373 F.Supp. 991 (D.Colo. 1974), Civ. A. C-5438, Colorado Public Interest Research Group, Inc. v. Train

Docket Nº:Civ. A. C-5438
Citation:373 F.Supp. 991
Party Name:Colorado Public Interest Research Group, Inc. v. Train
Case Date:February 15, 1974
Court:United States District Courts, 10th Circuit, District of Colorado

Page 991

373 F.Supp. 991 (D.Colo. 1974)

COLORADO PUBLIC INTEREST RESEARCH GROUP, INC., a non-profit Colorado corporation, et al., Plaintiffs,


Russell TRAIN as Administrator, United States Environmental Protection Agency, 401 M. St., S.W., Washington, D.C. and United States Environmental Protection Agency, 401 M. St., S.W., Washington, D.C., Defendants.

Civ. A. No. C-5438.

United States District Court, D. Colorado.

Feb. 15, 1974

Page 992

David C. Mastbaum, David E. Engdahl, Boulder, Colo., James L. Phelan, Denver, Colo., for plaintiffs.

William K. Hickey, Asst. U.S. Atty., Denver, Colo., and Michael D. Graves, Trial Atty., Dept. of Justice, Washington, D.C., for defendants.


WINNER, District Judge.

The case is before the Court on cross-motions for summary judgment, and the parties agree that there are no genuine issues of material fact. The case involves plaintiff's challenge of the accord worked out between and followed by the Atomic Energy Commission and the Environmental Protection Agency as to the correlation of the Federal Water Pollution Control Act and the Atomic Energy Act. Plaintiffs want the EPA to regulate the discharge of 'byproduct materials,' 'source materials' and 'special nuclear materials' from the Ft. St. Vrain Generating Facility, a privately owned nuclear electrical generating plant, and from the Rocky Flats Plant, a federally owned plant. The EPA and the AEC think that the regulation of the discharge of these particular materials is under the exclusive jurisdiction of the AEC and that such regulation is not under either the exclusive or the concurrent jurisdiction of the EPA. The Public Service Company of Colorado, the owner of the Ft. St. Vrain facility, has not been named as a defendant. Defendants have not raised the indispensable party question, and no ruling is made on it. Certainly the problem exists.

As phrased by plaintiffs in their brief, 'The only issue before the Court is whether all radioactive effluents are subject to regulation pursuant to the 1972 Amendments to the Federal Water Pollution Control Act. 33 U.S.C. § 1251, et seq. . . . Simply stated, it is our position that this administrative decision (to leave the regulation of such effluents to the AEC) is totally contrary to the clear and unambiguous language of the 1972 Amendments to the Federal Water Pollution Control Act.'

Page 993

Defendants concede that the Federal Water Pollution Control Act gives the EPA power to regulate the discharge of 'pollutants' and that some radioactive materials are indeed pollutants. But, say defendants, 'byproduct,' 'source' and 'special nuclear materials' must be treated differently, and, defendants have concluded that, reading the two Acts together, the regulation of discharges of those materials is for the AEC alone.

Necessarily, then, the starting place is a definition of the critical terms, and they are defined by statute:

42 U.S.C. § 2014(e) defines 'byproduct material' as 'any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process...

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