High Court Concludes Water Act Was Not Intended to Affect Nuclear Regulatory Commission's Jurisdiction

In one of the most closely reasoned of its many end-of-term environmental law decisions, the Supreme Court held on June 1, 1976¹ that Congress did not intend the 1972 Federal Water Pollution Control Act Amendments (FWPCA)² to transfer regulatory authority over nuclear materials in nuclear power plant effluents from the Nuclear Regulatory Commission (NRC)³ to the Environmental Protection Agency (EPA).

The Atomic Energy Act of 1954⁴ gave the NRC broad regulatory authority over what it called "source materials,"⁵ "special nuclear materials,"⁶ and "by-product materials,"⁷ in short, all the substances involved in the nuclear fuel process for nuclear power plants. The FWPCA empowered the EPA (and states acting under its control) to regulate, through a permit program, discharges of all "pollutants" into the nation's waters, and it defined pollutants to include, inter alia, "radioactive materials."⁸ When the EPA Administrator issued regulations establishing the permit program, he explicitly excluded the NRC-regulated nuclear materials, citing the legislative history of the FWPCA.⁹

Plaintiffs, a number of Colorado-based organizations and individuals claiming potential harm from two nuclear plants in the state, sued to compel EPA to assume the responsibility of regulating the discharge of nuclear materials from the plants. The district court denied relief, but the Court of Appeals for the Tenth Circuit reversed, accepting plaintiffs' contention that the term "radioactive materials" in the FWPCA included source, special and by-product materials.¹⁰ The court based its decision primarily on what it considered the plain meaning of the statute, observing "parenthetically" that the FWPCA legislative history on the point was "conflicting and inconclusive."¹¹

"Plain Meaning" Insufficient

In a unanimous opinion authored by Justice Marshall, the Supreme Court disagreed, finding error in the court of appeals' refusal to utilize an available "aid to construction" of the statute.¹² In the Court's view, the legislative history "speaks with force"¹³ to the question whether NRC-regulated nuclear materials are pollutants subject to the FWPCA.

The Supreme Court's condemnation of the court of appeals' ruling appears somewhat overstated. First, the FWPCA contains additional language supporting plaintiffs' position; § 304 provides

Notwithstanding any other provisions of [the FWPCA]), it shall be unlawful to discharge any radiological, chemical, biological, warfare agent or highly radioactive waste into the navigable waters.¹⁴

Plaintiffs argued that Congress' use of the italicized phrase before banning all discharges of highly radioactive wastes shows its awareness that otherwise such discharges would be permitted under the FWPCA's permit program for "pollutants." The Court acknowledged the strength of this argument, but considered it less forceful than the legislative history.¹⁵

The second exaggeration in the Supreme Court's reaction to the court of appeals' reasoning is the Court's view that the legislative history serves as a substantial aid to statutory construction here. It is true that the legislative history speaks to the issue, but it scarcely speaks with one voice. While House of Representatives sources support defendants' position, the most authoritative Senate materials tend to support plaintiffs. And if the force of the statutory language is put into the balance along with the legislative history, the scale tips slightly toward an intent to transfer authority from the NRC to the EPA.

Legislative History Controlling

In assessing the legislative history, the Court placed primarily reliance on the House committee report, which did expressly state¹⁶ that the "radioactive materials" in the House bill definition of "pollutants" (identical to the final bill)

are not those encompassed in the definition of source, byproduct or special nuclear materials as defined by the Atomic Energy Act of 1954….

Justice Marshall also relied on House rejection of a floor amendment offered by Rep. Wolff (D.-N.Y.) that would have given the states explicit authority to regulate nuclear waste discharges from nuclear plants. Many [6 ELR 10170] of the objections to this amendment, noted the Court,¹⁷ characterized the measure as an inappropriate attempt to amend the Atomic Energy Act. Moreover, since the amendment was addressed to what became the provision authorizing states to set more stringent pollutant discharge limits than EPA's,¹⁸ Rep. Wolff seems to have assumed that radioactive wastes were not included among the pollutants already subject to the bill; otherwise his amendment was superfluous.

While the House record thus strongly supports the defendants, the Senate materials are more equivocal. The Senate report, the most authoritative source of congressional intent, speaks less directly and simply than its House counterpart to the issue, but it does strongly support the existence of an intent to transfer authority. Section 306 of the Senate bill¹⁹ ordered the EPA to establish pollutant discharge limits for various categories of "new sources" of water pollution, essentially all factories and other facilites that would be constructed after the effective date of the FWPCA. The Senate report's discussion of this section observed that nuclear fuels processing plants were omitted from the new source category because the EPA did not at the time have "the technical capacity to establish controls for such plants."²⁰ But the report went on to state that the committee "expects that EPA will develop that capability," and to note that the Bureau of Radiological Health, recently transferred to EPA from the Department of Health, Education and Welfare, "should have the capacity to determine those levels of control which can be achieved for nuclear fuels processing plants."²¹

Plaintiffs argued that the reference to development of control levels by the Bureau of Radiological Health indicated that the committee intended EPA to have the authority to regulate the discharge into water of NRC-regulated nuclear materials. The Court reluctantly agreed,²² but thought that a floor colloquy between Senators Muskie and Pastore provided a more certain guide to the Senate's intent.

In the colloquy, Senator Pastore asked whether the Senate bill in any way affected the "existing Atomic Energy Act of 1954, insofar as the regulatory powers of the AEC are concerned with reference to radioactive material."²³ Senator Muskie assured him that it did not. There is little doubt that this colloquy, which included reference to the Northern States preemption decision,²⁴ strongly supports defendants' position. But it must be put in perspective, for floor debates are generally the least reliable indicators of congressional intent.

Assessing the Result

If the transfer issue turned solely on the legislative history, i.e., if background legislative materials were not just an aid to understanding but the sole index of congressional intent, then there would be little basis to fault the Supreme Court's conclusion that Congress did not intend EPA to displace NRC in the control of radioactive discharges from nuclear facilities. Likewise, if the question turned exclusively on the language of the FWPCA, it would be difficult to quarrel with the contrary result reaced by the court of appeals.

But neither extreme is correct. What is needed is a synthesis of the statutory language and the legislative history. Although the question is close, the outcome of such an analysis suggests that Congress did intend to have EPA displace the NRC.

The House report's explicit statement of intent to exclude NRC-regulated nuclear materials is quite forceful, and is solidly reinforced by consistent floor debate and action. Paradoxically, however, the very strength of these matters raises the question why the House Committee failed to incorporate its clear understanding into the bill as a specific exception. As passed, the FWPCA definition of "pollutants" does contain two express exclusions,²⁵ one of which deals with a subject matter (oil drilling) regulated by an agency other than EPA:

This term [pollutant] does not mean (A) "sewage from vessels" within the meaning of section 1322 of this title; or (B) water, gas or other material which is injected into a well to facilitate production of oil or gas….

There is no reason why a third exclusion could not have been added to address NRC-controlled materials.

On the other side, the statutory term "radioactive materials" is quite precise: it refers to a unique man-made entity almost exclusively in the hands of the NRC, and it even uses the same base noun ("materials") as the Atomic Energy Act. The precision of the term strengthens the otherwise obscure (but nonetheless persuasive) supporting references in the legislative history, such as the Senate report's reference to adding nuclear fuels processing plants to the category of regulated new sources sometime in the future. Indeed, the Senate may have had in mind a compromise on the issue of transfer of regulatory authority, which would be worked out through the new source mechanism. The NRC would retain control of discharges from existing nuclear facilities, while EPA would assume control of new plants as they were built. This compromise may also be the most sensible overall reading of the statute and legislative history.

Were this reading accepted, it would probably not help plaintiffs in this case, for presumably the nuclear plants at issue were built before the effective date of the FWPCA. Thus, the result reached by the Court is correct. But its reasoning remains open to question.

1. Train v. Colorado Public Interest Group, Inc., __ U.S. __, 6 ELR 20549.

2. 33 U.S.C. §§ 1251 et seq., ELR 41101.

3. Under the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801 et seq. (Supp. IV, 1974), the NRC received the licensing and regulatory responsibilities of the former Atomic Energy Commission, while the Energy Research and Development Administration assumed the AEC's research and development functions. This Comment will refer to the NRC throughout, rather than the AEC, although the former was not yet in existence when the FWPCA was passed.

4. 42 U.S.C. §§ 2011 et seq. (1970).

5. These are the raw nuclear materials essential to the production of fissionable ("special") nuclear materials. 42 U.S.C. § 2014(z).

6. These are substances capable of sustaining a chain reaction and thus usable as nuclear fuel. 42 U.S.C. § 2014(aa).

7. These are materials yielded in or made radioactive incident to production or use of special nuclear materials. 42 U.S.C. § 2014(e).

8. FWPCA § 502(6), 33 U.S.C. § 1362(6), ELR 41125.

9. 40 C.F.R. § 125.1(y), ELR 46426.

10. Colorado Public Interest Research Group, Inc. v. Train, 507 F.2d 743, 5 ELR 20043 (1974), rev'g 373 F. Supp. 991, 4 ELR 20307 (D. Colo.).

11. Id., 5 ELR at 20045.

12. __ U.S. at __, 6 ELR at 20551.

13. Id.

14. 33 U.S.C. § 1311(f), FLR 41112 (emphasis added).

15. __ U.S. at __, 6 ELR at 20551.

16. H.R. Rep. No. 911, 92d Cong., 2d Sess. 131 (1972).

17. __ U.S. at __, 6 ELR at 20553-54.

18. FWPCA § 510, 33 U.S.C. § 1370, ELR 41127.

19. Which became 33 U.S.C. § 1316, ELR 41115.

20. S. Rep. No. 414, 92d Cong., 1st Sess. 59 (1971).

21. Id.

22. __ U.S. at __, 6 ELR at 20552.

23. Quoted in __ U.S. at __, 6 ELR at 20552.

24. Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1 ELR 20218 (8th Cir. 1971), aff'd without opinion, 405 U.S. 1035 (1972). There the court of appeals held that the comprehensive scheme of regulation of nuclear waste discharges established by the Atomic Energy Act preempted the field, excluding state regulations of such discharges.

25. 33 U.S.C. § 1362(6), ELR 41125.