State of N.M. v. E.P.A.

• Decision Date: 06 June 1997
• Docket Number: 96-1108 and 96-1109,Nos. 96-1107,s. 96-1107
• Citation: 114 F.3d 290
• Parties: , 324 U.S.App.D.C. 436, 28 Envtl. L. Rep. 20,005 STATE OF NEW MEXICO, Thomas S. Udall, Attorney General, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Administrator, U.S. Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 290

114 F.3d 290

44 ERC 1995, 324 U.S.App.D.C. 436, 28

Envtl. L. Rep. 20,005

STATE OF NEW MEXICO, Thomas S. Udall, Attorney General, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner Administrator, U.S. Environmental Protection Agency, Respondents.

Nos. 96-1107, 96-1108 and 96-1109.

United States Court of Appeals District of Columbia Circuit.

Argued April 22, 1997.

Decided June 6, 1997.

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

Lindsay A. Lovejoy, Jr., Assistant Attorney General, State of New Mexico, Santa Fe, NM, argued the cause for petitioner. With her on the briefs were Thomas S. Udall, Attorney General, New Mexico, Manuel Tijerina, Jr., Deputy Attorney General, New Mexico, and Hal R. Ray, Jr. and Nancy Elizabeth Olinger, Assistant Attorneys General, State of Texas, Austin, TX, and Margot J. Steadman, Corrales, NM.

Alice L. Mattice and Scott A. Schachter, Attorneys, U.S. Department of Justice, Washington, DC, argued the cause for respondents. With them on the briefs were Lois J. Schiffer, Assistant Attorney General, and Vickie L. Patton, Attorney, Environmental Protection Agency.

Before EDWARDS, Chief Judge, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

In 1979 Congress authorized the Department of Energy to construct a demonstration project for the disposal of radioactive waste from national defense activities. The Department has since been at work on the facility, known as the Waste Isolation Pilot Plant or "WIPP." But it cannot put the plant into operation until the Environmental Protection Agency has certified the plant as complying with EPA's disposal regulations for radioactive wastes, 40 CFR Part 191 B, §§ 191.11-17 ("disposal regulations"); see WIPP Land Withdrawal Act of 1992, Pub.L. No. 102-579, §§ 7(b)(1), 8(d)(1), 106 Stat. 4777, amended by WIPP Land Withdrawal Amendment Act of 1996, Pub.L. No.104-201, 110 Stat. 2422 (with amendments, the "WIPP Act"). The key disposal regulation, the "containment requirement," reflects a recognition of the stochastic nature of the inquiry, and is framed in terms of probabilities. It requires that the disposal system be designed with a reasonable expectation that over a 10,000-year period it will have less than one chance in 10 of exceeding certain release limits, and less than one chance in 1000 of exceeding ten times those limits. 40 CFR § 191.13. The regulations also require disposal system operators to take certain measures intended to assure fulfillment of this expectation. See generally id. Part 191.

At issue here is an intermediate step in the process--"criteria" issued by EPA, as required by Congress, for carrying out the certification of WIPP's compliance with the disposal regulations. Criteria for the Certification and Recertification of the Waste Isolation Pilot Plant's Compliance with the 40 CFR Part 191 Disposal Regulations, 61 Fed.Reg. 5224 (February 9, 1996) (codified at 40 CFR Part 194) ("Final Rule"); see WIPP Act § 8(c)(2) (requiring promulgation of "criteria").

Petitioners argue that the resulting guidelines are not specific enough to qualify as "criteria" under the congressional mandate. They also attack several of the criteria as arbitrary and capricious and say that EPA's rulemaking procedures were defective.

* * *

Specificity of criteria

Petitioners define "criterion" as a "standard, rule or test by which something can be judged," quoting Webster's New World Dictionary of the American Language (2d coll. ed.1982), a definition EPA does not dispute. This doesn't get us very far. "Criteria," as well as the dictionary's proffered equivalents, are ambiguous as to the level of specificity at which they may be promulgated, and the statute says nothing to suggest that the criteria must be detailed or quantitative. Under the standard analysis of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), therefore, we defer to EPA's judgment on this question if it is reasonable. Metropolitan Washington Airports Auth. Prof'l Fire Fighters Ass'n v. United States, 959 F.2d 297, 300 (D.C.Cir.1992) (judicial deference at its highest in reviewing such policy choices as the level of generality for norms implementing legislative mandate); NRDC v. EPA, 907 F.2d 1146, 1165 n. 16 (D.C.Cir.1990) ("level of generality ... [of] regulations would turn on congressional intent ... with the agency's view entitled to great deference"); cf. Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952) (rejecting due process attack on a mandated regulation scarcely more specific than the statute it implemented).

Of course it seems inescapable that as a general matter Congress intended that the criteria would add specificity to the disposal regulations. If they contributed no extra specificity or clarity on any aspect of the disposal regulations, it would be hard to believe EPA had done the intended job. But a cursory look at the two (the disposal regulations and the criteria) dispels such a concern.

In the rulemaking EPA explained why it resisted various demands for more specificity. It said that it tried to "avoid prescribing specific design choices or technical decisions so that EPA does not have the unintended effect of making the facility less safe," hoping thus to "allow the scientists and technical experts administering the WIPP," presumably those most knowledgeable about the facility, freedom to make reasonable judgments. Response to Comments ("RTC") at ix. In light of the complexity and uncertainty of planning for contingencies over the next 10,000 years, this seems quite reasonable. There has, in any event, been no general abdication to the discretion of DOE experts. Because this general discussion in the Response to Comments does not in itself establish the reasonableness of EPA's chosen level of specificity in particular provisions, we now turn to the ones where petitioners' attacks are strongest.

1. Passive institutional controls

EPA's final rule permits DOE's WIPP application, when calculating release probabilities, to take credit for passive institutional controls ("PICs"), which include devices such as permanent markers, designed to avoid inadvertent human interference. The disposal regulations require "the most permanent markers, records, and other passive institutional controls practicable to indicate the dangers of the wastes and their location." 40 CFR § 191.14(c). The criteria provide that credit can be given for PICs for no more than 700 years and that DOE can in no case assume that PICS will "eliminate the likelihood of human intrusion entirely." Id. § 194.43(c). In addition, the final rule requires that DOE show that the PICs will "endure and be understood by potential intruders for the [relevant] time period." Id.

Petitioners argue that "endure and be understood" is standardless. To be sure, EPA does not elaborate on the phrase, nor does it set forth a method by which DOE must demonstrate the effectiveness of PICs. Nonetheless, it drastically confines the range of credit from what the disposal regulations might have been thought to have allowed, and it sets a standard that must be met. Compared to many standards at work in the law--e.g., "reasonable man," "arbitrary and capricious"--the "endure and be understood" criterion is rather lucid.

Everything else being equal, the better a petitioner can demonstrate the feasibility of greater specificity the more convincing its attack on agency vagueness. For instance, where the agency itself has adopted highly specific internal guidelines governing the same subject, see MST Express v. Department of Transportation, 108 F.3d 401 (D.C.Cir.1997), it cannot very plausibly deny feasibility. Here, petitioners take just the opposite tack. They say that it is utterly impossible to predict the effectiveness of PICs, and that EPA errs by even permitting DOE to try for a credit. Thus their argument supports rather than undermines EPA's decision to not specify a precise measure of effectiveness. Given methodological uncertainty in this area, it appears sensible to place the burden on DOE to figure out how to justify any PIC credits, rather than to foreclose the possibility entirely. Petitioners will have a chance to replay their impossibility argument in the certification rulemaking.

2. Engineered barriers

Petitioners also say that EPA provides no standards for how it will judge "engineered barriers" other than those set forth in the disposal regulations, which say that a barrier is a "material or structure that prevents or substantially delays movement of water or radionuclides toward the accessible environment." 40 CFR § 191.12. We needn't decide whether simply restating the regulation would be enough, because EPA did more. It set forth a detailed list of barriers that DOE must evaluate, and listed nine characteristics with respect to which any barrier must be assessed. Id. § 194.44(b), 194.44(c)(1). In response to demands both for enumeration of specific barriers and for performance criteria for barriers, EPA said that the complexity of the WIPP system made it impossible to evaluate a barrier's helpfulness in advance and that consideration of the nine enumerated factors would enable it to give a balanced evaluation of a barrier's usefulness, taking into account all the side effects. RTC 16-4 to 16-8. We have no basis for disputing this judgment.

Petitioners attack a number of other parts of the rule as standardless, but we find EPA's approach reasonable under our deferential review of the level of generality at which regulations can be promulgated.

Alleged nullification of the "resource" disposal regulation

One of the disposal regulations, 40 CFR § 191.14(e), demands avoidance of places where there has been mining of resources or where such mining is expected. But, recognizing that the...