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Waste Action Project v. Dawn Mining Corp.


Waste Action Project (WAP), an environmental group, brought suit against Dawn Mining Corporation (Dawn), alleging that the mining company was violating the Clean Water Act (CWA)[1] by discharging pollutants without a National Pollutant Discharge Elimination System (NPDES) permit. Between 1957 and 1981, Dawn disposed of uranium mill tailings in unlined aboveground disposal areas on its site in Ford, Washington. After WAP ceased operations at the site, contamination from the mill tailings began to migrate into a nearby creek. WAP claimed that this migration required a NPDES permit because it qualified as a discharge of a pollutant under the CWA.

The CWA gives the Environmental Protection Agency (EPA) the authority to regulate “pollutants,” which are defined in section 502(6) to include “radioactive materials.”[2] The EPA limited its regulatory powers over “radioactive materials” in 1973 when it promulgated the CWA’s implementation regulations, which explicitly exclude “byproduct materials” as defined in section 11(e)(2) of the Atomic Energy Act (AEA)[3] from the definition of “pollutant.”[4] Initially, the AEA’s definition of “byproduct materials” did not include uranium mill tailings. However, in 1978, Congress passed the Uranium Mill Tailings Radiation Control Act (UMTRCA),[5] which amended the definition of “byproduct materials” to explicitly include uranium mill tailings.

WAP argued that despite the plain language of the AEA as amended by UMTRCA, EPA has the authority to regulate uranium mill tailings as “pollutants.” WAP based its argument on UMTRCA’s savings clause, which states that nothing in UMTRCA changes EPA’s existing regulatory powers under the CWA.[6] WAP asserted that, because the definition of byproduct materials did not explicitly include uranium mill tailings when EPA excluded “byproduct materials” from the scope of its regulatory power in 1973, EPA retained the authority to regulate uranium mill tailings.

In rejecting WAP’s argument, the Ninth Circuit relied heavily on the United States Supreme Court’s opinion in Train v. Colorado Public Interest Research Group,[7] which dealt with an issue virtually identical to that in the instant case. In Train, a unanimous Court held that Congress did not intend for the category of “pollutants” regulated by EPA through the NPDES permit program to include materials regulated exclusively under the AEA.

The Ninth Circuit determined that the plain meaning of the AEA and the legislative history of the CWA overwhelmingly contradict the technicality raised by WAP. Additionally, EPA had never before regulated uranium mill tailings. Instead, the Atomic Energy Commission (AEC), now the Nuclear Regulatory Commission (NRC), had regulated uranium mill tailings at active sites since the AEA was passed in 1954. Congress enacted UMTRCA in part to give NRC explicit authority to regulate mill tailings at inactive sites, and UMTRCA’s savings clause was not intended to subsequently revoke this authority. While UMTRCA does give EPA authority to promulgate standards for the disposal of uranium mill tailings, it leaves the implementation and regulation of these standards to NRC. Finally, EPA revised and repromulgated the CWA’s implementing regulations in 1979 to cite the Train decision, and to explain that only radioactive materials not regulated by the NRC are pollutants for purposes of the CWA.[8] Consequently, the Ninth Circuit held that uranium mill tailings are not subject to NPDES permit requirements under the CWA.

[1] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1994 & Supp. III 1997).

[2] Id. § 1362(6) (1994).

[3] Atomic Energy Act of 1954, 42 U.S.C. § 2014(e)(2) (1994).

[4] 40 C.F.R. § 122.2 (1998).

[5] Uranium Mill Tailings Radiation Control Act of 1978, Pub. L. No. 95-604, 92 Stat. 3021 (amending 42 U.S.C. § 2014(e) (1994)).

[6] 42 U.S.C. § 2022(e) (1994).

[7] 426 U.S. 1 (1976).

[8] 40 C.F.R. § 230.3(o) (1998).

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