Colorado Public Interest Research Group, Inc. v. Train

• Decision Date: 15 February 1974
• Docket Number: Civ. A. No. C-5438.
• Citation: 373 F. Supp. 991
• Parties: COLORADO PUBLIC INTEREST RESEARCH GROUP, INC., a non-profit Colorado corporation, et al., Plaintiffs, v. 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.
• Court: U.S. District Court — District of Colorado

373 F. Supp. 991

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

February 15, 1974.

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.

MEMORANDUM OPINION GRANTING SUMMARY JUDGMENT

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."

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 of producing or utilizing special nuclear material."

42 U.S.C. § 2014(z) defines "source material" as "(1) uranium, thorium, or any other material which is determined by the Commission pursuant to the provisions of section 61 to be source material; or (2) ores containing one or more of the foregoing materials, in such concentration as the Commission may by regulation determine from time to time."

42 U.S.C. § 2014(aa) defines "special nuclear material" as "(1) plutonium, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 51, determines to be special nuclear material, but does not include source material; or (2) any material artificially enriched by any of the foregoing, but does not include source material."

The Federal Water Pollution Control Act 33 U.S.C. § 1362(6) defines pollutants, and, included in a list of specified pollutants are "radioactive materials." The Environmental Protection Agency has in effect defined the "radioactive materials" included under its control in 38 Fed.Reg. 13530, published May 22, 1973:

". . . 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, byproduct or special nuclear materials as defined by the Atomic Energy Act of 1954."

At the outset, plaintiffs face the hurdle that two agencies of peculiar and extreme expertise reach a conclusion diametric to the position of plaintiffs, and, certainly, the determinations of these agencies in this highly technical area are entitled to great weight. The height of the hurdle which plaintiffs must clear is not lowered by their flailing at the alleged incompetence of the AEC and by their charges that the AEC is impervious to the need for environmental protection and to the requirements of public safety. Such may be plaintiffs' views, but I am more persuaded by the comments of Chief Judge Arraj in Crowther v. Seaborg, D.C., 312 F.Supp. 1205, 1235, and, by the conclusions of Judge Hill in Crowther v. Seaborg, 10 Cir., 415 F.2d 437:

". . . the Atomic Energy Commission and the other cooperating governmental agencies are exercising the highest degree of care, caution and expertise to prevent any possible damage to life, property and natural resources."

Significantly, in the 90 pages of brief and supporting material filed by plaintiffs, no mention is made of either decision in Crowther v. Seaborg, but I am more inclined to adopt the view of our Chief Judge and the views of the Tenth Circuit than I am the views of the author of some obscure magazine article relied upon in plaintiffs' brief. I totally reject all arguments that the AEC and the EPA are not doing their best to protect the public health, safety and welfare. With the rejection of those arguments, there is not a great deal left of plaintiffs' brief, and, both parties being in agreement that there is no genuine issue of material fact, I grant defendants' motion for summary judgment. I grant it for these reasons:

1. Although plaintiffs can winnow a little solace from the 1725 pages of legislative history of the Water Pollution Control Act Amendments of 1972, the history overwhelmingly favors the interpretation placed on the Act and, more particularly, on § 502 of the Act, by the AEC and the EPA. That interpretation, oversimplified, is that the AEC has the exclusive jurisdiction over effluents from "source," "byproduct" and "special" nuclear materials. This legislative history must be read with the thought in mind that 33 U. S.C. § 1362(6) mentions "radioactive materials," but it doesn't say all radioactive materials, and, with this thought in mind the legislative history convinces me that Congress didn't intend to give the EPA

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