ELR Citation: ELR 20069
No(s). s. 83-2226 et al (10th Cir. Sep 3, 1985)

The court upholds the Environmental Protection Agency's (EPA's) uranium mill tailings regulations for active mill sites and denies standing to a party challenging EPA's designation of molybdenum as a hazardous constituent. The court first holds that EPA met Congress' deadline for promulgating the regulations when the Administrator signed the regulations and released them to the public on September 30, 1983, even though they were not published in the Federal Register until October 7, 1983. Cases have held that "promulgation" for the purposes of determining the statute of limitations period for seeking judicial review is the date of publication in the Federal Register, but "promulgation" need not mean the same thing in every circumstance. The purpose of the amendment to the Uranium Mill Tailings Radiation Control Act (UMTRCA) requiring EPA to promulgate rules by October 1, 1983, was to compel the agency to act; this purpose was satisfied when the Administrator signed the rules and made them available to the public. The court then turns to arguments concerning the validity of the regulations and holds, as it did in the related case concerning inactive sites, 16 ELR 20059, that EPA need not make a finding of a "significant risk" prior to promulgating regulations for mill tailings; that EPA may issue standards to apply within the boundaries of the mill sites; that the standards do not unlawfully compel specific engineering and design methods by the implementing agencies; and that EPA properly considered cost-benefit factors in establishing standards.

The court next upholds EPA's groundwater regulations for active mill sites. Arguments that EPA's authority only extends to areas outside the boundaries of where radioactive materials are used and that the standards unlawfully impose management, design, and engineering requirements were previously rejected in the inactive sites case. EPA also acted permissibly in adopting groundwater standards equivalent to its chemical waste disposal groundwater standards. Although Congress had barred EPA from applying Solid Waste Disposal Act regulations to certain mining wastes pending the completion of a study, EPA had found that the tailing problem was analogous to chemical waste situations and the agency was under a congressionally-imposed deadline to adopt general standards applicable to all sites. The court rules that the groundwater standards do not impermissibly intrude on state control of groundwater; that EPA's decision not to apply the primary standard to existing tailings impoundments is reasonable; that EPA's failure to require cleanup beyond site boundaries is not arbitrary and capricious; that EPA responded adequately to comments during the rulemaking comment period; and that EPA adequately considered deep well disposal of tailings.

The court holds that one of the petitioning parties, AMAX, Inc., does not have standing to challenge EPA's designation of molybdenum as a hazardous constituent of uranium and thorium mill tailings. First, since neither AMAX nor its customers own any uranium mill tailings sites, it is not subject to UMTRCA and therefore its injury is indirect. AMAX's argument that state and local agencies that regulate AMAX's customers may restrict the discharge of molybdenum if it is classified as a hazardous substance could have merit, but the company has not indicated that any agency has in fact restricted or proposed to restrict the discharge of molybdenum as a result of the regulations. Second, AMAX is not within the "zone of interests" to be protected. Even giving the concept broad and lenient definition, the court finds it difficult to read the UMTRCA so as to regulate producers such as AMAX who do not own or operate any mill tailings sites.

Counsel are listed at 16 ELR 20059.

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