Before: Edwards, Chief Judge, Williams and Randolph, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with Nos. 96-1108, 96-1109
On Petitions for Review of an Order of the Environmental Protection Agency
Opinion for the Court filed by Circuit Judge Williams.
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, Section(s) 191.11-17 ("disposal regulations"); see WIPP Land Withdrawal Act of 1992, Pub. L. No. 102-579, Section(s) 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 Section(s) 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 Section(s) 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.
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 (1984), therefore, we defer to EPA's judgment on this question if it is reasonable. Metropolitan Wash. 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 (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 ...