Hecla Min. Co. v. U.S.

• Decision Date: 31 July 1990
• Docket Number: No. 88-2958,88-2958
• Citation: 909 F.2d 1371
• Parties: , 21 Envtl. L. Rep. 20,256 HECLA MINING COMPANY, Plaintiff-Appellant, v. UNITED STATES of America; John S. Herrington, as Secretary of U.S. Department of Energy; A. David Rossin, as Assistant Secretary for Nuclear Energy; James D. Anderson, as Project Manager, Uranium Mill Tailings Remedial Action Project Office, U.S. Department of Energy; Thomas Vernon, as Executive Director, Colorado Department of Health; and Howard Roitman, as Uranium Mill Tailings Remedial Action Project Manager, Colorado Department of Health, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1371

909 F.2d 1371

32 ERC 1243, 21 Envtl. L. Rep. 20,256

HECLA MINING COMPANY, Plaintiff-Appellant, v. UNITED STATES of America; John S. Herrington, as Secretary of U.S. Department of Energy; A. David Rossin, as Assistant Secretary for Nuclear Energy; James D. Anderson, as Project Manager, Uranium Mill Tailings Remedial Action Project Office, U.S. Department of Energy; Thomas Vernon, as Executive Director, Colorado Department of Health; and Howard Roitman, as Uranium Mill Tailings Remedial Action Project Manager, Colorado Department of Health, Defendants-Appellees.

No. 88-2958.

United States Court of Appeals Tenth Circuit.

July 31, 1990.

Joseph M. McMahon, Jr., Elizabeth H. Temkin, and Roger L. Freeman of Davis Graham & Stubbs, Denver, Colo., on the briefs, for plaintiff-appellant.

Donald A. Carr, Acting Asst. Atty. Gen. for the Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Michael J. Norton, Acting U.S. Atty., D. Colo., J. Greg Whitehair, Asst. U.S. Atty., D. Colo., Dirk D. Snel, Jeffrey P. Kehne, and David W. Zugschwerdt, Attys. for the Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., and P. Benjamin Underwood, Atty., Office of Gen. Counsel, U.S. Dept. of Energy, Washington, D.C., of counsel, for Federal defendants-appellees.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Jerry W. Goad, First Asst. Atty. Gen., Natural Resources Section, State of Colo., Denver, Colo., for State defendants-appellees.

Before McKAY, MOORE and ANDERSON, Circuit Judges.

McKAY, Circuit Judge.

This case involves an appeal from the district court's grant of summary judgment. The district court refused to declare plaintiff's land parcels part of a government-funded cleanup program and refused to order defendants to undertake remedial action at the sites.

I. Facts

Hecla Mining Company owns two parcels near Naturita, Colorado. The first parcel, the Naturita parcel, was used to produce uranium for contracts with the United States government from 1939 to 1963. This production resulted in over 600,000 tons of waste known as tailings. In 1977, Ranchers Exploration and Development Corporation--Hecla's predecessor-in-interest--moved most of the tailings to a second site in Durita, Colorado. Ranchers then reprocessed the tailings at the Durita site recovering uranium and other metals. Ranchers worked under a Colorado license authorizing the movement and reprocessing. The license required Ranchers to stabilize and control the waste produced by the reprocessing.

In 1978, Congress enacted the Uranium Mill Tailings Radiation Control Act of 1978 ("UMTRCA"). The purpose of UMTRCA was to stabilize and control uranium tailings at sites throughout the country. Title I of UMTRCA focuses on inactive mill sites previously used to produce uranium for government contracts. Under Title I, a property is designated by the Secretary of Energy as a "processing site." Once a site is designated, the federal government funds ninety percent of the cleanup, while the states pay the remaining ten percent. The owners of the sites pay nothing for the cleanup of their property.

The basic issue in this case is whether the Durita property should be designated as a "processing site." Although the Naturita site was originally at issue in this suit, both parties have now agreed that Naturita is covered by UMTRCA and must be cleaned up as required by the statute. The parties have been unable, however, to agree on the disposition of the Durita site.

Section 7912 of UMTRCA directs the Secretary of Energy to designate, within one year, processing sites at or near twenty specified locations including Naturita, Colorado. 42 U.S.C. Sec. 7912(a)(1) (1982). The statute also provides that:

Notwithstanding the one year limitation contained in this section, the Secretary may, after such one year period, include any area described in Section 7911(6)(B) of this title [describing sites in the vicinity of actual processing sites] as part of a processing site designated under this section if he determines such inclusion to be appropriate to carry out the purposes of this subchapter.

42 U.S.C. Sec. 7912(e)(2) (1982). The Durita site was not designated during the first year after UMTRCA was passed. Thus, plaintiff argues that the defendants should designate the Durita property as a processing site under section 7912(e)(2).

UMTRCA specifically defines what the Secretary is required to designate as a processing site.

The term "processing site" means--

(A) any site, including the mill, containing residual radioactive materials at which all or substantially all of the uranium was produced for sale to any Federal agency prior to January 1, 1971 under a contract with any Federal agency, except in the case of a site at or near Slick Rock, Colorado, unless--

(i) such site was owned or controlled as of January 1, 1978, or is thereafter owned or controlled, by any Federal agency, or

(ii) a license (issued by the Commission or its predecessor agency under the Atomic Energy Act of 1954 or by a State as permitted under section 274 of such Act) for the production at such site of any uranium or thorium product derived from ores is in effect on January 1, 1978, or is issued or renewed after such date; and

(B) any other real property or improvement thereon which--

(i) is in the vicinity of such site, and

(ii) is determined by the Secretary, in consultation with the Commission, to be contaminated with residual radioactive materials derived from such site.

42 U.S.C. Sec. 7911(6) (1982).

In 1979 and 1980, Ranchers sought the designation of the Durita property as a processing site in correspondence with the Department of Energy. DOE consistently refused Ranchers' requests. Hecla merged with Ranchers in 1984. On January 30, 1987, Hecla again sought designation of the Durita property in a letter to DOE. DOE again responded in a letter dated March 13, 1987, stating that UMTRCA did not require designation of the Durita property. DOE gave the same reasons it had given in 1980. Hecla (plaintiff) filed the current lawsuit seeking designation of the Durita property on October 24, 1987. Plaintiff now claims that the Secretary should designate the Durita property as a processing site under the "vicinity" property language found at section 7911(6)(B).

After this lawsuit was filed, DOE filed notice in the Federal Register on April 28, 1988, proposing not to designate the Durita property. See Proposed Decision, 53 Fed.Reg. 15,273 (1988). After reviewing the comments on its proposed decision, DOE published an official refusal to designate the Durita property on July 19, 1988. See Final Decision, 53 Fed.Reg. 27,332 (1988).

On October 19, 1988, the district court granted the government's summary judgment motion and dismissed plaintiff's claims. Plaintiff now appeals that dismissal.

II. Standard of Review

In reviewing the district court's grant of summary judgment, we view the case in the same manner as did the district court. Osgood v. State Farm Mut. Auto. Ins. Co. 848 F.2d 141, 143 (10th Cir.1988); R-G Denver v. First City Holdings of Colorado, Inc., 789 F.2d 1469, 1471 (10th Cir.1986). We must determine whether any genuine issue of material fact exists and, if not, whether the substantive law was correctly applied. See Fed.R.Civ.P. 56(c); Osgood, 848 F.2d at 143. Plaintiff does not challenge the factual determinations of the district court. Instead, plaintiff challenges the district court's process, standard of review, and conclusions of law. Thus, our duty is to see that the district court correctly applied the substantive and procedural law.

The district court reviewed the administrative record to see whether DOE's decision was reasonable. Plaintiff claims that reasonableness review of DOE's legal determination was improper because the notice and comment proceeding itself was inappropriate. Plaintiff claims that notice and comment proceedings are inappropriate for pure issues of law and should be reserved for resolution of factual issues. Plaintiff also challenges the timing of the notice and comment proceeding, suggesting that DOE went through the procedure merely to bolster its litigation position.

We hold that the notice and comment proceeding was within the requirements of the law. Plaintiff is simply incorrect in asserting that notice and comment procedure is inappropriate for legal decisions. "The basic procedure for deciding a disputed question of law should be and usually is notice and comment procedure--receiving parties' briefs and perhaps listening to their oral arguments." 3 K. Davis, Administrative Law Treatise Sec. 14.4 at 19 (2d ed.1980). Plaintiff cites two cases indicating that development of a record in cases involving statutory interpretation is not necessary. See R.R. Yardmasters of America v. Harris, 721 F.2d 1332, 1338-39 (D.C.Cir.1983); United Transp. Union v. Dole, 797 F.2d 823, 828 (10th Cir.1986). However, these cases do not support plaintiff's assertion that notice and comment procedure was inappropriate in this case. Neither of the cited cases hold that notice and comment procedure is inappropriate in making legal decisions or in any other setting. They simply indicate that in statutory interpretation "development of a record before the agency or by the agency is not pressing," United Transp., 797 F.2d at 828, and that statutory development "does not require the development of a factual record," R.R. Yardmasters, 721 F.2d at 1338. These cases do not hold that notice and comment proceedings are barred; they merely hold that such procedures are not required in resolving questions of law.

In addition, UMTRCA specifically authorizes DOE to promulgate rules and to hold public hearings. "The Secretary may prescribe such rules consistent with the purposes of this chapter as he deems appropriate pursuant to Title V of the Department of Energy Organization Act." 42...