Regulatory Developments

State Agency Picks Up Power from a Court

A recent ruling out of the U.S. District Court for the District of Utah illustrates the growing power of states under a federal administration that is backing down from the implementation and enforcement of environmental regulations and delegating increasing authority to states. What happened in this case could be an isolated incident or it could set the stage for states to be viewed as the arbiters of environmental law. Here’s what happened.

Brief Summary of the Case

In Grand Canyon Trust v. Energy Fuel Resources, the Grand Canyon Trust alleged that the White Mesa uranium mill (Mill) violated the U.S. Environmental Protection Agency’s (EPA) radon emission regulations (i.e., Subpart W—National Emission Standards for Radon Emissions from Operating Mill Tailings).

The Mill has a wastestream that contains tailings solids and processing solutions. A tailings management system separates liquid and solid waste, and any liquids that may still contain some ore-bearing solids are returned to the milling process. The tailings management system consists of a series of evaporation ponds and tailings impoundments.

The Utah Department of Environmental Quality has oversight of the Mill, and the Mill’s radon emissions are governed by the Clean Air Act (CAA) and EPA regulations that Utah’s Department of Air Quality (DAQ) administers.

Subpart W sets two standards: one for existing uranium mill tailings piles and one that is triggered by newly built tailings impoundments but that applies to all tailings impoundments once it is triggered. One of the conditions of Subpart W is that that no more than two tailings impoundments be “in operation” at a time, including impoundments that existed before December 15, 1989.

In 2008, the Mill applied to construct a new evaporation pond (Cell 4b). The DAQ approved the application, saying that its review determined that these facilities will not cause emissions violation if operated properly.

Members of the Grand Canyon Trust had advocated against the Mill for years. In this case, they claim, in part, that DAQ’s decision to approve the application for the new evaporation pond violated Subpart W. The Court noted that this allegation assumes that Cell 4b is an operational tailings impoundment. But, said the Court, the DAQ historically had viewed evaporation ponds as distinct from tailings impoundments and had not counted them as part of the two operating tailings impounds. Herein lies the key to the Court ruling as it applies to state authority.

A Question of Deference

Deference is basically respect for the actions and decisions of an agency in interpreting laws where components of the law are not quite clear.

Although the court was not directly reviewing DAQ’s decision to permit construction of Cell 4B, the court said that DAQ’s interpretation provides a useful starting point. Therefore, the court took upon itself to first determine how much, if any, deference is owed to the DAQ as the agency administering Subpart W in Utah and specifically whether it should defer to DAQ’s conclusion that the construction of Cell 4B would not be in violation of Subpart W. The court noted that whether a state agency is entitled to deference when administering federal law is not well settled.

The court ruled that DAQ’s interpretation merits deference for a few reasons.

First, the court said that DAQ’s conclusion merits deference because Congress invited state agency involvement in the development of regulations for hazardous air pollutants by authorizing states to apply to the EPA for approval to become the implementing and enforcing body.

Second, DAQ’s conclusion that construction of Cell 4B did not cause the Mill to violate Subpart W is not inconsistent with federal law. Subpart W defines existing impounds as “any uranium mill tailings impoundment which is licensed to accept additional tailings and is in existence as of December 15, 1989.” Neither Subpart W nor the CAA defines “tailing impoundments.”

Therefore, said the court, the DAQ had to interpret the rule when presented with the task of approving Cell 4B. In light of these gaps in the definitions and aware that at least two other cells were used as tailings impoundments, the DAQ permitted Cell 4B to be built, concluding that doing so would not result in a violation. So, the DAQ implicitly adopted the position that “tailings impoundments” were only those containing tailings solids, not evaporation ponds, which receive only process solutions and other liquids.

Third, said the court, DAQ’s interpretation is reasonable. It distinguishes solids, which will remain permanently on the Mill site, from liquids, which evaporate.

The court also deferred to the DAQ in a question concerning a scheduling and testing method.

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