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Natural Resources Defense Council v. EPA

ELR Citation: 18 ELR 20088
Nos. Nos. 85-1915 et al., 824 F.2d 1258/26 ERC 1233/(1st Cir., 07/17/1987)

The court holds that the Environmental Protection Agency (EPA) arbitrarily and capriciously failed to consider the interrelationship of its high-level radioactive waste (HLW) disposal rules and the underground injection control provisions of the Safe Drinking Water Act (SDWA) in setting the individual protection requirements in the HLW regulations. The court first holds that underground HLW repositories, the primary method being considered under the Nuclear Waste Policy Act (NWPA) for disposal of high-level waste, constitute an underground injection within the meaning of SDWA §1421(b)(3)(C). The SDWA defines underground injection as the subsurface emplacement of fluids by well injection; at least some of the HLW originates in liquid form and the borehole method of disposal of the waste fits within the definition of well injection. The court next holds that EPA's HLW standards, promulgated under the NWPA, sanction activities that will "endanger" drinking water as that word is used in the SDWA. The term includes any injection that may result in underground drinking water systems not meeting any national primary drinking water regulation. EPA's regulations permit contamination of most groundwater classifications within the area of the repository without restrictions, and permit water supplies outside the repository control area to be contaminated up to levels that exceed the primary drinking water regulations. The regulations afford special protection to specific Class I groundwater sources, but this protection is limited only to Class I waters that are within or near the control area and are particularly valuable as drinking water as of the date the repository is chosen. EPA's individual protection requirements provide some protection outside the control area, but they allow annual exposure from the HLW disposal system of up to 25 millirems to the whole body or 75 millirems to any organ, exceeding the SDWA maximum contaminant levels for radionuclides of 4 millirems per year.

The court holds that the NWPA authorizes EPA to depart from the SDWA standards in promulgating groundwater regulations for the control area. Congress was aware that the area in immediate proximity to the buried HLW would likely be dedicated as a natural protective barrier and thus could become contaminated. To the extent that the HLW regulations permit degradation of the groundwater within or near control areas, therefore, EPA was acting consistent with the statute. The court holds, however, that EPA acted arbitrarily and capriciously in not considering the stricter SDWA standards with respect to the individual protection regulations applying outside the repository control areas. The court rejects EPA's arguments that the SDWA's no-endangerment provisions require the agency to do no more than establish minimum requirements for state underground injection control programs and that the Agency has no substantive duty to prevent endangerment outside the context of the SDWA itself. Congress clearly intended that the states should not authorize underground injection that would endanger drinking water sources, a policy that applies to federal as well as state agencies. Moreover, EPA itself established the drinking water standard, which it deemed appropriate to assure public health and safety. Although there might be reasons why EPA could not meet the NWPA's goals without reducing drinking water standards, the Agency is not free to adopt such regulations without any examination or explanation of the reason for the deviation.

The court holds that EPA failed to provide adequate notice and opportunity to comment pursuant to the Administrative Procedure Act in promulgating the HLW regulations providing protection to certain Class I groundwater sources. The groundwater and individual protection requirements were added to the final rule in response to comments received by EPA concerning the general containment and assurance requirements that comprised the proposed rule. The court holds that EPA gave clear notice during the comment process that individual protection limits were being considered, and thus a second notice-and-comment period for this portion of the rule was not necessary. However, the concept of a separate rule setting limits on groundwater was never presented, and commenters have thus not had fair opportunity to present their views on the contents of such a rule. Moreover, the key to the regulation is the designation of Class I groundwater, as that category is defined in EPA's Groundwater Protection Strategy; yet, the strategy itself was not published until after the public comment period on the proposed HLW regulations had ended.

The court holds that EPA's decision to limit the duration of the individual protection requirements to 1,000 years was arbitary and capricious. Although EPA contends that the decision mixed considerations of both population and individual risk, there is no evidence of this in the record. In addition, EPA's argument that it would be difficult to ensure compliance with individual exposure limits beyond 1,000 years is diminished by EPA's own admission that better-engineered barriers could ensure compliance on the order of 10,000 years. In several places, EPA's analysis indicates that the agency did not permit individual risk assessment to enter into its cost-benefit calculations. The court holds that a variance provision in the predisposal management and storage provisions of the HLW regulations allowing EPA to issue alternative standards for Department of Energy (DOE) military-related facilities adequately protects the public health and environment, since nothing in the variance procedure permits DOE to ignore established exposure levels. The procedure does not give EPA overly broad discretion, since notice of any alternative standards must be published in the Federal Register and judicial review would be available. The court holds that the assurance requirements, which require that active institutional controls over disposal sites be maintained for as long a period as practicable after disposal and are applicable only to DOE defense-related facilities, do not provide a loophole by which the Nuclear Regulatory Commission (NRC) could avoid complying with the requirements. The NRC has incorporated, where necessary, the intent of the assurance requirements and has proposed additions to its rules so as to incorporate the substance of the requirements. The court holds that EPA reasonably decided to delete as unnecessary one of the originally proposed assurance requirements. The court holds that EPA provided an adequate explanation for its adoption of a 10,000 year time frame in its general containment requirements, which limit total cumulative releases of radiation anywhere in the environment outside the control area. Finally, the court upholds the provision in the containment requirements that only a "reasonable expectation" of compliance need be shown. Absolute proof of compliance is impossible to predict because of uncertainties inherent in long-term projections.

Counsel for Petitioners
Dan W. Reicher
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Respondents
David W. Zugschwerdt
Land and Natural Resources Division
Environmental Defense Section
P.O. Box 23986, Washington DC 20026-3986
(202) 633-2686

Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.