American Min. Congress v. Thomas, s. 83-2226

• Decision Date: 03 September 1985
• Docket Number: Nos. 83-2226,83-2277,84-1352,83-2524,84-1349,83-2227,84-1482 and 84-1908,83-2504,s. 83-2226
• Citation: 772 F.2d 640
• Parties: , 16 Envtl. L. Rep. 20,069 AMERICAN MINING CONGRESS, United Nuclear Corporation, Homestake Mining Company, Amax, Inc., Solar Lobby, the Environmental Defense Fund, Inc., National Wildlife Federation, Sierra Club, Al Mangan, Chauncey Kepford and Judith H. Johnsrud, Petitioners, v. Lee M. THOMAS, in his capacity as Administrator of the United States Environmental Protection Agency, and Environmental Protection Agency, Respondents, State of Colorado, et al., Intervenors. UNITED NUCLEAR CORPORATION, Homestake Mining Company, and Quivira Mining Company, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Lee M. Thomas, and United States Nuclear Regulatory Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 640

772 F.2d 640

23 ERC 1442, 16 Envtl. L. Rep. 20,069

AMERICAN MINING CONGRESS, United Nuclear Corporation,

Homestake Mining Company, Amax, Inc., Solar Lobby, the

Environmental Defense Fund, Inc., National Wildlife

Federation, Sierra Club, Al Mangan, Chauncey Kepford and Judith H. Johnsrud, Petitioners, v. Lee M. THOMAS, in his capacity as Administrator of the

United States Environmental Protection Agency, and

Environmental Protection Agency, Respondents,

State of Colorado, et al., Intervenors.

UNITED NUCLEAR CORPORATION, Homestake Mining Company, and Quivira Mining Company, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Lee M.

Thomas, and United States Nuclear Regulatory

Commission, Defendants-Appellees.

Nos. 83-2226, 83-2227, 83-2277, 83-2504, 83-2524, 84-1349,

84-1352, 84-1482 and 84-1908.

United States Court of Appeals Tenth Circuit.

Sept. 3, 1985.

Anthony J. Thompson (Edward A. McCabe, Charles E. Sliter, Robert F. Reklaitis and Edward S. Shipper, Jr., also of Hamel & Park, Washington, D.C., of counsel, Larry A. Boggs, Sr. Counsel, American Mining Congress, Washington, D.C., with him on briefs), for American Mining Congress.

Peter J. Nickles (Richard A. Meserve, also of Covington & Burling, Washington, D.C., G. Stanley Crout, Sunny J. Nixon, Michael S. Yesley, and Rebecca Dempsey of Stephenson, Carpenter, Crout & Olmsted, Santa Fe, N.M., with him on briefs), for United Nuclear Corp., Homestake Mining Co., and Quivira Mining Co.

Robert E. Yuhnke, Regional Counsel (James B. Martin, Staff Atty., also of Environmental Defense Fund, Boulder, Colo., Roger Beers and Kathryn Burkett Dixon of Beers & Dixon, San Francisco, Cal., and Frances M. Green, Staff Counsel, Nat. Wildlife Federation, Boulder, Colo., with him on briefs), for Environmental Defense Fund, Nat. Wildlife Federation, Sierra Club and Al Mangan.

Barry S. Neuman, Atty. (F. Henry Habicht, II, Asst. Atty. Gen., Land and Natural Resources Div., Margaret N. Strand, Martin W. Matzen and John A. Bryson, Attys., Environmental Defense Section, U.S. Dept. of Justice, Washington, D.C., of counsel, A. James Barnes, Gen. Counsel, Gerald Yamada, Acting Gen. Counsel, William F. Pedersen, Associate Gen. Counsel, Charles S. Carter, Asst. Gen. Counsel, and Christopher C. Herman, Office of General Counsel, E.P.A., Washington, D.C., with him on briefs), for respondents.

Adonis A. Neblett, Asst. Atty. Gen. (Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., and Richard H. Forman, Sol. Gen., Denver, Colo., with him on briefs), for intervenor State of Colo.

Chauncey Kepford and Judith Johnsrud, filed briefs as pro se petitioners.

Richard O. Austermann, Sr. Counsel Regulatory Affairs, Amax, Inc., Golden, Colo., filed briefs for petitioner Amax, Inc.

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

LOGAN, Circuit Judge.

I

These consolidated cases involve challenges to the Environmental Protection Agency's (EPA) standards governing stabilization and control of byproduct materials, primarily mill tailings, at licensed commercial uranium and thorium processing sites (the active 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 same statute that required the EPA to promulgate standards applicable to the inactive mill sites. With the exception of No. 84-1908, jurisdiction in this court is based upon 42 U.S.C. Sec. 2022(c)(2). No. 84-1908 arises out of a district court action in which plaintiffs asserted that the active mill site regulations were promulgated outside the time limits prescribed by the UMTRCA. The district court dismissed the suit on the ground that the exclusive method of review was by petition in the court of appeals under 42 U.S.C. Sec. 2022(c)(2); plaintiffs have appealed that dismissal although they are raising the identical issue regarding timeliness of promulgation under their concurrent petition filed under Sec. 2022(c)(2).

As in the inactive mill site challenges, see American Mining Congress v. Thomas, 772 F.2d 617 (10th Cir.1985) [hereinafter Inactive Sites Case ], petitioners may be divided essentially into two categories: (1) the industry petitioners--the American Mining Congress, a trade association; and joint petitioners United Nuclear Corporation (and its subsidiary Quivira Mining Company) and Homestake Mining Company; and (2) the "environmental" petitioners--The Environmental Defense Fund, the National Wildlife Federation, the Sierra Club, the Solar Lobby, Al Mangan, Chauncey Kepford, and Judith Johnsrud. Intervenor, the State of Colorado, aligns itself on most issues with the environmental petitioners. AMAX, Inc. aligns itself with the industry petitioners although it is challenging only the inclusion of molybdenum as a constituent of the nonradiological hazards designated in the ground water portion of the regulations.

The substances to be controlled and the UMTRCA's legislative background have been discussed briefly in the companion case filed this day involving regulations for inactive mill sites. The relevant hazards addressed by the UMTRCA and its legislative history are the same for the active and inactive site regulations, so we need not repeat that discussion here. See Inactive Sites Case, 772 F.2d at 621 (part I).

Congress, apparently angered by the EPA's inaction, imposed time limits upon the EPA's authority to formulate regulations to govern the active mill sites. A 1983 amendment to the UMTRCA provided, "If the Administrator fails to promulgate standards in final form under this subsection by October 1, 1983, the authority of the Administrator to promulgate such standards shall terminate" in favor of the Nuclear Regulatory Commission. 42 U.S.C. Sec. 2022(b)(1). The EPA published proposed standards for the active mill sites in the Federal Register on April 29, 1983. 48 Fed.Reg. 19,584 (1983). The Administrator signed final standards on September 30, 1983, and apparently released copies to the public on that day. The regulations did not appear in the Federal Register, however, until October 7, 1983. 48 Fed.Reg. 45,926 (1983) (codified at 40 C.F.R. Sec. 192.30-.43 (1984) ).

The EPA's final standards, except those for ground water, were essentially identical to those adopted for the inactive mill sites. Standards to be applied after the site closure period were to assure control of radiological hazards "for one thousand years, to the extent reasonably achievable, and, in any case, for at least two hundred years...." 40 C.F.R. Sec. 192.32(b)(1)(i) (1984). The final standards also established radon emission limits not to exceed an average release rate of 20 picocuries per square meter per second (pCi/m ²s). Id. Sec. 192.32(b)(1)(ii). On-site land that meets the described standard is not subject to the disposal standards elsewhere in the regulations. That described standard, based on the maximum concentration level of radium-226 averaged over areas of 100 square meters, is the same as that at the inactive mill sites: 5 picocuries per gram (pCi/g) averaged over the first 15 centimeters of soil and 15 pCi/g for soil layers more than 15 centimeters below the surface. Id. Sec. 192.32(b)(2).

The EPA ground water standards for the active mill sites are in two parts: (1) a primary standard applicable to new waste storage areas, including lateral expansions of existing tailings piles, and (2) a secondary ground water protection standard applicable to both old and new piles. Id. Sec. 192.32(a)(1)-(2). In almost all circumstances the primary standard would require a liner under new impoundments and lateral extensions capable of preventing migration of waste into the ground and water. See 48 Fed.Reg. at 45,940-41 (discussion of Sec. 192.32(a)(1)-(2) requirements). Liners were not required for existing impoundments, even though new waste could be added. See id. at 45,931 (discussion of Sec. 192.32(a)(2) requirements). The secondary standard in effect requires that the ground water be protected by reducing the level of toxic materials in the ground water to concentration limits permitted by the Solid Waste Disposal Act (SWDA), 42 U.S.C. Secs. 6901-6986. The regulations necessitate monitoring programs. 40 C.F.R. Sec. 192.32(a)(2) (1984). One SWDA requirement of impermeable cover material was altered in the final regulations to permit permeable cover in arid areas where evaporation exceeds precipitation. Id. Sec. 192.32(a)(1); see 48 Fed.Reg. at 45,940 (discussion of basis for alteration). The standards permit exceptions, with the consent of the EPA, for particular existing piles that cannot meet those standards except at extraordinary cost. 40 C.F.R. Sec. 192.32(a)(2)(iv); see 48 Fed.Reg. at 45,941 (discussion of potential exceptions). The standards add molybdenum and uranium to the list of hazardous ground water constituents. 40 C.F.R. Sec. 192.32(a)(2)(i).

For purposes of discussion and analysis we divide the petitioners' contentions into four categories: (1) the allegation that the EPA acted beyond its authority because it did not promulgate the regulations within the time requirements of the statute; (2) those arguments sufficiently common to challenges to both the inactive and active mill site regulations that they may be answered, at least in part, by reference to the companion Inactive Sites Case; (3) the challenges to the ground water regulations; and (4) AMAX, Inc.'s objection to the addition of molybdenum as a constituent of hazardous material in the ground water regulations.

II

Petitioners United Nuclear Corporation, Homestake Mining Company, and Quivira Mining Company (hereinafter United Nuclear) assert that the EPA exceeded its jurisdictional authority because it promulgated these regulations after the statutory deadline. In early 1983 Congress passed an amendment to 42 U.S.C. Sec. 2022(b)(1), which...