Waste Action Project v. Dawn Min. Corp., 96-36055

• Decision Date: 10 March 1998
• Docket Number: No. 96-36055,96-36055
• Citation: 137 F.3d 1426
• Parties: , 28 Envtl. L. Rep. 21,035, 98 Cal. Daily Op. Serv. 1710, 98 Daily Journal D.A.R. 2389 WASTE ACTION PROJECT, Plaintiff-Appellant, v. DAWN MINING CORP.; Newmont Gold, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1426

137 F.3d 1426

46 ERC 1257, 28 Envtl. L. Rep. 21,035,

98 Cal. Daily Op. Serv. 1710,

98 Daily Journal D.A.R. 2389

WASTE ACTION PROJECT, Plaintiff-Appellant, v. DAWN MINING CORP.; Newmont Gold, Defendants-Appellees.

No. 96-36055.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 1998.

Decided March 10, 1998.

Richard A. Smith of Smith & Lowney, Seattle, WA, for plaintiff-appellant.

Jeffrey W. Leppo, Karen M. McGaffey, and Karla J. Axell of Bogle & Gates, Seattle, WA, for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington; Alan A. McDonald, District Judge, Presiding. D.C. No. CV-96-00106-AAM.

Before: BRUNETTI, RYMER, and KLEINFELD, Circuit Judges.

BRUNETTI, Circuit Judge.

The issue in this case is whether the Environmental Protection Agency (EPA) has authority under the Clean Water Act (CWA) to regulate the discharge of uranium mill tailings into the nation's waterways. In statutory terms, the question is whether uranium mill tailings are "pollutants" within the meaning of the CWA. The district court, in granting defendant mining companies' motion for summary judgment, answered this question in the negative. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

Dawn Mining Corporation (Dawn) began milling uranium at the Ford, Washington, site at issue in 1957. Until 1965, Dawn operated the site pursuant to a Source Material License granted by the Atomic Energy Commission. In 1969, Dawn resumed uranium processing under a Radioactive Materials License issued by the State of Washington. Dawn ceased milling operations in 1982.

Milling uranium concentrates the ore to produce material with substantially higher concentrates of uranium than that contained by the original ore. This process also generates significant amounts of byproduct materials known as tailings which contain residual levels of uranium. Dawn has disposed of tailings from the milling process at tailings disposal areas (TDAs) at the millsite. There are four TDAs currently at the site. From 1957 to 1965, Dawn disposed of tailings at TDAs 1 and 2, and from 1969 to 1981, at TDA-3. TDAs 1-3 are above-ground unlined disposal areas. As a result, contamination from the mill tailings disposed at these TDAs has migrated into groundwater and nearby Chamokane Creek.

In 1981, Dawn constructed a lined below-ground impoundment area, TDA-4, with the capacity to store up to forty-four million cubic feet of mill tailings. TDA-4 was the subject of an Environmental Impact Statement (EIS) prepared by the Washington Department of Social and Health Services. By 1982, when Dawn ceased milling operations, approximately four million cubic feet of tailings had been stored at TDA-4. According to Dawn, tailings disposed of at TDA-4 have not leaked or otherwise been released.

Since 1982, Dawn has worked with federal and state agencies to develop a Closure Plan for the millsite. The Closure Plan includes a comprehensive remedial program that addresses the surface and groundwater contamination resulting from leakage at TDAs 1-3 and requires Dawn to remove contaminated groundwater. Dawn has constructed a system of lined evaporation ponds on top of TDAs 1-3. The ponds are intended to serve as partial caps and reduce further infiltration of water into the tailings material underneath. Dawn will pump contaminated groundwater from the aquifer into the lined evaporation ponds. When pumping groundwater is no longer necessary and the evaporation is complete, Dawn intends to close the ponds and construct a reclamation cover over the TDAs.

Dawn's closure plan has undergone extensive regulatory review. The Department of Health established a Technical Advisory Committee to analyze the closure proposal which included representatives from state and federal agencies, the Spokane Indian Tribe, and local citizens. The Department of Health also held numerous public hearings regarding the Plan, and prepared a lengthy EIS and Supplemental EIS (SEIS) in connection with its review of the Closure Plan. Copies of the EIS and SEIS were made available to the public. In February 1995, the Department of Health approved the Closure Plan and issued Dawn an amended radioactive material license authorizing closure of the millsite.

In 1994, Greg Wingard and Richard Smith formed Waste Action Project (WAP), the appellant in this action. WAP filed this Clean Water Act suit on February 20, 1996, against Dawn Mining Corporation and later amended its complaint to join Newmont Mining Company and Newmont Gold Company. The amended complaint alleges that Dawn is discharging pollutants into Chamokane Creek without a National Pollutant Discharge Elimination System permit (NPDES permit) in violation of the Clean Water Act (CWA). WAP alleges that wastes containing uranium, silica, heavy metals, sulfates, phosphates, chlorides, and other chemicals leaked from TDAs 1-4 into the groundwater and eventually to Chamokane Creek. Thus, WAP alleges that the discharge of these wastes into Chamokane Creek constitutes a violation of the CWA because Dawn does not possess a NPDES permit authorizing such discharges.

The Mining Companies moved for summary judgment and the district court ruled that the uranium mill tailings and associated wastes identified by WAP are "byproduct material" as defined in section 11(e)(2) of the Atomic Energy Act (AEA), 42 U.S.C. § 2014(e)(2), and hence are not "pollutants" under the CWA. We agree.

II. DISCUSSION

We review decisions granting summary judgment de novo to determine whether there are any genuine issues of material fact and whether the district court properly applied the relevant substantive law. Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997). Matters of statutory interpretation are also reviewed de novo. See United States v. Eaton, 31 F.3d 789, 791 (9th Cir.1994).

This appeal presents a purely legal question of statutory interpretation. That is, whether uranium mill tailings are "pollutants" for purposes of the Clean Water Act's NPDES permit requirements. As a general rule, we look first to the plain language of the statute. However, where issues of interpretation of the CWA are involved, the United States Supreme Court opinion in Train v. Colorado Public Int. Research Group, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976), governs. Train specifically commands that in discerning the meaning of the language of the CWA, we must also look to the CWA's legislative history. Id. at 9-11, 96 S.Ct. at 1942-43. The Court in Train went even further, holding that to not look at legislative history would be reversible error. See id.

In Train, the Supreme Court addressed an issue virtually identical to that before our court today, specifically, whether the Environmental Protection Agency had authority under the Federal Water Pollution Control Act (FWPCA), now known as the Clean Water Act, to regulate discharge of nuclear waste materials subject to regulation by the Atomic Energy Commission and its successors under the Atomic Energy Act. The Court held unanimously that Congress did not intend for materials governed by the Atomic Energy Act to be included in the category of "pollutants" subject to regulation by the EPA under the FWPCA. Id. at 25, 96 S.Ct. at 1949.

A brief review of the legislative backdrop is necessary to appreciate the significance of Train in the present statutory context. The Clean Water Act was promulgated in 1972. It requires that an NPDES permit be obtained before discharging "pollutants" into navigable waters. 33 U.S.C. § 1311. "Pollutant" is defined as:

dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.

33 U.S.C. § 1362(6).

Under the CWA, the EPA is given authorization to enforce the act and promulgate regulations to that end. Accordingly, the EPA has further clarified the definition of "pollutants." Speaking directly to radioactive wastes, the EPA explicitly excludes radioactive materials regulated under the Atomic Energy Act from the definition of pollutant thereby putting these materials outside the scope of EPA enforcement. See 40 C.F.R. § 122.2; 38 Fed.Reg. 13528, 13530 (May 22, 1973). Further, EPA regulations provide that "[r]adioactive materials covered by the Atomic Energy Act are those encompassed in its definition of source, byproduct, or special nuclear materials." 40 C.F.R. § 122.2.

The Atomic Energy Act (AEA), enacted in 1954, created a comprehensive scheme under which the Atomic Energy Commission (AEC), now called the Nuclear Regulatory Commission (NRC), regulates the production, possession, and use of radioactive materials categorized as "source materials," "special nuclear materials," and "byproduct materials." 42 U.S.C. § 2011, et seq. Initially, the definition of "byproduct material" did not include uranium mill tailings. Nonetheless, the AEC did regulate uranium mill tailing disposal in connection with licensing of active uranium mill sites. See H.R. Rpt. No. 95-1480, Pt. I, reprinted in 1978 U.S.C.C.A.N. 7433; H.R. Rpt. No. 95-1480, Pt. II, reprinted in 1978 U.S.C.C.A.N. 7450, 7455.

Congress amended the AEA with passage of the Uranium Mill Tailings Radiation Control Act (UMTRCA) in 1978. The UMTRCA explicitly included uranium mill tailings/waste in the definition of "byproduct material." "Byproduct material" is defined as:

(1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content.

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