Colorado Public Interest Research Group, Inc. v. Train, Civ. A. No. C-5438.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation373 F. Supp. 991
Docket NumberCiv. A. No. C-5438.
PartiesCOLORADO 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.
Decision Date15 February 1974

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.


373 F. Supp. 992

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."

373 F. Supp. 993

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."

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3 practice notes
  • Train v. Colorado Public Interest Research Group, Inc, No. 74-1270
    • United States
    • United States Supreme Court
    • 1 Junio 1976
    ...of Colorado held that the AEC had exclusive authority to regulate discharges of radioactive materials covered by the AEA. Page 5 373 F.Supp. 991 (1974). The Court of Appeals for the Tenth Circuit reversed, holding that the FWPCA requires the EPA to regulate discharges into the Nation's wate......
  • Colorado Public Interest Research Group, Inc. v. Train, No. 74-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 9 Diciembre 1974
    ...expressed. --------------- * Of the District of Utah, sitting by designation. 1 See Colorado Public Interest Group, Inc. v. Train, 373 F.Supp. 991...
  • Brennan v. Patio Cleaners, Inc., Civ. A. No. 72-278.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 13 Marzo 1974
    ...381 F.2d 653 (5th Cir.), cert. denied sub nom., Home Town Foods v. Wirtz, 390 U.S. 946, 88 S.Ct. 1031, 19 L.Ed.2d 1134 (1967); Beechwood 373 F. Supp. 991 Lumber Co. v. Tobin, 199 F.2d 878, 881 (5th Cir. 1952). The Court therefore concludes that the defendants have violated the overtime prov......
3 cases
  • Train v. Colorado Public Interest Research Group, Inc, No. 74-1270
    • United States
    • United States Supreme Court
    • 1 Junio 1976
    ...of Colorado held that the AEC had exclusive authority to regulate discharges of radioactive materials covered by the AEA. Page 5 373 F.Supp. 991 (1974). The Court of Appeals for the Tenth Circuit reversed, holding that the FWPCA requires the EPA to regulate discharges into the Nation's wate......
  • Colorado Public Interest Research Group, Inc. v. Train, No. 74-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 9 Diciembre 1974
    ...expressed. --------------- * Of the District of Utah, sitting by designation. 1 See Colorado Public Interest Group, Inc. v. Train, 373 F.Supp. 991...
  • Brennan v. Patio Cleaners, Inc., Civ. A. No. 72-278.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 13 Marzo 1974
    ...381 F.2d 653 (5th Cir.), cert. denied sub nom., Home Town Foods v. Wirtz, 390 U.S. 946, 88 S.Ct. 1031, 19 L.Ed.2d 1134 (1967); Beechwood 373 F. Supp. 991 Lumber Co. v. Tobin, 199 F.2d 878, 881 (5th Cir. 1952). The Court therefore concludes that the defendants have violated the overtime prov......

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