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 |
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.
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,
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:
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:
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