TRAIN v. COLORADO PUB. INT. RESEARCH GROUP
Legal provision: Federal Water Pollution Control (Clean Water), plus amendments
Argument of Randolph
Chief Justice Warren E. Burger: We will hear arguments next in Train against Colorado Public Interest Group.
Mr. Randolph you may proceed whenever you are ready.
Mr. Randolph: Mr. Chief Justice and may it please the Court.
This case is hereon writ of certiorari to the Court of Appeals for the Tenth Circuit.
The issue is one of statutory interpretation and we believe one of considerable importance.
The question is whether nuclear materials, nuclear waste materials that are already comprehensively controlled and regulated by the success or agencies to the Autonomic Energy Commission are pollutants within the meaning of the Federal Order Pollution Control Act as amended in 1972.
If they are pollutants, the result is that these same nuclear materials will be under the regulatory control of the Environmental Protection Agency and if one accepts the arguments of the Fourteen States who are here in amicus curiae eventually under the control of the individual states.
The case arises as a result of a suit that was brought in October of 1973 in the District Court of Colorado by two organizations representing College students and law students attending school in Colorado and also for individual citizens of the state.
The respondents who are plaintiffs below saw that the declaratory judgment in an injunction against the EPA and its administrator for failing to regulate the particular material, nuclear material that is involved in this case.
They pointed to the fact that they were two nuclear facilities within the State of Colorado.
One was the Fort St. Vrain Generating Power Station which is a nuclear reactor gas-cooled that had, at that time not been yet in operation.
And the other was the Rocky Flats Plant which is a plant that fabricates plutonium for use in weapons.
It is owned by the Federal Government specifically, the Energy Research and Development Administration and run by a private company.
The record here is very, very sparse.
This case was decided on cross motions for summary judgment.
Actually, it could have been judgment on the pleadings.
There were only two things outside the record both of which are in the appendix.
There were only two exhibits in regard to draft permits for the Fort St. Vrain Generating Station.
The District Court granted the Environmental Protection Agencies Motion for summary judgment and this was at the pleading stage.
The Court of Appeals reversed holding that the EPA had the responsibility and duty of regulating the material in question here.
Before I proceed to the argument, I think some statutory background is necessary in light of this very sparse record.
The Atomic Energy Act of 1954 conferred upon the Atomic Energy Commission which is now the Nuclear Regulatory Commission and ERDA complete, extensive, exclusive authority and control over the use and disposal of certain nuclear materials.
These materials fall into three categories of substances which was set forth in the footnotes on our brief at page 20.
First of all source material.
Source material means materials such as Uranium 238 from which nuclear fuel was extracted.
The second kind of material that is involved here is special nuclear material such as fissionable material.
It is Uranium 233, Uranium 235 and plutonium.
The third kind of material in addition to source and special nuclear material is byproduct material.
That means the material that is produced from the fission process itself and made radioactive as a result of that process.
The nuclear regulatory commission has established maximum permissible limits on the releases of radioactivity into the environment by its licensees.
Its licenses further limit to a minute percentage of those maximum limits the amount that an individual licensee like the Fort St. Vrain Generating Station can release into the atmosphere either through the air or through the water.
And of course the Court is familiar with the licensing procedures that the NRC conducts are detailed comprehensive and a great deal of time, manpower spent before a plant, a nuclear generating plan can even be constructed, let alone operated.
After it does get constructed, there is another licensing procedure and so on and so forth.
That essentially in a nutshell is what the Atomic Energy Act does.
The Water Act which was amended in 1972 and in several important respects, has as its basics structure in regard to discharges of pollutants into the water.
One section that absolutely forbids any discharges of any pollutants into the navigable waters of the United States without a permit.
The permit can be issued by EPA as it would have been the case in Colorado in 1973, when this case was started or if a state has adopted pursuant to EPA’s approval, a plan for implementing a permit program then the authority to issue permits is transferred from EPA to the state.
Colorado adapted and approved plan as of April 1975.
It did not have one when this case was began.
So the first point under the Water Act is that no discharge of pollutant without a permit.
The term pollutant is defined in Section 5026 of the Water Act to include radioactive materials and I put quotations around that phrase, “Radioactive Materials.”
This leads to Respondents argument which is essentially set forth in their complaint and as the argument that was adapted by the Tenth Circuit.
The argument is simply this.
Source, special nuclear, byproduct materials under the Atomic Energy Act are radioactive.
No question about it.
I am not sure about that.
Unknown Speaker: Rather radioactive?
Mr. Randolph: There are other ways of producing radioactive material and I am a not scientific expert enough to know what is more or less radioactive.
There is accelerator processes which are not regulated by the Atomic Energy Act.
But they are radioactive.
There is no question about that.
Therefore there are pollutants under the Water Act, therefore they cannot be discharge without a permit at the time from EPA now either from EPA or the State of Colorado.
Therefore EPA must regulate the discharge of the source or special nuclear and byproduct material.
EPA refused to do that and what probably precipitated this suit is the regulation of EPA which is set forth of page 18 of our brief which was adapted in the summer of 1973.
In implementing the Water Act, EPA repeated the statutory language.
The term pollutant means radioactive materials discharged into the water.
However, in a comment, the administrator of EPA stated that the legislative history of the Water Act reflects that the term radioactive materials is included in the definition of pollutant covers, only radioactive materials which are not encompassed in the definition of source byproduct or special nuclear materials and so forth, as covered by the Atomic Energy Act.
This legislative history which is set forth in detail in our brief and also in the amicus brief of the utilities here, which the administrator relied upon which respondents urges Court not to look at and which the Court below indicated could be disregarded.
we think demonstrates conclusively the correctness of EPA’s interpretation of this particular provision in the Water Act.
Before discussing that history however, I would like to discuss and stress a few points that we think are important in approaching this problem.
First of all, that of course on this record, there is no evidence whatsoever and in fact respondents complaint is not even alleged that the successor agencies to the Atomic Energy Commission are in any way improperly failing to perform their duty in regard to the discharge of nuclear material on question.
They do not claim that the minute amount now released could in any way be reduced and indeed there is no allegation that there is even the remotest danger to the health or the environment under the current situation of regulation.
There is nothing indeed in the hearings and the extensive hearings that took place before the Water Act was amended in 1972 but indicates anything in regard to any problem whatsoever from the discharged into the water from nuclear power plants.
As a matter of fact, the only statement that is relevant to that question is quoted at the top of the page 43 of the brief, amicus curiae by the utilities and that statement is from the testimony of Russell Train who was now of course the administrator of EPA and then was Chairman of the Counsel on Environmental Quality and he testified that the existing Atomic Energy Commission Regulation of discharges such as what we are talking about from Nuclear Plants was rigorous and demanded adherence to “the highest possible standards.”
What we are talking about here in light of the Atomic Energy or the successors to the Atomic Energy Commissions Regulations are discharges from Nuclear Power Plants into water and into the air that specifically in regard to the water cannot exceed 5 millirems per person per year.
It has to be less than that.
A rem is a radioactive dose.
I think the average person of the United States receives a dose of 500 rems.
But to give the Court an idea of what 5 millirems means, it means simply this, that if you stood outside of a nuclear power plant that was license and as they have to be by the NRC and took your drinking water, from the water that is discharged in that power plant.
For an entire year, you could not receive a dose of more than 5 millirems which is equal to or less than the radioactivity that you would receive from flying from Washington DC to Denver.
Secondly, in establishing the liquid effluent limitations for Nuclear Power Plants, the Nuclear Regulatory Commission must consider the design and operation of the plant.
What comes out is intermittently related with how the plant is operated and how it is designed reducing the radioactivity discharged into the water could as we stated in our brief result in serious problems in regard to increased gas emissions or solid waste emissions and indeed even safety problems.
And let me give the Court an example of what we mean by this.
The way that these minute fractions of radioactivity get released at all is through an osmosis process.
There are rods that are submitted and stuck into the core of a nuclear reactor.
They contain the radioactive material.
They are made generally of stainless steel.
Water within a loop, this is water that is self-contained circulates around those rods as a cooling process.
Other water flows through to cool that water in the loop.
That is the water that generally is pumped out at the end of the process.
The reason any radioactivity gets out at all is because of a number of things.
Number one there may be microscopic faults in that stainless steel.
There is an osmosis process where there is a transfers, so on and so forth.
There is one way that you do not have to be a scientist to understand of stopping that from happening.
And that is to increase the thickness of the stainless steel rods.
Increase that, the osmosis stops, the faults disappear because of the thickness.
Unfortunately, what that would do is require one thing.
It will require the nuclear generating plant that operate at a higher temperature.
And second of all, it would take more time for that plant to cool down.
If God forbid, there ever were an accident in which the coolant for some reason or another was not working properly and as the scientific material that is cited in all these briefs indicates the most dangerous problem in operating a nuclear power plant is loss of coolant because that is when a problem can occur.
Of course, the NRC follows a rule three generally for every system that is needed, they have three of them.
Everything is bolted on to a power plant, now that can prevent the discharge of radioactivity is now bolted on.
But that gives, I think the Court an idea that what we are talking about here is not simply putting something on the end of a pipe.
The filtered out radioactive waste material.
The Congress itself recognized the interrelationships that I am talking about.
In the Atomic Energy Act itself, Congress specifically stated that the NRC was forbidden in any way to relinquish its authority in regulatory control over the material we are talking about.
Now, with all this in mind and with the fact that we have the Atomic Energy Act on the books now for nearly 20 years at the time of the Water Act was passed.
We think it would be remarkable indeed if Congress directed the EPA to regulate the same nuclear materials for the same purposes that they are being regulated now by the NRC and that it is precisely the same time.
The House Committee Report which is cited on page 38 of our brief, we think demonstrates that Congress intended no such thing.
Report says that the term pollutant is defined in this bill includes radioactive materials.
But these materials are not those encompassed in the definition of source, byproduct or special nuclear materials as defined by the Atomic Energy Act of 1954 as amended and so on and so forth.
The material or the Congress wanted EPA to regulate was the material that was beyond the jurisdiction of what was then the Atomic Energy Commission.
And this was not a statement and a report that was buried away and forgotten, written but not read by the people that were most concerned with this legislation because this statement in the house report was specifically cited and relied upon and later floor debates and specifically in order to defeat an amendment submitted by Congressman Wolfe that would have had the effect submitted on the House Floor that would have had the effect of allowing the States to be able to regulate radioactive discharges from nuclear power plants.
Justice William H. Rehnquist: Of course those two are not necessary completely inconsistent.
Anyone could feel that both EPA and AEC or whatever its successor is should both regulate and still feel that the States are not to regulate.
Mr. Randolph: They are not absolutely inconsistent but I think it is inconceivable that if Congress on the one hand writes a statute and then directs and the report that they are only doing with materials that are not regulated AEC that they would want the EPA to regulate that material too.
And it is also inconceivable I think that in light of the lack of any consideration of what a regulatory scheme would result from two regulations by an agency that on the one hand could only regulate how much comes out and an agency on the other hand that regulates not only that but the design, the operation, the licensing function with no consideration or whatsoever.
I think that the potential for inconsistent regulations would certainly be there.
And it is a potential that we think would be dangerous for the reasons we stated and we also think the Congress gave absolutely no consideration to whatsoever.
And indeed the Wolfe Amendment that I was about to discuss Mr. Justice Rehnquist, one of the basis on which that was opposed is that in this act, we are not dealing with the material that is regulated by the Atomic Energy Commission.
And therefore we are not going to give it to the states.
A number of Congressmen said if we want to deal with that question, let us amend the Atomic Energy Act directly.
Not do it collaterally in which case the legislation should go through the relevant committee, the joint committee on Atomic Energy which handles these particular matters.
The Congressman that spoke up against that amendment were not only Congressman who were members of the joint committee on atomic energy but also members of the public works committee that reported out this bill.
And the amendment that I was speaking of, the Wolfe amendment that was defeated by a three to one margin.
On the Senate side, Senator Pastore who was then chairman of the joint committee on Atomic Energy sought assurances from Senator Muskie who sponsored the bill on the Senate side, that this legislation that they were then considering would in no way affect the regulatory responsibility and control under the Atomic Energy Act.
There is no question whatsoever that if the Environmental Protection Agency is given regulatory authority over the same materials that that will have an effect on the responsibility and authority of the Nuclear Regulatory Commission, on hopes it would not be inconsistent.
But it nevertheless would have an effect.
I think Respondents have sought to and the States also have sought to try to work out some system that would operate when you have this redundant regulatory control for the same purposes of the same material.
Someone has to give way some place and there is no question as I said that that would really be inconsistent with Senator Muskie’s assurances to Senator Pastore that the bill that had in front of them would not have any effect.
When the Conference Committee reported out this bill, two members of the Conference Committee who were in the House of Representatives again assured that the radioactive materials did not include the Atomic Energy Act regulated nuclear materials, confirming the understanding of the representative who asked the question.
We think it is important to remember here that we are dealing with the statute that is directed not regulating the activities of the general public.
What we are dealing herewith is the statute with directions to one person.
The administrator of the of the Environmental Protection Agency, telling him what to regulate and he is a person that Congress I think can in fact trust to know precisely what Congress had in mind.
EPA Administrator was testifying at the hearings.
He was in active participation with this legislation as it was going through.
And I would like to read from what Senator Muskie said on the Senate Floor and this is not quoted in any of the brief so I give the Court the citation.
It is on the second volume of the compiled legislative history on pages 1347 to 1348.
I am taking this out of context.
It has got nothing to do with radioactive material.
But what he is talking about is what the administrator’s responsibility is in defining and in dealing with the very section we are discussing here, the section defining a pollutant.
And Senator Muskie says, I do not want to get into the business of defining or applying these definitions to particular kinds of pollutants.
That is an administrative decision to be made by the administrator, sometimes a particular kind of matter is a pollutant in one circumstance and not in another.
That is a decision to be made.
I am very reluctant to try to make it on the Floor of the senate.
He goes on.
This bill does not prohibit discharges.
It prohibits the discharge of pollutants.
So we get back to what a pollutant is under a particular set of circumstances.
I cannot interpret all the circumstances.
The administrator can do so.
I would like to that to be helpful to my colleague but we are going to have to live it to the judgment of the administrator.
And that is precisely what happened here.
It was left to the judgment of the administrator and he interpreted the legislative history which we think is convincing.
Before I leave that, I would like to mention one other thing which we think is relevant, hardly convincing but when the Nuclear Regulatory Commission and ERDA were formed by the re-organization Act of 1974, an amendment was proposed in the house that would have had the effect of redefining radioactive materials as used in this act to mean materials including those now regulated under the Atomic Energy Act.
The amendment was rejected by voice vote.
The citations were set up at page 49 of our brief.
In other words, in the house at least, Congress voted on the question that is before the Court and rejected amendment to accomplish the result of the Court of Appeals, accomplished here.
That was in December of 1973, a number of months after the suit had been instituted.
Well, before the Court of Appeals’ decision--
Justice William H. Rehnquist: Was it the same Congress that has passed the Water Act or was it the following?
Mr. Randolph: It was the following Congress, Mr. Justice.
I have to check on that.
I am not sure.
Justice Lewis F. Powell: Mr. Randolph before you go on--
Mr. Randolph: Yes Mr. Justice Powell?
Justice Lewis F. Powell: Water Control Act does not create any separate on your commission, as I understand that there is an administrator though, is it not?
Mr. Randolph: The duties of administering the Order Act were given to the administrator of the Environmental Protection Agency.
Justice Lewis F. Powell: So, there is no separate staff created by the Water Control Act?
Mr. Randolph: So far as I am aware, no.
Justice Lewis F. Powell: (Inaudible)
Mr. Randolph: There may be separate commissions for advice on, for example, sewer problems and --
Justice Lewis F. Powell: So only administrative interpretation of the 1974 Act has been by the AEC or it is now called--
Mr. Randolph: EPA.
Justice Lewis F. Powell: EPA?
Mr. Randolph: I might say that as we said in the footnote in our briefs that the views I am expressing to this Court, are the views that are expressed in our brief are concurred in by the Nuclear Regulatory Commission and the Energy and Research Development administration.
They did not file a separate amicus brief because I think that as far as this issue is concerned; all three agencies are for square set that this material that is sought to be regulated here is not within the jurisdiction of the EPA.
Unknown Speaker: The way we have here disavowed by the EPA who is the administrator which is a party here?
Mr. Randolph: Yes, the administrator and the agency itself are the only parties --
Unknown Speaker: The only parties but you say the success of the AEC, the NRC takes a quite consistent position that it does have jurisdiction?
Mr. Randolph: Oh! That is right.
Well, they have no choice.
Regardless of which way this case --
Unknown Speaker: They have in any event?
Mr. Randolph: They have I think in Section 209, two of the Atomic Energy Act, Congress said, you are prohibited from giving up any regulatory authority --
Unknown Speaker: But their jurisdiction is exclusive?
Mr. Randolph: Their jurisdiction had been considered exclusive until the Court of Appeals decided this case below and in fact, as the Court has probably aware, again Mr. Justice Rehnquist, there is a possibility of explaining this but in the Northern States Power case, that was decided by the Eighth Circuit and decided in discussed in the brief, the Court of Appeals there held that the Federal Law, the Atomic Energy Act preempted the States so that one of the reasons was that it was necessary and indeed a legislative history of Atomic Energy Act indicated clearly that it was important for one agency to have exclusive control over this dangerous material.
The Supreme Court, this Court affirmed that decision in 405 U.S.
Unknown Speaker: Are they members of the Nuclear Regulatory Commission appointed for a term of years or they removed well by the president?
Mr. Randolph: I do not know.
Unknown Speaker: It seems that might be of some importance because a response to the argument you just made is that there is one president and presumably if he thinks that two are getting out of coordination, he can coordinate them by removing one or telling one what to do.
On the other hand, if they are fixed--
Mr. Randolph: I know we can remove the EPA administrator.
Unknown Speaker: Yes, but the Nuclear Regulatory Commission has fixed terms.
I supposed under Humphrey's Executor , he could not remove them just because they did not like what they were doing?
Mr. Randolph: I suppose it is right.
I do not know the answer to that question but I would be happy to send a letter to the Court.
The role of the Court of Appeals below of course was the same role that the EPA administrator has in this case that was to effectuate Congress’ intention in this Act.
I have a note that says they are appointed to a five-year term.
And that was to effectuate Congress’ will here.
The Court below was looking at the same material, same information, the same statute that the EPA administrator was interpreting.
There is an argument here that is put forth that we think it is not really a very proper persuasive argument.
That is that well, if Congress really meant this, they could have said it.
Why did they not write it in?
Well, the fact of the matter is the argument begs the question because Congress if you look through the legislative history and most of the members I would suppose read that report, at least a great many of them did because they relied on the House report and Muskie's exchange, I thought there was no necessity to write it in because they knew or at least they thought what they were dealing with here.
It also is a statement, well, Congress could have said it more clearly that can be made in every statutory interpretation case.
Congress can always speak more clearly but that statement really imposes upon Congress some sort of obligation to write in detail every problem and solve every problem that comes up by writing it into this language of the Act.
The Court of Appeals role in this case was not to impose that kind of a requirement on Congress but to effectuate what his will is.
Unknown Speaker: (Inaudible) It will all be whatever this new agency success for the Atomic Energy Commission were to say, no you cannot introduce this, and EPA were to say yes, you can.
It could have a conflict between the two agencies as particular radioactive material?
Mr. Randolph: Absolutely.
Absolutely, it is not clear who would control that situation.
I suppose there has been a lot of thought that it would be the lesser whoever says you can introduce the less.
The least is the one that controls because by doing that you always satisfy the, one agency says 5 millirems in the EPA says four and then you do four because that satisfies EPS.
I might say that EPA as a result of this decision, if it is reversed, it does not mean that the environmental protection agency has no role to play in regulating radioactive material.
I think we pointed out in footnote 26 on Page 37 of our brief, some of the areas that the EPA still has to regulate.
One of the things we mentioned was that EPA was preparing effluent limitation for radium, uranium, and thorium released in ore mining operations which are not controlled in any way by the Atomic Energy Act.
I might mention to the Court that these regulations, proposed regulations by EPA have now been published on November 6, 1975.
The citation is 40 Federal Register 51722 and of course the EPA still has regulatory authority to set what is known as the ambient radiation limits and they have done that as we mentioned on page 52 of our brief.
Unknown Speaker: (Inaudible)
Mr. Randolph: Yes.
Yes, they do.
Unknown Speaker: (Inaudible)
Mr. Randolph: It is sort of like the Clear Air Act System where the EPA set the ambient quality and then air quality and then --
Unknown Speaker: The EPA there states do not have the right for specific source, limitations except their own?
Mr. Randolph: Well, the states do regulate the discharge--
Unknown Speaker: I know but at least one authority can decide on what is the specific source that may contribute to the pollution of the air.
Here, the Atomic Energy Commission wants to permit the release of certain amount of radioactive materials?
It may do so right up to the very limit of the EPA General Standard.
Mr. Randolph: That is right.
Unknown Speaker: No one else --
Mr. Randolph: Well, no, May it please the court, the EPA General Standards apply to the release of radioactive material from the sources that are governed by the NRC.
So, when they say -- what they set is a 25-millirem standard.
Justice Byron R. White: Does the EPA set specific standards for release from a specific plan?
Mr. Randolph: No, that was a question that arose in the administration Mr. Justice White.
Justice Byron R. White: The Water Act?
Mr. Randolph: That is right.
I might just say that the question that you are asking arose not under the Water Act, before the Water Act was even passed, that question arose because EPA was given authority under the authority under the Federal Radiation Counsel who set these standards and there were some question.
We mentioned the Ash Memorandum that arose within the administration about what that did.
Did that gave EPA authority to set points --
Unknown Speaker: The EPA says there can only be a hundred in the water.
And so the Atomic Energy Commission cannot allow specific release anymore than a hundred.
Total came with it, right?
Mr. Randolph: Total, cumulative, right?
Unknown Speaker: Suppose though that there are other sources contributing to the radioactive pollution of radioactive materials of the kind, for example, that you -- so far as I am aware there can be no other sources because this is exclusively -- do you say that there are other kinds of radioactive materials that are not over which the AEC does not have?
Mr. Randolph: Radioactive isotopes which is used mainly in hospitals and I think--
Unknown Speaker: But what about in mines?
Mr. Randolph: The EPA regulates the mining?
Unknown Speaker: So you say that the only sources for radioactive materials would be within the exclusive jurisdiction of AEC?
Mr. Randolph: From man produced radioactive materials other than radioactive isotopes produced by accelerators.
I mean there is radioactivity everywhere, granite buildings have a great deal of radioactivity.
If you sit in the Senate Office Building you get 445 millirems a year.
But as far as man produce radioactivity, that is right.
Unknown Speaker: So, you are saying that the EPA may say that these ten sources can only contribute a hundred. But they cannot say that this is one of the ten sources may only contribute ten?
Mr. Randolph: No, that is right.
Unknown Speaker: Is that what the fight is all about?
Mr. Randolph: Who controls the specific discharge limits from an individual plant?
That is what the question in this case is.
Chief Justice Warren E. Burger: Mr. Mastbaum?
Argument of David C. Mastbaum
Mr. David C. Mastbaum: Mr. Chief Justice and may it please the Court.
The Federal Water Pollution Control Act is a systematic and comprehensive regulatory scheme designed to restore and maintain our nation’s vital water resources, every industrial category and indeed every energy facility in this country is subject to the Federal Water Pollution Control Act and at the present time, every nuclear facility including those subject to regulation on the Atomic Energy Act must obtain a permit pursuant to the Federal Water Pollution Control Act.
What Petitioner seeks is to exclude AEA regulated materials that is radioactive materials subject to the Atomic Energy Act from the existing permits that nuclear facilities must obtain pursuant to the Water Act.
I would like to make three points this morning.
The first is that the objectives and purposes of the Water Act as well as the expressed statutory language clearly mandate that all radioactive materials must be regulated pursuant to that Act.
Second, that when the legislative history of the act is considered fully and in context, it clearly indicates that Congress intended that all radioactive materials be regulated pursuant to the Water Act.
And third, that the pre-emption involved in the Northern States Power decision has no bearing on issues which are presented for review today.
The strategy of the Water Act was to create specific limits on the amount of pollutants that could be discharged into our nation’s water.
To this end, the Act gives the EPA, the sole responsibility to set effluent limitations and specifically states that other Federal permitting and licensing agencies must accept the EPA limitations and cannot set any of their own.
The Water Act specifically defines several terms which indicate that it was the intent of Congress to regulate all radioactive materials.
Thus the Act specifically defines pollutant to include radioactive materials without limitation or exception.
Further, the Act defines pollution.
Pollution includes and this is very important, the man-made or man-induced alteration of the radiological integrity of water.
Third, the Act prohibits the discharge of high level radioactive waste and radiological warfare agents.
Both of these materials are exclusively regulated by the Atomic Energy Act.
And fourth, the Act states that nuclear steam-electric generating plants are subject to its regulation.
Fifth, the Act regulates toxic pollutants and hazardous materials and indeed is undisputed that as these terms are used in the Water Act, radioactive materials would be toxic pollutants and hazardous materials.
The definition of pollutant and pollution are central to the Water Act for as these terms determine the scope of the Act.
Congress recognized the importance of these terms Representative Blatnik (ph) a member of the FWPCA’s Conference Committee made the point succinctly, the total utility of the Bill is reflected in the definition of the term pollutant, pollution, point-source, discharge and toxic pollutant.
To revise any of these definitions is to upset the common thread of the bill.
If there is a part of this bill that can be labeled most important is these definitions to revise them in a way to limit their coverage is to severely detract from the effectiveness of the bill.
Moreover, these critical definitions as well as the rest of the Act received microscopic scrutiny from Congress.
The final bill was subject to a three-month conference in which the Conference Committee met 39 times and according to Senator Muskie, the Conference Committee tried to write into expressed language as clearly as possible, the intent of Congress and not leave final evaluation of the bill to legislative history.
Thus, the definition of pollutant includes radioactive materials without exception or limitation.
The natural meaning of this term in both its popular usage and in a technical sense has always meant all radioactive materials.
Indeed, the NRCs own regulations define radioactive materials as any such material whether or not subject to licensing controlled by the Commission.
This is found in 10 CFR Section 20.3 13.
Furthermore, the definition of pollutant contains specific exceptions from the term.
This Court has reaffirmed on numerous occasions that when a statutory phrase contains specific limitations or exceptions, no further exceptions are to be applied.
Moreover, the exemption which the government is seeking in this Court would render the FWPCA’s reference to radioactive materials virtually meaningless for the vast majority of radioactive materials are discharged into water are subject to the Atomic Energy Act.
Nothing is left by comparison.
It should also be noted that whenever Congress has utilized a term, radioactive materials, and other legislation, what it has intended to include all radioactive materials, it has just utilize the term.
When it has intended to exclude those subject to the Atomic Energy Act, it has said so in expressed language.
The intent of Congress to include all radioactive materials within the Water Act is further found in the definition of pollutant.
The Act defines pollution as a man-made or man-induced alteration of the radiological integrity of water.
Radioactive materials regulate under the Atomic Energy Act are all man-made or man-induced.
Therefore, this was the precise type of pollution which Congress had in mind when it defined pollution to mean man-made or man-induced alteration of the radiological integrity of water.
Since radioactive materials subject to the Atomic Energy Act constitute the vast majority of radioactive materials discharged into water, the exclusion would render meaningless.
The Congressional intent to protect the radiological integrity of water.
In summary, the language of the Act reflects a consistent intent on the part of Congress to regulate all radioactive materials.
Under the circumstances of this case, we submit that resort to legislative history is unnecessary and unwarranted.
However, since the government places such heavy reliance on it, we will present the legislative history in context.
The government utilizes the legislative history in the case of Bar to create not to solve ambiguity.
It is our position that both the Senate Bill and the Conference Committee plainly intended to include all radioactive materials while the exemption which the government seeks in this Court had some support in the House.
It never obtained the status of legislative language and was specifically rejected by the Conference Committee.
Justice William H. Rehnquist: What do you mean when you say it was specifically rejected by the Conference Committee?
Mr. David C. Mastbaum: Mr. Justice the Petitioners have cited a portion of the House Report.
The Conference Committee specifically considered the definition of pollutant and adapted a new definition that was different from both the House and the Senate versions.
The House had included two additional exceptions to that definition.
These exclusions were cut out of the Conference Bill.
Furthermore, the precise language found in House Report which excluded radioactive materials subject to the Atomic Energy Act was not found anywhere in the Conference Report.
Justice William H. Rehnquist: But it is a little strong to say that they specifically rejected it.
Is it not more accurate to say that they came up with different language which did not include the House Provisions?
I mean, you are not talking about for instance that Conference Report that said the House Bill provided such and such but the Conference determined that we did not want the law to say this?
Mr. David C. Mastbaum: In light of the microscopic scrutiny that Senator Muskie emphasized the Conference Bill received, it can only be assumed that the fact that the Conference Bill and the Conference port contains no statement which would indicate an intent to exclude radioactive materials regulated under the Atomic Energy Act as a very expressed and very strong rejection.
Justice William H. Rehnquist: Well, when you say it can only be assumed, I think you concede some of what I am asking you.
Unknown Speaker: The Conference Bill did not change the words of radioactive materials, did it?
Mr. David C. Mastbaum: No, it did not.
Unknown Speaker: And that is what the argument is here as to what those words mean?
Mr. David C. Mastbaum: That is precisely, thus--
Unknown Speaker: The exceptions that were in the House Report were the exceptions to the radioactive materials?
Mr. David C. Mastbaum: That is right.
Unknown Speaker: So that the Conference Report or the Conference Action did not report to widen or limit whatever the words radioactive materials might have been.
Mr. David C. Mastbaum: That is precisely right, however, in light of the fact that the conference specifically considered the scope of the term and in light of Senator Muskie's statement that the Conference that tried to writing to us, clearly as possible the intent of Congress.
Unknown Speaker: But what about the statements on the House Floor after the Conference Report, did Mr. Anderson not make the statement as to what conference did?
Mr. David C. Mastbaum: That is correct, however–-
Unknown Speaker: Did he not say that the original understanding as to the meaning or say the scope of radioactive materials had not been changed?
Mr. David C. Mastbaum: Let me address it specifically.
First by moving over to the Senate, subsequent to--
Unknown Speaker: Let us talk about the House.
Let us talk about Mr. Anderson.
Mr. David C. Mastbaum: I think it is necessary for me in order to explain that to move over to the Senate.
In the Senate, there were a number of debates which indicated that it was the intent or was the understanding of the Senate members of the Conference, that all radioactive materials be included.
In fact, let me quote you from Senator Buckley who was engaged in a colloquy with Senator Muskie.
Senator Buckley declared himself deeply concerned about Section 511(c)(2)(b).
This clause, may I understand Bar any Federal permitting or licensing agency such as AEC from imposing as a condition precedent to the issuance of any license or permit, any effluent limitation other than those limitations established pursuant to the FWPCA.
Now, this would seem to indicate that Senator Buckley's understanding in his colloquy with Senator Muskie that any effluent limitation established by EPA for any material would have to be accepted by the AEC.
Now, I agree with you that there is a conflict in the House and Mr. Robert Zener who is the General Council of the EPA and on the brief for the petitioners in the case at Bar in a more scholarly moment noted that the House in Senate conferees on the Water Act often made contradictory statements when they returned to their respective chambers.
Justice Byron R. White: (Inaudible)
Mr. David C. Mastbaum: If I could just – In the treaty signed on Federal Environment Law, Mr. Zener analyzed such discrepancies in connection with Section 13 and 14 of the Water Act as follows.
This is one of the many situations in the legislative history of the 1972 Amendments where the Senate and House Managers made statements and the Floor debates which they apparently cannot agree on at the Conference.
In these situations, the statements are dubious as indications of Congressional intent.
I guess that is the answer to your question Mr. Justice White that the statements on the Floor of the House are dubious as --
Justice Byron R. White: As to one who is on the senate?
Mr. David C. Mastbaum: Well, if ones in the Senate are dubious, then I would rely on the Conference Report which clearly indicates that there is no exception.
Unknown Speaker: (Inaudible) that could change the meaning of radioactive materials as it came to that?
They did not change the--
Mr. David C. Mastbaum: But while the conferees considered the extent of the exclusions and the scope of the definition.
Unknown Speaker: As with respect to radioactive materials?
Unknown Speaker: The Conference Report does not help you, I do not think in so far as establishing your position?
Unknown Speaker: Mr. Mastbaum, may I ask you this question.
If you prevail in this case, do you agree with the Solicitor General that there will be duplicative regulation by the NRC and the EPA that could be conflicting?
Mr. David C. Mastbaum: No, I do not, what will occur will be that the EPA will have the sole authority to set effluent limitations.
The NRC and ERDA will have the authority to license nuclear facilities and be responsible for the operation of those facilities.
Their licenses will merely have to reflect the EPAs standards, established pursuant to the Water Act.
There is no duplication, as a matter of fact, it will result in uniformity and that all aspects of water pollution from nuclear facilities will be subject to the Water Act.
Unknown Speaker: And the NRC Authority that it is exercised for 20 years will be taken away from it?
Mr. David C. Mastbaum: No, that is not true.
The Water Act is very practical.
It requires that the EPA--
Unknown Speaker: But that authority that had existed would be limited by the new Act.
The NRC’s authority -- it would be limited but it must be remembered that the EPA has broad radiation authority and experienced when it was established pursuant to reorganization plan 3 of 1970.
The Federal Radiation Council was transferred to the EPA from the AEC as well as the Bureau of Radiological Health from the Department of Health, Education and Welfare.
But do you think it is reasonable to infer from but in effect it is silenced by Congress in the legislative history that it was taking away from an agency that operated for 20 years or some of its jurisdiction?
Mr. David C. Mastbaum: Well, I do not concede that there was silence in Congress.
Unknown Speaker: I know you rely on the language in the statute itself but--
Mr. David C. Mastbaum: Well, I also rely on language that one can find in the legislative history.
For example, in the debate that the government refers to between Senators Pastore and Senators Muskie subsequent to discussion on the consequences of EPA regulation under the Water Act.
There was a discussion on the setting of specific effluent limitations from nuclear facilities and this discussion arose in the context of Northern States Power versus Minnesota.
And that case as you know preempted the states from regulating radioactive materials that were subject to the Atomic Energy Act.
Unknown Speaker: But did not the Atomic Energy Act vest have the exclusive control in the commission of Atomic Energy?
Mr. David C. Mastbaum: At that time it was adapted 20 years early than the Water Pollution Control Act.
Unknown Speaker: But you are saying the 1974 Act subtracted a certain portion of that exclusive control lies thereby silent so far as specific discussion of it was concerned in a Congressional Legislative history?
Mr. David C. Mastbaum: Well, I do not concede silence.
Unknown Speaker: Right.
Mr. David C. Mastbaum: You have not appointed anything very specific so far.
Unknown Speaker: Well, except the language in the Act which I concede gives you quite an arguable position?
Mr. David C. Mastbaum: Well, if the exception, it must be remembered that what the government is seeking to exclude from the Water Act is a very significant form of pollution.
If Congress had intended to exclude those materials, when they made specific reference to them not only in definition of pollutant but in definition of pollution, they would have said so.
Undoubtedly, there is some support for the government’s position but that is primarily in the House.
Unknown Speaker: In your plain language?
Mr. David C. Mastbaum: Yes.
Unknown Speaker: Their plain language argument might have certain amount of substance if there had not been the Atomic Energy Act at all?
Mr. David C. Mastbaum: I have--
Unknown Speaker: But do you not think that when you have two Congressional statutes and one of them -- and they seem to be clashing or they seem to be inconsistent, isn't there some ground for making room for both of them?
Mr. David C. Mastbaum: The Federal Water Pollution Control Act, I think would take presence.
Unknown Speaker: Why do you say that?
It was just passed later but let as assume there was no legislative history whatsoever with respect to what the words radioactive materials meant as used in the Water Act.
But nevertheless you have another statute which purports to give the Atomic Energy Commission some of the same jurisdiction.
Mr. David C. Mastbaum: The Water Acts specifically states any agency's authority which is inconsistent with the Water Act must yield to the Water Act 1371.
My co-counsel has just reminded me that in the Senate Report, there is a specific reference to radioactive materials subjected to the Atomic Energy Act.
That is in the discussion of Section 1316 of the final version of the Bill Section 306 and the Senate Bill, the Senate Committee specifically restated that EPA’s office of radiological health should prepare itself to regulate nuclear fuels processing plants.
Well, the functions of the Office of Radiological Health deal purely with radioactive materials subject to the Atomic Energy Act and the only discharge is from nuclear fuels processing plants are those subject to the Atomic Energy Act.
Unknown Speaker: With the Section of the Senate Bill that the Senate Report was addressing to there, was that carried over verbatim into the final bill?
Mr. David C. Mastbaum: If it was a verbatim, it is very closed, it dealt with new sources of pollution that the EPA should regulate.
And from the list of sources included in Section 306, this Act only indicated that EPA indicated that it did not have the authority at this time to regulate Nuclear Fuel processing plants but that it should develop the authority as Bureau of Radiological Health should prepare to regulate the discharges of radioactive materials from these plants.
Unknown Speaker: But you criticized the reliance on the House Committee report because you say the Conference Committee did not go the same way.
Now if you are going to rely on the Senate Committee Report, it seems to me you have got to show that that is somehow more faithful to the Conference Report or the Conference report in effect adopts it.
Mr. David C. Mastbaum: Section 306, the one I have been referring to is the same as a comparable provision of the Senate Bill and the House Amendment so therefore, they apparently do accept the Senate version.
Unknown Speaker: Do you say that the Energy Commission has no jurisdiction over how much pollutions are put in the water?
Mr. David C. Mastbaum: Well, I would say that what would happen if this Court affirms the Tenth Circuit would be that the Environmental Protection Agency would set effluent limitations for radioactive materials, then the Nuclear Regulatory Commission or ERDA would ensure that facilities subject to their licensing authority would meet those limitations--
Unknown Speaker: So they would have no independent authority at all anymore.
Mr. David C. Mastbaum: They would have the authority to regulate those facilities but they would not have the authority--
Unknown Speaker: There will be no authority to regulating the pollution?
Mr. David C. Mastbaum: Yes, they could regulate the pollution but they could not establish the limits.
Unknown Speaker: So now you got Congress deliberately setting up two complete intimations.
Mr. David C. Mastbaum: I do not think--
Unknown Speaker: Do you think Congress meant to do that?
Mr. David C. Mastbaum: I do not think that we have two competing agencies here.
On the one hand, we have the Environmental Protection.
Unknown Speaker: You either have two, one is superior?
Mr. David C. Mastbaum: Well, I think the missions and functions of this--
Unknown Speaker: What I want to know what is your position, is the EPA superior?
Mr. David C. Mastbaum: With respect to matters related to environmental pollution, the EPA is superior.
Unknown Speaker: And that right has been taken away from the commission?
Mr. David C. Mastbaum: That is correct with respect to Water Pollution?
Unknown Speaker: Is there any evidence in the record, any testimony in support of the view that the Atomic Energy Commission had failed adequately to protect the public interest in the discharge of radioactive materials into waters of our country?
Mr. David C. Mastbaum: We do not claim that there was any problem with respect to that but the Water Act establishes a new regulatory scheme with specific effluent limitations.
These limitations enforced by the program give more control of pollution.
Furthermore, their technology forcing, that is there was a phased approach to pollution control.
There are several dates which have been set far in advance for achieving more stringent pollution control and therefore by subjecting the nuclear facilities to this law, we will have hopefully the advancement of technology which will result in cleaner water.
Unknown Speaker: Mr. Mastbaum, what do you understand by the statement in the government’s brief as to what it concedes the EPA would still be able to do even if the government wins?
Thus the lines of authority were fairly drawn, EPA was to set generally applicable radiation standards limiting the total amount of permissible radiation in the environment for major categories of sources.
Now I assume from what I have heard the government say that the EPA under the government’s view would be entitled to set limits on radiation releases into the water for major categories of sources namely power plants for example, is that right?
Mr. David C. Mastbaum: I think the point that you make is very important because the government concedes that EPA has responsibility to set general or ambient environmental standards for radiation.
Unknown Speaker: When they say it from major categories of sources, would not power plants, would not the facilities managed by the AEC be a major category?
Mr. David C. Mastbaum: Well, that is true.
They are dealing with the total number of plants.
The only way to effectively reach that point is to provide for specific limitations.
The EPA may establish general in this.
Unknown Speaker: So you are just making effective argument but assume that the AEC after the general standards were set by the EPA, honestly carried out its task and limited the radiation and kept the radiation release within the limits of the EPA.
Now would you be satisfied or not?
Mr. David C. Mastbaum: Well, I am not persuaded that they would do that.
Unknown Speaker: So, your argument is that they will not do it?
Neither if they did it, if they did do it, it would not be enough?
Mr. David C. Mastbaum: My argument is that the Water Act clearly and unequivocally includes all radioactive materials.
The precise regulatory scheme established under that act will result in the EPA being able to achieve a fulfillment of the general environmental standards which they are required to set.
Justice William H. Rehnquist: Will the states come in by the back door if not the front of the EPA as given the authority that you contend because of the provisions of the Water Bill.
Mr. David C. Mastbaum: The question of whether or not the states would be preempted from regulating radioactive materials pursuant to the Water Act has never a reason at this time--
Justice William H. Rehnquist: I did not mean by preemption but I meant by participation in the EPA process.
Mr. David C. Mastbaum: The role of the states would be one.
If it is found that the states are preempted for saying effluent limits, the EPA would set effluent limits and then as the states take over individual permit programs, they would include the EPA the Federal limits within the state permit.
Justice William H. Rehnquist: But that would be a result somewhat contrary to the (Inaudible) case would it not be?
The Northern States Power Company?
Mr. David C. Mastbaum: No, it would not.
In Northern States Power, the issue was whether or not the states were preempted under the Atomic Energy Act.
It is our position that under the Water Act, radioactive materials discharged into water is now being regulated.
Therefore, the Atomic Energy Act has no bearing on preemption under the Water Act.
Justice William H. Rehnquist: Well, it is admittedly not direct but the states would have a role in regulating that they would not have if your contention were rejected.
Mr. David C. Mastbaum: They would have a very limited role pursuant to a Federal Regulatory Scheme.
Chief Justice Warren E. Burger: Thank you Mr. Mastbaum.
Thank you gentlemen.
The case is submitted.