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Waste Action Project v. Dawn Mining Corp.

ELR Citation: 28 ELR 21035
Nos. 96-36055, 137 F.3d 1426/46 ERC 1257/(9th Cir., 03/10/1998)

The court holds that the U.S. Environmental Protection Agency (EPA) does not have the authority to regulate the discharge of uranium mill tailings into the nation's waterways under the Federal Water Pollution Control Act (FWPCA). The court first holds that uranium mill tailings are not pollutants for purposes of the FWPCA. The FWPCA's prohibition against unpermitted discharge applies to pollutants only. EPA explicitly excludes radioactive materials regulated under the Atomic Energy Act (AEA) from the definition of pollutant, thereby putting these materials outside the scope of EPA enforcement. EPA regulations further provide that radioactive materials covered by the AEA are those encompassed in its definition of source, byproduct, or special nuclear materials. When Congress amended the AEA by enacting the Uranium Mill Tailings Radiation Control Act (UMTRCA) in 1978, it explicitly included uranium mill tailings in the definition of byproduct material.

The court next rejects the argument that the AEA, as amended by the UMTRCA, preserves EPA regulatory control over uranium mill tailings pursuant to enactment of the FWPCA because such tailings were not explicitly included in the AEA at the time the FWPCA was enacted. A plain reading of the statutes shows that uranium mill tailings are not within the scope of EPA regulations. While it is true that uranium mill tailings were not explicitly included in the definition of byproducts under the AEA at the time the FWPCA was enacted, AEA §11(e)(2) as amended does include uranium mill tailings in the definition of byproducts of radioactive materials. And EPA regulations exclude byproduct materials as defined in §11(e)(2) from the definition of pollutant under the FWPCA. In addition, Congress never intended to require national pollutant discharge elimination system permits for materials regulated under the AEA.

The court also rejects the argument that the savings clause of the UMTRCA, which states that nothing in the Act changes EPA's existing regulatory powers, impliedly asserts that EPA has regulatory authority over uranium mill tailings because mill tailings were not previously defined as byproducts. The UMTRCA was enacted in part to close a regulatory gap by giving the Nuclear Regulatory Commission (NRC) the express authority to regulate mill tailings at inactive sites. The savings clause did not take from the NRC the explicit power it had just been given. Additionally, each time EPA revised and repromulgated the FWPCA's implementing regulations, it clearly stated that materials regulated under the AEA as amended are excluded from the FWPCA's definition of pollutant. Finally, in Train v. Colorado Public Interest Research Group, 426 U.S. 1, 6 ELR 20549 (1975), the U.S. Supreme Court unanimously held that Congress did not intend for materials governed by the AEA to be included in the category of pollutants subject to regulation by EPA under the FWPCA. Although the Court's decision predates the AEA's amendments including uranium mill tailings as byproduct material, the legislative history relied on by the Court speaks with equal force today.

Counsel for Plaintiff
Richard A. Smith
Smith & Lowney
506 2nd Ave., Ste. 1108, Seattle WA 98104
(206) 624-0893

Counsel for Defendants
Jeffrey W. Leppo
Bogle & Gates
Two Union Sq.
601 Union St., Seattle WA 98101
(206) 682-5151

Before Rymer and Kleinfeld, JJ.