ML20137M831
| ML20137M831 | |
| Person / Time | |
|---|---|
| Issue date: | 01/31/1984 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Gilinsky, Palladino, Roberts NRC COMMISSION (OCM) |
| Shared Package | |
| ML20136E683 | List: |
| References | |
| FRN-49FR46418, RULE-PR-40 AB50-2-15, NUDOCS 8512040015 | |
| Download: ML20137M831 (77) | |
Text
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49 FR,4b+18 c AB5o -E r M JAN 311984
/K, /84/01/11
'M'EMORANDUM FOR: Chairman Palladino Comissioner Gilinsky Commissioner Roberts Comissioner Asselstine Comissioner Bernthal FROM: William J. Dircks Executive Director for Operations SU8 JECT: INPUT FROM AFFECTED STATES ON PROPOSED AMENDMENTS TO URANIUM MILL TAILINGS REGULATIONS AND ADVANCE NOTICE OF PROPOSED RULEMAKING (SECY-83-523)
Staff requested Comission approval to publish proposed amendments to 10 CFR Part 40 conforming to EPA's final standards for uranium and thorium mill tailings at licensed sites in SECY-83-523, dated December 28, 1983.
In order to meet the tight schedule required by the six month Congressional mandate, preliminary views of affected Agreement State representatives were obtained by the Office of State Programs in parallel. The affected States are Washington, Colorado New Mexico, and Texas. The State representatives expressed the need to review the proposed changes in more depth and they plan to provide detailed coments during the public coment period.
Several general concerns were expressed but the State representatives did not consider that these concerns must be resolved before publication for coment. The State representatives share staff preference for a single comprehensive rulemaking procedure but generally understood our position that we should be as responsive as possible to the Congressional six month mandate. Individual states expressed concerns about the loss of certain prescriptive provisions, about a perceived move toward reliance on active maintenance and related funding needs, and about a perceived overlap of the retained Appendix A provisions on ground water and monitoring programs with provisions in the EPA standard which will be addressed in the second rulemaking described in the proposed Advance NoticeofProposedRulemaking(ANPRM). Af ter re-examining the proposed rule, staff has concluded that these and other individual concerns would involve only clarifying or explanatory changes to the proposed rule itself, i
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In discussions held with three of the four States by DWM-staff, their -
'g'reatest concerns were with respet.t to: (1) the two-step rulemaking approach and (2) the changes, or lack thereof, being proposed for Criterion 5, which deals with ground water protection. Views expressed by individual states on these two issues varied considerably, and largely amounted to desires or concerns rather than disagreements. These early discussions were very useful for conveying the staff's rationale to the States, and in providing for an exchange of views and information relative to the proposed rule and ANPRM. Further discussions will be /
continued in meetings to be held in Denver, Colorado on JanJary 30 and 31, 1984, following planned publication of the proposed rule.
Notwithstanding the nature of the preliminary input from the States, staff strongly recommends that the proposed rule and the ANPRM be published for coninent as reconnended in SECY-83-523 and as soon as possible so that the March 31, 1984 deadline for'a final conforming rule -
can be met.
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9 EUBLISH UNITED STATES COURT OF APPEALS ..
'P T L E D united States Court of Appeals Tenth Circuit TENTH CIRCUIT SEP 0 3 685 HOW!.RD K.PHILLIPS ,
AMERICAN MINING CONGRESS, UNITED )
rk [
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, )
) Nos. 83-1014
- v. ) 83-1041 -
i
) 83-1206 ,
LEE M. THOMAS, Ad'minist'rator, ') 83-1300 , !
Environmental Protection Agency, and )
ENVIRONMENTAL PROTECTION AGENCY, ,
)
)
Respondents.. )
STATE OF COLORADO, )
) .
Intervenor. )
Petition for Review of the Standards Promulgated by the Environmental Protection Agency Anthony J. Thompson (Charles E. Sliter, Robert F. Reklaitis, 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 Congress.
Peter J. Nickles (Charles H. Montange, Richard A. Meserve, and William F. Greaney, also of Ccvington & Burling, Washington, D.C. ,
and G. Stanley Crout, Sunny Ji 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 Homestake 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 Research and Information Center, and Jean Slattery.
David W. Zugschwerdt, Attorney (P. Henry 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, Environmental Protection Agency, Washington, D.C., with "
him on the briefs) for Respondents.
Duane Woodard, Attorney General, Charles B. Howe, Deputy Attorney General, Richard F. Forman, Solicitor General, and Richard L.
Griffith, Assistant Attorney General, Denver, Colorado, filed briefs for the State of Colorado.
Walter Perry, III, Senior-Assistant Attorney General,' Dennis M.
Boal, Assistant Attorney General, James M. Ellerbe, Legal Intern, Cheyenne, Wyoming, filed an amicus curise brief for the State of Wyoming. ,
t 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.
These consolidated cases involve challenges to the Environmental 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 Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), as amended, 42 U.S.C. SS 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 nonradioactive hazards posed by uranium mill tailings at both active and inactive processing 7_
sites. Under the statutory scheme the federal government and the affected state share the costs of the remedial action taken to control mill tailings, see 42 U.S.C. S 7917, with the possibility of later reimbursement from private parties, ld. S 7925. The EPA standards that we review here pertain only to inactive mill sites. O In a companion case released this day we review regulations relating to active mill sites. See ArgIlcAD_MIDlDg__ COD 9Isss__Y.
Thomas, ___ F.2d ____ (10th Cir.1985) (Actlys_ Sites _ CASA) .
The following parties filed petitions for review of these the American Mining Congress, a trade association; standards:
joint petitioners United Nuclear Corporation, Kerr-McGee Corporation, Kerr-McGee Nuclear Corporation, and Homestake Mining r 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," U0 The milling process also 38 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 ,
l which escapes from the tailings particles into the atmosphere.
Airborne radon degrades into a series of short half-life decay products that are hazardous if inhaled. If the radon gas does not
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escape the mill tailings piles, its decay products remain in the piles and produce gamma radiation, which may be harmful to people and animals living near the mill tailings piles. Uranium mill tailings also contain potentially dangerous nonradioactive materials such as arsenic and selenium. These toxic and g
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radioactive materials may be ingested with food or water. 48 red.
Reg. 590, 592 (1983). Seg_gengIAlly I Environmental Protec tion Agency, ElDal_EDYlIDDE2Dtal_lEPact_ Stat 222Dt_fDZ_BREedlAl Astlon St3DdardS f9E 1DAChiXS_UEADiME__2EDCDSBlDg Sit 93 3-68 (1982)
[ hereinafter FEIS-IN).
To deal with the perceived dangers presented by uranium mill tailings,' Congress enacted the UMTRCA. When it passed this f legislation in 1978, it stated, in a section titled " Congressional findings and purposes":
" uranium mill tailings located at active and inactive mill operations may pose a potential and significant radiation health hazard to the public, and that the protection of the public health, safety, and welfare
. . . require [s] that every reasonable effort be made to provide for the stabilization, disposal, and control in a safe and environmentally sound manner of such tailings in order to prevent or minimize radon diffusion into the environment and to prevent or minimize other environmental hazards from such tailings."
42 U.S.C. S 7901(a). -
In the UMTRCA, Congress gave the Department of Energy (DOE) and the Nuclear Regulatory Commission (NRC) responsibility for implementing a remedial program to clean up and dispose of the mill tailings. Sag Jd. SS 7911-7924. The EPA is responsible for promulgating the general standards that the implementing agencies must meet. Sag id. SS 2022(a), 7918(a).
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The EPA issued proposed general standards for the remedial program in two parts: cleanup standards and disposal 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, s
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 " Proposed Cleanup Standards for Inactive Uranium Processing Sites." 45 Fed. Reg. 27,370 (1980). These proposed -
standards' were "for the ' cleanup of 'open lan'd s and buildings contaminated with residual radioactive materials (mainly tailings) from inactive uranium processing sites." Jd. The EPA made them immediately effective as interim standards pend (ng comment, review, and promulgation of the final standards. The EPA also issued a draft environmental impact statement to support the proposed standards.
1 i The proposed cleanup standards established allowable levels !
of radium concentration in soil contaminated by dispersed j tailings. The standards also set permissible levels of radon decay product concentration and gamma radiation in occupied or occupiable buildings affected by the tailings.1 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 cm thickness of soils or other materials on open land within 1 foot of Continued to next page
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e In addition, these proposed standards contained exceptions to strict compliance if certain criteria were met. Id. at 27,375.
At qualifying sites, the implerenting agency was to perform remedial action that would come as close as possible to meeting the standard to which the exception applied. Id.
proposed standa rd s , the The EPA issued the second set of disposal standards, on January 9, 1981. 46 Fed. Reg. 2556 (1981).
The disposal standards placed limits on the radon release to the atmosphere from the tailings piles and also placed limits on water contamination from the piles. Id. These standards required that the tailings be disposed of in a manner "that provides a ,
-reasonable expectation that these limits will be satisfied for at t least one thousand years."2 Id.
Continued from prior page 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 produces 37 billion ggelear transformations per
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second. One picocurie (pCi) = 10 Ci. Id.
The proposed standard for buildings stated that the levels of radioactivity in any occupied or occupiable building shall not exceed, due to residual radioactive l
materials from any designated processing site, either: (1) 0.015 WL as an average annual indoor radon decay product '
enncontration, including background; or (2) 0.02 milliroentgen / hour of indoor gamma radiation above background. Id. at 27,374-75. A WL or working level is "any combination of short-lived radon decay products in one liter of air that will result in the ultimate emission of alpha particles with a total energy ,of 130 billion electron volts."
Id. at 27,374.
2 Specifically, the proposed standard for the radon emission limit from the tailings pile read: "(a) The average annual release of radon-222 from a disposal site to the atmosphere by residual radioactive materials will not exceed 2 pCi/m -sec." 46 Fed. Reg. at 2560. A footnote to the standard read:
Continued to next page L
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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 ,
1 stated, i
"In the draft EIS we analyze the health and environmental protection benefits and the costs of t 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 characteristic of ordinary land by applying a soil cover at costs in a range of about 1 to 14 million (1979) dollars.".
Id. at 2559.
One of the standards established limits for concentrations of :
toxic substances in underground sources of drinking water.3 f
Continued from prior page -
"The radon emitted from a tailings site after disposal will come from the tailings and from materials covering them. Radon emissions from the covering materials should be estimated as part of developing a disposal plan for each site. . . . After disposal, the radon emission standard is satisfied 2if the emission rate is less than or equal to 2 pCi/m -sec plus the emission rate expected from the disposal materials."
3 This standard provides:
"(b) Substances released f rom residual radioactive materials after disposal will not cause (1) The concentration of that substance in any underground source of drinking water to exceed the level specified in Table A, or (2) An increase- in the concentration of that substance in any underground source of drinking water, where the concentration of that substance prior to remedial action exceeds t'he level specified in Table A for causes other than residual radioactive materials.
i This subsection shall apply to the dissolved portion of any substance listed in Table A at any distance greater than 1.0 kilometer from a disposal site that is part of an inactive processing site, or greater than 0.1 <
kilometer if the disposal site is a depository site. I Continued to next page )
Another' water standard required that substances released f rom the disposal site "af ter disposal will not cause the concentration of any harmful dissolved substance in any surface waters to increase above the level that would otherwise prevail." Id. at 2562.
The EPA received extensive comments on both the proposed s
cleanup and disposal standards. Sag II PEIS-IN (summary of comments and responses). The comments were wide rang ing--t he industry petitioners argued that there was insufficient evidence of risk of harm to warrant the standards, while the e'nvironmental groups argued that the proposed standards did not provide adequate protection against the risks posed by the tailings. Both sides -
bu'ttressed their arguments with technical studies and expert r analysis. .
Congress in 1982 discussed amendments to the UMTRCA to extend the deadline for the promulgation of final standards and enacted Continued from prior page Table A Milligrams / liter:
Arsenic . . . . . . . . . . . . . . . 0.05 Barium . . . . . . . . . . . . . . . 1.0 Cadmium . . . . . . . . . . . . . . . 0.01 Chromium . . . . . . . . . . . . . . 0.05 Lead . . . . . . . . . . . . . . . . 0.05 Mercury . . . . . . . . . . . . . . . 0.002 Molybdenum . . . . . . . . . . . . . 0.05 Nitrogen (in nitrate) . . . . . . . .10.0 Selenium . . . . . . . . . . . . . . 0.01 Silver . . . . . . . . . . . . . . . . 0.05 pCi/ liter:
Combined radium-226 and radium-228 . 5.0 Gross alpha particle activity (including radium-226 but excluding radon and uranium) . . .15.0 Uranium . . . . . . . . . . . . . . .10.0" 46 Fed. Reg. at 2562-63.
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an amendment on January 4, 1983. Sgg Act of Jan. 4, 1983, Pub. L.
No.87-415, sec. 18, 96 Stat. 2067, 2077 (1983) (codified at 42 I U.S.C. S 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, i
remedial action would commence using the proposed standards. Id.;
House Conf. Rep. No. 884, 97th Cong., 2d Sess. 44-45, ImpriDied ID 1982 U.S. Code Cong. & Ad. News 3603, 3614-15. By the time Congress passed the amendment its specified deadline'for inactive sitec had already passed. Ses 42 U.S.C. S 2022(a). Important for our purposes is that Congresa also included in the 1982 amendment -
a sentence explaining the various factors that it required the EPh to consider in developing the standards; "In establishing such standards, the Administrator shall consider the risk to the public health, safety, and the environment, the environmental and economic costs of applying such standards, and such other factors as the Administrator determines to be appropriate." Id.
On January 5, 1983, one day after Congress passed the amendment, the EPA promulgated the final " Standards for Remedial Actions at Inactive Uranium Processing Sites," which covered both cleanup and disposal requirements. 48 Fed. Req. 590 (1983) (filed Dec. 30, 1982) (codified at 40 C.F.R. SS 192.00 .43 (1984)). The final regulations differed, in some ways quite substantially, from the proposed standards. In explaining the changes in general terms the EPA said:
"In response to comments on the proposed standards I
for dispo. sal and for cleanup, we have evaluated a number of alternatives in terms of their costs and the reductions' achievable in potential health effects. A l
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. 1 number of changes have been made, including raising some of the numerical limits and eliminating some )
requirements. The purpose of most of these changes is I 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. e After specifically explaining 1n a table the various alternatives it had considered for disposal of the mill tailings l piles, the EPA divided the alternatives into categories of least cost, optimized cost-benefit, or nondegradation alterhatives. Id.
at 591. To justify the less stringent final disposal 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 because they requfred cleanup and control limits close to background levels of radiation. Id. It also said that "the small incremental health benefits, when compaied to the benefits for less stringent alternatives, do not appear to justify the large additional costs." Id. In its final standards, 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 pC1/m s rather than the proposed 2 pCi/m s limit.4 2 2 '
Id.
4 "S 192.02 Standards.
Control shall be designed to:
(a) Be effective for up to one thousand years, to l
! 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 Continued to next page
t .
Purthermore, the EPA changed the flat 1000 year disposal longevit y !
requirement, qualifying it with the language, "to the extent reasonably achievable and, in any case, for at least 200 year:, " !
. . . . 40 C.P.R. S 192.02(a) (1984).
The final regulation set the cleanup standard for land , the t,
maximum concentration level of radib,m 226, at 5 pCi/ gram average over the first 15 centimeters of soil and at 15 pCi/ gram for soil layers more than 15 centimeters below the surface.5 This standard was an increase from the 5 pCi/ gram level set out in the propos e d standard for subsurface soil. 46 Ped. Reg. at 2562. After explaining the differences ,
between the proposed and final regulations' for' dispersed tailings contaminating the soil, the EPA Continued from prior page atmosphere will not:
(1) per square meter per second, orExceed an average release rate o (2) Increase radon-222 in air at or above any locationthe annual average co,ncen disposal site by more outside the liter." than one-half picoeurie per 40 C.P.R. S 192.02 (1984) original). (footnotes omit t ed) (emphasis in 5
"S 192.12 Standards Remedial provide actions shall be conducted so as reasonable assurance that, to 12Sidual ZadiODC%i29-DEDCBSSlD9 sitt: mattsiala- LEDB aDyas_a result of
- dtSiSDDZ96 (a) The concentration of radium-226 averaged over any area of 100 square meters in land .
exceed shall not (1) the background level by more than--
t below the surface, and5 pCi/g, averaged over the first 15 cm of soil (2) soil more than 15 cm below the surface."15 pCi/g, of averaged ove 40 C.P.R. S 192.12 (1984)
(emphasis in originali.
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stated'that it believed the final standa rd s "will result in essentially 'he t same degree of cleanup, and will'be simpler to implement." 48 Ped. Reg. at 600.
The EPA also adjusted the final standards on the limits for radioactivity in buildings affected by the mill tailings. The EPA q increased the maximum permissible level of radon decay product concentration from 0.015 WL to 0.03 WL, requiring, however, that
" reasonable effort shall be made to achieve, an annual average (or equivalent) radon decay product concentration iincluding background) not to exceed 0.02 WL. " 40 C.F.R. S 192.12(b) (1)
(1984). The level of gamma radiation allowed by the final,
- standards is no more than 20 microroentgens per hour over r background level. Id. S 19 2.12 (b) (2) . .
Commenting upon the difficulty of assessing water contamination 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 cace: where there was a potential for ground water contamination, the EPA declared that it had provided:
"in the implementation section of these standards, that judgments on the possible need for monitoring or remedial actions should be guided by relevant considerations described in EPA's haza rdous waste management system, and by relevant State and Federal Water Quality criteria for existing and anticipated uses of the aquifer."
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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 adequately protected in any case by its general disposal standards. Id.
The final standards, like the proposed s tanda rd s, '
incorporated provisions allowing the implementing agency to grant exceptions if certain criteria were met. See 40 C.F.R. SS 192.21-
.22 (1984). .
The industry petitioners, the environmental groups, and the .
State of Colorado raise the following issues for our consideration: (1) whether the EPA must . find that the mill r-tailings piles present "a significant risk" of harm before promulgating standards under the UMTRCA; '(2) whether the CPA'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 engineering requirements; (4) whether the EPA should engage 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 relationship to the protection of the public safety and health and the costs required to implement them; and (6) whether by abandoning general water
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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. SS 701-706, for standards of judicial review of rules l
promulgated under it. Seg 42 U.S.C. S 2022(c) (2) . 'I The appropriate standard of review for this type of informal, notice '
and co~mment rulemaking is that an agency's action may be set aside if found to be " arbitrary, capricious, an abuse of, discretion, or otherwise not in accordance with law," 5 U.S.C. S 706 (2) (A) . The Supreme Court recently has reiterated a restrictive view of the arbitrary and capricious standard, stating:
f "T'he 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 relevant data and articulate a satisfactory explanation for its action including a ' rational connection between the facts found and the choice made.' . . . In reviewing that explanation, we must ' consider whether the decision was based on whether there a consideration has been a clear of the relevant factors and error of judgment.'
. . . Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended' it to 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." ,
B9tDr 22bic19 BaDufactursts bss'D ya State Earm Butual butomobile IDsDIADce _Co., 463 U.S. 29, 43 (1983) (citations omitted). In addition, as part of our review, we also determine: (1) wi.e ther i the agency acted within the scope of its authority, and ;
(2) whether the agency complied with the prescribed administrative procedures.
Sgg Citigges_gg_ygggeryg_0ygggon_parg,_3pg,_y,_yg2pg, 401 U.S.
402, 415-17 (lc71); arrrf;3r pet ;1epr_;-dity;g_y,,rp3,
540 F.2d 1023, 1028 (10th Cir.197 6) , sert, denied, 430 U.S. 922 (1977); 5 U.S.C. 5 706 (A) (2) (C) & (D).
II A preliminary question arises as to what documents we may review in considering these petitions. The EPA, supported by the i
environmental petitioners, has moved 't,o 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 important, because,-in this case, we are a reviewing body, not, an independent decision maker. )he do npt substitute our judgment for the judgment of the agency simply because we might have decided matters differently. We agree with the comments in DSU B D2j i a D_ Y2_ Uu s123 r_ Bc 9914t or y_ CDDDi ssi DD , 751 F.2d 1287, 1323-1326 (D.C. Cir. 1984), that the agency's action must be reviewed on the basis articulated by the agency and on the evidence and proceedings before the agency at the time it acted. Aggressive use of extra-record materials also would run directly counter to the admonitions of the Supreme Court in Botor__Ygbisle baDufastursts_bssosiatiDD.
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.
Otark & Wall, SettlDg_Fo_Besords;__The_Ealled_ Attempts _to_ Limit the_2ecord iD_BBYley_of_AdelDistratlYe_Astlon, 36 Ad. L. Rev. 333, 335 (1984). The article notes that, on review, parties have offered extra-record studies and other evidence under a number of justifications, including: (1) that the agency action is not r
adequately explained and cannot be reviewed properly without considering the cited materials, see Citizens _to_PreseIYe_0YertoD Park 2_ ids _y,_ypipe, 401 U.S. 402, 420 (1971); (2) that the record is deficient because the agency ignored relevant fac' hors it should have considered in making its decision, see Blatt_GralD__h__Esed2 JDc __y _SerglaDd, 446 F. Supp. 457, 467 (D. Kan. 1978), affld_oD-piber_sIpuDds, 602 F.2d 929 (10th Cir. ~ 1979) , cert, deDied, 444, U.S. 1073 (1980); (3) that the agency qonsidered factors that were left out of the formal record, see EDylroDreDial__ Defense __Eunda IDC __y __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 SUDheI_ Bill _Co _y,_EPP 572 F.2d 1286, 1292 (9th Cir. 1977);
and (5) that evidence coming into existence after the agency acted demonstrates that the actions were right or wrong, see AESIlCDD 29ticleUD_IDstitute_Y,_ EPA, 540 F.2d 1023, 1034 (10th Cir.1976) ,
seIta deDied, 430 U.S. 922 (1977). As Stark and Wall observe, when such justifications aim of fered the court is forced as a j practical matter to examine the material, whether or not motions to supplement the record are granted. 36 Ad. L. Rev. at 343-44.
In the instant case one or more of the above justifications are advanced with respect to virtua11.y All extra-record citations.
I
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1 We have in fact considered those materials to see if they fall within any of these possible justifications. 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, a
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 Christopher Herman of the EPA to Larry Boggs,.
counsel for ' petitioner American Mining Congress' and two ,
accompanying memoranda dated April 27, 1983, and June 7, 1983.
III 6
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 r ely on IDdustIlal__UDIDD_D2PAIIDEDt2_&EL-CID_Y.
bDeric0D_Fetroleuc_IDstitute, 448 U.S. 607 (1980) (hereinafter the B9DzeDe case). In the BSDzene case, Justice Stevens, for the plurality, invalidated OSHA regulations intended to protect workers from the carcinogenic effects of benzene. Justice Stevens and three other members of th'e Court agreed that under SS 3(8) and In the text of this opinion we refer to American Mining l Congress, United Nuclear Corporation, Kerr-McGee Corporation, l Kerr-McGee Nuclear Corporation, and Homestake Mining Company as l the " industry petitioners." Although we recognize that some of l
their arguments differ, most do overlap.
l l
l
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. Id. at 642. In so concluding, the plurality relied heavily upon the actual language from SS 3(8) and i
6(b)(5). Id. at 641-42. ,
We. believe that the BenzeDe case and all the other OSHA cases requiring a threshold finding of significant risk are readily distinguishable from the case at hand. In the UMTRCA Cong ress ccmmanded the EPA, the NRC, and the DOE to deal with the problems posed by uranium mill tailings: .
." The Congress finds that uranium mill tailings loca ted ,.
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 reguire that every reasonable effort be made to provide for the stabilization, disposal, and control in a safe and environmentally sound manner of such tailings in order to prevent or minimize radon diffusion into the environnent and to prevent or minimize other environmental hazards f rom such tailings."
l 42 U.S'.C. S 7901(a) (emphasis added). It would be disingenuous 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 mill tailings pose. Yet, even if Congress l was unsure of the absolute risk posed by mill tailings, it was
a------
29 U.S.C. SS 652(8) and 655(b) (5) .
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 . . . . Id.
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 tailings pose a significant risk. The House Report on the UMTRCA stated, "[als a result of being for all practical purposes, a perpetual hazarde uranium mill 1
tailings present the major threat of the nuclear fuel cycle."
H.R. Rep. No. 1480, Part 1, 95th Cong., 2d Sess. 11, repIlpted JD ,
1978 U . S.. Code Cong. & Ad. News 7433, 7433. Thus, Congress r
considered the mill tailings a hazard, despite evidence brought before it that mill tailings might not pose an immediate danger to current generations. In part two of the same House Report the NRC Chairman, Dr. Joseph M. Hendrie, described how the mill tailings piles present a hazard to the public health:
"Unlike high-level radioactive waste from the back end of the nuclear fuel cycle, which contains products of the fission reaction, mill tailings contain only natu rally occurring radioactive elements, in small quantities. . . .
The health effects of this radon production are tiny as applied to any one generation, but the sum of these exposures can be made large by counting far into the future, large enough in fact to be the dominant radiation exposure from the nuclear fuel cycle."
Id. at 25, 1978 U.S. Code Cong. & Ad. News at 7452. By including I such passages in its report, Congress showed it was clearly aware that the mill tailings themselves did not pose an immediate grave danger to persons in being. Nevertheless, Congress chose to l
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regulations, EPA and NRC should exe rc ise their best independent technical judgment in making such a determination. At all times, the conf erees fully intend that SPA and NRC recognize as their paramount responsibility protection of the public health and safety and the environment."
id.
In this conference report there was no mention of the s necessity of finding "significant r is k " before promulgating regulations. We believe it would be outride the appropriate bounds of judicial review for us to require a showing ,o f significant risk when Congress has been clear in its approval of the EPA's approach to mill tailing regulation.8 8' Two' discussions, one in the House and one in the Senate, on thy conference report may imply that the EPA should make a determination that it must find ,that radon presents a significant risk. In one, Congressman Lujan stated':
"In addition, the conferees' action is intended to lay to rest suggestions, such as those made by EPA officials to mill 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 remedial action must be taken.
128 Cong. Rec. B8816 (daily ed. De'. c 2, 1982).
In the other, Senator Simpson, the bill's floor manager, discussed the significance of risks with Senator Wallop.
"Mr. WALLOP: . . . It is my understanding that EPA and NRC have stated that they felt compelled by the Mill Tailings Act to impose stringent requirements, such as a 2-picocurie radon emanation standard, irrespective of costs, because of language in the preamble to the 1978 Mill Tailing Act. From my reading of the applicable provision, the 1978 ac't 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 dispelled the misapprehension of the agencies on this point?
Continued to next rjage i
consider protecting future generations by enacting the UMTRCA and requiring the immediate stabilization and disposal of ticse tailings.
The 1982 amendments did not change the thrust of the original UMTRCA plan. The changes in the legislation that pertained to the t
EPA's duties under the UMTRCA, according to the House Conference Report, were not designed to change the EPA's basic regulatory approach. House Conf. Rep. No. 884, supra, at 47, 1982 U.S. Code Cong. & Ad. News at 3617. Instead, Congress designed the amendments to set out the factors that the EPA should consider in developing the standards. The Conference Report indicated that .
' Congress did not -find f ault with the EPA's proposed standards. ,
"In each instance, the conferees have agreed to include specific references in the appropr'iate sections of the Atomic Energy Act directing EPA and NRC, in promulgating such standards or regulations, to censider the risk to the public health, safety, and the environment, the environmental and economic costs of such standards of
[sici regulations, and such other factors,as EPA or NRC, respectively, determine to be appropriate.
. . . The conferees note that this language reflects accurately the current regulatory approach of the agencies. The language agreed to by the conferees should not result in any delays in establishment of renedial action standards. EPA, for example, has already advised the conferees that it is considering costs in formulating its inactive site requirements. '
. . . Moreover, in adopting the language, the conferees intend neither to divert EPA and NRC from their principal focus on protecting the public health and safety nor to require that the agencies engage in cost-benefit analysis or optimization.
The conferees are of the view that the economic and environmental costs associated with standards and requirements established by the agencies should bear a reasonable relationship to the benefits expected to be ;
derived. This recognition is consistent with the ,
accepted approach to establishing radiation protection j standards, and reflects the view.of the conferees that, i in promulgating such general environmental standards and I 1
IV The industry petitioners argue that the EPA's radon " flux" or emission limits and radium-in-soil cleanup standards exceed the Continued from prior page Mr. SIMPSON: I say . . . that, in my best estimate, they have. The stateraent of [ thel managers clearly ',
states that it is the agreement of the conferees that EPA and NRC, in promulgating standards and regulations, should exercise their best independent technical judgments. The agencies should determine the risks associated those will Isic) mill tailings and the significance of risk s. They should also examine various regulatory approaches to deal with significant' risks that are identifled. 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 reasonabl'e judgment on the appropriate course to accomplish the basic purpose of e
the act, which is to protect the safety from unreasonable risks." 'public health and 128 Cong. Rec. S13,055-56 (daily ed. Oct. 1, 1982).
We recognize the _
discussions of the amendmentsassistance provide. in interpretation that these We are const rain ed ,
however, by the language 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.
S22 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.
' means and how it is interpreted by Members We whocan indicate what it served on it . ") .
i To hold that the EPA must determine that the tailings piles pose a significant risk before regulating would ,
change the entire l
structure of the statute.
It is more reasonable to interpret the quoted comments to mean that the EPA must consider the significance of the risk in weighing the costs and benefits of the alternative standards, subject we discuss in Part VI. We do not believe that Congress a intended the UMTRCA to require the EPA to go through a two-phase analysis of: (1) determining the significance of risk of radon emissionsthe balancing before costsregulating, and (2) after a significance finding, 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 Continued to next page 7_
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 g environment standards to the EPA. 5,32 gen.erally ODlylIA BlDJDg Co Ya EPA, 728 P.2d 477, 480 (10th Cir. 1984) (history of reorganization). That act defined standards to mean " limits on radiation exposures or levels, or concentrations or quantities of radioactive materials, in the general environment outside the 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. 5 2 (a) (6) at 1132-3 3) . - The AEC (now NRC) was to retain authority over the licensing of commercial operations using or producing radioactive materials. 5 U.S.C. App. at 1135.
, The American Mining Congress argues that this strict j distinction between the EPA operating outside site boundaries and the URC operating on-site has been maintained in the UMTRCA. The reference to "outside the boundaries," however, does not appear in the final version of S 275 of the UMTRCA. 42 U.S.C. S 2022(b).
As finally enacted that statute requires the EPA to adopt only
" standards of general application," leaving " implementation and enforcement" to the NRC in the conduct of its licensing Continued from prior page
- the statute and the amendment are too clear on the need for l regulations concerning uranium mill tailings for us to interpret the statute to require 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 believen the rites presen' .
activities. Id. at S 2022(d). The legislative history and administrative interpretations prior to the promulgation of these regulations are less than clear. Yet Congress' concern all along has been the protection of the general public from radiation and i
other hazards connected with these operations. See House Conf.
t.
Rep. No. 884, EppIA, at 47, 1982 U.S, Code Cong. & Ad. News at 3617. If one of the principal hazards is inert radon gas that escapes from a pile into the atmosphere and travels some distance, the obvious remedy is to prevent that escape. Such remedy requires measures applicable at the source. We hold that the EPA
) has not exceeded its statutory authority in adopting this remedy. -
V ,
I The American Mining Congress argueq that the radon " flux" or emission limits and radium-in-soil cleanup standards limits are invalid because they influence, and to a great extent define, the type of engineering or design standard to be selected by the implementing agency. See H.R. Rep. No. 1480, Part 1, sypra, at 17, IgPIiDied ID 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 ,
wethods . . . on the Depa rtment of Energy.") .
As noted above, Congress sought in the UMTRCA to divide responsibility for disposal and cleanup among the agencies, with the EPA setting standards for general application and the DOE and the NRC implementing those standards. See 42 U.S.C. SS 7911-7925.
l This division of responsibility and authority, however, should not be read to prevent the EPA from instituting a radon flux or radium l
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limit that could be translated into a covering measurement requirement. As we discuss in the next section, the EPA had to meet a congressional mandate of some sort of cost-benefit analysis in promulgating the regulations. To do so it had to be able to estimate the cost of implementing the regulations. To determine s
the cost, the EPA had to have an approximate idea of the type of
~
remedial action that will be undertaken; otherwise, its task is impossible. We therefore hold that the EPA did n.ot exceed its authority by enacting emission limitations that appear to correlate directly with covering measurements. Furthermore, because the standards are general in nature--they apply to all ,
sites--we do not view them as. site-specific " management,'
technology or engineering" methods. ,
VI All petitioners criticize the EPA's approach in considering 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,9 on the other hand, argue that the EPA should promulgate strict feasibility standards, 9
In the text of this opinion we refer to joint petitioners Sierra Club, Environmenta: Defense Fund, Natural Resources Defense i Council, Southwest Research and Information Center, and Jean l
Slattery as the " environmental petitioners." The arguments of the j State of Colorcio as intervenor and the State of Wyoming as amicus l generally parallel those of the environmental petitioners.
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with a very limited review of the costs of implementing those standards.
The environmental petitioners argue that the UMTRCA requires the EPA to protect the public health to the maximum extent possible, constrained only by technical feasibility, and, to some e
extent economic feasibility. Feasibility analysis, as the Supreme Court has used that term, places a less severe restraint on agency action intended to forestall environmental harm than cost-benefit analysis. See AmerigaD_Testile_Bacufacturers IDstit3te, ids,- y, DoDoyan, 452 U.S. 490, 507-09 & n.27 (1981). Feasibility analysis and cost-benefit analysis are mutually exclusive approaches. Id. -
at 509. In light o( the language of the 1982 amendment to the ,
UMTRCA we must reject the environmental petitioners' argument that control of mill tailings should be as extensive as is capable of being performed. The amendment foreclosed the EPA's use of a feasibility standard in promulgating regulations by requiring the EPA to consider "the environmental and economic costs" of applying the standards. 42 U.S.C. S 2022(a). The legislative history also reveals Congress' intent to forgo a feasibility s tanda rd . The conference report noted that there should be a reasonable rciationship between the environmental and economic costs associated >rith the standards and the benefits to be derived from them. House Conf. Rep. No. 884, supIA, at 47, 1982 U.S. Cong. &
Ad. News at 3617.10 Also, discussing the amendments in the Senate with Senator Schmitt, Senator Simpson rejected feasibility analysis for these regulations:
Continued to next page
1 4
e F.
We agree with the industry petitioners that the UMTPCA does require a consideration of costs relative to benefits, a cost-"
benefit analysis,11 by requiring a reasonable relationship between costs and benefits. We have no doubt, a'f t'er reading the UMTICA and its legislative history, that Congress gave the EPA a clear s
indication of its intent to require some sort of cost consideration. See Ameri, CAD TfXIIlf B DUf4CtWISISa IDCa , 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. The label " cost-benefit -
. analysis" encompasses everything from a strict mat'hematical , ,,
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Continued from prior page Sen. Schmitt: "By requiring a consideration of environmental and economic costs,11s my understanding correct that the Senator wants the regulatory agencies to consider more than just the feasibility of their standards and regulations?
Mr. SIMPSON. The Senator's understanding is correct.
The direction to consider costs requires more than a perfunctory determination of whether a given cost can be borne by the uranium industry or a particular licensee."
128 Cong. Rec. S13,055 (daily ed. October 1,1982) .
Senator Simpson indicated that the amendment to the statute old not require an " itemized cost-benefit app oach." He stated:
"As indicated in the statement of managers, standards and requirements 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 - 7 say that an itemized cost-benefit optimization approach is required. In balancing costs and risks to assure a l
reasonable relationship between the two, judgment must be exercised by the agencies."
l l 128 Cong. Rec. S13,055 (daily ed. Oct. 1, 1982) (colloquy between l Sen. Simpson and Sen. Schmitt).
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b)lancingformulatoalessstrictstandardthatmerely requires the agency to recognize both the costs and benefits of specific proposed alternatives and consider the differences in choosing an appropriate alternative. " Labels are neither important nor determinative." AmerlsaD_ Petroleum _IDstitute_y _ EPA, 540 F.2d 1023, ,1037 (10th Cir. 1976), cert, dgDied, 430 U.S. 922 (1977).
Wa 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. Sag House Conf. Rep.' No.
884, supra, at 47, 1982 U.S. Code Cong. & Ad. News at 3617. The EPA must .onsider Congress' intent to protect the public health
. s-and safety and the environment in its decision, because this intent refines the cost-benefit standard by assigning the values or weights that the EPA must use in its determination of a balance of benefits and costs. Id. (Congress considered protection of these things to be " paramount"); see generally Amerlsan_ Petroleum IDstitute, 540 F.2d at 1028 ("the guiding star is the , intent of Congress . . . . All issues must be viewed in the light of that intent."). The EPA labeled its final standard for control of the tailings piles as an " optimized cost-benefit" alternative. 48 Fed. Reg. at 591. The legislative history of the statute specifically stated that an optimized cost-benefit analysis was not necessary. It also stated that even a cost-benefit analysis was not required.
In the House Conference Report, discussing the 1982 amendment, it states,
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"The language agreed to by the conferees should not result in any delays in establishment of remedial action standards. EPA, for example, has already advised the conferees that it is considering costs in formulating its inactive site requirements. . . . Moreover, in adopting the language, the conferees intend neither to i divert EPA and NRC from their principal focus on protecting the public health and safety DgI to IggulIs l
tbbt tb2 D9tDCits eD9D99 iD CDSL-btDtfit- DDD1ysis- 91 '
OptiDlZDbiDD."
House Conf. Rep. No. 884, sup;D, at 47, IfpriDied iD 1982 U.S.
Code Cong. & Ad. News at 3617 (emphasis added). The topic sentence of the next paragraph states, however, that "[t]he conferees are of the view that the economic and environmental costs associated with standards and requirements established' by the agencies should bear a reasonable relationship to the benefits expect'ed to be derived.' Id. This language, in the context of' the entire legislative history of the 1982 amendments, S22 iDfID notes 10 and 11, convinces us that Congress intended cost-benefit 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 Etbyl CDIP y _ epa, 541 F.2d 1, 36 ,
(D.C. Cir.) (en banc), sert, dgDied, 426 U.S. 941 (1976).
, A The industry petitioners criticize thefEPA'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 ra6on risk; and its projected life-savings from the promulgation of the regulations. They also criticize the
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insubstantial benefits of the regulations, which they say bear no l
rational relationship to their substantial costs.
We do not believe that misuse is an unreasonable justification for the standard, particularly in light of the fact that misuse of the tailings helped lead to the enactment of the ,
UMTRCA. See H.R. Rep. No. 1480, Part 1, supra, at 11, 1978 U.S.
Code Cong. & Ad. News at 7434.12 We do not believe that the EPA shifted its justification for the radon standard in a manner that denied any party 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 r performtnce of tailings pile disposal pethods. They include external natural phenomena, such as earthquakes, flood s ,
windstorms, and glaciers, interaal chemical and mechanical processes, and bvDaD actlyltles." 46 "ed. Reg, at 2558 (emphasis added). Thus, given the legislative history of the Act and the EPA's own language in the proposed standards, misuse, as a The Report stated:
"From the early 1940's through the early 1970's there was little official recognition of the hazards j presented by these tailings. Federal regulation of the
. industry was minimal. As a consequence, mill tailings l were left at sites, mostly in the Southwest, in an l unstabilized and unprotected condition. Some of these l
tailings were used for construction purposes in the foundations and walls of private and public buildings.
There, through the concentrated emission of radon gas, the hazard of the tailings and public exposure increased substantially."
H.R. Rep. No. 1480, Part I, supIA, at 11, 1978 U.S. Code Cong. &
Ad. News at 7434.
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justification for the standards, was suf ficiently foreshadowed in the proposed scheme; the parties here were not deprived of notice or an effective opportunity to respond. See Small- BefiDer-_ Lead Phass-D9FD Task EDIC2 22 E2b, 705 F.2d 506, 547 (D.C. Cir. 1983);
BeirDe ya Secretary DE D92arhacDt Df b9xiculture, 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 calculations, approximately 170 to 240 potential lung cancer deaths per century in the United States from uncontrolled mill tailings from all inactive sites. 48 Ped. Reg, at 593; I FEIS-IN at 67. We think ,
there is reasonab.le authority to support the EPA's method of risk
- r calculation in regard to its potential lung cancer deaths estimate.13 Sf2 BfseI29 BlDiDg CD2 ya E2b, 514 F.2d 492, 507 n.20 (8th Cir. 1975) (en banc) ("Indeed, a number of the disputes involve conflicting theories and experimental results, about which it would be judicially presumptuous to offer conclusive findings.").
l l
This estimate is based upon a linear nontbreshold 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 question this theory of radiation risk. See BaDagessDt Of CDmslDsled UraDium_ Hill TaillD921. 89 arid 93 Before %bs SubcDama DD EEDCUK9mtDL add Bilitary Buglsar Systems Of %bs BDust CDmBs DD brmRd StrXiG.eS, 97th Cong., 2d Sess. 176, 186-87 (1982) (comments on proposed EPA standa rds) . Nevertheless, we believe that, in making policy l decisions, the EPA may adopt a linear nonthreshold calculation to compute risks from low levelt of radiation. San McGarity, Sub5%aDti22 add 2KDC9 dural DiSCrttiDD lD bdmiDiStraki2D BBSDlutiDD l Of SciDDct EDJicy 0UtstiDDai- EtgulatiD9 CarciDD9tDS iD E2b BDd OSBb, 67 Geo. L.J. 729, 733-34 (1979).
Tht .._ustry petitioners also criticize the EPA's " estimate 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,14 arguing that: (1) few people, if any, are subjected to this risk; (2) the estimate is unreasonable in its assumption that someone would live continuously near a' tailings piler (3) the radon daughter concentrations to which nearby individuals are allegedly exposed, which the EPA listed in the Final-Environmental Impact Statement, do not correlate with the radon concentrations in the study the EPA cites; (4) the EPA based the radon ,
measurements on' inadequate sampling data; and (5) the risk f
measurements include background radiation, not just radon from the tailings piles. We address separately these arguments.
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.15 This figure defines both the risk created by the inactive mill tailings and the benefit to be derived from instituting the radon emission standard--avoidance of 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.
I 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 j the risk. Id. at 593, 598.
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t that risk. We believe the evidence in the record reasonably supports this risk estimate figure. .
Most of the inactive uranium mill tailing sites are located in rather sparsely populated areas. Congress no doubt was aware of this fact when it enacted the UMTPCA and designated the ,
specific sites to which the regulations would apply.16 Set 42 I'
U.S.C. 5 7912. There are, however, piles located near cities with sizeable local populations, such as Saft Lake City, Utah, and Grand Junction, Colorado. 332 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-IH 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, especially in light of Congress' presumed knowledge regarding the population density in areas ,
surrounding the designated sites.I7 We also reject industry petitioners' assertion that it is The Final Environmental Impact Statement states thatt l i
"We have estimated local and regional exposure at 6 of the 24 inactive sites (SW81). Although this sample is limited, it includes all important urban sites except Canonsburg, Pa. The remaining piles are in remote areas and collectively have only about one tenth of the local and regional population exposures that these six piles collectively have."
I FEIS-IN at 59.
l Sag 42 U.S.C. * "917 fro r ring af6a desienationel.
t t
unreasonable that somecne would live continuously near a' pile.
Supposedly rational people in our society continuously expose themselves to risks of greater magnitude than those involved heres workers with nuclear materials, underground coal miners, and many others. Sore do it for money, some because they underestimate the risk. Radon emission f rom these piles will occur for thousands of g years unless prevented. Public awareness of the dangers may wane.
The industry petitioners' criticism does not undermine the validity of the risk assessment; it only points to the limit ed number of persons who currently may be subject to the risk.
Industry petitioners are correct that there were some discrepancies between the exposure level estimates used to calculate the risk factor included in the Final Environmental Impact Statement, and the referenced study conducted by consultants Ford, Dacon and Davis Utah, Inc.I0 See Letter from The EPA readily acknowledged the discrepancy in the figures used in Table 4-5 of the Final Environmental Impact Statement.
Ett Letter f rom Christopher Herman, Brief of American Mining Congress, Addendun F. These discrepancies are as follows:
Recalcula t ed
- CiLY Cited.Esposutt.htsti Esposutt.Leyt1 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 f rom the Draf t to the Final Environmental Impact Statement.
! *** The EPA also conceded that it overstated the distance from the pile" to the reeres+ *aside~ts. It r' 7ra of 0.5 elles wk -n it L*.ca.; n; e . s e- eties.
i t
Christopher nerman, Attorney, Air, Noise and Radiation ' Division, United States Environmental Protection Agency, Brief for American Mining Congress, Addendum F. Although these discrepancies alter the risk estimates, we do not think that the deviation is suf ficiently significant to render the EPA's uppe r limit risk ,
estimate to .be unsupported by available data. Precision is g desirable, yet these discrepancies do not rise to a level that s
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 emitted from the inactive sites. We do not find these flaws fatal to the EPA's conclusions. The sampling data compiled by the re:earchers for the EPA is adequate to support the EPA's estimates.19 An estimate 19 The American Mining Congress faults the Ford, Bacon study's '
radcn measurements because the figures are based on "a single 24-hour sample." They contend that because of the " variability of outdoor radon levels measurements must be taken over an extended period cf 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, Racon 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. 329, 2,g., Joint Appendix at 36, 39, 54, 77, 136. Yet it is also true that the EPA consultants used numerous sampling locations at each tailings pile site when they conducted these twenty-four hour measurements. Seg 2.g., jd. at 36, 41 (fifteen locations in curango); 54, 62 (eight locations in Grand Junction); 77, 83 (twenty-six locations in Salt Lake City); 136 (three locations at Spook site in Converse, Wyoming). Any statistician would appreciate that larger sample sires yield ore reliarla data. Dut at sc-a re!9* e .itudy en-*
- r. r - :nur? te me)- p:;'
l
( ~31-I
0 of risk may reasonably include possible background rist--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-f in-soil concentration standard, 40 C.F.R. $ 192.12(a) (1984), are similar. They say the standards are insalid because (1) the EPA's assurptions about the likelihood of significant exposures from the concentrations do not cupport the standards 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 raocn. 48 Fed. Reg.
at 600. The EPA admits in the FEIS-IN, a nd the industry Continued f rom prior page compromise perfection because of cost and limited tire and resources. Here the consultants extrapolated their data using -
eodels that took into account existing information on the topography, weather patterns, and local climate of each site as well as the current location and configuration of tailings and residue at each site. 533, gag., jd. at 40, 58-59, 79. We think that in these circumstances such a model was an acceptable substitute for periodic samples taken over an extended period of time. The American Mining Congress does not question the validity of the data which corprised the model. It only questions the methodology.
We are not scientists; we are generalist judges deciding whether the methods used were reasonable. We have not been presented with any reasons to distrust a twenty-four hour sample but not a forty-eight hour sample. Given the other information in the consultants' study about variations in radon release at different heurs of the day, seg, s g.,1d. at 39, a cycle covering j an entire da;* and night does not seem arbitrary. Likewise, given l Information that c! irate and weather patterns may affect radon cdel toit takec in*o a:eren* v ilaticas over am antire re. rare, 9 yest
- be pas:. - - . rs.*: qc;te r e v,o r. n '. t .
'A-
. . . . _ . . ~ . . - _.
n 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 inaccur ac ies 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 .
the promulgating this standard to deal with a significant danger tailings piles present.
f The State of Colorado claims that t,he EPA provided inadequate notice and opportunity for comment on the one hundred square seter sarple area for the radium concentration standard. Although this sort of area designation admittedly could influence the effectiveness of the standard, it is not the sort of change that necessitates a new round of cor. ment.
C In its final standard the EPA increased the allowable level of indoor radon concentration f rom 0.015 WL to a maximum level of 0.03 WL, stressing that reasonable effort should be made to achieve a radon concentration level of 0.02 WL. Ses 40 C.P.R. /
5 192.12 (b) (1) (1984). The EPA justified this change on the basis that it would ease implementation of the final standard. Sff 48 Fed. Reg. at 600. It further stated that "the final standard deals adequately with complications introduced by the presence of any high concentration of naturally-occurring radionuclides, and avoids unnecessary and costly remedial actions that produce only marginal improvements. 20 .Id.
In a claim related to this indoor redon concentration standard, the State of Colorado asserts that the EPA exceeded its Continued to next page
-77
. ... ~ .. . . - .. . . . .
L The environmental petitioners criticize the f in al- 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 "reasonab*e .
effort *' level of the final standard, 0.02 WL, had an estimated l' residual risk of lung cancer of 1.3 in 100. Id. Contrary to the environmental petitioners' argument, 'the EPA did evaluate the residual risk of lung cancer of the ceiling level of radon decay product, 0.03 WL including background, by considering a range of levels between 0.0 WL above background and 0.05 WL above background. Id. The FEIS-IN shows a residual tick of lung cancer of 5 in 100, which appears to be the top side risk at 0.05 WL above background. Although this is a significant increase in the risk, we cannot say the EPA acted arbitrarily or capriciously or beyond its authority in allowing the higher level snd its I
Continued from prior page authority to set standards of general application and usurped the l
authority of the states and implementing agencies by allowing the une of sealants, filtration and ventilation devices to provide reasonaole assurance of reductions from 0.03 WL to below 0.02 WL.
Set 40 C.F.R. 5 192.20(b) (3) (1984). The regulation provides trata
" Residual radioactive materials should be removed from buildings exceeding 0.03 WL so that future replacement buildings will not pose a hazard funless removal is not However, sealants, practical.-see S 192.21(c)).
filtration, and ventilation devices esy...proyjdt Its89D3ble assurance of reductions from 0.03 WL to below 0.02 WL.*
40 C.F.R. 5 192.20(b)(3) (1984) (emphasis added). We do not read this languace as compelling any particular actions instead radon we read it as r caes'.ine rassible alterestives to reduce l "c .a c e leve'.
l
-e. 1
- .- = . - , -
L 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 reasonable relationship between I
the estimated benefits of control of the tailings piles and the costs of providing those benefits. We start with the obvious premise that there can be no reasonable relationship in the abstract. As we indicated earlier, Congress' intent serves to define the reasonableness of any relationship between costs and benefits. Given Congress' admonition that the EPA recognize as its
- paramount responsibility protection of the public health and safety and the environment," House Conf. Rep. Fo. 884, supra, at 47, 1982 U.S. Code Cong. & Ad. News at 3617, we review the EPA's adoption of the 20 pCi/m 2/sec radon emission standard.
In the Final Environmental Impact Statement the EPA analyzed the "Denefits Derived From Controlling Uranium Mill Tallings ,
Piles," specifically considering the benefits that would be provided under various remedial alternatives--ranging from *No Standards
- to the EPA's originally
- Proposed Standard." Sff I FEIS-IN at 99, Table 6-6.
The benefits enumerated were: the probable reduction or elimination of human misuse of the tallings after controls 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 l cancert the deatts avoided; and the surf ace water protection ,
1 3e.
1
) .
t provided. The alternative the EPA ultimately select ed in the 2
final regulations, a 20 pCi/m /see standard,21 provides significant tenefits, meeting Congress' concern that the standard protect the public health, safety, and environment. The selected standard and its corresponding control method,22 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 951, avoid 190 deaths in the first 100 years of protection, and protect surface water from contamination 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 minimizing" diffusion of radon into the atmosphere. Sgt 42 U.S.C. S 7901(a) &
(b) (1) . In the same vein, they also criticize the tenfold increase in the level of emissions permitted by the final standard, an increase f rom 2 pC1/m 2s to 20 pCi/m s.2 Despite this i
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. Sgt I FEIS-IN at 99, Table 6-6, at 101. Given the reduction in risk provided by the final I
Sag I FEIS-IN at 128-29 (Alternative B selected) .
EPA's selected alternative correlates to a three meter earth cover requiremer.t. I FEIS-IN at 91, Table 6-2. In addition Alternative e assumes three of the piles will be moved for flood control reasons. San jd. at 91: B-16.
-4C-
t standard, we do not believe that the
- tenfold increase"- in the level of emissions allowed by the final standard maket that standard unreasonable, even in light of the change. We hold that the final standard is within a zone of reasonableness, 322 Srs11 Esfjrer. Lead.Fbase-DovD Task.E9xce, 705 F.2d at 525, and a logical outgrowth .of the proposed standard, jd. at 547.
All of the petitioners find fault with the EPA's suggested longevity requirement for the final radoh emission standard--that the standard . control emissions to the extent reasonably achievable, have an effective life of 1000 years, and in any case, for at least 200 years. 40 C.P.R. 5 192.02(a) (1984). The industry petitioners consider the thousand-year longevity goal unrealistic. The environmental petitioners consider the reduced two hundred-year minimum inadequate, especially in light of the thousand-year proposed standa rd. We cannot say the final standard falls to accomplish Congress' goal of long-term stabilization in view of Congress' command to take costs into consideration. The final standard meets Congress' desire to avoid the health r isk s presented by the tailings plies and provide a remedial program that will result in long-term stabilization of the piles.
Congress stressed that the
- remedial action must be done right the first time." n.R. Rep. No.1480, supra, at 40, 1978 U.S. Code Cong. & Ad. News at 7467. Given Cong r es s ' expr essed desire to have a remedial program that will stabilize the tallings piles and additionally, not require continuous allocations of funds, jd., we believe the EPA acted reasonably in promulgating a standard based primarily upon the adoption of a passive measure,
./..
4 t
an earth covering. The industry petitioners particularly are critical of EPA's refusal to consider remedial measures that are note 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 alternative upon review'of the benefits it would ,
provide. Id. at 98-104, 128-29. Arguably, EPA could have placed more reliance upon the maintenance and o n'nitoring 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 understanding of its duty under the statute to rely principally upon passive control is sufficiently rational to withstand our review. See Cbstical.Eacufactur2Is AssociatioD.Y..UstjoDs1.EssouIsss..DefsDse..CouDc114..ILs., 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 of f-site cleanup were 158 and 38 million (1981) dollars, respectively. EPA stated that the DOE had estimated its additional costs for pr og ram development and management
(* overhead *) at 118 million (1981) dollars. The total estimated 1 expenditure was 314 million (1981) dollars. These figures include both cleanup (off-site) a'nd disposal (on-site) costs. 48 Fed.
Reg. at 596. We recognize the tremendous costs that this cleanup program represents. Nevertheless, we cannot condemn as arbitrary the EPA's determination that these costs bear a reasonable relationsh'p to the benefits to be provided. In fact, in enacting the UMTRCA Congress was well aware of the potential costs of the 1
l
t program. Assessing the economic impact of the legislation in 1978, the House Report stated:
- This legislation is not expect ed to have any significant inflationary irpact. Over the next 7 years, 22 tailing sites will be treated at a total cost ranging anywhere from 815 million to $200 million, depending
- largely upon whether tailings will be treated and stored at their present location or, instead, moved to newly prepared disposal sites. Little of' this cost is f-expected to be incutred during the next 3 years because of the time required to identify and prepare disposal sites. Additional costs may be horne by individual states if new disposal sites are required, sut even taking these additional costs into account, the impact of the legislation on inflation and overly (sici economic pe rformance is expected to be immeasurable
[ sic].* ,
H.R. Rep. No. 1480, supra, at 47, 1978 U.S. Code Cong. 5 Ad. News at 7474. We must defer to the EPA's finding of a reasonable relationship between the costs and the benefits of the remedial action program for disposal of the elli tailings at the inactive sites. As we have said before in another context, "tvle are convinced that EPA made a serious, careful, and comprehensive study of the costs which compliance will impose . ... If Congress believes that the coct is too high, it can amend the Act.
All we say is that EPA has complied with the statutory mandate."
8FrijceD..PetID3 fur..IDstitutr_Y._EFA, 540 r.2d 1023, 1038 (10th Cir. 1976), stIt. dtDisd, 430 U.S. 922 (1977).
VIII There is one area in which we agree with some of the petitioners or the intervenor that the EPA standards are not in compliance with the law or are inadequate and require resand.
In its final standards the EPA abandoned its proposed general f
l standards for limits er coecentretiens of toxic substances in
<s-
\
l
L' surface and ground water.23 Sze 48 red. Reg..at 591. 594 322 also 46 Fed. Reg. at 2562 (text of proposed standards)$ The EPA concluded that potential contamination of surface and ground water should be dealt with on a site-specific basis. 40 C.F.R.
5 19 2. 20 (a) (2) (198 4) ; 323.a130 48 red. Reg, at 594 (discussion of final rules). In place of the' proposed standard for control of f l
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 relevant state and federal water quality standards. 48 red. Reg. at 591. It stated that those programs should be consistent, to the maximum extent practicable, with the Solid Waste Disposal Act (SWDA), 42 U.S.C. 55 6901-6986. 48 red. Reg. at 591: 40 C.F.R.
5 192.20fa)(2) & (3) (1984).
We agree with the environmental petitioners and the State of Colorado that by its actions the EPA violated its duty under the statute. In its proposed regulations the EPA stated that there was a problem with water contamination: 'There is evidence of a limited ground water contamination 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. Id. at 2559-63. In the final regulations the EPA acknowledges there are problems, 48 red.
Reg. at 593, but states: 'We do not believe that the existing evidence indicates that ground water contamination from inactive mill tailings is or will be a matter of regulatory concern." Id.
~* *
- 3 r:r t ? .
r l
l 1
4 at 599. We do not believe that the EPA, in issuing the final regulations, declared that it was wrong before Indeed, by. stating that potential contamination should be dealt with on a site specific basis, id. at 594, it acknowledged that problems exist at some sites. .
The draft Envitonmental lepact Statement gave litt1e f
indication of the possibility that the EFA 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 stateeent we could i find in the draft EIS that could be construed to indicate consideration of an alternative similar to that adopted is this:
'The proposed ground water protection standards could be considered too strict if implementing them would be unreasonably costly or if they would be impossible to apply.' Environmental Protection Agency, DIsft..EDyiroDetD101..IrFBCt.StatstrDt.f9I Ptttdin1.bCtiDD.S10Ddasds.!DE.IDactist.UEDDium 219CCSSAD9.51183 8-8 (1980). The explanation of the proposed water quality standard '
anticipated possible increases in disposal costs to insure against future ground water contamination, but gave no indication that this possibility would make the proposed standards infeasible. 46
- red. Reg. at 2560. Many of the comments submitted to the EPA during the enement period af ter publication of the proposed rules suggest ed that the EPA abandon its proposed ground water standards, 333, 3,g., 11 PEIS-IN at D-36, ~37, -44, -45, -46.
Put, regardless of the tenor of some of the comments, the final l . t v. .
l
(
4
- guidance
- standard does not represent a logical outgrowth from the proposed regulati.ons. ,
In our view when the EPA acknowledged that ground water contamination is a problem at some of the inactive sites, it was required to adopt general standards.24 The UMTRCA 'provides that .
the. EPA " promulgate standards of general application." 42 U.S.C.
5 2022(a). The EPA was not to adopt ' site-specific requirements.'
H.R. Rep. No.1480, Part I, supIs, at 16s17, IspIjDitd..lD 1978 U.S. Code Cong. and Ad. News at 7439. By directing the DOE to follow
- relevant" state and federal quality standards consistent "to the maximum extent practicable" with the SWDA, 333 48 Fed. ,
Reg. at 591: 40 C.F.R. 5 192.20(a)(2) and (3) (1984), the EPA was unlawfully delegating to the states or to the DOE its own rulemaking authority or was itself establishing standards that could vary from site to site.
We do not agree, however, with Colorado's argument that an unlawful delegation is involved by the provision of the regulations allowing exceptions from the standards in particular circumstances--permitting the implementing agencies, the NRC and the DOE, to " select and perform remedial actions that come as close to meeting the otherwise applica,ble standard as is reasonable under the cir'cumstances.' 40 C.F.R. $ 192.22(a)
(1984). So long as general standards are in place, permitting exceptions for special circumstances in which costs might be outrageous or compliance impossible is not an abrogation of the 3)....................
of course, a site with no contamination problems would automatically meet any general requirements the EPA might set I w1*.h ut furthe* Cort *cttu$ actie .
.g..
l
. l l
l C
duty to promulgate general standards. A court could determine, if required to do so, the reasonableness of an exception granted in a specific case.
The environmental petitioners also corplain that the EPA has .
a duty to forrulate general standards for nonradiological hasards, tox'ic chemicals in the uranium tallings, ses 42 U.S.C. 5 2022(a), f but has not specifically addressed the subject except in conclusory form:
"We have reviewed the available data on toxic elements in tailings and improved the FETS-IN in this respect ( Appendix Cl. We have *'ncluded that it is reasonable to expect that hazards from toxic elements will be adegaately limited if control and cleanup are carried out according to these final standards."
18 Fed. Reg. at 597 We are s&tisfied that the EPA's general regulations on radon emissions, requiring control of tre movement of and probable covering cf the tailings adequately deal with the nonradiological hazards of the toxic chemicals, except as they may enter waterways or underground water suppliti. If there is a possibility that toxic chemicals will enter underground water supplies or waterways, the statute mandates that the problem be dealt with by general standards. On remand, the EPA will have to treat these toxic chemicals that pose a ground water risk as it did in the active stil sit'e regulations.
IX we reject all challenges to the regulations except as l
discussed in Part VIII above. The following r egula tion, l concerning water contamination is set aside 40 C.F.R.
$ 14*. 20(a) (2)-(3) (!*94). The case is remanded to the acency for further considerailon of thof specific provision.
9
- 83-2226 2227 9/3/85 ..
83-2277 2504 83-2524 1349 84-1352 1482 A 8ro-v Pd 40 ra/t
+* FR %+ tf 1.
ynited States Glourt of gAppeals lI f or if]e Ernif] @ircuit
- i i f l .
I 11 1
i M
t e6 SLIP OPINION 1
e EUDL1SB UNITED STATES COURT OF APPEALS TENTH CIRCUIT Un FILED
. Coyrtof Appests AMERICAN MINING CONGRESS, UNITED NUCLEAR) Tenth CircuP.
CORPORATION, HOMESTAKE MINING COMPANY, )
AMAX, INC., SOLAR LOBBY, THE ENVIRON- '
) SEP0310M e MENTAL DEFENSE FUND, INC., NATIONAL -
)
WILDLIFE FEDERATION, SIERRA CLUB, ) HOWARDI:.PHILLIPS AL MANGAN, CHAUNCEY KEPFORD and ) Clerk JUDITH H. JOHNSRUD, )
)
Petitioners, )
)
- v. ) Nos. 83-2226
) 83-2227 LEE M. THOMAS, in his capacity as ) 83-2277
) 83-2504 Administrator of the United States 83-2524 Environmental. Protection Agency, and )
Et#IRONMENTAL PROTECTION' AGENCY, ) 84-1349 '
) 84-1352 Respondents, ) 84-1482
)
)
STATE OF COLORADO,et al, )
) -
)
Intervenors.
Petitions for Review of an Order of the Environmental Protection Agency UNITED NUCLEAR CORPORATION, HOMESTAKE ) '
MINING COMPANY, and GUIVIRA MINING )
COMPANY, )
)
Plaintiffs-Appellants, )
I r
- v. ..
) No. 84-1908
)
)
UNITED STATES E!NIRONMENTAL PROTECTION AGENCY, LEE M. THOMAS, and UNITED )
STATES NUCLEAR REGULATORY COMMISSION, )
) .
i Defendants-Appellees. ,
)
_~. ._ _ _ _ _ _ _ . .
l Appeal from the United States District Court for the District of New Mexico (D.C. CIV No. 83-1602 HB)
Anthony J. Thompson (Edward A. McCabe, Charles E. Sliter, Robert F. Reklaitis and Edward S. Shipper, Jr., also of Hamel & l Park, Washington, D.C.; of counsel Larry A. Boggs, Senior Counsel, Congress, Washington, D.C. , with him on the American Mining briefs) for the American Mining Congr.ess. t Peter J. Nickles (Richard A. Meserv'e,"~also of Covington & Burling, Washington, D.C.; G. Stanley Crout, Sunny J. Nixon, Michael S.
Yesley, and Rebecca Dempsey of Stephenson, Carpenter, Crout &
Olmsted, Santa Fe, New Mexico, with him on the briefs), for United Nuclear Corporation, Homestake Mining Company, and Quivira Mining Company.
(James B. Martin, Staf f Robert E. Yuhnke, Regional Counsel Boulder, Attorney, also of the Environmental Defense Fund, Colorado; Roger Beers and Kathryn Burkett Dixon of Beers & Dixon, San Francisco, California; and Frances M. Green, Staff Counsel; National - Wildlife Federation, Boulder, Colorado ~, with him on the briefs) for the Environmental Defense Fund, the National Wildlife-Federation, the Sierra Club and Al Mangan.
Barry S. Neuman, Attorney (F. Henry Habicht,.II, Assistant Attorney General, Land and Natural Resources Division, Margaret N.
. Strand, Martin W. Matzen and John A. Bryson, Attorneys, Environmental Defense Section, U.S. Depa r tment of Justice, Washington, D.C.; of counsel A. James Barnes, General Counsel, Gerald Yamada, Acting General Counsel, William F. Pedersen, Associate General Counsel, Charles S. Carter,General Assistant General Counsel, Counsel., and Christopher C. Herman, office of Environmental Protection Agency, Washington, D.C., with him on the briefs) for Respondents.
! Adonis A. Neblett, Assistant Attorney General (Duane Woodard, l Attorney General, Charles B. Howe, Deputy Attorney General, and him Richard H. Forman, Solicitor General, Denver, Colorado, with ,
on the briefs) for Intervenor State of Colorado.
Chauncey Kepford and Judith Johnsrud, State College, Pennsylvania, filed briefs as pro se petitioners.
Richard O. Austermann, Senior Counsel Regulatory Affairs, Amax, Inc., Golden, Colorado, filed briefs for Petitioner Amax, Inc.
e i
Before LOCAN and McWILLI AMS, Circuit Judges, and BOHANON, District Judge.*
LOGAN, Circuit Judge.
- Honorable Luther L. Bohanon, United States District Judge for the Dittrict of Oklahoma, sitting by designation. ,
I cases involve . challenges to the These consolidated standards governing Environmental Protection Agency's (EPA) stabilization and control of byproduct materials, primarily mill tailings, at licensed commercial uranium and tho r ium processing sites' (the active mill sites). The EPA estat>tished these ,
standards pursuant to its authority under the Uranium Mill Tailings Radiation Ccntrol Act of 1978 (UMTRCA), as amended, 42 U.S.C. SS 2022 and 7901-7942, the same statute that required the EPt. to promulgate standards applicable to the inactive mill sites.
With the exception of No. 84-1900, jurisdiction in this court is based upon 42 U.S.C. 5 2022(c) (2) . No. 84-1908 arices out of a district court action in which plaintif fs asserted that the active mill site regulations were promulgated outside the time limits .-
The district court dismissed the suit prescribed by the UMTRCA.
on the ground that the exclusive method of review was by petition in the court of appeals unde,r 42 U.S.C. 5 2022(c) (2); plaintifis although they are raising the have appealed that dismissal
[
I l
i i
.' identical issue regarding timeliness of promulgation under their concurrent petition filed under S 2022(c) (2) .
As in the inactive mill site challenges, ses AegricaD_MIDias C9DSIsss_Y _TbODas, ___ F.2d ____ (10th Cir. 1985) (hereinafter Ipactlys_ Sites _CAsel, petitioners may be divided essentially into two categories: (1) the industry petitioners--the American Mining s
Congress, a trade association; and joint petitioners United Nuclear Corporation (and its subsidiary Quivira Mining Company) and Homestake Mining Company; and (2) the " environmental" petitioners--The Environmental Defense Fund, the National Wildlife Federation, the Sierra Club, the Solar Lobby, Al Mangan, Chauncey Kepford, and Judith Johnsrud. Intervenor, the State of Colorado,-
aligns itself on most issues with the environmental petitioners.,
AMAX, Inc. aligns itself with the industry petitioners although it is challenging only the inclusion of molybdenum as a constituent of the nonradiological hazards designated in the g r ound water portion of the regulations.
The substances to be controlled and the UMTRCA's legislative background have been discussed briefly in the companion case filed this day involving regulations for inactive mill sites. The relevant hazards addressed by the UMTRCA and its legislative -
history are the same for the active and inactive site regulations, so we need not repeat that discussion here. See Inactlys__ Sites Cass, _____ F.2d at _____ (siip op. part I).
Congress, apparently angered by the EPA's inaction, imposed time limits upon the EPA's authority to formulate regulations ,
to govern the active mill sites. A 1983 amendment to the UMTRCA
_4_
provided, "If the Administrator fails to promulgate standards in fir.(1 form under this subsection by October 1, 1983, the authority of the Adminis'.rator to promulgate such standards shall terminate" in favor of the Nuclear Regulatory Commission. 42 U.S.C.
S 2022 (b) (1) . The EPA published proposed standards for the active mill sites in the Federal Register on April 29,' 1983. 48 Fed, o Reg. 19,584 (1983). The Administrator signed final standards on September 30, 1983, and apparently released copies to the public
. on that day. The regulations did not appear in the Federal Register, however, until October 7, 1983. 48 Fed. Reg. 45,926 (1983) (codified at 40 C.F.R. S 192.30 .43 (1984)).
The EPA's final standards, except those'for ground water, were essentially identical to those adopted for the inactive mill '
sites. Standards to be applied af ter the site closure period were to assure control of radiological hazards "for one thousand years, to the extent reasonably achievable, and, in any case, for at least two hundred years . . . .
40 C.P.R. S 19 2.32 (b) (1) (i)
(1984). The final standards also established radon emission limits not to exceed an average release rate of 20 picocuries per square meter per second (pCi/m 2s). Id. S 132. 3 2(b) (1) (ii) . On-site land that meets the described standard is not subject to the disposal standards elsewhere in the regulations. That described standard, based on the maximum concentretion level of radium-226 averaged over areas of 100 sq6are meters, is the same as that at the inactive mill sites: 5 picocuries per gram (pci/g) averaged
-S-
over the first 15 centimeters of soil and 15 pCi/g for soil layers more than 15 centimeters below the surface. Id . S' 19 2. 3 2 (b) ( 2) .
1 The EPA ground water standards for tne active mill sites are in two parts: (1) a primary standard applicable to new waste storage areas, including lateral expansions of existing tailings piles, and (2) a secondary ground water protection standard s applicable to both old and new piles. Id. 5 192. 32(a) (1)-(2) . In almost all circumstances the primary standard would require a liner under new impoundments and lateral extensions capable of '
preventing migration of waste into the ground and water. Sea 48 Fed. Reg. at 45,940-41 (discussion of S 192.32(a) (1)-(2) requirements). Liners were not required for existing impoundments, even '
though new waste could be added. Sam id. at 45,931 (discussion of S 192.32(a) (2) requirements). The secondary standard in effect requires that the ground water be protected by reducing the level of toxic materials in the ground water to
~
concentration limits permitted by the Solid Waste Disposal Act (SWDA), 42 U.S.C. SS 6901-6986. The regulations necessitate monitoring programs. 40 C.F.R. S 192.32(a) (2) (1984). One SWDA requirement of impermeable cover material was altered in the final regulations to permit permeable cover in arid areas where evaporation exceeds precipitation. Id. S 192.32 (a) (1); ses 48 Fed. Reg. at 45,940 (discussion of basis for alteration) . The standards permit exceptions, w'ith the consent of the EPA, for particular existing piles that cannot meet those standards except at extraordinary cost. 40 C.F.R. 5 19 2.3 2 (a) (2) (iv) ; ses 48 Fed.
Reg. at 45,941 (discussion of potential exceptions). The
~6-l f
standards add molybdenum and branium to the list of hazardous ground water. constituents.
40 C.F.R. S 192.32(a) (2) (i) .
For purposes of discussion and analysis we divide the petitioners' contentions into four categories: (1) the allegat; ion that the EPA acted' beyond its authority'because it did not promulgate the regulations within the.. time requirements of the i statute; (2) those arguments sufficien'l'y t common to challenges to both the inactive and active mill site regulations that they may be answered, at least in part, by reference to the companion IDactlye_ Sites Case; (3) the challenges to? the ground water regulations; and (4) AMAX, Inc.'s objection to the addition of molybdenum as a constituent of ha:ardous material.in the ground water r'egulation.s. t'
'I Petitioners United Nuclear Corporation, Romestake Mining ~
Company, and Quivira Mining Ccipany (hereinafter United Nuclea r) assert that the EPA exceeded its jurisdictional authority because it promulgated these regulations after the ctatutory deadline. In
~
early 1983 Congress passed an amendment to 42 U.S.C. S 2022(b) (1),
which provides as followc: " .,
"If the Administrator standards fof the EPA) fails to promulgate e in final form under this subsection by October promulgate 1,1983, the authority of the Administrator to such standards shall terminate, and the '
(Nuclear Regulatory] Commicsion may take actions under this chapter without regard to any. provision of this chapter requiring such actions to comply with, or hv taken in accordance with, standards promulgated by the i
Administrator." ,
It is apparently undisputed that the Administrator signed the final regulations on September 30, 1983, and made them available l
\ . - . _. ... - - __.
to the public on that day. In the preamble to the regulations the EPA stated, "This standard is promulgated on the date signed." 48 Fed. Reg. at 45,946. The agency filed the regulations with the Office of the Federal Register on October 6; they appeared in the Federal Register on October 7, 1983.
The federal district court for the District of Mexico
~
New ,
dismissed a challenge to the regulations' timeliness, holding that
- judicial review of the rules was vested exclusively in the appropriate court of appeals pursuant to 42 U.S.C. S 2022 (c) (2) .
We have consolidated the plaintif fs ' appeal of that ruling with
't he various petitions for review of the regulations in the proceeding before us.- We agree with the district court that all' the '
challenges to rulemaking action of agency, including assertions that the agency acted in excess of its statutory authority or beyond its jurisdiction, should be initiated in the court of appeals. Egg ECC_Y _IIT_World_Copspojsailoosa_Inc., 52 U.S.L.W. 4507, 4509 (U.S. April 30, 1984). The Administrative Procedure Act authorizes this reviewing court to set aside agency action that is "in excess of statutory jurisdiction, authority or
~
1:nitation." 5 U.S.C. S 706 (2) (C) .
Courts considering the statutory periods of limitations for petitions for judicial review of administrative rulemaking, which commonly refer to the date of " promulgation" of rules, s g., 42 U.S.C. S 2022(c), have held'that review petitions are timely if filed within a designated period after publication in the Federal l Register. Sgg EDyjrpoprotal_Defensg_Eppd_y,_Gorsuch, 713 F.2d 802, 812 (D.C. Cir. 19 8 3) ; L asj oa t ors _ Sa f et y_ Gl asE_ b ss_' D_Y, _ CPSC ,
1
. 578 F.2d 406, 408 (D.C. Cir. 19 S). Relying principally upon these cases, United Nuclear argues for a uniform . interpretation of the word " promulgate" as meaning publication in the Federal Register. Under that interpretation the EPA acted too late and thus beyond its statutory authority.
We agree with those decisions .that measur.e the limitations s
period for seeking judicial review as beginning on the date of -
publication in the Federal Register. No doubt many parties affected by a rule first learn of it upon Jpublication in the Federal RNgister. We believe, however, that " promulgation" does not have a single accepted meaning in all contexts. We agree with the EPA that the purpose of the statutory provision was to compel-action by.the EPA before October 1, 1983. Sea House Conf. Rep.,
No. 884, 97th Cong. , 2d sess. 43-45, repIlDted 3D 1982 U.S. Code Cong. & Ad. News 3603, 3613-15. In establishing the deadline discussed here, Congress was actually extending deadlines that the EPA had missed in 1979 and 1980. See jd. The EPA represents, and the other petitioners do not dispute, that the Administrator signed the rules on September 30, 1983, and released them to the public on that same day. At least one meaning of promulgate is to make public; the EPA's action here effectivel'y achieved that end. '
We do not think Congress intended to throw away the fruits of EPA's labors simply because it did not publish the rule before the end of September. We hold t, hat the EPA met Congress' deadline requirement.
l l
j .
III Most of the arguments by the various petitioners are substantially identical to those in the consolidated IDastjyg Sites _ Case decided this day.1 On the basis of the analysis in that opinion, we again hold:
(a) that a finding by the EPA of a "significant risk" is not a prerequisite to promulgating the regulations (see IDastlYg_Slies e Casgs, ___
F.2d at ____ [ slip op. part III});
(b) that the EPA may promulgate standards to apply within the boundaries of the mill sites (seg Id. at ____ [ slip op. part Iv]);
(c) that the EPA's standards do not unlawfully impose management, design, and engineering requirements (see ld. at .
~
-___ [ slip.op. part VI.); and r
(d) that the EPA properly considered cost-benefit f actors in' establishing standards (seg Id. at ____ [ slip op. part VII). ,
Most of the various petitioners' arguments that the EPA's standards for radon emission and radium in the soil are arbitrary and capricious are also suf ficiently discussed in the opinion on the inactive site regulations. We need not elaborate on or repeat that discussion here. Some of the figures with which we must deal are different, however, and a few arguments have changed somewhat a between the two sets of cases.
In formulating the active site regulations the EPA estimated 1 Some environmental petitioners challenge the EPA's failure to promulgate any regulations controlling radon emissions from the uranium processing itself, as opposed to the end product tailings.
This issue was not briefed and is not discussed herein. It has been held in abeyance by court orders requested by the parties pending negotiations between the parties.
e -
more potential lung cancer deaths from the active mill site tailings, absent regulation, than from the inactive mill site tailings: 500 deaths versus 170-240 deaths per century. Sen 48 Fed. Reg. at 45,929 (active sites); id, at 593 (inactive sites).
Although its final regulations for the active sites repeated the 4' in 100 lifetime cancer risk for occupants of houses on tailings in Grand Junction, Colorado--the figure it used in its inactive site calculations--the EPA estimates a 2.in 100 lifetime risk for people living continuously next to "some tailings sites." Id. at ;
45,929. The EPA estimated the cost of active site cleanup at $260 million (1983 dollars) for tailings existing today at licensed sites, but a total of S310 million to $540 million total cleanup-cost to the urani m milling industry for all tailings now in f existence and to be produced through the year 2000. Id. at O
45,945. For the standard selected for radon emissions, 20 pCi/m2 s, the range of incremental costs per death avoided is estimated from $130,000 (nationwide for 1000 years) to $2.5 million (regionally for 100 years). Id. at 45,944-45. Sep 99D9tD112 E9991DlDIY- 159DCZ- bDD1XBin- Df EiDal EDyiEDDB9DtD1 StDDdbrds for UrDDium Bill TalliDgs.at bCtl29 Sit 95 4-1 to 5-39 (detailed EPA costs and benefits discussion). These are a significant costs, if the EPA's figures are accurate. But we remain convinced that Congress placed the responsibility for evaluating them upon the EP.A without imposing a specific cost-benefit requirement. 599 IDBChi29 Sit 92 CDS9, -- F.20 at ----
op. part VI). Therefore, the industry petitioners'
[ slip arguments that the costs are too high for the benefits gained, and the environmental petitioners' arguments that the industry should
/
be forced to incur the greater costs of standards that would save even more lives, should be addressed to Congress or to the EPA, not to this court. S99 bDtriGaD EttrD1tDD IDstitutt Ma E2b, 540 F.2d 1023, 1038 (10th Cir.1976) , cart, dgDigd, 430 U.S. 922 (1977). The EPA has considered and responded to both of these complaints in justifying its actions . Sag 48 Fed. Reg. at 45,933; e
'~
ses-_miss II Environmental Protection 5gency, ElDal EDyjIDDDcDial 102act Stat 2DRDt fDr StaDdards for _tbe- C9Dhr21- nf- Bxproduct baterials- frDD- DraDiva- 019- ?rDC9ssiD9 (A.3-12 to ~143 (1983)
Thereinafter FEIS-AC). .
In arguing that the EPA acted arbitrarily and capriciously the American Mining Congress relies upon a 19.84 report by a subcommittee of the EPA's Scientific Advisory Board which stated'(
that the EPA "has not assembled and presented a risk assessment that provides a clear and adequate statement of the scientific basis for developing standards to regulate airborne radionuclide emissions." Subcommittee on Risk Assessment for Radionuclides, Scientif.ic Advisory Board, U.S. Environmental Protection Agency, B9 port DD Lb2 Sci 2Dtific Basis of E2 bis ?roposed UbtioDal EDissiDD StaDBards- for- BazardDus..hir- 2Dllutants f91 BadiDDuclides 34 '
(1984). The EPA objects to our consideration of this report because it was not in existence at the time the EPA issued its final regulations. Also, the EPA points out that this report The EPA has filed a motion to strike references to extra-record items cited by the various petitioners. The industry petitioners have moved to supplement the record with these addition.a1 materials. For the reasons we state in the 1DBCliYS SitBS Cast, -__
F.2d at -___ islip op. part II), we deny the motions to strike and also ' deny all contested motions to supplement the record.
aw v ee ---r-em -
-w
~.
addressed the agency's proposed standards in a separate rulemaking proceeding under the Clean Air Act, that it was not based upon a review of the agency's record before us, and that the Scientific Advisory Board criticisms were aimed generally at the manner in which the EPA assembled the information for decision-making rather than being critical of the background documents themselves. We do g
not believe that report requires overturning the instant regulations. The report itself acknowledges that scientists may differ in regulatory philosophy, adopting different approaches to risk assessment.3 .
Industry petitioners also protest strongly that the EPA acted inconsistently in the way these regulations require addressing the risks compared with other regulations promulgated under other' acts: g g., control of radiation from high toxicity waste. We cannot evaluat'e here all the factors that caused the EPA to adopt a dif ferent approach in connection with its rulemaking under other laws, if indeed it did act differently. The record shows that the EPA did consider and respond to this inconsistency complaint. See 3
The report states: .
"[I1n the process of risk assessment, many assumptions '
must be made. Scientists may be swayed in their choice of assumptions by their underlying regulatory philosophy. The choice of a linear non-threshold dose-response relationship compared to a linear quadratic or other relationship is a good case in point. As evidenced by the Nationa.1 Academy of Science's third report on Biological Effects of Ionizing Radiation (BEIR III), knowledgeable scientists disagree on which dose-response relationship is best."
Subcommittee on Risk Assessment for Radionuclides, Scientific Advisory Board, U.S. Environmental Protection Agency, EgpDEt__DD Lbs. Sci 2DrifiD.BDSiS_Df_E2h1S_PEDpDS96 UbtlDDDl_EmiBSlDD_StDDdDId5 LDE BazaEdDUS bir_PDllutaD%S_fDE BbdlDDUQlidRS 7.
/
II FEIS-AC at A.3-2 to -4. We a"re catisfied that the EPA acted consistently in formulating regulations for the inactive and active mill sites--except with respect to the ground water regulations, which we discuss separately in these opinions. .That l l
l the EPA may be faulted for its rulemaking under other acts is not the kind of internal inconsistency we found to be arbitrary and l i
O capricious in Squay_ Transit _Co,_y,'_ynited_ States, 574 F.2d 492, 495-96 (10th Cir. 1978).
The American Mining Congress and the State of Colorado make somewhat different arguments that a 5 pCi/g radium standard for land adjacent to a tailings pile is inconsistent with the radon 2
emission standard of 20 pCi/m s on the pile itself. See 40 C.F.R. ,
~
5 192.32(b) (separate . standards listed) . We accept .the EPA's -
f answer that there is no inconsistency and that the radium cleanup-standard was designed to push concentrations in the land sufficiently low to allow unrestricted use, contrary to treatment of the tailings piles. Ses 48 Fed. Reg. at 45,947; II FEIS-AC at A.5-33.
IV l
The EPA adopted a two part ground water standard for active mill sites. 40 C.F.R. S 19 2.3 2 (a) (1)-(2) . The primary standard, requiring use of a " liner," applies only to new waste depositories and to new' portions of existing waste depositories. 48 Fed. Reg.
at 45,941. The secondary standard, applicable to all impoundments, essentially adopts the standards EPA issued under the Solid Waste Disposal Act (SWDA) for hazardous wastes. Id. at 45,940. It requires monitoring and levels of concentration low
enough to meet drinking water standards within 500 m2 tors of the edges of the waste impoundments. Id. at 45,940-41.
The American Mining Congress argues that these ground water standards are unlawful because they apply within the boundaries of the mill sites, and because they impose management, design, and engineering requirements. These arguments do not impress us. We have dealt with the on-site question in the context of radium ,
cleanup and radon emission standards in Part IV of the IDAcilyg Sites _ Case, ___ F.2d at ,___. We see nothing that compels a different conclusion in the EPA's adoption of ground water standards for ac'tive mill sites. The optimal method of preventing
~
pollution of off-site water supplies is to prevent radiological and other hazardous substances from entering the ground water' General application standards that allow the DOE to choose the .
means of implementation are consistent with the authority Congress vested in the EPA. Although the regulations require a " liner" for new piles and extensions thereof, we understand that term to refer
~
to any impermeable barrier the Dos may approve that will prevent seepage. Seg, g,g,, II FEIS-AC at A.1-28, A.4-7. The regulations require the industry to satisfy SWDA drinking water concentration standards at specified distances from the pile, but they do not dictate the kind of monitoring system that must be used or the method by which purity levels must be achieved. These decisions are left to the implementing agencies, the Department of Energy and the Nuclear Regulatory Commission. Sgg jd, at A.1-22, A.6-2.
Section 275(b) of UMTRCA states that the EPA's generally applicable standards must provide " protection of human health and
/
environment spDsistgot_ylth the standards required under subtitle (C) of the Solid Waste Disposal Act [SWDA), as amended, which are appJlsable__to__susb__bazaIds . . . . " 42 U.S.C. 5 2022(b) (2)
(emphasis added). The industry petitioners' principal argument against the EPA's ground water regulations is that the standards adopted were regulations for high-toxicity low-volume chemical g wastes and theEPAshouldhavea'nal$gizedtolow-toxicityhigh-volume mining wastes. Thus, the argument is based' upon the contention that the EPA did not adopt standards for sjpfl3I hazards. Further, the industry petitioners assert that the mill tailings rest over aquifers unsuitable for use as drinking water and that it is improper for the EPA to est.ablish d r inking water stan'ards.
d '
The EPA made findings that conditions at tailing impoundments are not sufficiently different from the conditions it considered in developing SWDA standards to necessitate a change in approache 46 Fed. Reg. at 45,941; II FEIS-AC at A.1-2 to -3. In its SWDA regulations the EPA refused to draw a distinction between high-volume low-toxicity mining wastes and low-volume high-toxicity chemical wastes. See 45 Fed. Reg. 33,140, 33,173-75 (1980) ^
(discussion of basis for decision). Apparently Congress has '
barred the EPA from applying SWDA regulations to certain mining wastes pending an agency study that was incomplete at the time the EPA was required to promulgite final regulations for the active mine sites. Set II FEIS-AC at A.1-2 to -3. Yet, the EPA was under pressure from Congress to promulgate license site standards by the October 1 deadline. Congress (equired the EPA to adopt 1
l l
l
general standards applicable to all sites. The EPA did adopt such standards. In this circumstance, the EPA acted permissibly in adopting standards equivalent to the drinking water standards.
Unit ed Nuclear argues that the EPA's ground water standards impermissibly intrude on state control of ground water, a contention that we summarily reject. If United Nuclear has g standingtoraisethequestionofpre[Eption,cf.Enuntajn_ States LesAl__E99DdatioD__Y _CDstlg, 630 F.2d 754, 767 (10 t h ' Ci r. 19 80 )
(denying ' standing to pro-industry private or'ganization seeking to challenge EPA air quality regulations), cert. dgDjed, 450 U.S.
1050 (1981), we are satisfied that the UMTRCA's directive provides the basis for preemption.
'The envi'ronmental petitioners argue that the ground water P .
regulations are inadequate. They first claim the EPA's decision not to apply the primary standard to existing tailings ibpoundments is unreasonable because seepage from these sources is already fouling the environment. The EPA's response is that the existing impoundments are only exempted from the primary standard requiring an impermeable barrier. The impoundments are still subject to the secondary standard. 40 C.P.R. S 19 2.32 (a) (2) . '
Violation of the secondary standard may require the operator to cease making.new deposits and take corrective action. Id.
S 192.33; seg 48 Fed. Reg. at 45,941 (discussion of 5 192.33).
The EPA says it only adopts standards, leaving the methods to achieve the standards to those charged with management of the piles. It also argues that mandatory stoppage of adding to existing piles or removal of existing piles to new, lined
impoundments could increase radon emissions and render additional large amounts of land permanently contaminated and unproductive by increasing the number of piles. Ses 48 Fed. Reg. at 19,594-95; II FEIS-AC at A.4-10. We accept as rational the EPA's reasoning on l
these points. '
The environmental petitioners also contend that the EPA g;
. s '
should require cleanup beyond the site boundaries. The EPA argues in response that the issue is not properly before us because it was not raised during the comment period and because the challenge is in reality one to the SWDA regulations themselves. In addition, the EPA explains that it determined that existing off-site contamination should be addressed through its emergency powers' under Sh'DA and 'the "Superfund" statute, the Comprehensive' Environmental Response Compensation and Liability Act, 42 U.S.C.
SS 9604, 9606. It notes 1984 congressional amendments to SWDA that require some changes in its approach under that act, and admits it must reevaluate its position under the UMTRCA in light of that development which occurred after it issued the active site final regulations. Sgg Brief of Respondents at 93 n.83. We accept as rational this explanation for not imposing requirementi for outside-the-boundaries cleanup, and we cannot say the EPA 's "
actions were arbitrary or capricious.
The environmental petitioners assert that the EPA did not properly respond to comments d'uring rulemaking, particularly those concerning " compliance point" monitoring, which suggested that seepage should be monitored in the vadose zone of rocks or-sediment to detect pollution before it reaches the aquifers. We
1 are satisfied that the EPA undertook a determined effort to respond to comments during the rulemaking comment period. See sgngIAlly II FEIS-AC at A.1-1 to 7-5 (summarized comments and responses). The record shows that the EPA did respond to comments i on ground water compliance point monitoring generally, and possible vadose zone monitoring in particular. 'Id. at A.4-36 to g
-37 (compliance point monitoring), A.6-2 to -3 (vadose zone monitoring). The response to comments on vadose zone monitoring was somewhat limited--but apparently because implementation of ground water monitoring has been left to the Nuclear Regulatory Commission. Sem jd. at A.1-22, A.6-2. We cannot say that the ground water monitoring spideljDes laid down by the EPA a r.e irrational or unsuited to the task. Sem 48 Fed. Reg. at 45,942' (guidelines listed) .
Petitioners Kepford and Johnsrud argue that the EPA did ,not give adequate consideration to deep well disposal of mill tailings. The record shows that the
. EPA did consider this proposal. See, g,s., 48 Fed. Reg, at 19,590; jd. at 45,931-32; I FEIS-AC at 8-16. The EPA acted within its powers in rejecting this method, rationally finding it had potential for more serious ground water contamination. '
In sum, we reject all challenges to the EPA's g round water regulations for the active mill sites.
.- y AMAX, Inc., one of the world's leading producers of molybdenum, has petitioned for review of the active, site regulations for the
( specific purpose of challenging the EPA's
- - _m-
i designation of molybdenum as a " hazardous constituent" of uranium and thorium m.ill tailings and subjecting molybdenum to the ground water protection standards. No other petitioner has focused any attack on the identification of particular minerals as non-radiological hazards. Therefore, before considering the merits of AMAX's claims we must consider AMAX's standing to raise the issues t
in its petition. The EPA asserts that AMAX lacks standing to challenge any aspect of the UMTRCA active site regulations because it does not own or operate any licensed uranium mill tailings sites and therefore is not affected by the regulations. The regulations specifically state that molybdenum is listed as a hazardous constituent "only for purposes of controlling uranium -
~
and thorium byproduct materials. EPA does not intend in this rulemaking to add molybdenum . . . to the SWDA list of hazardous constituents." 48 Fed. Reg. 45,926, 45,944 (1983).
Two sections of the United States Code apply directly to this case. The UMTRCA itself provides that
"[j]udicial review of any rule promulgated under this section may be obtained by ADY_lDt2ISSt2d__PRISOD only upon such person filing a petition for review within sixty days after such promulgation in the United States '
court of appeals for the Federal judicial circuit in -
which such person resides or has his principal place of business. . . . The court shall have jurisdiction to -
review the rule in accordance with chapter 7 of Title 5 and to grant appropriate relief as provided in such chapter."
42 U.S.C. 5 2022(c) (2) (emphasis added). Section 10(a) of the Administrative' Procedure Act,'S U.S.C. S 702, states that "fa) person suffering legal wrong becauce of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,* is entitled to judicial review thereof."
I
R '
t i
The concept of standing combi es both constitutional and prudential considerations. Sag Allen _y _ Wright, 52 U.S.L.W. 5110, 5114 (U.S. July 3, 198 4) ; yallsy__EDIst__ChristlAD__Collmst__y.
LDerigDDS__QDited__fDr_StpSratiDD_Df_ChurGb_ADB_Statta_1Dca, 454 U.S. 464, 471 (1982); OIDDDff_Y _B2IZAh, 744 F.2d 224, 227 (1st Cir. 1984). At a minimum, Article III of the constitution a requires ^-
"the party who invokes the court's authority to 'show
[1] that he personally has. suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,'
~
. . . and [2] that the injury
' fairly can be traced to the challenged action' and I3] 'is likely to be redressed by a favorable decision.'"
Yalley_EDIst_CbIlftiAD_CDllege, 454 U.S. at 472 (citations -
~
.omitted).
~
f As a preliminary matter, we note that the reviewing court, when ruling on a motion to dismiss for lack of standing, "must accept as true all material allegations of the complaint, and mus,t.
construe the complaint in favor of the complaining party." Warth Y._S21diD, 422 U.S. 490, 501 (1975).
Even reading AMAX's petition and affidavit generously, we hold that it fails to meet either the constitutional or prudential requirements of the standing -
doctrine.
First, the injury that AMAX claims it would suf fe r as a result of the EPA's listing of molybdenum as a toxic substance is indirect. Neither AMAX nor it,s customers'own any uranium mill tailings sites. Therefore, they are not subject to the UMTRCA or its regulations. AMAX, however, alleges that state and local agencies that regulate AMAX's customers are likely to restrict or i
prohibit the discharge of molybden m if the EPA classifies molybdenum as.a hazardous substance. Set Af fidavit of Dr. Gary G.
Van Riper (Deputy Director of Environmental Control, Climax Molybdenum Company, division of AMAX). If this should occur, AMAX would be unable to sell its product and would suffer economic injury. Although an indirect injury can be sufficient to confer s
standing on a party, the Supreme Court has stated:
"When a governmental prohibition or restriction imposed on one party causes specific harm to a third party, harm that a constitutional provision or statute was intended to prevent, the indirectness of the injury does not necessarily deprive the person harmed of standing to vindicate his rights. . . . But it may make it substantially more difficult to meet the minimum requirements of Art. III: to establish that, in fact, the asserted injury was the consequence of the -
defendant's actions, or that.prospec.tive relief will remove the harm." ,
WArtb_Y _SeldlD, 422 U.S. at 504-05 (citation omitted) .
Although the challenged regulation was adopted over two years ago, AMAX does not refer to a single agency that has restricted or proposed to restrict discharge of molybdenum as a result of this action. AMAX refers only to a pIpposed state regulation in Texas in 1979 classifying molybdenum as a toxic substance that was used l as the basis for similar regulations in New Orleans, El Paso, and Dallas. Affidavit of Dr. Gary G. Van Riper at 2-3. Absent any ,
allegation that a single state or local agency has considered a'dopting the EPA's classification of molybdenum as a hazardous substance, we believe that AMAX has failed to demonstrate that it has or will suffer " concrete and certain harm" as a result of the EPA's action. NatipDal_ColleglAts_&tblftip_ASSlD_Ya_CallfADO, 622 1
F.2d 1382, 1386 (10th Cir. 1980); ses also DDitsd_ States _Y,_SCBAP, l
412 U.S. 6'69, 688-89 (1973) ("A ple'intif f must allego that ho hac been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action.").
In reaching this conclus;9n, we are also influenced by the decision of the United States Court of Appeals for the District of Columbia Circuit in AssociatioD_of_ID'ygstsgDt_BI91gIs_ya_SEC, 676
- t 1982). that case, the petitioners F.2d 857 (D.C. Cir. In challenged the Securities and Exchange Commission's '(SEC) adoption of revisions to Form U-4, the Uniform Application for Securities Id. at 858-59. The SEC only required Industry Registration.
broker-dealers that it directly regulated to use the form. Id at forty-six states and several self-regulatory
- 859. However, organizations, including the National Association of Securities Dealers, Inc. and the New York Stock Exchange, also adopted Form Id, The petitioners were not subject to the SEC's U-4.
instead, they alleged that they were indirectly regulation; injured by the SEC when other regulatory organizations and states adopted the SEC revisions. In rejecting standing, the court form stated that "faln order to the Commission concerning the could require cancellation or modification of provisions for SECO broker-dealer filings but could not direct the self-regulatory Id, at 862. The organizations and the states to follow suit."
situation before us is comparable; if state and local agencies j
1 follow the EPA and classify molybdenum as a toxic substance, Indeed, AMAX's complaint should be raised before these entities.
! it is possible that the EPA's classification of molybdenum will m
cause state and local entities to initiate their own investigations of the toxicity of molybdenum. If so, it would be the rules adopted as the result of such investigations that might injure AMAX, not the EPA's actions under an act that does not regulate AMAX's business.
Even if we were to find that AMAX has met the constitutional g requirementsforstanding,wewould'h'hetodenyitstandingbased a
on prudential factors. The Supreme ' Court recently described the prudential aspects of a court's determination of standing:
" Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights, the rule barring ,
adjudication of generalized grievances more
. appropriately addressed in.the. representative branches,.
and the requirement that a plaintiff's compla int fall '
within the zone of interests protected by the law invoked."
All2D_Y _ Wright, 52 U.S.L.W. 5110, 5114 (U.S. July 3,1984) .
Although several courts have questioned the continued viability of the zone of interests aspect of the standing doctrine, the Supreme Court has continued to apply it. Id. at 5114. This circuit has been lenient in applying the " zone of interest" test. We have said that "unless the legislative hist 6ry 1
i shows the plaintif f to be clearly not within the statute's ' zone '
of interest,' and it rarely does, a court should demand no more than a sensible relation between some subject of the statute and the plaintiff's interest in the outcome of the litigation."
UAtjoDal_ Coll 293 ate Atblatic_AsslD_Ya_Callfano, 622 F.2d at 1386.
The EPA specifically disclaims any treatment of molybdenum as a toxic substance other than for purposes of mill tailings byproducts disposal. Sgg 48 Fed. Reg. at 45,949. Even generously interpreting the test, particularly in the face of this disclaimer, it is difficult to read the UMTRCA as a statute that in any way intends to regulate producers such as AMAX who do not own or operate any licensed mill tailings sites.
Although AMAX correctly states t. hat direct regulatory impact o is not required for a petitioner t'o'come within the interests
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test, the cases on which it relies involved a far more direct regulatory impact than AMAX alleges that it might incur. In CD5DX3ky-5Dp1DD 2bySiDD1 Ib2EDpY b2BDCaa btda Ma- DDiksd- States, 507 F.2d 1363 (7th Cir. 1975), for example, the plaintiffs, five professional physical _ therapy corporations, were permitted to challenge HEW regulations that conditioned Medicare payments to' home health agencies on their hiring of nonprofit physical therapy corporations. Id. at 1364-65. As a result of those regulations, s'everal home health agencies notified plaintiffs of their int e'n t to terminate their contracts. Ida In allowing the private corporations to challenge the regulations, even though they did not apply directly to them, the court s tated that I "if, pursuant to what it perceives to be its statutory authority, a government agency regulates the contractual ,
relationships between a regulated party and an unregulated party, the latter as well as the former may have interests that are arguably within the regulated zone for purposes of testing standing, . . .
Id at 1367. In contrast, nei.ther AMAx,.its customers, nor the state and local agencies that might adopt the EPA regulations are regulated under the UMTRCA.
In addition, in each of the cases that AMAX cites, the l
plaintiff was injured when an agency effectively forbade a third l .-
i party f rom entering into or continuing a beneficial relationship l with the plaintiff. See Cotoysky-EmplaD_Physisal_ Therapy __Asssg2 Ltd>__Ya__DDited_Statss, suprat b929I_Ya_Bicbard29D, 510 P.2d 351 (7th Cir. 1975) (subject on behalf of whom application .for government grant was submitted entitled to challenge denial of grant) .4 In the instant case, however, the EPA has exercised no authority over either AMAX or its customers.
Accordingly, based on both constitutional and prudential factors, we deny AMAX standing and do not consider its arguments on the merits.
VI The challenges of all petitioners are rejected; we af firm t,he validity of the' active mill site regulations. t l
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7___AMAX also cites h';y_ Jersey _ Chapt 2I_IDc9IDDInted_of_the_&mgriCAD EbyDiCal_Tbtra92_b2SlD_Ya_PrudtDtial_Lif9_1Dsa_Co,, 502 F.2d 500 (D.C. Cir. 1974), sert, denigd, 420 U.S. 1004 (1975). In this decision, however, the court never decided the standing issue because it determined that, regardless of standing, the defendants would prevail on the merits. Id. at 504.
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