Colorado Public Interest Research Group, Inc. v. Train, 74-1154

Decision Date09 December 1974
Docket NumberNo. 74-1154,74-1154
Citation507 F.2d 743
Parties, 5 Envtl. L. Rep. 20,043 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.
CourtU.S. Court of Appeals — Tenth Circuit

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. 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 section 502 of the Act covers only radioactive materials which are not encompassed in the definition of source, by-product, or special nuclear materials as defined by the Atomic Energy Act of 1954, as amended, and regulated pursuant to the latter Act. Examples of radioactive materials not covered by the Atomic Energy Act and, therefore, included within the term 'pollutant' are radium and accelerator produced isotopes. (H.R.Rep. 92-911, 92d Cong.2d Sess., 131, March 11, 1972; 117 Cong.Rec. 17401, daily ed., November 2, 1971; 118 Cong.Rec. 9115, daily ed., October 4, 1972.)'

The foregoing COMMENT is at the heart of the present dispute and perhaps deserves a rereading.

Another section of the 1972 Amendments, 33 U.S.C. 1371(a) (Supp. 1973), relied on by the defendants, reads in pertinent part as follows:

'This chapter shall not be construed as (1) limiting the authority or functions of any officer or agency of the United States under any other law or regulation not inconsistent with this chapter; * * *.'

Although neither is a party to the present proceeding, the Atomic Energy Commission and the Public Service Company of Colorado are to a degree, at least, involved. The Atomic Energy Commission owns the Rocky Flats Plant located between Golden and Boulder, Colorado, which plant until recently has been operated for the Commission by the Dow Chemical Company. The Public Service Company of Colorado under license from the Atomic Energy Commission owns and maintains the Fort St. Vrain Nuclear Generating Station located at Platteville, Colorado. Radioactive materials, including 'by-products materials,' 'source material,' and 'special nuclear material' are, or will be, discharged into navigable waters within the state of Colorado by operation of the Bocky Flats Plant and the Fort St. Vrain Nuclear Generating Station. We are advised that both nuclear facilities have applied to the EPA Administrator for a permit to authorize the discharge of liquid effluents into Colorado waters and that in each instance the Administrator, in line with the COMMENT set forth above, has refused to regulate the discharge of radioactive materials from these facilities.

It was in this general setting that the plaintiffs brought their citizen suit as provided in 33 U.S.C. 1365(a)(2) (Supp.1973) against the Administrator seeking to compel him to exercise his regulatory duties under the 1972 Amendments as concerns the discharge of radioactive materials into navigable waters. It is the plaintiffs' basic position that the statute means what it says, and that under the definition of 'pollutant,' as set forth in 33 U.S.C. 1362(6) (Supp.1973), it is the duty of the Administrator to regulate the discharge of all radioactive materials into navigable waters.

The defendants' basic position is as set forth above in the COMMENT to 40 C.F.R. 125.1(x) (1973), namely, that those radioactive materials which are 'by-product materials,' 'source material,' and 'special nuclear material' are not encompassed in the 1972 Amendments and are hence subject to only such regulation as is provided under the Atomic Energy Act of 1954. The trial court adopted the view of the Administrator and it was on this basis that summary judgment was entered for the defendants. We disagree with this disposition of the matter. Brief reference to the general law relating to statutory construction may be helpful.

It is a basic rule of statutory construction that statutes are to be construed in a manner so as to effectuate the intent of the enacting body, and that in construing a statute the court should first look to the language of the statute itself. If the language is clear and the purpose appears with reasonable certainty, there is no need to resort to other rules of construction to ascertain its meaning. United States v. Ray, 488 F.2d 15 (10th Cir. 1973). An unambiguous statute must be given effect according to its plain and obvious meaning. United States v. Western Pacific Railroad Company,385 F.2d 161 (10th Cir. 1967).

Another cardinal rule of statutory construction is that where the legislature has acted to except certain categories from the operation of a particular law, it is to be presumed that the legislature in its exceptions intended to go only as far as it did, and that additional exceptions are not warranted. In other words, where there be express exceptions to a statute, additional exceptions by implication are not favored. In re Monks Club, Inc., 64 Wash.2d 845, 394 P.2d 804 (1964), and Knapczyk v. Ribicoff, 201 F.Supp. 283 (N.D.Ill.1962). See also 2A Sands, Statutes and Statutory Construction, 47.11 (4th ed. 1973), where it is stated that when there is an express exception to a statute, no other exceptions will be implied. See also 47.07 in that same treatise which states, in part, that a statute which declares what a term 'means,' is to be given a strict interpretation and is not subject to expansion. Here, the statute declares not only what the term...

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