## Facts

- Multiple industry groups petitioned for review of an EPA final rule issued under CERCLA § 103 governing reporting of releases of radionuclides.
- CERCLA requires facilities to notify the National Response Center upon a “release” of a hazardous substance at or above its reportable quantity (RQ).
- EPA’s rule (1) defined “release” to include storing radionuclides in an “unenclosed containment structure” (a structure with at least one open side), even without any actual emission to air, water, or soil; (2) created administrative exemptions from certain reporting obligations; and (3) set RQs for radionuclides, including radon-222.
- EPA justified the “unenclosed containment” concept on the theory that such storage created sufficient risk to warrant treating it as a reportable release.
- Petitioners challenged the “release” definition, the procedural validity of the exemptions, and the radon-222 RQ.

## Issues

1. Whether CERCLA permits EPA to define “release” to include mere storage of radionuclides in an unenclosed containment structure absent movement of the substance into the environment.
2. Whether EPA’s administrative reporting exemptions were promulgated in compliance with the APA’s notice-and-comment requirements.
3. Whether the court could review, and if so whether it should invalidate, the radon-222 RQ as arbitrary or capricious given petitioners’ participation in the rulemaking.

## Decision

- The court vacated the portion of the rule defining “release” to include mere storage in an unenclosed containment structure without an actual discharge into the environment.
- The court held the administrative exemptions were not properly promulgated because they were not adequately noticed in the proposed rule, but allowed them to remain temporarily in effect pending new rulemaking.
- The court declined to reach the merits of the challenge to the radon-222 RQ because petitioners failed to raise the issue before the agency.

## Legal Principles

- When CERCLA’s definition of “release” requires movement “into the environment,” EPA may not expand the term to cover mere onsite storage based only on risk of future release.
- Under the APA, a final rule must be a “logical outgrowth” of the proposed rule; exemptions or categories not fairly foreshadowed in the notice are procedurally invalid.
- Judicial review of rulemaking issues is generally barred when a party fails to present the specific objection to the agency during the administrative process (issue exhaustion).

## Conclusion

The D.C. Circuit enforced statutory limits on EPA’s authority under CERCLA by rejecting a risk-based “release” definition untethered to actual environmental discharge, required proper notice-and-comment for reporting exemptions, and refused to consider an unpreserved challenge to the radon-222 reportable quantity.


Fertilizer Inst. v. Env’t Prot. Agency, 935 F.2d 1303 (D.C. Cir. 1991)