A-C. The radon emission limi-

tation requires installation of ‘‘covers’’ over the tailings

to trap the radon long enough for it to deeay before it is

released to the air, but the standards do not specify the

details of cover design or mandate use of specific cover

materials. 48 Fed. Reg. 595. The residential standard

requires the removal of tailings used as landfill or used

in conerete to build basements, foundations, patios and

driveways. Id., 595-96.

On October 7, 1983, EPA issued nearly identical radon

standards for disposal of tailings at active mill sites. 48

Fed. Reg. 45926-45927; 40 C.F.R. Part 192, Subparts D-E.

As it had done for inactive sites, EPA concluded that tail-

ings should he controlled to reduce radon emissions to 20

picocuries per square ineter per second (20 pCi./m?/sec),

but left to the Nuclear Regulatory Commission the respon-

sibility for determining what measures must be imple-

mented to ensure achievement of this standard at specific

sites. 48 Fed. Reg. 45933. Unlike the inactive site stand-

ards, EPA also promulgated primary and secondary stand-

ards for preventing or remedying ground water contam-

ination. Those standards are modeled upon the standards

issued pursuant to Subtitle C of the Solid Waste Disposal

Act, as amended, (also known as the Resource Conserva-

tion and Recovery Act) as Congress directed in UMTRCA.

42 U.S.C. § 2022(b)(2). Thus, mill licensees are required

to monitor for ground water contamination and must un-

dertake corrective action if groundwater contamination in

excess of specified concentrations is discovered.

10

REASONS WHY UNC’S AND AMC’S

PETITIONS SHOULD BE DENIED

A. The Decision Below Is Not At Odds With The

Statutory Command Or With Prior Decisions Of

This Court

UNC maintains that EPA ignored congressional in-

tent and a prior decision of this Court by failing to make

a threshold finding of ‘‘significance.’’ AMC maintains

that EPA violated congressional intent by setting stand-

ards that apply within the boundaries of mill sites. Both

petitioners clearly are wrong. In these two respects,

EP A’s standards are not in conflict either with the language

of the statute, with the congressional intent, or with prior

decisions of this Court.

1. No agency finding of significance is required

UNC relies heavily on this Court’s decision in Jndus-

trial Union Department, AFL-CIO v. American Petroleum

Institute, 448 U.S. 607 (1980) (the Benzene case) tor the

proposition that prior to regulating releases of radioac-

tive and other hazardous substances from mill tailings,

EPA must independently assess the health risks associ-

ated with those emissions and then determine whether the

health benefits to be gained from regulation are. ‘‘signifi-

eant.”? The Benzene decision clearly does not apply here.

In that case this Court was construing a differcnt statute.

This Court’s decision in the context of that statute does

not govern the statutory scheme before the Court in the

present case.

Benzene reversed the decision of the Secretary of

Labor to reduce permissible levels of worker exposure

to benzene under the Occupational Safety and Health Act

of 1970, 29 U.S.C. § 651 et seg. (SOSH Act’”’) That statute

11

delegates ‘‘broad authority to the Secretary to promul-

gate different kinds of standards’’ to reduce exposure to

all sorts of hazardous materials in the workplace. Ben-

zene, 448 U.S. at 611. The purpose of that Act is ‘‘to as-

sure so far as possible every working man and woman in

the Nation safe and healthful working conditions and to

preserve our human resources.’’ 29 U.S.C. §651(b). The

statute applies, in one estimate, to sixty million workers,

Benzene, 448 U.S. at 691 (Marshall, J. dissenting), and

embraces regulation of the full range of carcinogenic and

toxie substances found in the workplace.

No single rationale was adopted by a majority of the

Court in Benzene. But in response to a decision to re-

duce exposure to benzene based solely on the agency’s

policy of reducing exposure to carcinogens, the Court read

section 3(8) of the OSH Act to require

the Secretary to find, as a threshold matter, that the

toxic substance in question poses a significant health

risk in the workplace and that a new, lower standard

is therefore “‘reasonably necessary or appropriate

to provide safe or healthful employment and places of

employment.”’

Penzene, 448 U.S. at 614-15 (quoting section 3(8) of the

Act) (emphasis added).

This Court’s decision, remanding the benzene stand-

ard to the Secretary for a threshold finding of ‘‘signifi-

eance,’’ turned on the precise terms of the Act’s language.

The central question addressed by Benzene was whether

evidence that a contaminant is a carcinogen, without any

regard for the magnitude of the potential hazard it posed

to workers, a legally sufficient factual predicate for the

Secretary to exercise his discretion to commence the stand-

ard-setting process under the OSH Act. The Court held

12

that a judgment regarding the degree of hazard was re-

quired before the Secretary could find that a new standard

was ‘‘reasonably necessary.’’? This Court did not, in the

Benzene case, establish a general rule of law of sweeping

scope that includes within its purview statutes, such as

the Uranium Mill Tailings Radiation Control Act, in which

Congress has already decided that regulations were neces-

sary.

UMTRCA was enacted by Congress to deal with the

specific health hazards attributable to mill tailings at both

abandoned and active mill sites. Congress had deter-

mined, before the Act was passed. that radioactive emis-

sions from tailings pose a serious threat to human health

and that they should be stabilized and controlled. Unlike

the OSH Act, Congress did not merely authorize the Ad-

minstrator of the EPA to evaluate whether regulatory ac-

tion is needed and then set standards if he found them to

be ‘reasonably necessary or appropriate.’’ Rather Con-

gress mandated action by EPA and set an ambitious sched-

ule for promulgation of standards. The realm of discre-

tion left to the Administrator was substantially narrowed

compared to the OSH Act. The threshold question of

whether to regulate was already decided. The only re-

maining issue is to what degree.

‘*Statutory analysis must begin, of course, with the

language of the statute.”? Watt v. Alaska, 451 U.S. 259,

265 (1981). The language of UMTRCA leaves little doubt

as to Congress’ intent. The express purposes of this Act

are to provide

(1) in cooperation with the interested states, Indian

tribes, and the persons who own or control inactive

mill tailings sites, a program of assessment and

remedial action at such sites... .

13

(2) a program to regulate mill tailings during urani-

um or thorium ore processing at active mill operations

and after termination of such operations in order to

stabilize and control such tailings in a safe and en-

vironmentally sound manner and to minimize or elimi-

nate radiation health hazards to the public.

42 U.S.C. § 7901(b) (1), (2) (emphasis added).

In order to ensure achievement of those purposes,

Congress mandated EPA, in virtually identical language,

to promulgate ‘‘standards of general application for the

protection of public health, safety, and the environment

from radiological and nonradiological hazards’’ associated

with mill tailings at both active and inactive mill sites, 42

U.S.C. §§ 2022(a), (b). Further, Congress established in

the Act a comprehensive program—including the details of

site ownership and creation of indemnity funds—for

carrying out stabilization, control, and disposal of tailings,

leaving little doubt of the legislature’s intention.

This legislative scheme reveals no indication that Con-

gress intended that, at the outset, EPA should determine

whether generally applicable standards are needed. Con-

gress merely delegated to EPA the authority to determine

how mill tailings were to be reclaimed. The legislative

history and the policies that Congress sought to imple-

ment buttress that conclusion. See Federal Election

Comm’n v. Democratic Senatorial Campaign Committee,

454 U.S. 27, 32 (1981).

In its diseussion of need, the House Interior Coim-

mittee stated that tailings ‘‘contain many naturally-

occurring hazardous substances, both radioactive and

nonradioactive,’’ including radon gas. H.R. Rep. No.

1480 (Part 1), 95th Cong., 2d Sess. at 11 (1978), reprinted

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

Committee stated that UMTRCA ‘‘is intended to protect

99

14

the public health and safety and the environment from

hazards associated with’’ uranium tailings. Jd. at 13, re-

printed m 1978 U.S. Code, Cong. & Ad. News at 7435. And

the Committee certainly envisioned promulgation of stand-

ards of general application by EPA. Jd. at 16-17, reprinted

m 1978 U.S. Code, Cong. & Ad. News at 7488-7439. The

Commerce Committee report mirrors these statements of

congressional intent. H.R. Rep. No. 1480 (Part 2), 95th

Cong., 2d Sess. at 29, 34-35 (1978), reprinted in 1978 U.S.

Code, Cong. & Ad. News at 7456, 7461-7462.

Not only is there no explicit evidence that Congress

intended EPA to make a ‘‘significance’’ finding, there also

is no implicit evidence to that effect. Petitioners’ efforts

to pull this case within the principles enunciated by the

plurality in the DPenzene case are unavailing.'' In this

instanee, EPA did what Congress directed it to do: it

evaluated the sources and pathways of human exposure to

toxie substances, and issued standards to reduce radiation

health hazards.

The 1982 amendments to UMTRCA do not counsel a

different conclusion. Pub. L. No. 97-415, § 22(b), 96 Stat.

at 2080. codified at 42 U.S.C. § 2022(a), (b). The Confer-

ence Report emphasizes that the amendments were in-

tende? merely to clarify that when EPA set standards it

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

environment, the environmental and economic costs of

such standards of regulations, and such other factors as

EPA or NRC, respectively, determine to be appropriate.”’

11. Petitioners somewhat disingenously suggest that in

this case EPA maintained that it must set standards ‘without

regard to the signiticance of” risks. United Nuclear Corpora-

tion, et al., Petition for a Writ of Certiorari at 14. To the con-

trary, EPA examined a range of standards and weighed a number

of factors, including an assessment of health risks attributable

to radiation and other health hazards released from the tailings.

15

H.R. Rept. No. 884, 97th Cong., 2d Sess. 47 (1982). The

conferees certainly never indicated that they wished to

impose another hurdle to promulgation of standards or

tliat they intended to make discretionary the duty to set

standards. Indeed they expressed strong disappointment

that EPA had failed to meet the statutory deadline for

standards, and reemphasized that ‘‘EPA and NRC recog-

nize as their paramount responsibility protection of the

public health and safety and the environment.’’ Id. at 47.

Viewed as a whole, the language of UMTRCA and

the record of the legislative process demonstrate that

Congress expected swift issuance of standards to eliminate

or minimize health hazards from mill tailings. Congress

manifestly did not impose a threshold burden of finding

that those risks are ‘‘significant,’’ since Congress already

decided that standards were required. Thus, the teach-

ings of the Penzene case are inapposite. The regulated

community no doubt finds the EPA standards unwelcome.

But petitioners’ effort to draw into question the agency’s

authority has no basis. Petitioners’* recourse properly is

to Congress, not to this Court.”

2. EPA did not exceed its statutory authority

AMC takes a different tack in challenging EPA’s

standards. AMC asserts that the language used in

UMTRCA, requiring issuance of ‘‘standards of general

’

application,’’ should be read to preclude standards that

operate within the confines of a mill site. As with the

12. As the Court has said before, it should “reject a theory

that nowhere appears in the Act, that was never mentioned by

Congress during the legislative process, that does not comport.

with Congress’ intent and that restricts ...a rermedial Act... .”

Rodriguez v. Compass Shipping Co., 451 U.S. 596 (1981), quoting

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 278-79

(1977).

16

other industry petition, AMC can point to no explicit or

implicit statement that supports their position.

It is true, as petitioners point out, that prior to enact-

ment of UMTRCA, EPA’s authority under the Atomic

Energy Act was limited by the 1970 Reorganization Plan’

to issuance of ‘‘generally applicable environmental stand-

ards’’ that were specifically defined as limits on exposure

‘‘in the general environment outside the boundaries’’ of

regulated facilities. But the UMTRCA legislative his-

tory makes clear that Congress intended to close a large

gap in regulation of health risks associated with mill tail-

ings, and that EPA standards were to play an important

role in this new regulatory structure. UMTRCA does not

adopt the language from the 1970 reorganization plan and

does not limit EP.A’s standards to areas outside the bound-

aries of mill tailings sites. The legislative history con-

tains no hint that Congress intended such a result.

On the contrary, the bill reported out of the House In-

terior Committee would have accomplished the result AMC

contends for here had it not been amended. The Interior

Committee bill mandated promulgation of generally ap-

plicable standards ‘‘for the protection of the general en-

vironment outside the boundaries of’’ uranium tailings

sites. H.R. Rep. No. 1480 (Part 1), 95th Cong., 2d Sess. 6

(1978). reprinted in 1978 U.S. Code, Cong. & Ad. News at

7433.44 But the bill reported out by the Commerce Com-

13. Reorganization Plan No. 3 of 1970, 84 Stat. 2086, 5

U.S.C. App. p. 1132 (1982).

14. Even had that provision been enacted into !aw, it

would not have barred issuance of standards that apply within

the boundaries of a mill site if EPA determined such standards

Set needed to protect the environment outside the site boun-

aries.

17

mittee a few weeks later, drafted to reconcile several dif-

ferent bills, did not include that limitation. H.R. Rep. No.

1480 (Part 2), 95th Cong. 2d Sess. 24 (1978), reprinted in

1978 U.S. Code, Cong. & Ad. News at 7450. Instead, the

bill enacted into law mandates issuance of ‘‘standards of

general application’? which are then to be implemented by

NRC and the Department of Energy——without any limita-

tion of the sort petitioners would have this Court engraft

on the unambiguous statutory language.

Not only did Congress not limit EPA’s authority in

the manner argued by AMC, Congress contemplated stand-

ards that could be applied within mill site boundaries.

First, it would have made no sense to limit EPA’s author-

ity at inactive mill sites to set standards that apply out-

side the boundaries of inactive tailings piles. These piles

long sinee had been abandoned and were to be cleaned up

with federal and state funds. Yet Congress used _ vir-

tually identical language in directing promulgation of

standards at both active and inactive sites. Congress re-

jected a geography-based limitation on standards. Con-

gress clearly required a functional separation between

EPA’s*role in standard-setting and the NRC/Department

of Energy role in implementing those standards, but the

fact that the NRC and DOE are charged with the duty to

implement EPA’s standards does not support a conclusion

that EPA’s standards are not to apply on-site.

Second, following House passage of H.R. 13650, that

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

which already had considered its own bill. Senator Garn

proposed an amendment in the nature of a substitute to

the House-passed bill, ad. at 36688, which had been ‘‘co-

ordinated in advance with the House.’’ Again, that bill

18

made no mention of any site-boundary limitations on

EPA’s authority.

Senator Randolph, chairman of ihe Environment and

Public Works Committee, cosponsored the Garn amend-

ment. Senator Randolph stated that the section-by-sec-

tion analysis of a similar Senate bill (S. 2584) provided

the basis for his support of H.R. 13650. 124 Cong. Ree.

36697 (1978). That analysis ‘‘attempted to further de-

fine’’ the relative roles of NRC and EPA, and stated that

‘“TEPA] is... to prescribe general standards of perform-

ance, not specific management requirements and not site-

specific.’? Jd, In elaborating on that analysis, Senator

Randolph stated his understanding that EPA’s standards

could include general standards for site design and prepa-

ration; general pile stabilization standards; and limita-

tions on emissions from mill tailings ‘‘in the air or ground

or surface waters. ...’’ 7d. EPA’s limit on the release of

radon from tailings is clearly consistent with the meas-

ures described by Senator Randolph.

AMC is unable to point either to statutory language

or to legislative history to support the theory it advances

before the Court. The Act and its history simply do not

support petitioner’s argument that the lower court’s deci-

sion is at odds with congressional intent.

Petitioner’s reliance upon Train v. Colorado Public

Interest Research Group, Inc., 426 U.S. 1 (1976), is sim-

ilarly misplaced. In Train, the court of appeals concluded

that EPA was required by the Clean Water Act to regu-

late discharges of radioactive pollutants, including “source,

15. The Garn amendment was adopted and passed by the

Senate, 124 Cong. Rec. 36699 (1978). Subsequently, the House

approved the Senate bill with only slight modifications not rele-

vent here. /d. at 38230.

19

byproduct, or special nuclear materials” as defined by the

Atomic Energy Act. In doing so, the appellate court re-

lied exclusively on the statute’s language, and ignored ex-

plicit guidance found in the legislative history to the effect

that such discharges are not covered by the Ciean Water

Act. Train, 426 U.S. at 11. On the basis of those legis-

lative materials, this Court reversed the appellate court

decision.

The contrast between Train and the law of this case

is compelling. There is no evidence from the legislative

materials that in enacting UMTRCA Congress intended

to artificially constrain EPA to the issuance of stand-

ards that apply only outside the boundaries of a mill. In

fact, the contrary is true. Consequently, there does not

exist in this case either a conflict between the Tenth Cir-

euit’s decision and prior decisions of this Court or an er-

roneous construction of a federal law the purpose of which

was to prevent or minimize human exposure to radicactive

and other toxie substances.

B. The EPA Standards Will Be Implemented With-

out Causing Conflict Among Federal Agencies

AMC also contends that the EPA standards will dis-

rupt the administrative framework tor regulating uranium

mills and mill tailings. However, this argument does not

withstand careful serutiny and can be easily disposed of.

On October 16, 1985, the Nuclear Regulatory Com-

mission issued final rules to conform its mill tailings re-

quirements to the EPA standards. 50 Fed. Reg. 41852-

41866 (Oct. 16, 1985). During that proceeding the indus-

try petitioners made much the same arguments as they

advance before this Court. See 50 Fed. Reg. 41853-54

(legal arguments on EPA/NRC jurisdictional issue). In

response, the Commission concluded that “EPA generally

20)

acted within its jurisdiction and found the [AMC] argu-

ments flawed.” Jd.

Thus, the Commission already has completed one

round of rulemaking to adopt and enforce the EPA stand-

ards, and has begun a second round of rulemaking to deal

with EPA’s ground water protection requirements, 49 Fed.

Reg. 46425 (Nov. 26, 1984). It appears that the agencies

do not share AMC’s concern that EPA’s standards may

disrupt implementation, They appear to be resolving the

diffieulties that are inherent in inter-ageney coordination

and there is no basis for assuming that the agencies will

not continue to cooperate in carrying out the mandate of

UMTRCA.

THE KEPFORD (PRO SE) PETITION

Kepford presents two questions: 1) the illegality of

executive office intervention in the rulemaking, and 2)

KPA’s failure to identify, analyze and consider alterna-

tives for tailings disposal that would guarantee long-term

coutrol consistent with Congressional intent. Both ques-

tions deserve review by this Court.

1. OMB’s Role in the Rulemaking

Kepford argues that the Executive, through the Of-

fice of Management and Budget (“OMB”), uneonstitu-

tionally interfered in the decision delegated by law to the

Administrator of the Environmental Protection Agency.

The central premise underlying Kepford’s argument is

that the Executive may not direct executive »ranch of-

ficials to act contrary to law. The ultimate inquiry we

believe, is whether OMB’s unquestioned influence over the

final decision’® resulted in a rule that violated the Con-

gressional mandate of UMTRCA. We think it did.

16. EPA never disputed Kepford’s claim beiow that OMB

directly influenced the outcoine of the Agency’s decision in the

rulemaking.

21

OMB pressure was aiised at foreing EPA to adopt

a cost-benefit approach to setting health standards.'’ It

succeeded. EPA’s initial mill tailings proposal contained

no balancing of costs vs. benefits, but rather considered

costs only in the context of choosing from among those reg-

watory options that would achieve the health protection

goal defined by the Agency on the basis of cancer risk."

17. In sworn testimony on September 27, 1983, before the

House Subcommittee on Oversight and Investigations, John E.

Daniel explained that OMB pressured EPA to take a cost-benefit

approach in the uranium tailings rulemaking contrary to the ad-

vice of EPA attorneys. Mr. Daniel was chief-of-staff to the Ad-

ministrator, Anne Burford, at the time of those events. An ex-

cerpt from the hearing transcript is quoted here:

Mr. Gore: Do you know of any instances in which

OMB directed EPA to take regulatory action which the

Agency believed was contrary to a specific statute?

Mr. Daniel: * * *

The other example | would cite to you, Mr. Gore, is

with respect to something called uranium mill tailings. * * *

EPA’s roie in this is purely one of setting the health stand-

ard for a person that would be exposed to the tailings pile.

In terms of the costs that were involved, ultimately it would

be the Department of Energy that would have paid for

those through proposed funds. So the check, the cost-bene-

fit analysis of this, was in the hands of the Congress. Our

job is just to set the health standards.

But we were urged to set different kinds of standards

that would have been based on the cost of doing these

cleanups of these mill tailings piles that were out of line

with what the statute told us, at least on the basis of advice

we were getting from our lawyers at EPA, as to the con-

straints on the Agency to set the standards.

Mr. Gore: Did you tell them that would be a violation

of the law?

Mr. Daniel: We did.

Hearings before the Subcommittee on Oversight and Investiga-

tions, Cornmittee on Energy and Commerce, H.R. 98-98, Sep-

tember 27-28, 1983. See also the letter from OMB to EPA cited

by Kepford.

18. Draft Environmental Impact Statement for Remedial

Action Standards for Inactive Uranium Processing Sites at 8-6

(EPA, December, 1980).

22

But the final rule specifically relied on what EPA de-

scribed as an “optimized cost-benefit” approach. 48 Fed.

Ree. 591 (January 5, 1983). Although EPA in the in-

active site rulemaking never explained what it meant by

“optimized cost-benefit,” or how it went about calculating

which regulatory option best fit the “optimized cost-bene-

fit” approach, the Agency had fully succumbed to OMB’s

pressure to weigh costs directly against health benefits,

and abandoned the approach of defining health protection

goals first, then looking for the most cost-effective way of

meeting those goals.

The consequence of the OMB approach was EPA’s

rejection of standards it had initially proposed that were

far more protective of health than the final standards.

EPA’s initial limit on the release of radon from tailings

would have reduced radon emissions to two times the nat-

ural radon emissions from undisturbed earth. 46 Fed.

Reg. 2559, col. 1-2 (January 9, 1981). This standard, EPA

eoncluded, would “virtually eliminate” all lung cancer

deaths attributable to radon from tailings.’? In contrast,

EPA’s final standard for both inactive and licensed tail-

ings piles, based on OMB’s optimized cost-benefit ap-

proach, allows radon emissions 20 times higher than nat-

ural emissions. Aecording to EPA, the final standards

will allow about 35 deaths per century for the first 16

centuries, and then many more deaths during the next 800

to 1,000 centuries.”°

19. 1 Final Environmental Impact Statement for Remedial

Action Standards For Inactive Uranium Processing Sites at 101

(EPA, October, 1982) (‘Inactive EIS”).

20. EPA calculated that its relaxed radon standard for active

piles would allow about 25 deaths per century, and permissible

radon releases from inactive tailings piles would cause 10 deaths

per century. Inactive Site FEIS, vol. 1, 101; Active Site FEIS, vol.

(Continued on following page)

i

23

EPA also claims to have relied on OMB’s cost-benefit

approach as the reason for substantially weakening the

standard that triggers the removal of tailings from homes

and other structures. EPA’s indoor radon standard would

not trigger cleanup even when individual lung cancer risks

are as high as 1.3-in-100 (about 1-in-65). Inactive Site EIS,

Table 7-1, 108.

2. Cost-benefit analysis not consistent with

UMTRCA

Clearly, the 1983 Amendment to UMTRCA directed

EPA to-“consider costs.’””! But as this Court has held,

authority to consider costs is not the same as authority to

(Continued from previous page)

1, 10-6. EPA only considered the fatalities that will result from

the radon released during the period of compliance with the

standard, i.e., the first 10 centuries, Inactive Site EIS, 98-100;

even though EPA concedes that tailings will continue to emit

radon at approximately the current rate for about 1,000 cen-

turies. Inactive EIS, 16-17. Presumably this is because the rule

only requires tailings controls to be effective for 200 to 1,000

years. As Kepford has argued, EPA has not explained its deci-

sion not to account for the rapid increase in deaths that will

occur after the first 10 centuries when the earthen covers erode.

In calculating future fatalities EPA also assumes that no new

tailings wiil be created after year 2000, even though EPA pro-

jected that total tailings will double by year 2000 as a result of

continuing production.

21. EPA performed a cost impact analysis that shows the

industry could afford to achieve the standards that would pre-

vent all deaths. EPA found that the costs of the more stringent

standards might, at most, force only one small mill to close.

Final Regulatory Impact Analysis (“FRIA”), Table 5.5, 5-12. EPA

also found it would cost $120,000 per life saved to eliminate

Virtually all fatalities, compared to $80,000 per life saved for the

standard EPA chose. Average Cost Per Death Avoided, Table

4.6, FRIA, 4-11. EPA found that the cost of both standards was

acceptable in reference to the costs the public says it is willing

to pay to save a life: “all control methods fall below the lower

end of the empirical range.” FRIA, 4-12. EPA also decided

that the $0.07 to $0.09 added to each homeowner's monthly

utility bill that would result from choosing to prevent all deaths

was certainly not a basis for rejecting that option.

24

base decisions on a formalized cost-benefit analysis. “When

Congress has intended that an agency engage in cost-bene-

fit analysis, it has clearly indicated such intent on the face

of the statute.” American Textile Manufacturers Institute

v. Donovan, 452 U.S. 488, 510 (1981). Here none of the

statutory indicators identified by this Court in Donovan as

providing authority for cost-benefit analysis are present.

As the Court in Donovan recognized, cost-benefit an-

alysis gives the decision-maker virtually unbridled dis-

cretion to select the outcome by the value assigned to ben-

efits. Where the benefit is not valued in the marketplace,

such as the value of human life, the degree of health pro-

tection to be provided has no bounds.

The Court rejected the argument that the OSH Act

required cost-benefit analysis in setting worker health

standards because

... Congress itself defined the basie relationship be-

tween costs and benefits, by placing the ‘‘benefit’’ of

worker health above all other considerations save

those making attainment of this ‘‘benefit’’ unachiev-

able. Any standard based on a balancing of costs and

benefits by the Secretary that strikes a different bal-

ance than that struck by Congress would be inconsist-

ent with the command set forth in [the Act]. Thus,

cost-benefit analysis by OSHA is not required by the

statute because feasibility analysis Is.

American Textile Manufacturers Institute v. Donovan, 452

U.S. 488, 509 (1981). Given Congress’ principal focus on

protecting health from radiation, and its directive to con-

trol tailings to the ‘‘maximum extent allowed by the state

of the art,’’ the same principle applies to UMTRCA.

In addition to the lack of statutory language authoriz-

ing cost-benefit analysis, the conference committee report

accompanying the 1983 amendment makes clear that Con-

gress had no intention of delegating to EPA unfettered

discretion to weigh health benefits against costs.

25

Moreover, in adopting the language | requiring consid-

eration of cost}, the conferees intend neither to divert

KPA and NRC from their principal foeus on protect-

ing the public health and safety nor to require that the

agencies cngage in cost-benefit analysis or optimiza-

tion.

H.R. Rept. No. 97-884, 97th Cong., 2d Sess. 47 (1982).

Congress did not authorize the ‘‘cost-benefit’? approach

which EPA says it used to select the radon standard in

this case. EPA’s rulemaking decision is clearly inconsist-

ent with the mandate of the 1978 Act to ‘‘eliminate radia-

tion health hazards to the public.’’ It is also incon-

sistent with the express intent of the 1983 amendment to

authorize consideration of cost, but not in an unbounded

cost-benefit analysis.

In the legislative history of the 1978 Act, Congress

declared its intent that hazards associated with mill tail-

ings should be reduced to the degree achievable by the

use of state-of-the-art technology, i.e., by what is feasible:

Uranium mill tailings disposal sites should in all

eases be controlled and regulated ... to the maximum

extent allowed by the state of the art, to insure that

the public and the environment will be protected from

the hazards of the tailings for as long as they may

remain a hazard.

T.R. Rept. No. 95-1480 (Part I) 95th Cong., 2d Sess. 17-18

(1978). Thus to the extent Congress intended EPA to

consider factors other than the human health and environ-

mental protection goals of the 1978 Act, they were lim-

ited to consideration of the degree of control achievable

by application of the ‘‘state of the art.’’ Clearly, costs

were not to be weighed against the health protection bene-

fits achievable by use of feasible control measures. If

public exposure to ‘‘radiation health hazards’’ could feas-

ibly be ‘‘eliminated,’’ such as would be achieved by adop-

26

tion of the 2 pCi standard (according to EPA), then that

level of protection should have been required. If the ra-

diation health hazards could not be feasily eliminated,

then ‘‘radiation health hazards’’ were to be ‘‘minimized”’

to the extent feasible.

The congressional directive to ‘‘eliminate’’ if feasible,

or otherwise minimize radiation health hazards was not

compromised by the 1983 amendment authorizing consid-

eration of costs. First, it is important to note that the

language defining the central policy of the Act to ‘‘min-

imize or eliminate radiation health hazards to the publie’’

was not amended, or otherwise undermined by the amend-

ment. On the contrary, the conferees made it extremely

clear that they had no intent ‘‘to divert EPA and NRC

from their principal foeus on protecting the public health

and safety... .’’ H.R. Rep. No. 97-884, supra, 47. They

made a special effort in the committee report to emphasize

that

fa]t all times, the conferees fully intend that EPA

and NRC recognize as their paramount responsibility

protection of the publie health and safety and the en-

vironment.

Id. 47 (emphasis added). These declarations of the con-

ference committee demonstrate that by adding authority

to consider cost, Congress did not amend by implication

or otherwise compromise or undermine the hasie policy

goal of the 1978 Act.

This conclusion is also supported by the committee’s

approval of the regulatory approaches taken hy both NRC

and EPA prior to the deliberations of the conferees. The

committee debates on the cost amendment occurred in

August 1982, and the committee report was printed in

September. At that time, more than four months prior to

27

EPA’s first decision to adopt a cost-henefit approach for

setting radon standards in the inactive site rulemaking,

the committee saw itself as merely providing authority

for the approaches that both NRC and EPA had previous-

ly adopted in dealing with the cost question:

The conferees note that this language reflects ac-

curately the current regulatory approach of the agen-

cies. The language agreed to by the conferees should

not result in any delays of establishment of remedial

action standards. EPA, for example, has already

advised the conferees that it is considering costs in

formulating its inactive site requirements. In addi-

tion, the NRC has testified hefore Congress that it,

too, took costs into account in promulgating its Uran-

ium Mill Licensing Requirements.

H.R. Rept. No. 97-884, supra, 47.

In order to understand what Congress thought it was

approving, it is necessary to review the public positions

both agencies had taken prior to the summer of 1982. In.

the case of the NRC, it had adopted final tailings disposal

standards pursuant to UMTRCA. 45 Fed. Reg. 65521 (Oc-

tober 3, 1980). In review proceedings before the Tenth

Circuit, as well as in the rulemaking, the NRC argued that

costs were relevant only to the extent they were consid-

ered as part of a determination that the standards are

‘‘feasible,’’ i.e., both technologically and economically feas-

ible.” The committee members made frequent references

22. NRC’s interpretation of UMTRCA was affirmed by a

panei of the Tenth Circuit in an opinion handed down on March

23, 1982, or about four months prior to the deliberations of the

conference committee. Kerr-McGee Nuclear Corp. v. NRC, 673

F.2d 1124 (10th Cir. 1982); vacated pending rehearing en banc.

The order granting rehearing was issued after publication of the

conference report. Further proceedings in that case have been

stayed pending further action by the NRC in response to the

EPA regulations that are the subject of this proceeding.

28

to the opinion of the panel of the Tenth Circuit sustain-

ing NRC’s regulations and were obviously aware of both

the NRC’s argument and the panel’s approval of the

NRC’: position. In fact, the committee report went out of

its way to state that the cost amendment was not intended

to ‘‘affect[] any pending litigation or appeal of judicial

decisions based on the fundamental missions or respon-

sibilities of the agencies.’’ H.R. Rept. No. 87-884, supra,

47. It would appear that the committee specifically in-

tended to approve the NRC’s interpretation of the Act

and not disturb the March 1982, opinion of the Tenth

Cireuit with regard to that question.

The official pronouncements of EPA on the cost ques-

tion prior to the summer of 1982 were consistent with the

NRC’s position and gave no warning of the major shift

in policy that would be revealed months later in the final

inactive site standards. EPA had initially proposed a

2 pCi standard for radon emissions from inactive piles

(46 Fed. Reg. 2562, January 9, 1981), and explained in its

draft EIS, p.8-6, that the Agency was justified in consid-

ering other factors, such as cost, once a marginal level of

health benefit is achieved. Thus in choosing between

standards at 2 pCi and 0.5 pCi, EPA considered cost a

relevant factor because either standard would ‘‘avert vir-

tually all these cancer deaths [from radon].’’ EPA’s pro-

posal had rejected cost as a factor in determining the ac-

eeptabilitv of less stringent standards that would a!low

many cancer deaths.

While there is no discussion by the committee of

EPA’s 1981 proposal that would suggest the committee

members were as aware of EPA’s earlier treatment of the

issue as they were of the NRC’s interpretation of the Act

affirmed by the Tenth Circuit, the committee nonetheless

29

expressed approval of EPA’s approach. The committee’s

obvious satisfaction with EPA’s initial approach is fur-

ther evidenced by enactment of the last sentence of 42

U.S.C. 2022(a) as part of the 1983 amendment. That

amendment directed DOE to proceed with implementation

of the remedial action program at the inactive sites based

on EPA’s proposed standards if final EPA action was

not forthcoming by the revised statutory deadline.

At no point prior to the committee’s deliberations was

there any hearing testimony or other communication from

EPA that revealed an intent to abandon the earlier ap-

proach and adopt the cost-benefit approach used here.

If the conferees were aware of OMB’s July 1982 letter

to KPA, it would appear that the committee’s specific

rejection of cost-benefit analyses in the report must have

been designed to put the OMB demand to rest. Unfor-

tunately, EPA has ignored the committee’s intent and has

carried its economic justification for rejecting more pro-

tective standards far beyond the limits authorized by the

1983 amendment.

EPA’s use of OMB’s ‘‘optimized cost-benefit’’ ap-

proach for setting health protection standards under

UMTRCA is not consistent with the statute, legislative

history or the prior decision of this Court. Foisted on

EPA over the opposition of Ageney attorneys who, ac-

eording to John Daniel, were of the opinion that it was

illegal, the optimized cost-benefit approach is now appear-

ing in many other contexts of agency decision-making.

This case presents an uncommon opportunity to decide

whether Congress ever intended to allow the Administrator

unbridled discretion to sacrifice achievable health benefits

solely on the basis of cost. Kepford is right: OMB may

not coerce EPA to use cost-benefit analysis to set health

30

standards when the statute does not authorize cost-hene-

fit analysis.

ray

Vv

CONCLUSION

For these reasons, UNC’s and AMC’s petitions for

a writ of certiorari should be denied, and the Kepford pe

tition should be granted.

Respectfully submitted,

Rosert EK. YUHNKE

Counsel of Reeord

JAMES B. Martin

Environmental Defense Fund

1405 Arapahoe Avenue

Boulder, CO 80302

(303) 440-4901

Counsel for Intervenor-Respondents