976 F.2d 36 (D.C. Cir. 1992), 91-1294, Natural Resources Defense Council, Inc. v. Reilly

Docket Nº:91-1294.
Citation:976 F.2d 36
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. William K. REILLY, Administrator, Environmental Protection Agency and Environmental Protection Agency, Respondents, Nuclear Management and Resources Council, Inc., American Mining Congress, Intervenors.
Case Date:September 25, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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976 F.2d 36 (D.C. Cir. 1992)



William K. REILLY, Administrator, Environmental Protection

Agency and Environmental Protection Agency, Respondents,

Nuclear Management and Resources Council, Inc., American

Mining Congress, Intervenors.

No. 91-1294.

United States Court of Appeals, District of Columbia Circuit.

September 25, 1992

Argued April 3, 1992.

Graeme W. Bush, with whom Julia L. Porter and David D. Doniger, Washington, D.C., were on the brief, for petitioner.

Alice L. Mattice, Atty., U.S. Dept. of Justice, with whom Barry M. Hartman, Acting Deputy Asst. Atty. Gen., and Timothy D. Backstrom, Counsel, Environmental Protection Agency ("EPA"), Washington, D.C., were on the brief, for respondents. David W. Zugschwerdt, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondents.

Anthony J. Thompson (for American Min. Congress), Jay E. Silberg, Mindy A. Buren, Margaret S. Spencer, and Robert W. Bishop (for Nuclear Management and Resources Council, Inc.), Washington, D.C., were on the joint brief for intervenors.

Before SILBERMAN, BUCKLEY, and SENTELLE, Circuit Judges.

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Opinion for the court filed by Circuit Judge BUCKLEY.

Concurring opinion filed by Circuit Judge SILBERMAN.

BUCKLEY, Circuit Judge:

For well over a decade, the Environmental Protection Agency has grappled with the question of whether to regulate the emission into the air of radioactive particles from facilities licensed by the Nuclear Regulatory Commission. Although the Clean Air Act established stringent deadlines for the issuance of emission standards regulating radioactive pollutants found to endanger the public health, and although the Agency made such a determination in 1979, it did not promulgate final emission standards until 1989. But as a result of successive stays to enable it to reconsider comments and to examine additional data, the EPA has yet to apply the standards to facilities, other than nuclear power reactors, that have been licensed by the Nuclear Regulatory Commission.

The Natural Resources Defense Council challenges the latest of these stays, arguing that it is barred by the 1990 Amendments to the Clean Air Act and that the Agency has no general authority to suspend the standards. We agree.


    1. The Clean Air Act

      In the 1977 amendments to the Clean Air Act, ("CAA" or "Act"), Pub.L. No. 95-95, 91 Stat. 685 (1977), Congress ordered the Administrator of the EPA to review data "and determine whether or not emissions of radioactive pollutants ... into the ambient air will cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health." CAA § 122(a), 42 U.S.C. § 7422(a) (1988). If he determines that any does, the Administrator must include it in a list of hazardous air pollutants. Id. Then,

      [w]ithin 180 days after the inclusion of any air pollutant in such list, the Administrator shall publish proposed regulations establishing emission standards for such pollutant together with a notice of a public hearing within thirty days. Not later than 180 days after such publication, the Administrator shall prescribe an emission standard for such pollutant, unless he finds, on the basis of information presented at such hearings, that such pollutant clearly is not a hazardous air pollutant.

      CAA § 112(b)(1)(B), 42 U.S.C. § 7412(b)(1)(B) (1988).

      The EPA took the first step in this regulatory process in late 1979, adding radionuclides (atoms that "spontaneously undergo[ ] radioactive decay," 40 C.F.R. § 61.101(f) (1991)) to the list of hazardous air pollutants. The Agency found in its listing decision that "exposure to radionuclides increases the risk of human cancer and genetic damage." 44 Fed.Reg. 76,738 (1979). Accordingly, it "concluded that emission of radionuclides may reasonably be anticipated to endanger public health, and that radionuclides constitute hazardous air pollutants within the meaning of the Clean Air Act." Id.

      As indicated above, the Act required the EPA to publish proposed emission standards for radionuclides within 180 days. The Agency allowed this deadline to lapse without acting. In the resulting litigation, the United States District Court for the Northern District of California found that the Administrator had a non-discretionary duty to promulgate proposed standards and gave the Agency 180 more days within which to do so. See Sierra Club v. Gorsuch, 551 F.Supp. 785-89 (N.D.Cal.1982). The EPA issued proposed standards on April 6, 1983. See 48 Fed.Reg. 15,076 (1983).

      Under the Act, the promulgation of these standards triggered another 180-day deadline for the issuance of either final emission standards or of a finding that the pollutant "clearly is not a hazardous air pollutant." CAA § 112(b)(1)(B), 42 U.S.C. § 7412(b)(1)(B). The Agency did not meet this deadline, and the federal court in California ordered the EPA to promulgate final standards for radionuclides within ninety days. See Sierra Club v. Ruckelshaus,

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      602 F.Supp. 892-900 (N.D.Cal.1984). After the expiration of that deadline, the court found the Administrator in contempt for failing to issue the standards and gave the Agency 120 more days to comply with the statute. Id. at 900-04. The EPA issued final emission standards for most sources on February 6, 1985. See 50 Fed.Reg. 5,190 (1985).

      The final standards became the subject of litigation in this court. While several petitions for review were pending, the EPA sought a voluntary remand of the standards for reconsideration in light of our decision in NRDC v. EPA, 824 F.2d 1146 (D.C.Cir.1987) (en banc ). We granted this request but established a schedule for re-promulgation, giving the EPA a total of 360 days to issue final standards.

      Two years later, the Agency published new final emission standards for radionuclides. The Agency again found that radionuclides represent hazardous pollutants, noting that

      [t]he evidence that radionuclides can cause cancer has, if anything, increased since 1979. The evidence now suggests that the risks from radiation exposure are higher than was believed at that time.... EPA has determined that radionuclides not only pose a risk of carcinogenicity and mutagenicity when emitted into the air but also are emitted in sufficient quantities as to create a risk warranting listing under section 112.

      54 Fed.Reg. 51,654, 51,663 (1989) (citations omitted). The standards established maximum permissible exposure levels and imposed reporting requirements to ensure compliance. Id. at 51,663-68; 51,694-704.

      At the same time, however, the Agency stayed the implementation of the standards for a variety of facilities, including those licensed by the Nuclear Regulatory Commission ("NRC") or by an Agreement State (collectively, "NRC-licensed facilities"). See id. at 51,668. The EPA explained that it had received comments from federal agencies at the end of the notice-and-comment period raising concerns that the new standards would both duplicate and clash with existing NRC regulations and impose unnecessary burdens on the regulated communities. It was also feared that the standards would discourage the use of radioactive materials at medical facilities. 54 Fed.Reg. at 51,667-68. "[I]n recognition of the serious nature of these concerns, and the need to further investigate and resolve these matters, EPA has concluded that it should treat the comments and information filed by [the National Institute of Health] and NRC as petitions for reconsideration of the standard...." Id. at 51,668. Petitions for reconsideration filed pursuant to section 307 of the Clean Air Act allow the EPA to delay the implementation of regulations for three months, and the Agency availed itself of this leeway. Id.; see also CAA § 307(d)(7)(B), 42 U.S.C. § 7607(d)(7)(B) (1988).

      Since the expiration of this three-month stay, the Agency has stayed the final standards for NRC-licensed facilities three additional times. See 55 Fed.Reg. 10,455-56 (1990) (120 days from March 15, 1990); id. at 29,205-06 (60 additional days); id. at 38,057-58 (180 more days). The EPA found authority for these stays in section 10(d) of the Administrative Procedure Act, 5 U.S.C. § 705(d) (1988), and section 301 of the CAA, 42 U.S.C. § 7601(a). According to the Agency, the stays also represented a continuation of the reconsideration process initiated at the time it promulgated the final standards.

    2. The 1990 Amendments

      During the pendency of the final stay, Congress passed, and the President signed, the Clean Air Act Amendments of 1990, Pub.L. No. 101-549, 104 Stat. 2399 (1990). The Amendments added section 112(d)(9) to the Act, which provides:

      No standard for radionuclide emissions from any category or subcategory of facilities licensed by the Nuclear Regulatory Commission (or an Agreement State) is required to be promulgated under this section if the Administrator determines, by rule, and after consultation with the Nuclear Regulatory Commission, that the regulatory program established by the Nuclear Regulatory Commission ...

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      for such category or subcategory provides an ample margin of safety to protect the public health.

      42 U.S.C.A. § 7412(d)(9) (West Supp.1992). The 1990 Amendments, however, specifically stayed the effectiveness of the radionuclide emission standards for medical facilities:

      Notwithstanding paragraph (1) [set out below], no standard promulgated under this section prior to November 15, 1990 with respect to medical research or treatment facilities shall take effect for two years following November 15, 1990 unless the Administrator makes a determination pursuant to a rulemaking under section 7412(d)(9) of this title. If the Administrator determines that the regulatory program established by the Nuclear Regulatory Commission for such facilities does not provide an ample margin of safety to protect...

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