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State of Washington v. Chu

March 10, 2009

STATE OF WASHINGTON, PLAINTIFF-APPELLEE,
v.
STEVEN CHU,*FN1 SECRETARY OF ENERGY; US DEPARTMENT OF ENERGY, DEFENDANTS-APPELLANTS, AND YES ON I-297: PROTECT WASHINGTON, PROPOSED INTERVENTION AS COUNTERCLAIM; GOVERNMENT ACCOUNTABILITY PROJECT, PROPOSED INTERVENTION AS COUNTERCLAIM; FLUOR HANFORD INC., DEFENDANTS.



Appeal from the United States District Court for the Eastern District of Washington, Alan A. McDonald, District Judge, Presiding, D.C. No. CV-03-05018-AAM.

The opinion of the court was delivered by: Paez, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 16, 2007 -- Seattle, Washington.

Before: Richard D. Cudahy,*fn2 Stephen Reinhardt, and Richard A. Paez, Circuit Judges.

Between 1943 and 1987, the United States produced plutonium for use in nuclear weapons manufacture at the Hanford Nuclear Reservation in southeastern Washington near the confluence of the Columbia, Snake, and Yakima Rivers. Plutonium production and related activities at Hanford created enormous amounts-in the millions of tons-of radioactive, hazardous, and "mixed" radioactive and hazardous wastes, much of it still at Hanford awaiting treatment and/or disposal. The Department of Energy ("DOE") is responsible for the treatment, storage, and disposal of this vast waste inventory. This suit arises out of a longstanding dispute between the State and DOE concerning DOE's management of Hanford's existing backlog of mixed radioactive and hazardous waste, commonly known as TRUM, and DOE's decision to ship additional "off-site" TRUM to Hanford for storage pending the future disposal of such waste at the Waste Isolation Pilot Plant ("WIPP"), a nuclear waste repository in southeastern New Mexico where the wastes are expected to be placed in a salt bed approximately 2,150 feet below the earth's surface.

The State contends that DOE's management of this TRUM violates provisions of the State's Hazardous Waste Management Act ("HWMA") and its implementing regulations, which act in lieu of the federal provisions of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6901-6992k. See 51 Fed. Reg. 3782 (Jan. 30, 1986) (authorizing the State of Washington to administer its HWMA in lieu of RCRA); Wash. Rev. Code §§ 70.105.020, 70.150.130; Wash. Admin. Code 173-303-140(2)(a).*fn3 DOE argues that it no longer has an obligation under HWMA to treat TRUM waste or to limit the length of time such waste is stored at Hanford or any other location, because the waste has been "designated" by the Secretary of Energy "for disposal at WIPP," in accordance with the WIPP Land Withdrawal Amendment Act of 1996, Pub. L. 104-201, § 3188(a)(1) (also referred to as the "1996 WIPP Amendments" or the "amended Act.").

After agreeing to dismiss without prejudice Counts 1 and 2 of the State's amended complaint, the parties filed cross-motions for summary judgment on the remaining claim of whether TRUM "designated for WIPP" was exempt from HWMA provisions by virtue of the amended Act. The district court rejected DOE's interpretation of the amended Act and found that neither the plain text nor the legislative history demonstrated that the "designation exemption" reached waste at any location other than WIPP. See Washington v. Abraham, 354 F. Supp. 2d 1178, 1187 (E.D. Wash. 2005). Because the district court found that the amended Act applied only to WIPP, it declined to reach the preemption issue and awarded summary judgment for the State. Id. We review de novo, and affirm.

I. Background

Among the wastes generated during plutonium production at Hanford were large quantities of transuranic waste. Transuranic waste-which consists of a variety of materials, including tools, equipment, protective clothing, rags, graphite, glass, and other material contaminated during the production and reprocessing of plutonium-is waste that has been contaminated with radioactive elements and carries a periodic table value greater than uranium. Although it is less radioactive than spent fuel or high-level waste, it is toxic and long-lived. When transuranic waste is mixed with non-radioactive hazardous waste, such as solvents or heavy metals, the resulting waste is known as "mixed" transuranic waste, or TRUM. There are at least 37,000 drums and 1,200 large boxes of suspected TRUM in "retrievable storage" -shallow, unlined soil trenches-at Hanford, all of which has yet to be treated or properly disposed. Because TRUM contains hazardous waste (in addition to being radioactive), its storage, treatment, and disposal is regulated under Subtitle C of RCRA, 42 U.S.C. §§ 6921-6939, which was enacted by Congress in order to subject hazardous waste like TRUM to stringent "cradle-to- grave" regulation.*fn4 United Technologies v. EPA, 821 F.2d 714, 716 (D.C. Cir. 1987). Because RCRA, and its counterpart the Federal Facilities Compliance Act ("FFCA") are crucial to our inquiry as to the effect of the "designation exemption" in the amended Act, we begin our discussion there.

A. RCRA

RCRA subjects TRUM to both "safe storage" requirements*fn5 and land disposal restrictions.*fn6 The land disposal restrictions ("LDRs") were added to Subtitle C of RCRA by the Hazardous and Solid Waste Amendments of 1984 ("HSWA"), as part of the Solid Waste Disposal Act ("SWDA"), see RCRA § 3004(b)-(m), 42 U.S.C. § 6924(b)-(m). The SWDA amended RCRA to ensure that hazardous waste will only be land-disposed if the waste involved as well as the disposal unit meet very stringent requirements. Land disposal of hazardous waste is prohibited unless that waste is "pretreated" in a manner that minimizes "short-term and long-term threats to human health and the environment," RCRA § 3004(m), 42 U.S.C. § 6924(m),*fn7 or unless the EPA determines, with "a reasonable degree of certainty, that there will be no migration of hazardous constituents from the disposal unit or injection zone for as long as the waste [ ] remain[s] hazardous." RCRA § 3004(d)(1), (e)(1), and (g)(5), 42 U.S.C. § 6924(d)(1), (e)(1), and (g)(5). Further, EPA regulations governing land disposal of hazardous waste requires comprehensive waste analysis and record-keeping to certify that a waste is eligible for land disposal (40 C.F.R. § 268.7), specifies treatment standards for the land disposal of restricted waste (40 C.F.R. §§268.40-49), and specifies procedures for obtaining exemptions (40 C.F.R. § 268.6). With respect to exemptions, the EPA anticipated that there would be "relatively few cases in which [a no-migration] demonstration can be made," 51 Fed. Reg. 40,572, 40,577 (Nov. 7, 1986),*fn8 and that, if approved, after a formal rulemaking process, the determination would apply only to the land disposal "of the specific restricted waste at the individual disposal unit . . . and would not apply to any other restricted waste at that disposal unit, or to that specific restricted waste at any other disposal unit." 40 C.F.R. § 268.6(i); see also id. at § 268.6(a)(1)-(2) (requiring an "identification of the specific waste" in the petition, including a "waste analysis" of the subject waste).

The LDRs also prohibited end-runs around the prohibitions on land disposal by preventing TRUM from being stockpiled in storage. These "storage prohibitions" restrict storage to that which is "solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal." RCRA § 3004(j) (emphasis added), 42 U.S.C. § 6924(j).*fn9 The amount of time a facility can store waste is limited to one year unless the facility can prove that further storage is required in order to facilitate the proper recovery, treatment or disposal under § 3004(j). See 40 C.F.R. § 268.50(b)-(c).*fn10 Congress enacted this provision because it "believed that permitting storage of large quantities of waste as a means of forestalling required treatment would involve health threats equally serious to those posed by land disposal, and therefore opted in large part for a 'treat as you go' regulatory regime." Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 357 (D.C. Cir. 1989). Under this regime, accumulation of untreated waste for the purpose of reducing or closing other sites is strictly prohibited. See, e.g., Edison Elec. Inst. v. EPA, 996 F.2d 326, 335 (D.C. Cir. 1993) (rejecting a reading of § 3004(j) that would allow the accumulation and storage of wastes until qualified treatment or disposal capacity becomes available).

B. FFCA

Congress emphasized its intention to apply this "treat as you go" framework to federal facilities-like Hanford-in the Federal Facility Compliance Act ("FFCA"), see Pub. L. No. 102-386, Title I, § 102(a), (b), 106 Stat. 1505, 1506 (1992) (codified in scattered sections throughout 42 U.S.C.). The FFCA was enacted specifically to motivate recalcitrant officials at federal facilities into addressing the continuing backlogs of stored, untreated, mixed waste subject to RCRA's strict storage prohibitions. See H.R. Rep. 102-111, at 2 (1992), as reprinted in 1992 U.S.C.C.A.N. 1287, 1288. In particular, the FFCA waived sovereign immunity for the operation of federal facilities and clarified that states could impose civil fines on federal facilities for violations of RCRA. See FFCA § 102(a), 42 U.S.C. § 6961. The FFCA also provided that with respect to TRUM at DOE facilities, DOE could avoid the fines and penalties associated with RCRA violations so long as it (1) developed "site treatment plans"-including detailed management schedules regarding the treatment and storage of various wastes-for the waste backlogs; (2) submitted those treatment plans for mixed waste to the states for approval, modification, or disapproval; and (3) maintained compliance with those plans. See FFCA § 102(c)(3)(B), 42 U.S.C. § 6939c (codified in RCRA).

At the time FFCA was enacted, DOE and the State of Washington already had a pre-existing plan, the Hanford Federal Facility Agreement and Consent Order ("HFFACO"), which satisfied the requirement of a "site treatment plan" under 42 U.S.C. § 6939c(b)(1)(A)(ii). It is through the development and maintenance of the HFFACO that the State and DOE conferred as to, among other materials, the resolution of Hanford's substantial backlog of TRUM, which was otherwise being stored-before the additional shipments of "off-site" TRUM-in violation of RCRA § 3004(j).*fn11

C. 1992 WIPP Act

The same year FFCA was enacted to deal with the enormous backlogs of nuclear waste at federal facilities, Congress also proceeded with long-held plans for opening another federal waste repository in southeastern New Mexico known as WIPP. See, e.g., Pub. L. 96-164, 93 Stat. 1259 (1979) (authorizing the development of the WIPP site). Due to its unique, geologically-stable salt formations, WIPP promised to be a safe and permanent repository for a substantial fraction of the nation's weapons-related transuranic waste. The WIPP Land Withdrawal Act of 1992 ("1992 WIPP Act"), Pub. L. No. 102-579, 106 Stat. 4777 (1992), withdrew the site from public use, continued the test phase, and established a number of regulatory requirements that DOE was required to meet before WIPP could receive transuranic wastes for permanent disposal. See 1992 WIPP Act §§ 3, 8, 9. In particular, the 1992 WIPP Act required that WIPP, like any other facility, comply with a number of existing regulatory frameworks, including the LDRs that had been added to RCRA by the SWDA. See id. at § 9(a)(1)(C); see also § 14(b)(2) (the statute's savings provision, stating that the 1992 WIPP Act did not "supersede or modify" the land disposal restrictions that were part of the [SWDA]).*fn12

Four years later in 1996, in compliance with § 9(a)(1)(C) of the 1992 WIPP Act and in light of WIPP's unique geologically stable salt formations, DOE petitioned the EPA under RCRA § 3004(d)(1)(C) for a "no migration determination" with respect to WIPP. See 61 Fed. Reg. 42899 (Aug. 19, 1996).*fn13

The import of this no-migration determination, like the no-migration determination that had been approved for the test-phase of WIPP, was that, if approved, it would allow WIPP to comply with RCRA's land disposal restrictions by demonstrating that "hazardous constituents will not migrate out of the WIPP disposal unit for as ...


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