Waste Action Project v. Dawn Mining Corp.

No. 96-36055 (137 F.3d 1426, 46 ERC 1257) (9th Cir. March 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.

[28 ELR 21036]

Brunetti, J.

Opinion

The issue in this case is whether the Environmental Protection Agency (EPA) has authority under the Clean Water Act (CWA) to regulate the discharge of uranium mill tailings into the nation's waterways. In statutory terms, the question is whether uranium mill tailings are "pollutants" within the meaning of the CWA. The district court, in granting defendant mining companies' motion for summary judgment, answered this question in the negative. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.

I. Background

Dawn Mining Corporation (Dawn) began milling uranium at the Ford, Washington, site at issue in 1957. Until 1965, Dawn operated the site pursuant to a Source Material License granted by the Atomic Energy Commission. In 1969, Dawn resumed uranium processing under a Radioactive Materials License issued by the State of Washington. Dawn ceased milling operations in 1982.

Milling uranium concentrates the ore to produce material with substantially higher concentrates of uranium than that contained by the original ore. This process also generates significant amounts of byproduct materials known as tailings which contain residual levels of uranium. Dawn has disposed of tailings from the milling process at tailings disposal areas (TDAs) at the millsite. There are four TDAs currently at the site. From 1957 to 1965, Dawn disposed of tailings at TDAs 1 and 2, and from 1969 to 1981, at TDA 3. TDAs 1-3 are above-ground unlined disposal areas. As a result, contamination from the mill tailings disposed at these TDAs has migrated into groundwater and nearby Chamokane Creek.

In 1981, Dawn constructed a lined below-ground impoundment area, TDA 4, with the capacity to store up to forty-four million cubic feet of mill tailings. TDA 4 was the subject of an Environmental Impact Statement (EIS) prepared by the Washington Department of Social and Health Services. By 1982, when Dawn ceased milling operations, approximately four million cubic feet of tailings had been stored at TDA 4. According to Dawn, tailings disposed of at TDA 4 have not leaked or otherwise been released.

Since 1982, Dawn has worked with federal and state agencies to develop a Closure Plan for the millsite. The Closure Plan includes a comprehensive remedial program that addresses the surface and groundwater contamination resulting from leakage at TDAs 1-3 and requires Dawn to remove contaminated groundwater. Dawn has constructed a system of lined evaporation ponds on top of TDAs 1-3. The ponds are intended to serve as partial caps and reduce further infiltration of water into the tailings material underneath. Dawn will pump contaminated groundwater from the aquifer into the lined evaporation ponds. When pumping groundwater is no longer necessary and the evaporation is complete, Dawn intends to close the ponds and construct a reclamation cover over the TDAs.

Dawn's Closure Plan has undergone extensive regulatory review. The Department of Health established a Technical Advisory Committee to analyze the closure proposal, which included representatives from state and federal agencies, the Spokane Indian Tribe, and local citizens. The Department of Health also held numerous public hearings regarding the Plan, and prepared a lengthy EIS and Supplemental EIS (SEIS) in connection with its review of the Closure Plan. Copies of the EIS and SEIS were made available to the public. In February 1995, the Department of Health approved the Closure Plan and issued Dawn an amended radioactive material license authorizing closure of the millsite.

In 1994, Greg Wingard and Richard Smith formed Waste Action Project (WAP), the appellant in this action. WAP filed this Clean Water Act suit on February 20, 1996, against Dawn Mining Corporation and later amended its complaint to join Newmont Mining Company and Newmont Gold Company. The amended complaint alleges that Dawn is discharging pollutants into Chamokane Creek without a National Pollutant Discharge Elimination System permit (NPDES permit) in violation of the Clean Water Act (CWA). WAP alleges that wastes containing uranium, silica, heavy metals, sulfates, phosphates, chlorides, and other chemicals leaked from TDAs 1-4 into the groundwater and eventually to Chamokane Creek. Thus, WAP alleges that the discharge of these wastes into Chamokane Creek constitutes a violation of the CWA because Dawn does not possess a[n] NPDES permit authorizing such discharges.

The Mining Companies moved for summary judgment and the district court ruled that the uranium mill tailings and associated wastes identified by WAP are "byproduct material" as defined in section 11(e)(2) of the Atomic Energy Act (AEA), 42 U.S.C. § 2014(e)(2), and hence are not "pollutants" under the CWA. We agree.

II. Discussion

We review decisions granting summary judgment de novo to determine whether there are any genuine issues of material fact and whether the district court properly applied the relevant substantive law. Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997). Matters of statutory interpretation are also reviewed de novo. See United States v. Eaton, 31 F.3d 789, 791 (9th Cir. 1994).

This appeal presents a purely legal question of statutory interpretation. That is, whether uranium mill tailings are "pollutants" for purposes of the Clean Water Act's NPDES permit requirements. As a general rule, we look first to the plain language of the statute. However, where issues of interpretation of the CWA are involved, the United States Supreme Court opinion in Train v. Colorado Public Int. Research Group, 426 U.S. 1 [6 ELR 20549] (1975), governs. Train specifically commands that in discerning the meaning of the language of the CWA, we must also look to the CWA's legislative history. Id. at 9-11. The Court in Train went even further, holding that to not look at legislative history would be reversible error. See id.

In Train, the Supreme Court addressed an issue virtually identical to that before our court today, specifically, whether the [EPA] had authority under the Federal Water Pollution Control Act (FWPCA), now known as the [CWA], to regulate discharge of nuclear waste materials subject to regulation by the Atomic Energy Commission and its successors under the Atomic Energy Act. The Court held unanimously that Congress did not intend for materials governed by the Atomic Energy Act to be included in the category of "pollutants" subject to regulation by the EPA under the FWPCA. Id. at 25.

A brief review of the legislative backdrop is necessary to appreciate the significance of Train in the present statutory context. The Clean Water Act was promulgated in 1972. It requires that an NPDES permit be obtained before discharging "pollutants" into navigable waters. 33 U.S.C. § 1311. "Pollutant" is defined as:

dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.

33 U.S.C. § 1362(6).