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New Mexico v. EPA

Citation: 28 ELR 20005
No. 96-1107, 114 F.3d 290/(D.C. Cir., 06/06/1997)

The court holds that the U.S. Environmental Protection Agency's (EPA's) guidelines for carrying out the certification of Waste Isolation Pilot Plant's (WIPP's) compliance with radioactive waste disposal regulations are specific enough to qualify as "criteria" under 40 C.F.R. Part 191. The court notes that EPA was sensible in allowing the scientists and technical experts administering the WIPP the freedom to make reasonable judgments concerning design choices and technical decisions. But because this in itself does not establish the reasonableness of EPA's chosen level of specificity in particular provisions, the court turns to those provisions where the state's attacks are strongest. The court first holds that EPA is sensible in placing the burden on the U.S. Department of Energy (DOE) to figure out how to justify any passive institutional control credits, rather than foreclosing the possibility entirely, given the methodological uncertainty in predicting a passive institutional control's effectiveness. Thus, a provision that permits DOE's WIPP application, when calculating release probabilities, to take credit for passive institutional controls is upheld. The court next holds that EPA adequately provided standards that describe how it will evaluate engineered barriers. EPA set forth a detailed list of barriers that the DOE must evaluate and listed characteristics with respect to which any barrier must be assessed. The court finds EPA's approach reasonable under the court's deferential review of the level of generality at which regulations can be promulgated. Next, the court holds that EPA need not require the DOE to perform a direct comparison between resource-rich areas and other nonresource sites in its criterion that corresponds to the regulation that demands avoidance of places where there has been mining of resources or where such mining is expected. EPA's criterion, which looks at the total balance of advantages and disadvantages and focuses on whether predicted emission levels comply with the containment requirements, is, therefore, upheld. The court also holds that EPA's post-comment discussions with the Office of Management and Budget and the DOE did not induce EPA to make changes between the draft and final rules concerning the effectiveness of passive institutional controls. Last, the court holds that EPA provided sufficient opportunity for public comment, because the final rule was a logical outgrowth of the proposed criteria.

Counsel for Petitioner
Lindsay A. Lovejoy Jr., Ass't Attorney General
Attorney General's Office
407 Galisteo St., Rm. 260, Santa Fe NM 87504
(505) 827-6000

Counsel for Respondents
Alice L. Mattice
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Edwards and Randolph, JJ.