D.C. No. CV-96-00106-AAM Appeal from the United States District Court for the Eastern District of Washington Alan A. McDonald, District Judge, Presiding Argued and Submitted February 4, 1998--Seattle, Washington
Before: Melvin Brunetti, Pamela Ann Rymer, and Andrew J. Kleinfeld, Circuit Judges.
The opinion of the court was delivered by: Opinion by Judge Brunetti
The issue in this case is whether the Environmental Protec- tion 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 defen- dant mining companies' motion for summary judgment, answered this question in the negative. We have jurisdiction, 28 U.S.C. S 1291, and we affirm.
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 mill- ing 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 sig- nificant 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, contamina- tion from the mill tailings disposed at these TDAs has migrated into groundwater and nearby Chamokane Creek.
In 1981, Dawn constructed a lined below-ground impound- ment 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 agen- cies to develop a Closure Plan for the millsite. The Closure Plan includes a comprehensive remedial program that addresses the surface and groundwater contamination result- ing 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 pol- lutants into Chamokane Creek without a National Pollutant Discharge Elimination System permit (NPDES permit) in vio- lation 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, ...