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American Mining Congress v. Thomas

ELR Citation: 16 ELR 20059
Nos. Nos. 83-1014 et al., 772 F.2d 617/23 ERC 1425/(10th Cir., 09/03/1985)

The court upholds the Environmental Protection Agency's (EPA's) standards for the disposal of uranium mill tailings at inactive mill sites under the Uranium Mill Tailings Radiation Control Act (UMTRCA) against challenges from industry and environmental groups, but sets aside a regulation delegating authority to determine surface and groundwater contamination levels to the Department of Energy. The court first holds that it must apply an arbitrary and capricious standard of review, and that it may not accord material outside the administrative record special weight. The court then holds that the UMTRCA specifically states that uranium mill tailings present a significant risk, and that therefore EPA does not have to make its own separate determination that the tailings pose such a risk prior to regulation. Section 2(a) of UMTRCA and the legislative history confirm this interpretation. The court observes in a note that statements by several congressmen and senators could imply a requirement that a separate finding of risk be made, but discussions among a few members cannot change the meaning of both the statute and the conference report accompanying it. The court holds that EPA has not exceeded its statutory authority under UMTRCA by issuing standards that operate within the mill tailings sites, rejecting arguments that EPA was limited by the 1970 Reorganization Act Plan, which transferred certain functions from the Atomic Energy Commission to EPA, to setting standards outside the boundaries of locations using radioactive material. EPA also did not exceed its authority by enacting radon emission limits that influence the management, design, or engineering standards that can be used by the Department of Energy (DOE) or the Nuclear Regulatory Commission (NRC), the implementing agencies. Congress did divide up responsibilities among the agencies, with EPA to set standards and DOE and NRC to implement them, but this was not meant to be an inflexible rule preventing EPA from fulfilling its other statutory obligations.

The court next holds that the statute requires a cost-benefit analysis in the sense that there must be a reasonable relationship between costs incurred and benefits derived. The court rejects the environmental groups' argument that UMTRCA requires EPA to promulgate strict feasibility standards with little review of the costs of such standards. Although Congress intended EPA to assess costs and benefits, it did not specify how the agency was to determine them. The legislative history indicates that Congress intended a reasonable relationship standard to be applied. EPA must consider, however, Congress' intent to protect the public health and safety and the environment. The court then reviews each of the standards to determine whether EPA did consider all of the factors mandated by Congress and whether there is a reasonable relationship between the estimated benefits of controlling tailings piles and the costs of implementing the regulations, and upholds EPA's radon emission, radium-in-soil, and indoor radon concentration standards.

The court then holds that EPA unlawfull declined to issue general standards for concentrations of radon in surface and groundwater. Although the agency had originally proposed surface and groundwater contamination standards, it later concluded that surface and groundwater contamination could be more appropriately handled on a sitespecific basis. The court concludes that since EPA had originally acknowledged that groundwater contamination was a problem, it was required to adopt general standards. The agency did not, however, unlawfully delegate its authority by providing in the regulations that NRC and DOE could allow exceptions to the standards in specific circumstances. As long as general standards have been promulgated, permitting exceptions when costs are too high or compliance impossible does not violate EPA's duty to issue the standards. Finally, the court rules that the general regulations on radon emissions sufficiently address nonradiological hazards posed by toxic chemicals in the uranium tailings, except to the extent that such chemicals may enter water supplies.

Counsel for Petitioners
Anthony J. Thompson
Hamel, Park, McCabe & Saunders
888 16th St. NW, Washington DC 20006
(202) 835-8000

Peter J. Nickles
Convington & Burling
1201 Pennsylvania Ave. NW, P.O. Box 7566, Washington DC 20044
(202) 662-6000

Counsel for Respondents
David W. Zugschwerdt
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2686

Before LOGAN and McWILLIAMS, Circuit Judges, and BOHANON, District Judge.*