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TRAIN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, ET AL. v.
COLORADO PUBLIC INTEREST RESEARCH GROUP, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
Argued December 9, 1975
Decided June 1, 1976
The Federal Water Pollution Control Act (FWPCA) makes it unlawful to discharge "pollutants" into navigable waters without a permit from the Administrator of the Environmental Protection Agency (EPA), and defines the term "pollutant" to include, inter alia, "radioactive materials." The Atomic Energy Act (AEA) regulates the production, possession, and use of three types of radioactive materials - source, byproduct, and special nuclear materials - and pursuant to its authority under the AEA the Atomic Energy Commission (AEC) (now succeeded in this capacity by the Nuclear Regulatory Commission) has issued regulations governing the discharge of such materials into the environment by AEA licensees. After the EPA Administrator had disclaimed any authority under the FWPCA to regulate the discharge of these three types of radioactive materials covered by the AEA, respondents, who claimed potential harm from the discharge of radioactive effluents from two nuclear plants in Colorado operated in conformity with AEC standards, brought suit against petitioners, [426 U.S. 1, 2] the EPA and its Administrator, seeking a declaration that the definition of "pollutant" under the FWPCA encompasses all radioactive materials, including those regulated under the AEA, and an injunction directing petitioners to regulate the discharge of all such materials. The District Court held that the AEC had exclusive authority to regulate discharges of radioactive materials covered by the AEA, but the Court of Appeals reversed, holding, exclusively by reference to the FWPCA'S language and without reference to its legislative history, that the FWPCA requires the EPA to regulate discharges of all radioactive materials, including those covered by the AEA. Held:
MARSHALL, J., delivered the opinion of the Court, in which all Members joined except STEVENS, J., who took no part in the consideration or decision of the case.
Deputy Solicitor General Randolph argued the cause for petitioners. With him on the brief were Solicitor General Bork, Assistant Attorney General Johnson, Harriet S. Shapiro, Raymond N. Zagone, Dirk D. Snel, and Robert V. Zener.
David C. Mastbaum argued the cause for respondents. [426 U.S. 1, 3] With him on the brief were Richard Cotton and David E. Engdahl. *
[ Footnote * ] Henry V. Nickel and Marx Leva filed a brief for the Boston Edison Co. et al. as amici curiae urging reversal.
Michael S. Baram, pro se, filed a brief for Michael S. Baram et al. as amici curiae urging affirmance.
A brief of amici curiae was filed by Evelle J. Younger, Attorney General, Robert H. O'Brien, Assistant Attorney General, and Nicholas C. Yost, C. Foster Knight, and Janet I. Motley, Deputy Attorneys General, for the State of California, joined by the Attorneys General and other officials for their respective States as follows: John P. Moore, Attorney General of Colorado, and David Robbins, First Assistant Attorney General; Robert L. Shevin, Attorney General of Florida, and Kenneth F. Hoffman, Assistant Attorney General; Curt Schneider, Attorney General of Kansas, and Thomas Wobker, Assistant Attorney General; Francis B. Burch, Attorney General of Maryland, and Warren K. Rich, Assistant Attorney General; Francis X. Bellotti, Attorney General of Massachusetts; Frank J. Kelley, Attorney General of Michigan, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman, Assistant Attorney General; Warren R. Spannaus, Attorney General of Minnesota, Peter W. Sipkins, Solicitor General, and Eldon G. Kaul, Assistant Attorney General; John C. Danforth, Attorney General of Missouri, and Robert M. Lindholm, Assistant Attorney General; Warren B. Rudman, Attorney General of New Hampshire, and Donald Stever, Assistant Attorney General; Louis J. Lefkowitz, Attorney General of New York, and John Shea III, Assistant Attorney General; Michael Alushin, Attorney General of Pennsylvania; John L. Hill, Attorney General of Texas, and Douglas Caroom, Assistant Attorney General; and Slade Gorton, Attorney General of Washington, and Charles B. Roe, Senior Assistant Attorney General.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is whether the Environmental Protection Agency (EPA) has the authority under the Federal Water Pollution Control Act (FWPCA), as amended in 1972, 86 Stat. 816, 33 U.S.C. 1251 et seq. (1970 ed., Supp. IV), to regulate the discharge into the [426 U.S. 1, 4] Nation's waterways of nuclear waste materials subject to regulation by the Atomic Energy Commission (AEC) and its successors under the Atomic Energy Act of 1954 (AEA). 68 Stat. 919, as amended, 42 U.S.C. 2011 et seq. In statutory terms, the question is whether these nuclear materials are "pollutants" within the meaning of the FWPCA.
Respondents are Colorado-based organizations and Colorado residents who claim potential harm from the discharge of radioactive effluents from two nuclear plants - the Fort St. Vrain Nuclear Generating Station and the Rocky Flats nuclear weapons components plant. These facilities are operated in conformity with radioactive effluent standards imposed by the AEC pursuant to the Atomic Energy Act. The dispute in this case arises because the EPA has disclaimed any authority under the FWPCA to set standards of its own to govern the discharge of radioactive materials subject to regulation under the AEA. Respondents, taking issue with the EPA'S disclaimer of authority, brought this suit against petitioners, the EPA and its Administrator, under 505 of the FWPCA, 33 U.S.C. 1365 (1970 ed., Supp. IV), which authorizes "citizen suits" against the Administrator for failure to perform nondiscretionary duties under the FWPCA. They sought a declaration that the definition of a "pollutant" under the FWPCA encompasses all radioactive materials, including those regulated under the terms of the AEA, and an injunction directing the EPA and its Administrator to regulate the discharge of all such radioactive materials.
On cross-motions for summary judgment, the United States District Court for the District of Colorado held that the AEC had exclusive authority to regulate discharges of radioactive materials covered by the AEA. [426 U.S. 1, 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 waters of all radioactive materials, including those covered by the AEA. 507 F.2d 743 (1974). Because of the importance of the issue involved in this case, we granted certiorari. 421 U.S. 998 (1975). We now reverse.
Since 1946, when the first Atomic Energy Act was passed, 60 Stat. 755, the Federal Government has exercised control over the production and use of atomic energy through the AEC - replaced since the commencement of this litigation by the Nuclear Regulatory Commission (NRC) and the Energy Research and Development Administration (ERDA). 1 Under the AEA, private parties are permitted to engage in the production of atomic energy for industrial or commercial purposes, but only in accordance with licenses issued by the AEC (NRC) in the furtherance of the purposes of the Act. 42 U.S.C. 2133.
The comprehensive regulatory scheme created by the AEA embraces the production, possession, and use of three types of radioactive materials - source material, 2 [426 U.S. 1, 6] special nuclear material, 3 and byproduct material. 4 In carrying out its regulatory duties under the AEA, the AEC is authorized to establish "such standards . . . as [it] may deem necessary or desirable . . . to protect health or to minimize danger to life or property." 42 U.S.C. 2201 (b). See also 42 U.S.C. 2073 (b), (e), 2093 (b), 2111, 2133 (a), (d), 2134 (d). Pursuant to this authority, the AEC (NRC) has established by regulation maximum permissible releases of source, byproduct, and special nuclear materials into the environment by licensees. 10 CFR 20.106 and App. B, Table II (1976). The regulations further provide that licensees should, in addition to complying with the established limits, "make every reasonable effort to maintain . . . releases of radioactive materials in effluents . . . as low as is reasonably achievable." 10 CFR 20.1 (c) (1976). Similarly, the regulations require that nuclear facilities be designed to keep levels of radioactive material in effluents "as low as is reasonably achievable." 10 CFR 50.34a (1976). See also 10 CFR 50.36a, 50.57 (a) (3), (6) (1976). 5 [426 U.S. 1, 7]
The FWPCA established a regulatory program to control and abate water pollution, stating as its ultimate objective the elimination of all discharges of "pollutants" into the navigable waters by 1985. In furtherance of this objective, the FWPCA calls for the achievement of effluent limitations that require applications of the "best practicable control technology currently available" by July 1, 1977, and the "best available technology economically achievable" by July 1, 1983. 33 U.S.C. 1311 (b) (1970 ed., Supp. IV). These effluent limitations are enforced through a permit program. The discharge of "pollutants" into water is unlawful without a permit issued by the Administrator of the EPA or, if a State has developed a program that complies with the FWPCA, by the State. 6 33 U.S.C. 1311 (a), 1342 (1970 ed., Supp. IV).
The term "pollutant" is defined by the FWPCA to include, inter alia, "radioactive materials." 7 But when [426 U.S. 1, 8] the Administrator of the EPA adopted regulations governing the permit program, 40 CFR, pt. 125 (1975), he specifically excluded source, byproduct, and special nuclear materials - those covered by the AEA - from the program upon his understanding of the relevant legislative history of the FWPCA:
The Court of Appeals resolved the question exclusively by reference to the language of the statute. It observed that the FWPCA defines "pollution" as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water." 33 U.S.C. 1362 (19) (1970 ed., Supp. IV). And it noted that the reference to "radioactive materials" in the definition of "pollutant" was without express qualification or exception, despite the fact that the overall definition of "pollutant" does contain two explicit exceptions. 9 The court concluded from this analysis of the language that by the reference to "radioactive materials" Congress meant all radioactive materials. The court explained:
Before turning to the various legislative materials, however, we pause to consider an additional argument asserted by respondents on the basis of the language of the statute. Section 1311 (f), they note, provides as follows:
The legislative history of the FWPCA speaks with force to the question whether source, byproduct, and special nuclear materials are "pollutants" subject to the Act's permit program. The House Committee Report was quite explicit on the subject:
Respondents claim to find in the Senate Committee Report an indication that the statutory definition of "pollutant" embraces radioactive materials subject to AEA regulation. Section 306 of the Senate bill, which corresponds to 33 U.S.C. 1316 (1970 ed., Supp. IV), required that the EPA Administrator establish "standards of performance" with respect to the discharge of pollutants from specified categories of sources, to be revised from time to time by the Administrator. The Senate Committee Report noted that nuclear fuels processing plants were not included, because the EPA did not then have "the technical capability to establish controls for such plants." S. Rep. No. 92-414, p. 59 (1971), 2 Leg. Hist. 1477. The Report then observed that the Committee "expects that EPA will develop the capability," and continued:
We agree with the petitioners that the Senate Committee statement is addressed to the inclusion of nuclear fuels processing plants in the category of sources subject to the EPA'S control, not to the inclusion of any particular materials within the definition of "pollutant." It is true that the reference to the development of control levels by the Bureau of Radiological Health 11 does permit the inference that the Committee was contemplating controls over the discharge of AEA-regulated radioactive materials. Still, we are not prepared to attribute greater significance to this inference than to the more explicit statement contained in the House Committee Report, a statement that, as we shall see, is amply [426 U.S. 1, 14] supported by the discussion on the floors of the House and the Senate.
A colloquy on the Senate floor between Senator Pastore, the Chairman of the Joint Committee on Atomic Energy, and Senator Muskie, the FWPCA'S primary author, provides a strong indication that Congress did not intend the FWPCA to alter the AEC'S control over the discharge of source, byproduct, and special nuclear materials. Senator Pastore, referring to the need to define what materials are "subject to control requirements" under the FWPCA, noted that the definition of "pollutant" included the words "radioactive materials." 2 Leg. Hist. 1265. The following exchange then took place:
The thrust of Senator Muskie's assurances that the FWPCA would not "in any way affect" the regulatory powers of the AEC was, we think, that the AEC was to retain full authority to regulate the materials covered by the AEA, unaltered by the exercise of regulatory authority by any agency under the FWPCA. This conclusion is reinforced by Senator Muskie's reference to the case of Northern States Power Co. v. Minnesota, 447 F.2d 1143 (CA8 1971). In that case, which was subsequently [426 U.S. 1, 16] affirmed summarily by this Court, 405 U.S. 1035 (1972), the Eighth Circuit had held that the AEA created a pervasive regulatory scheme, vesting exclusive authority to regulate the discharge of radioactive effluents from nuclear power plants in the AEC, and pre-empting the States from regulating such discharges. The absence of any room for a state role under the AEA in setting limits on radioactive discharges from nuclear power plants 12 stands in sharp contrast to the scheme created by the FWPCA, which envisions the development of state permit programs, 33 U.S.C. 1342 (b), (c) (1970 ed., Supp. IV), and allows the States to adopt effluent limitations more stringent than those required or established under the FWPCA. 33 U.S.C. 1370 (1970 ed., Supp. IV). See also 33 U.S.C. 1311 (b) (1) (C), 1314 (b), 1316 (c), 1341 (a) (1) (1970 ed., Supp. IV). 13 Senator [426 U.S. 1, 17] Muskie's specific assurance to Senator Pastore that the FWPCA would not affect existing law as interpreted in Northern States can only be viewed, we think, as an indication that the exclusive regulatory scheme created by the AEA for source, byproduct, and special nuclear materials was to remain unaltered. 14
In the course of the House's consideration of the FWPCA, an unsuccessful attempt was made to alter the AEA'S scheme for regulating the discharge of the radioactive materials involved in this case. Representative Wolff proposed to amend what is now 33 U.S.C. 1370 (1970 ed., Supp. IV), which gives States the authority to set more stringent limits on the discharge of pollutants, by adding a paragraph giving the States the authority to regulate the discharge of radioactive wastes from nuclear power plants. The debate on that amendment and its defeat by a 3-to-1 vote provide solid [426 U.S. 1, 18] support for the conclusion that the FWPCA'S grant of regulatory authority to the EPA and the States did not encompass the control of AEA-regulated materials.
The Wolff amendment, according to its author, would "give the States a voice in deciding what kinds and amounts of such radioactive wastes may be discharged into their waters." 1 Leg. Hist. 544. In explaining the need for such an amendment, Representative Wolff noted that the time had come "to seriously consider standards more stringent than those promulgated by the AEC." Id., at 545. Representative Frenzel, a co-sponsor of the amendment, pictured it as an attempt to alter the result in the Northern States case. The AEC, he explained, could not be expected to protect the health and safety of the public as effectively as the States, because "the AEC has a dual mission - that of promotion as well as safety." 1 Leg. Hist. 548. 15
The opponents of the Wolff Amendment voiced strong opposition to the transfer of the AEC'S regulatory authority to the States or to the EPA. Representative Stanton, a Member of the House Committee on Public Works, which reported the House bill, stated:
The House's rather explicit statement of intent to exclude AEA-regulated materials from the FWPCA was unchallenged by the Conference Committee, which simply retained the same reference to "radioactive materials" contained in both the House and Senate bills. S. Conf. Rep. No. 92-1236, p. 144 (1972), 1 Leg. Hist. 327. Representative Harsha, a ranking member of the Conference Committee, explained the import of the Conference Committee action as follows:
If it was not clear at the outset, we think it abundantly clear after a review of the legislative materials that reliance on the "plain meaning" of the words "radioactive materials" contained in the definition of "pollutant" in the FWPCA contributes little to our understanding of [426 U.S. 1, 24] whether Congress intended the Act to encompass the regulation of source, byproduct, and special nuclear materials. To have included these materials under the FWPCA would have marked a significant alteration of the pervasive regulatory scheme embodied in the AEA. Far from containing the clear indication of legislative intent that we might expect before recognizing such a change in policy, cf. United States v. United Continental Tuna Corp., 425 U.S. 164, 168 -169 (1976), the legislative history reflects, on balance, an intention to preserve the pre-existing regulatory plan. 20 [426 U.S. 1, 25]
We conclude, therefore, that the "pollutants" subject to regulation under the FWPCA do not include source, byproduct, and special nuclear materials, and that the EPA Administrator has acted in accordance with his statutory mandate in declining to regulate the discharge of such materials. The judgment of the Court of Appeals is
[ Footnote 2 ] "The term `source material' means (1) uranium, thorium, or any other material which is determined by the Commission pursuant to the provisions of section 2091 of this title to be source material; [426 U.S. 1, 6] 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 (z).
[ Footnote 3 ] "The term `special nuclear material' means (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 2071 of this title, 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." 42 U.S.C. 2014 (aa).
[ Footnote 4 ] "The term `byproduct material' means 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 (e).
[ Footnote 5 ] The Fort St. Vrain Nuclear Generating Station is owned and operated by an NRC licensee, and is accordingly bound by the AEC (NRC) regulations. The Rocky Flats plant is a federal [426 U.S. 1, 7] facility operated for the ERDA by a private contractor to fabricate plutonium into nuclear weapon parts. The ERDA is also responsible for the operation of approximately 24 other facilities that discharge low levels of source, byproduct, and special nuclear materials. All of these facilities are required to conform to the same effluent standards established by the NRC for commercial facilities. Executive Order No. 11752, 4 (a) (6), 3 CFR, p. 384 (1974).
[ Footnote 6 ] The permit program of Colorado, where this case originated, was approved by the EPA on April 8, 1975. 40 Fed. Reg. 16713.
[ Footnote 7 ] "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 [426 U.S. 1, 8] located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources." 33 U.S.C. 1362 (6) (1970 ed., Supp. IV).
[ Footnote 8 ] Respondents suggest that the EPA'S original interpretation of the term "radioactive materials" was to the contrary. They note that the initial public notice on the Fort St. Vrain permit application - published before the EPA regulations interpreting the Act to exclude coverage of AEA-regulated radioactive materials - contemplated the imposition of limitations on the discharge of "liquid radioactive wastes." Since we do not depend upon the EPA interpretation of the Act in reaching our conclusion, it is unnecessary to consider whether any alleged inconsistencies in the EPA'S position warrant our treating it with less deference than would otherwise be the case. See, e. g., Train v. Natural Resources Defense Council, 421 U.S. 60, 87 (1975); Udall v. Tallman, 380 U.S. 1, 16 -18 (1965).
[ Footnote 9 ] See n. 7, supra.
[ Footnote 10 ] Citations to "Leg. Hist." refer to a two-volume Committee print for the Senate Committee on Public Works, A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. (1973).
[ Footnote 11 ] The Bureau of Radiological Health was transferred to the EPA from the Department of Health, Education, and Welfare pursuant to 2 (a) (3) (ii) (C) of Reorganization Plan No. 3 of 1970, which established the EPA. 84 Stat. 2087, 5 U.S.C. App., p. 610.
[ Footnote 12 ] The AEA, as amended in 1959, 73 Stat. 688, 42 U.S.C. 2021, does permit the States to assume, pursuant to agreements with the AEC, a limited role in regulating source and byproduct materials, and special nuclear materials in quantities not sufficient to form a critical mass. But state regulatory programs must be compatible with the AEC'S regulatory program, 2021 (d) (2), and States are precluded from playing any role in several significant areas of regulation - including the setting of limitations on radioactive discharges from nuclear power plants. 2021 (c) (1); Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1149 n. 6 (CA8 1971).
[ Footnote 13 ] Section 101 (b) of the FWPCA, 33 U.S.C. 1251 (b) (1970 ed., Supp. IV), provides generally:
[ Footnote 14 ] Respondents contend that a discussion between Senator Buckley and Senator Muskie on the Senate floor is indicative of an intent to permit the EPA to regulate the discharge of AEA-regulated radioactive materials. Senator Buckley expressed concern about 511 (c) (2) (B) of the FWPCA, 33 U.S.C. 1371 (c) (2) (B) (1970 ed., Supp. IV), which precludes agencies other than EPA from "impos[ing], as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to this chapter." Referring to recent action by the AEC to control thermal pollution of the Hudson River, Senator Buckley asked Senator Muskie whether 511 (c) (2) (B) would bar AEC decisions "of this type" setting tougher limitations than those prescribed by the EPA. Senator Muskie's response was that the AEC would be required to abide by EPA effluent limitations controls "with respect to the subject matter which the Senator has raised." 1 Leg. Hist. 198. The subject matter raised was thermal pollution, and we do not interpret Senator Muskie's response as suggesting that a similar conclusion would be reached with respect to pollution by AEA-regulated radioactive materials.
[ Footnote 15 ] See also 1 Leg. Hist. 552 (remarks of Rep. Hungate), 555 (remarks of Rep. McClory).
[ Footnote 16 ] See also id., at 546-547 (remarks of Rep. Holifield); 553 (remarks of Rep. Hosmer); 553 (remarks of Rep. Clausen); 557 (remarks of Rep. Harsha).
[ Footnote 17 ] In addition to the comments of Representatives Stanton and McCormack, quoted above, see id., at 587-588 (remarks of Reps. Holifield, Jones, Harsha, and Hosmer).
[ Footnote 18 ] The statements of Representatives Wolff and Frenzel referred to above suggest that they recognized the absence of any role for the EPA in regulating the materials in question. In explaining the need to vest regulatory power in the States, they both referred to the inadequacy of regulation by the AEC, without any mention of the prospect of regulation by the EPA.
It should not escape mention that one supporter of the Wolff amendment, Representative McClory, urged its adoption "in order to make eminently clear that we are controlling nuclear . . . pollution in this bill." Id., at 555. To the extent that this statement suggested that the amendment merely clarified what the House bill already provided, it is a far less persuasive indicator of legislative intent than the contrary statements by the successful opponents of the amendment. Similarly, Representative Frenzel's statement the day after the Wolff amendment was defeated that the FWPCA applied to AEA-regulated radioactive materials, 1 Leg. Hist. 745-746, is not entitled to great weight.
[ Footnote 19 ] We also note that in the course of its consideration of the Energy Reorganization Act of 1974, 88 Stat. 1233, which created the NRC and ERDA, the House rejected an amendment that would have transferred from those agencies to the EPA the authority to set emission standards for source, byproduct, and special nuclear materials. 119 Cong. Rec. 42615-42616 (1973).
[ Footnote 20 ] It does not follow, however, that the EPA has no role to play in protecting the environment from excessive radiation attributable to AEA-regulated materials. The EPA was established by Reorganization Plan No. 3 of 1970, 84 Stat. 2086, 5 U.S.C. App., p. 609. Among the functions transferred to the EPA under the plan were: