ELR Citation: ELR 20307
No(s). C-5438 (D. Colo. Feb 15, 1974)

An agreement between EPA and the Atomic Energy Commission (AEC) that regulation of the discharge of radioactive byproduct, source, and special nuclear materials from nuclear generating plants is under the AEC's exclusive jurisdiction is upheld as being in accordance with the provisions of the Federal Water Pollution Control Act Amendments of 1972. The legislative history of the FWPCA Amendments, in conjunction with judicial interpretations of the Atomic Energy Act, supports the agencies' determination that these materials are not to be considered radioactive effluents subject to EPA's regulatory powers under the Amendments. In addition, given the considerable expertise of these two agencies in the highly technical field of nuclear energy, their administrative determination and agreement is entitled to great weight. The court categorically rejects plaintiffs' claims that the Commission and EPA are not exercising the highest degree of care to prevent any possible damage to life, property, and natural resources. The court is also skeptical of the idea that attorney fees may be granted to a non-prevailing party, but finds that in any event this is an inappropriate case in which to make such an award, and denies plaintiffs' claim for such expenses.

Counsel for Plaintiffs
James L. Kurtz-Phelan
209 16th Street, Room 200
Denver, CO 80202

David E. Engeahl
4375 Butler Circle
Boulder, CO 80303

David Mastbaum
1409 Larimer Square
Denver, CO 80202

Counsel for Defendants
Wallace H. Johnson Asst. Attorney General
Edmund B. Clark
Dirk D. Snell
Department of Justice
Washington, DC 20530