Kennecott Copper Corp. v. E.P.A.

Decision Date10 December 1979
Docket Number76-1241,76-1242,78-1560,Nos. 75-1878,78-1894,78-1686 and 78-1608,76-1287,s. 75-1878
Citation612 F.2d 1232
Parties, 10 Envtl. L. Rep. 20,415 KENNECOTT COPPER CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. HECLA MINING COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. HOMESTAKE MINING COMPANY, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. GULF & WESTERN INDUSTRIES, INC., Petitioner, v. Douglas M. COSTLE, Administrator, EPA, Respondent. RANCHERS EXPLORATION AND DEVELOPMENT CORPORATION, a New Mexico corporation, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

Edwin H. Seeger, of Prather, Seeger, Doolittle & Farmer, Washington, D. C., for petitioners Kennecott Copper Corp. and Hecla Mining Co.

Alfred V. J. Prather, Washington, D. C., on brief, for petitioner, Kennecott Copper Corp.

William F. Boyd, of Brown, Peacock, Kane & Boyd, Kellogg, Idaho, on brief, for petitioner, Hecla Mining Co.

John C. Kapsner, of Kapsner & Kapsner, Bismarck, N. D. (A. P. Fuller, of Admundson & Fuller, Lead, S. D., with him, on brief), for petitioner, Homestake Mining Co.

Kenneth R. Myers, of Morgan, Lewis & Bockius, Philadelphia, Pa. (Kenneth A. Rubin and Douglas E. McAllister, of Morgan, Lewis & Bockius, Washington, D. C., with him, on brief), for petitioner, Gulf & Western Industries, Inc.

Carl A. Calvert, of Poole, Tinnin & Martin, Albuquerque, N. M. (Robert W. Harris, Albuquerque, N. M., with him on brief), for petitioner, Ranchers Exploration and Development Corp.

Mark R. Sussman, Atty. Dept. of Justice, and Barry S. Neuman, Atty., Environmental Protection Agency (Sanford Sagalkin, Acting Asst. Atty. Gen., Angus MacBeth, Atty., Dept. of Justice; and Joan Z. Bernstein, Gen. Counsel, and Steven Schatzow, Deputy Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C., of counsel, with them, on brief), for respondent, United States Environmental Protection Agency.

Before SETH, Chief Judge, and McWILLIAMS and DOYLE, Circuit Judges.

SETH, Chief Judge.

These challenges to the several EPA effluent limitation regulations were combined for this consideration. The cases were held pending the development of supplementary regulations. There follows a consideration of each challenge in a separate section. We have included some record references for the purpose of clarity and further explanation.

The many points and issues raised in each case have been considered; however, not all have been discussed in this opinion. Thus only the significant or determinative issues have been written on.

Appellate review of the regulations in these several appeals requires a substantial inquiry and probing of the administrative agency's action in accordance with Citizens The court's function includes neither reweighing the available evidence nor substituting its judgment for the Agency's. BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir.). When available technological data and research are unfamiliar or untried, the Agency necessarily enjoys broad discretion. BASF, 598 F.2d at 650. And as we have previously observed in construing the Act, "the guiding star is the intent of Congress to improve and preserve the quality of the Nation's waters. All issues must be viewed in the light of that intent." American Petroleum Institute, 540 F.2d at 1028.

To Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136. In reviewing EPA effluent limitations, we must examine whether the facts underlying EPA action are adequately developed and disclosed. American Petroleum Institute v. EPA, 540 F.2d 1023 (10th Cir.). Otherwise stated, three questions should be addressed (assuming the statute and requisite procedures are satisfied): first, whether the EPA explained the facts and policy concerns relied on in making its decision; second, whether these facts have some basis in the record; and third, whether these facts and policy considerations could lead a reasonable person to the same judgment the Agency reached. Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 590 F.2d 1011 (D.C.Cir.).

It is fundamental that an agency explain the facts and policy concerns underlying its decisions and conclusions. Courts "are no longer content with bare administrative Ipse dixits based on supposed administrative expertise." Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir.). Such explanations must appear in the record and may not be supplied in the form of after-the-fact rationalizations. National Crushed Stone Ass'n v. EPA, 601 F.2d 111, 118 (4th Cir.). At the same time agencies need not supply comprehensive explanations and record citations for each and every conclusion. Seacoast Anti-Pollution League v. Costle, 597 F.2d 306, 311-12 (1st Cir.). These rules are to ensure satisfaction of due process requirements and meaningful public participation in rulemaking, not to straitjacket agency proceedings. BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir.). In addition, "the primary purpose of the explanation requirement . . . is to facilitate appellate review of administrative decisions." Seacoast, 597 F.2d at 312.

NO. 78-1608

RANCHERS EXPLORATION AND DEVELOPMENT CORP.

Ranchers challenged EPA's effluent limitations for the uranium, radium, and vanadium mining industry. However, the only regulation that appears to be specifically challenged in Ranchers' brief is the total radium limitation for mine discharge. There are two major issues raised by Ranchers. First, it contends that EPA has not provided an adequate data base or adequate explication of its reasoning or analysis. The second argument, that EPA lacks authority to promulgate such limitations, has been rendered academic by a recent decision of this court. 43 Fed.Reg. 29776.

Ranchers did not participate at the rulemaking level, and EPA urges that it should not be allowed to seek court review of its challenges. Ranchers acknowledges that it did not so participate, but argues that it can participate in this appeal. It contends that it can challenge EPA's action as long as the issue was raised by some party during rulemaking. There are authorities which hold that as long as issues are raised by Some party at the administrative level, they can be raised by another party on review. Wilson & Co. v. United States, 335 F.2d 788 (7th Cir.); Hennesey v. Securities & Exchange Comm'n, 285 F.2d 511 (3d Cir.). "The reason for the rule that such questions should not be raised initially in the court of review is that the administrative agency ought to have the opportunity to rule on the questions in the first instance." Wilson, at 794. In the recent case of ASARCO, Inc. v. EPA, 188 U.S.App.D.C. 77, 578 F.2d 319 (D.C.Cir.), the District of Columbia Circuit held that the Sierra Club could participate in proceedings even though it did not participate It does appear that several challenges to the proposed regulations were raised by different parties during rulemaking, and these challenges did concern adequacy of data sampling and other issues which Ranchers now raises. We will thus consider Ranchers' arguments. These relate basically to the adequacy of the data base. In any event, it is apparent that development of an adequate data base is not so much an "issue" as it is a requirement that must be met in all instances. 33 U.S.C. § 1314(b). Further, considering the purpose behind the rule that issues must first be raised at the administrative level, it is apparent that EPA was well aware of the problem of developing an adequate data base and so no one was deprived of the opportunity to correct the deficiency during rulemaking.

at the rulemaking level. It said: "The issue raised by Sierra was thus not only raised and considered in the proceedings below; it was a substantial part of the fundamental issue in those proceedings."

As discussed, Ranchers claims that the data base is inadequate, and as support for this contention it cites the fact that the Interim Final Regulations were suspended for what it asserts was an inadequate data base. However, the fact that the data base for the Interim Regulations was inadequate has little, if anything, to do with adequacy of data base for the Final Regulations. The record made After suspension of regulations is the key to whether the data base was adequate. The record shows that after the suspension of the Interim Final Regulations, further data was gathered by the EPA and its contractors. The EPA had originally contracted with Calspan Corporation to do the monitoring, sampling, and testing, and also to make the studies of the literature relating to the mining and milling industries. It also prepared detailed cost studies for the economic contractor. The American Mining Congress also gathered data on the subject. Drafts of a Development Document were prepared. After the suspension additional data was accumulated. The EPA engaged another contractor, Jacobs Engineering, to make tests and obtain data relating to the mining and milling of uranium. The Jacobs findings were submitted to the EPA and to Calspan. The contractor for the uranium petitioners, Hazen Research, participated in these discussions and review of the Jacobs report which had been generally circulated in the industry. There were further meetings with the American Mining Congress and several uranium companies. The industry views were sought. The Final Regulations were the product of this process. Ranchers did not choose to participate in any of the proceedings. Its objections before us on appeal constitute a statistical exercise without sufficient consideration of the actual circumstances existing where and when the data was originated.

The control of Radium 226, according to this record, is obtained by barium chloride coprecipitation to reduce the dissolved radium, and to promote the settling of resultant...

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