ELR Citation: ELR 21122
No(s). 89-1404 (D.C. Cir. Jun 11, 1991)

The court rules that the Environmental Protection Agency's (EPA's) interpretation of "release" in its rule regulating the reporting requirement for releases of radionuclides is contrary to the express language of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the rule's administrative exemptions to CERCLA's reporting requirement were not properly promulgated. Business and trade associations challenged EPA's 1989 final rule establishing reportable quantities (RQs) for radionuclides as substances deemed "hazardous" under CERCLA. The court holds that even though EPA properly promulgated its interpretation of CERCLA's reporting requirement in a preamble passage to the final rule, that interpretation is contrary to CERCLA's plain meaning. Whereas CERCLA defines "release" as the movement of a substance from a facility into the environment, EPA defines a "release" as the mere placement into an unenclosed containment structure of a substance that becomes exposed to the environment. Under CERCLA, nothing less than the actual release of a hazardous material into the environment triggers its reporting requirement. The court thus concludes that EPA's interpretation impermissibly requires notification whenever a hazardous substance is placed into an unenclosed containment structure. The court also holds that EPA did not provide adequate notice and comment when it created administrative exemptions in the final rule to excuse certain parties from notifying EPA when RQs of radionuclides are released. The administrative exemptions in the final rule cannot be considered a logical outgrowth of the proposed rulemaking; nonetheless, the court allows those exemptions to remain in place until EPA provides adequate notice and comment.

Counsel for Petitioner
Richard A. Flye
Lobel, Novins, Lamont & Flug
1275 K St. NW, Ste. 770, Washington DC 20005
(202) 371-6626

Counsel for Respondent
David W. Zugschwerdt
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before EDWARDS, BUCKLEY, and HENDERSON, Circuit Judges.