Fertilizer Institute v. U.S. E.P.A.

Decision Date11 June 1991
Docket Number89-1504,89-1501,89-1495,89-1482,89-1505 and 89-1507,Nos. 89-1404,s. 89-1404
Citation935 F.2d 1303
Parties, 290 U.S.App.D.C. 184, 60 USLW 2059, 21 Envtl. L. Rep. 21,122 The FERTILIZER INSTITUTE, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., Intervenors. AMERICAN PETROLEUM INSTITUTE, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., Intervenors. RSR CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., Intervenors. CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., Intervenors. AMERICAN MINING CONGRESS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., Northeast Utilities Service Company, et al., Intervenors. LEAD INDUSTRIES ASSOCIATION, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., Intervenors. AMERICAN IRON AND STEEL INSTITUTE and Institute of Scrap Recycling Industries, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

On Petitions for Review of an Order of the United States Environmental Protection Agency.

Richard A. Flye, with whom Gordon D. Quin, for The Fertilizer Institute, G. William Frick and Ellen Siegler, for American Petroleum Institute, Lynn L. Bergeson and Kurt Olson, for RSR Corp., Michael W. Steinberg and Arline Sheehan, for Chemical Mfrs. Ass'n, Anthony J. Thompson, Donald C. Baur and Ira Dassa, for American Min. Congress, Edwin H. Seeger, Kurt E. Blase, and James C. Beh, for Lead Industries Ass'n, Inc., Karl S. Bourdeau and Paul E. Shorb, III, for American Iron and Steel Institute and Institute of Scrap Recycling Industries, and Toni K. Allen and James P. Rathvon, for Northeast Utilities Services Co., et al., were on the joint brief for petitioners and intervenors in 89-1404, 89-1482, 89-1495, 89-1501, 89-1504, 89-1505 and 89-1507. Peter L. Gray, for The Fertilizer Institute, David B. Weinberg, for RSR Corp., John R. Quarles, Jr., for Chemical Mfrs. Ass'n, Roderick T. Dwyer, for American Min. Congress, Barton C. Green, for American Iron and Steel Institute and J. Thomas Wolfe, for Institute of Scrap Recycling Industries, also entered appearances for petitioners.

David W. Zugschwerdt, Atty., Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., and Michael A. McCord, Atty. Dept. of Justice, E. Donald Elliott, Gen. Counsel, Earl Salo, Asst. Gen. Counsel and Brian P. Grant, Atty., E.P.A., were on the brief, for respondent in all cases. Kirsten Engel, Atty., E.P.A., also entered an appearance, for respondent.

Henry V. Nickel, F. William Brownell and Norman Fichthorn, entered appearances for intervenors, Ala. Power Co., et al., in 89-1404, 89-1482, 89-1495, 89-1501, 89-1504, 89-1505 and 89-1507.

Before EDWARDS, BUCKLEY and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

HENDERSON, Circuit Judge:

The Environmental Protection Agency (EPA), acting pursuant to authority granted by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. Secs. 9601-9675, promulgated a rule regulating the reporting requirement for the release of radionuclides. 1 54 Fed.Reg. 22,524 (May 24, 1989). In specific, the rule explains the meaning of "release" as used in CERCLA, provides administrative exemptions to CERCLA's reporting requirement and sets the minimum level of release of radionuclides that must be reported to the EPA. We vacate the EPA's interpretation of "release" as contrary to the express language of CERCLA, conclude that the administrative exemptions were not properly promulgated but leave them in place pending new rulemaking and decline to reach the challenge to the level set for radon-222 because the petitioners failed to make their claim below.

I.

To address the growing dangers caused by the unregulated dumping and storage of hazardous wastes, Congress enacted CERCLA. As part of the overall program to "provide for a national inventory of inactive hazardous waste sites and to establish a program for appropriate environmental response action," 1980 U.S.Code Cong. & Admin.News 6119, Congress vested the EPA with the authority to investigate and respond to the release, or threatened release, of hazardous wastes into the environment. 42 U.S.C. Sec. 9604. To effectuate the EPA's response authority, CERCLA requires parties to notify the EPA whenever a reportable quantity (RQ) of a hazardous substance is released into the environment. 42 U.S.C. Sec. 9603. Additionally CERCLA vests the EPA with authority to determine what constitutes the RQ of any given hazardous substance and thereby enables the EPA to determine what releases must be reported. 42 U.S.C. Sec. 9602(a).

In April 1985 the EPA promulgated a rule setting forth the RQs for many substances deemed "hazardous" under CERCLA. 50 Fed.Reg. 13,456 (April 4, 1985). The rule did not include a set of RQs for radionuclides. The EPA had intended to set RQs for these substances, see 48 Fed.Reg. 23,552 (May 25, 1983) (proposed rulemaking), but failed to do so because it was unable to decide both how to measure the RQs for radionuclides and whether all radionuclides should have the same RQ (there are approximately 1,500 different radionuclides). 50 Fed.Reg. at 13,458. Consequently the EPA proposed that further studies be conducted and that new rulemaking be initiated to determine the RQs for radionuclides. 2

Nearly two years later, the EPA again set out to determine the appropriate RQs for radionuclides. See 52 Fed.Reg. 8,172 (March 16, 1987) (proposed rulemaking). Then, after another two years of notice and comment, the EPA issued a final rule. See 54 Fed.Reg. 22,524 (May 24, 1989). The rule includes three provisions that are challenged here. First, in the preamble to the rule, the EPA sets out in detail its interpretation of what constitutes a "release" of hazardous substances into the environment, thereby triggering the requirement to notify the EPA. According to this interpretation, "the placement of a hazardous substance into any unenclosed containment structure wherein the hazardous substance is exposed to the environment" constitutes a "release." Id. at 22,526. Second, the rule sets forth several exemptions to CERCLA's reporting requirement. 3 These administrative exemptions enable certain industries to release radionuclides into the environment without reporting to the EPA. Finally, the rule establishes an RQ for each individual radionuclide, including radon-222, the RQ challenged by the petitioners. Id. at 22,538-42.

In response to the EPA's rulemaking, numerous businesses and trade associations filed petitions for review with this court pursuant to 42 U.S.C. Sec. 9613(a). The cases have been consolidated and two sets of petitioners and intervenors now challenge the rulemaking before this court. The first set of petitioners and intervenors, Consolidated Petitioners and Intervenors (Consolidated Petitioners), challenges the EPA's interpretation of CERCLA's reporting requirement as set forth in the preamble to the final rule. The second set of petitioners includes only two parties, the American Mining Congress and The Fertilizer Institute (AMC and TFI), and they challenge the administrative exemptions created by the EPA as well as the RQ established for radon-222. We address each of these issues in turn.

II.

The preamble to the EPA's final rule states in part:

The Agency considers the stockpiling of an RQ of a hazardous substance to be a release because any activity that involves the placement of a hazardous substance into any unenclosed containment structure wherein the hazardous substance is exposed to the environment is considered a release. An unenclosed containment structure may allow the hazardous substance to emit, escape, or leach into the air, water, or soil. Thus, the placement of an RQ of a hazardous substance in an unenclosed structure would constitute a "release" regardless of whether an RQ of the substance actually volatizes into the air or migrates into surrounding water or soil. The same rule applies to the placement of material containing radionuclides in tanks or other containment structures outside a building. If the tank or containment structure is not totally sealed off from the environment, the placement into the containment structure of an amount of a hazardous substance that equals or exceeds an RQ constitutes a reportable release.

54 Fed.Reg. at 22,526 (footnote omitted). Consolidated Petitioners claim that this definition of "release" is invalid for two reasons. First they argue that the EPA's failure to provide notice and comment before issuing this ruling violates the notice and comment requirements of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 553. Second, Consolidated Petitioners argue that the EPA's interpretation contradicts the plain meaning of CERCLA and must be invalidated as contrary to the express intent of Congress.

A.

First we reject Consolidated Petitioners' contention that the EPA's preamble runs afoul of the APA. Section 4(a) of the APA exempts from its notice and comment requirements those rules which are "interpretative" and not "legislative." 5 U.S.C. Sec. 553(b)(3)(A). 4 We have consistently explained this distinction as follows:

An interpretative rule simply states what the administrative agency thinks the statute means, and only " 'reminds' affected parties of existing duties." Citizens to Save Spencer County v. EPA, 600 F.2d 844, 876 & n. 153 (D.C.Cir.1979).... On the other hand, if by its action the agency intends to create new law,...

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