507 F.2d 743 (10th Cir. 1974), 74-1154, Colorado Public Interest Research Group, Inc. v. Train

Docket Nº:74-1154.
Citation:507 F.2d 743
Party Name:COLORADO PUBLIC INTEREST RESEARCH GROUP, INC., a nonprofit Colorado Corporation, et al., Plaintiffs-Appellants, v. Russell TRAIN, as Administrator of the United States Environmental ProtectionAgency; and United States Environmental Protection Agency, Defendants-Appellees.
Case Date:December 09, 1974
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 743

507 F.2d 743 (10th Cir. 1974)

COLORADO PUBLIC INTEREST RESEARCH GROUP, INC., a nonprofit

Colorado Corporation, et al., Plaintiffs-Appellants,

v.

Russell TRAIN, as Administrator of the United States

Environmental ProtectionAgency; and United States

Environmental Protection Agency,

Defendants-Appellees.

No. 74-1154.

United States Court of Appeals, Tenth Circuit

December 9, 1974

Argued Sept. 13, 1974.

Page 744

David C. Mastbaum and James L. Kurtz-Phelan, Denver, Colo. (David E. Engdahl, Western Reserve Law School, Cleveland, Ohio, on the brief), for plaintiffs-appellants.

Dirk D. Snel, Atty., Dept. of Justice (Wallace H. Johnson, Asst. Atty. Gen., James L. Treece, U.S. Atty., William K. Hickey, Asst. U.S. Atty., and Edmund B. Clark and Michael D. Graves, Attys., Department of Justice, on the brief), for defendants-appellees.

Jim Guy Tucker, Atty. Gen., Arkansas; Vern Miller, Atty. Gen., Kansas; Frank J. Kelley, Atty. Gen., Michigan, William M. Eichbaum, Deputy Secretary for Enforcement and General Counsel, Pennsylvania Dept. of Environmental Resources; and Slade Gorton, Atty. Gen., Washington, on the brief of The State of Arkansas, The State of Kansas, The State of Michigan, The Common-wealth of Pennsylvania, and The State of Washington, as amici curiae.

Warren Spannaus, Atty. Gen., Peter W. Sipkins, Sol. Gen., and Eldon G. Kaul, Special Asst. Atty. Gen., on the brief of The State of Minnesota, as amicus curiae, and joint brief of the Minnesota Pollution Control Agency, as amicus curiae.

Before HOLLOWAY and McWILLIAMS, Circuit Judges, and CHRISTENSEN, [*] District Judge.

Page 745

McWILLIAMS, Circuit Judge.

This is a citizen suit brought by plaintiffs against the United States Environmental Protection Agency, and Russell Train as its Administrator, wherein the plaintiffs, under the provisions of the Federal Water Pollution Control Act, as amended, sought to compel the Administrator to perform what was alleged to be a nondiscretionary duty to control discharges of radioactive materials into navigable waters. Both plaintiffs and defendants moved for summary judgment on the ground that there were no genuine issues of fact and both agreed that the sole issue was a pure question of law as to the meaning of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. (Supp.1973). The trial court granted defendants' motion for summary judgment and entered summary judgment for defendants. 1 Plaintiffs now appeal the judgment thus entered. We reverse.

We are here concerned with the amendments made in 1972 to the Federal Water Pollution Control Act, and the regulations issued pursuant thereto. The amendments thus made to the Act will hereinafter be referred to as the 1972 Amendments. This is a statutory construction case, and accordingly we shall now refer to the particular statutes and administrative regulations with which we are here concerned.

33 U.S.C. 1311(a) (Supp.1973) provides, in effect, that the discharge of any pollutant by any person into navigable waters shall be unlawful except in compliance with the various sections of the 1972 Amendments. Under 33 U.S.C. 1342(a)(1) (Supp.1973) the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, upon the meeting of such conditions as the Administrator determines to be necessary to carry out the several provisions in the Act, as amended.

33 U.S.C. 1362(6) (Supp.1973) defines 'pollutants' and reads as follows:

'The term 'pollutant' means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) 'sewage from vessels' within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources.'

The Administrator, pursuant to his obligations under 33 U.S.C. 1342 (Supp.1973), issued regulations which became effective July 1, 1973, regarding permits to discharge pollutants. 40 C.F.R. 125.1(x) (1973) reads in pertinent part as follows:

'125.1 Definitions

'(x) The term 'pollutant' means * * * radioactive materials * * * discharged into water. (Fifteen other listed pollutants omitted.) * * *.

'COMMENT.-- The legislative history of the (Federal Water Pollution Control) Act 'Amendments of 1972' reflects that the term 'radioactive materials' as included within the definition of 'pollutant' in...

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