Colorado Public Interest Research Group, Inc. v. Train, No. 74-1154

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore HOLLOWAY and McWILLIAMS; McWILLIAMS
Citation507 F.2d 743
Docket NumberNo. 74-1154
Decision Date09 December 1974
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.

Page 743

507 F.2d 743
7 ERC 1177, 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.
No. 74-1154.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 13, 1974.
Decided Dec. 9, 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 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

Page 746

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...

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15 practice notes
  • Citizens to Save Spencer County v. U.S. E.P.A., BY-PRODUCTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 17, 1979
    ...of 195 U.S.App.D.C., pp. 873-874 of 600 F.2d & notes 128-36 Infra. 117 See, e.g., Colorado Public Interest Research Group, Inc. v. Train, 507 F.2d 743, 746 (10th Cir. 1974), Cert. granted, 421 U.S. 998, 95 S.Ct. 2393, 44 L.Ed.2d 664, Rev'd on other grounds, 426 U.S. 1, 96 S.Ct. 1938, 48 L.E......
  • CITY & COUNTY OF DENVER, ETC. v. Bergland, Civ. A. No. 79-K-611.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 2, 1981
    ...exemptions to a statute additional exemptions by implication are not favored. Colorado Public Interest Research Group, Inc. v. Train, 507 F.2d 743 (10th Cir. 1974), rev'd on other grounds sub nom. Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d ......
  • Miller v. C.I.R., Nos. 85-2766
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 11, 1988
    ...the statute itself." Train v. Colorado Public Interest Research Group, 426 U.S. 1, 9-10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976), rev'g 507 F.2d 743, 748 (10th Cir.1974). The Court As we have noted before: "When aid to construction of the meaning of words, as used in the statute, is avai......
  • Train v. Colorado Public Interest Research Group, Inc, No. 74-1270
    • United States
    • United States Supreme Court
    • June 1, 1976
    ...acted in accordance with his statutory mandate in declining to regulate the discharge of these materials. Pp. 11-25. 10 Cir., 507 F.2d 743, reversed. A. Raymond Randolph, Jr., Washington, D. C., for petitioners. David C. Mastbaum, Boulder, Colo., for respond- Page 3 ents. Mr. Justice MARSHA......
  • Request a trial to view additional results
15 cases
  • Citizens to Save Spencer County v. U.S. E.P.A., BY-PRODUCTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 17, 1979
    ...of 195 U.S.App.D.C., pp. 873-874 of 600 F.2d & notes 128-36 Infra. 117 See, e.g., Colorado Public Interest Research Group, Inc. v. Train, 507 F.2d 743, 746 (10th Cir. 1974), Cert. granted, 421 U.S. 998, 95 S.Ct. 2393, 44 L.Ed.2d 664, Rev'd on other grounds, 426 U.S. 1, 96 S.Ct. 1938, 48 L.E......
  • CITY & COUNTY OF DENVER, ETC. v. Bergland, Civ. A. No. 79-K-611.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 2, 1981
    ...exemptions to a statute additional exemptions by implication are not favored. Colorado Public Interest Research Group, Inc. v. Train, 507 F.2d 743 (10th Cir. 1974), rev'd on other grounds sub nom. Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d ......
  • Miller v. C.I.R., Nos. 85-2766
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 11, 1988
    ...the statute itself." Train v. Colorado Public Interest Research Group, 426 U.S. 1, 9-10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976), rev'g 507 F.2d 743, 748 (10th Cir.1974). The Court As we have noted before: "When aid to construction of the meaning of words, as used in the statute, is avai......
  • Train v. Colorado Public Interest Research Group, Inc, No. 74-1270
    • United States
    • United States Supreme Court
    • June 1, 1976
    ...acted in accordance with his statutory mandate in declining to regulate the discharge of these materials. Pp. 11-25. 10 Cir., 507 F.2d 743, reversed. A. Raymond Randolph, Jr., Washington, D. C., for petitioners. David C. Mastbaum, Boulder, Colo., for respond- Page 3 ents. Mr. Justice MARSHA......
  • Request a trial to view additional results

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