American Min. Congress v. Thomas
| Decision Date | 03 September 1985 |
| Docket Number | 83-1041,83-1206 and 83-1300,Nos. 83-1014,s. 83-1014 |
| Citation | 772 F.2d 617 |
| Parties | , 16 Envtl. L. Rep. 20,059 AMERICAN MINING CONGRESS, United 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, v. Lee M. THOMAS, Administrator, Environmental Protection Agency, and Environmental Protection Agency, Respondents. State of Colorado, Intervenor. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Anthony J. Thompson (Charles E. Sliter, Robert F. Reklaitis, Edward S. Shipper, Jr. and Edward A. McCabe, Washington, D.C., of counsel, with him on 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 Covington & Burling, Washington, D.C., and G. Stanley Crout, Sunny J. Nixon and Michael S. Yesley of Stephenson, Carpenter, Crout & Olmstead, Santa Fe, N.M., with him on briefs), for United Nuclear Corp., Kerr-McGee Nuclear Corp., Kerr-McGee Corp., and Homestake Mining Co.
Roger Beers (Kathryn Burkett Dickson, also of Beers & Dickson, San Francisco, Cal., and Robert E. Yuhnke, Environmental Defense Fund, Boulder, Colo., with him on briefs), for Sierra Club, Environmental Defense Fund, Natural Resources Defense Council, Southwest Research and Information Center and Jean Slattery.
David W. Zugschwerdt, Atty. (F. Henry Habicht, II, Acting Asst. Atty. Gen., Jose R. Allen, Atty., also of Dept. of Justice, Washington, D.C., and A. James Barnes, Acting Gen. Counsel, William F. Pedersen, Associate Gen. Counsel, and Charles S. Carter, Asst. Gen. Counsel, of counsel, E.P.A., Washington, D.C., with him on briefs), for respondents.
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard F. Forman, Sol. Gen., and Richard L. Griffith, Asst. Atty. Gen., Denver, Colo., filed briefs for State of Colo.
Walter Perry, III, Sr. Asst. Atty. Gen., Dennis M. Boal, Asst. Atty. Gen., James M. Ellerbe, Legal Intern, Cheyenne, Wyo., filed an amicus curiae brief for State of Wyo.
Before LOGAN and McWILLIAMS, Circuit Judges, and BOHANON, District Judge. *
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. Secs. 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 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. Sec. 7917, with the possibility of later reimbursement from private parties, id. Sec. 7925. The EPA standards that we review here pertain only to inactive mill sites. In a companion case released this day we review regulations relating to active mill sites. See American Mining Congress v. Thomas, 772 F.2d 640 (10th Cir.1985) (Active Sites Case ).
The following parties filed petitions for review of these standards: the American Mining Congress, a trade association; joint petitioners United Nuclear Corporation, Kerr-McGee Corporation, Kerr-McGee Nuclear Corporation, and Homestake Mining 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.
The final product of the milling process for uranium ore is uranium-rich "yellowcake," U3 O8 . The milling process also 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 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 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 radioactive materials may be ingested with food or water. 48 Fed.Reg. 590, 592 (1983). See generally I Environmental Protection Agency, Final Environmental Impact Statement for Remedial Action Standards for Inactive Uranium Processing Sites 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 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. Sec. 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. See id. Secs. 7911-7924. The EPA is responsible for promulgating the general standards that the implementing agencies must meet. See id. Secs. 2022(a), 7918(a).
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, 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. 27,37 0 (1980). These proposed standards were "for the cleanup of open lands and buildings contaminated with residual radioactive materials (mainly tailings) from inactive uranium processing sites." Id. The EPA made them immediately effective as interim standards pending comment, review, and promulgation of the final standards. The EPA also issued a draft environmental impact statement to support the proposed standards.
The proposed cleanup standards established allowable levels of radium concentration in soil contaminated by dispersed 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
In addition, these proposed standards contained exceptions to strict compliance if certain criteria were met. Id. at 27,375. At qualifying sites, the implementing agency was to perform remedial action that would come as close as possible to meeting the standard to which the exception applied. Id.
The EPA issued the second set of proposed standards, the 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 least one thousand years." 2 Id.
One of the standards established limits for concentrations of toxic substances in underground sources of drinking water. 3 Another water standard required that substances released from the disposal site "after 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 cleanup and disposal standards. See II FEIS-IN (summary of comments and responses). The comments were wide ranging--the industry petitioners argued that there was insufficient evidence of risk of harm to warrant the standards, while the environmental groups argued that the proposed standards did not provide adequate protection against the risks posed by the tailings. Both sides buttressed their arguments with technical studies and expert analysis.
Congress in 1982 discussed amendments to the UMTRCA to extend the deadline for the promulgation of final standards and enacted an...
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