NO. 97-11353
===========================
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
===========================
WASTE CONTROL SPECIALISTS, LLC,
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF ENERGY,
ALVIN L. ALM, Assistant
Secretary For Environmental Management, and MARY ANN SULLIVAN, Deputy
General Counsel for Environmental and Civilian Nuclear Defense Programs,
Defendants-Appellants.
==================
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
BRIEF OF AMICI CURIAE STATES OF WASHINGTON, OHIO,
ARKANSAS, CALIFORNIA, COLORADO, CONNECTICUT,
DELAWARE, ILLINOIS, LOUISIANA, NEVADA, NEW MEXICO,
NORTH CAROLINA, OKLAHOMA, OREGON, SOUTH CAROLINA,
TENNESSEE
==================
Amici Curiae are the States of Washington, Ohio, Arkansas, California, Colorado,
Connecticut, Delaware, Illinois, Louisiana, Nevada, New Mexico, North Carolina,
Oklahoma, Oregon, South Carolina, and Tennessee. Defendants-Appellants the United
States Department of Energy (DOE) et al. urge this court to reverse and vacate,
on procedural grounds, the preliminary injunction entered by the district court.
Should the court find it necessary to go beyond DOE's procedural arguments and
consider the merits of the case, however, Amici disagree with the parties'
assertion that a private entity may dispose DOE-generated low-level radioactive
waste ("LLRW") at a privately owned and operated site and, in so doing, be exempt
from external regulation. Amici submit that to the extent it accepts any LLRW for
disposal, a private entity is subject to regulation either by the Nuclear
Regulatory Commission ("NRC") or by a State to which the NRC has relinquished
regulatory authority. Here, Plaintiff-Appellee Waste Control Specialists, LLC
("WCS") is subject to state regulation.
I. STATEMENT OF INTEREST
Amici have a vital interest in the protection of their citizens and environment
and in ensuring this protection through the exercise of state regulation. If a
privately owned and operated facility that seeks to profit from disposing
radioactive waste generated by DOE is exempt from external regulation, public
health and the environment may be severely compromised. Radiation protection
regulations must not be rendered ineffective merely because a private facility
agrees to dispose DOE waste.
DOE and its predecessor agencies have historically asserted exemptions from
regulatory laws in the operation of the federal nuclear weapons complex. The
absence of oversight has resulted in environmental contamination at DOE's nuclear
weapons production complex. H.R. Rep. 102-111, 102nd Cong., 1st Sess. 1991,
reprinted, 1992 U.S.C.C.A.N. [1]. A 1991 report by the Congressional Office of
Technology Assessment ("OTA") attributes the widespread contamination to DOE's
"history of emphasizing the urgency of weapons production for national security,
to the neglect of health and environmental considerations; ignorance of, and lack
of attention to, the consequences of environmental contamination; and decades of
self-regulation, without independent oversight or meaningful public scrutiny."
Id.
As of 1991, sixteen DOE facilities were on the Superfund National Priorities
List. According to the OTA, "[a]t every facility the groundwater is contaminated
with radionuclides or hazardous chemicals... Millions of cubic yards of
radioactive and hazardous wastes have been buried throughout the complex, and
there are few adequate records of burial site locations and contents." Id. Some
of the DOE facilities, such as Rocky Flats and Fernald, show a long history of
concealment of environmental violations. Id.
The United States Environmental Protection Agency ("EPA") has estimated that cost
of corrective action at federal facilities is likely to range between three
billion and eighteen billion dollars. S. Rep. No. 553, 101st Cong., 2nd Sess
1990. [2]
States have led the fight to apply and enforce environmental laws at DOE
facilities. The massive contamination at the sites could have been avoided if
environmental standards had been observed. States, along with EPA, are now
requiring that these sites be cleaned up. In the State of Washington, for
example, the State Department of Ecology entered into an agreement, in 1989, with
the EPA and DOE by which hazardous waste management and cleanup requirements
are applied to DOE's Hanford facility. Under the agreement, DOE has started
to address the truly mammoth task of cleaning up the Hanford site. In 1988 and
1989, the State of Ohio and DOE entered into consent decrees for the remediation
of DOE's Fernald and Portsmouth facilities.
These agreements and, indeed, all state efforts to apply state laws at DOE sites,
are based on the notion that DOE sites, like any other industrial facility, are
subject to, in fact benefit from, independent oversight. This form of
externalupervision forces a level of accountability that will not otherwise
exist. The danger inherent in the absence of such oversight is self-evident. [3]
In light of the problems the states have experienced with DOE's self- regulation,
it is not surprising that Amici are concerned about WCS's proposal. WCS proposes
to expand its existing hazardous waste disposal facility to dispose LLRW and
mixed waste generated by DOE. The WCS facility is privately owned and operated.
WCS suggests that, with respect to its proposed receipt and disposal of DOE
waste, WCS would be "regulated" solely by DOE.
Amici are even more concerned about DOE's position. Recently, the states and DOE
have worked together on policy and regulatory issues at unprecedented levels of
cooperation. However, in this case, DOE has taken a position on which the states
cannot remain silent. Rather than admitting the WCS proposal is patently illegal,
DOE cites current DOE policy providing that non-DOE disposal facilities a may
be used for disposal of LLRW only if the facility complies with applicable
Federal, State, and local requirements. Brief for Appellants, p. 5. DOE asserts,
however, that with a change in policy, it could regulate the WCS facility in
themanner suggested by WCS. Id. at p. 26. It is this assertion that prompts the
filing of this brief.
II. SUMMARY OF ARGUMENT
The WCS proposal cannot be implemented under the Atomic Energy Act.
WCS is not exempt from State regulation simply because it disposes DOE waste at
its privately owned and operated facility. Further, disposal of DOE waste at the
WCS facility in the absence of State regulation is inconsistent with the
Low-Level Radioactive Waste Policy Amendments Act of 1985.
III. ARGUMENT
A. THE ATOMIC ENERGY ACT PRESERVES STATE AUTHORITY OVER
POSSESSION AND DISPOSAL OF LLRW.
1. The Atomic Energy Act Governs the Possession and Disposal of LLRW at the
WCS Facility.
The Atomic Energy Act ("AEA") was enacted in 1946 to govern the use of atomic
energy in the federal government's nuclear weapons complex. Ch. 724, § 1, 60
Stat. 755. The AEA created the Atomic Energy Commission ("AEC") to manage the
complex. Id. In 1954, the Act was substantially amended to allow and promote
private sector development of nuclear power technology. 42 U.S.C. § 2013(d). The
amendments required the AEC to license and regulate the private sector. 42 U.S.C.
§§ 2014(s), 2071 et seq., 2091 et seq., 2111 et seq.
a) The AEA Vests Federal Regulatory Power In The Nuclear Regulatory
Commission.
In 1974, Congress abolished the AEC and transferred its functions to
the NRC and to the Energy Research and Development Administration (ERDA). 42
U.S.C. §§ 5814(c), 5841 (Energy Reorganization Act of 1974). When Congress
divided the AEC's authorities and responsibilities between the NRC and ERDA (now
DOE), it separated the licensing and related regulatory functions from the energy
research and development functions, finding that such a separation was in the
public interest. 42 U.S.C. § 5801(c).
To effectuate its finding, Congress
transferred to the NRC all of the licensing and related regulatory functions of
the AEC. 42 U.S.C. §§ 5814(c), 5841(f) . [4] Pursuant to this transfer of
authority, the NRC has developed a set of licensing and related regulatory
requirements. E.g. 10 C.F.R. Pts. 19, 20, 30, 40, 61, 70. For example, NRC rules
govern the licensing of radioactive materials, waste disposal, radiation dose
limits for members of the public, and occupational radiation dose limits. Id.
A key regulatory device created by the NRC's regulatory scheme is the requirement
that a license be obtained prior to the receipt, possession, or disposal of LLRW.
Id.
b) The AEA Regulatory Powers Extend To The Disposal of LLRW By WCS.
In this case, it is proposed that WCS take and dispose LLRW.[5] The
AEA regulates three kinds of radioactive material: "byproduct material,"
"source material," and "special nuclear material." 42 U.S.C. §§ 2111 et
seq. 2091 et seq., 2071 et seq. LLRW is defined primarily by what it is not:
.... radioactive material that -------
(A) is not high-level radioactive waste, spent nuclear fuel, or
byproduct
material (as defined in section 11e.(2) of the Atomic Energy Act
(42 U.S.C. §2014(e)(2))...; and
(B) the Nuclear Regulatory Commission consistent with existing law and in
accordance with paragraph (A), classifies as low-level radioactive waste.
42 U.S.C. § 2021b(9).
NRC regulations explain that LLRW is waste that contains certain byproduct
material, source material, and/ or special nuclear material. 1O C.F.R. § 61.2
[6] The possession and disposal of LLRW is governed by NRC's licensing and
related regulatory requirements. E.g. 10 C.F.R. Pts. 19, 20, 30, 40, 61, 70. Part
61 sets forth regulations specific to disposal of LLRW including the design and
operation of a LLRW disposal facility. Parts 30, 40, and 70 set forth licensing
regulations regarding byproduct material, source material, and special nuclear
material, respectively.
Thus, NRC's rules under the AEA establish a regulatory scheme for LLRW. The
linchpin of this scheme is the requirement that any person proposing to receive,
possess, or dispose of LLRW obtain a license from the NRC. Through the license,
the various regulatory requirements designed to protect human health and the
environment are brought to bear.
c) The AEA Charges The DOE With Managing the Federal Nuclear Weapons Complex,
Not Regulating Privately Owned and Operated Facilities Such as The WCS Facility.
In 1977, Congress abolished ERDA and transferred its functions to DOE. 42 U.S.C.
§ 7151(a) . DOE's authority extends to energy research and development and
operation of the fedetal nuclear weapons complex. 42 U.S.C. §§ 5813, 7112 [7] In
this regard, DOE may oversee and manage its contractors. E.g. 48 C.F.R. Pt. 970.
In limited circumstances, DOE may impose civil penalties against its
contractors. 42 U.S.C. § 2282a. However, this is a matter of contract and does
not amount to regulatory authority.
Clearly, DOE has no licensing or related
regulatory authority over a privately owned and operated facility. 42 U.S.C. §
5841(f). [8]According to the Senate Report for the Energy Reorganization Act of
1974:
The reorganization established by this legislation has the additional purpose of
separating the regulatory functions of the AEC from its developmental and
promotional functions - a response to growing criticism that there is a basic
conflict between the AEC's regulation of the nuclear power industry and its
development and promotion of new technology for the industry.
S. Rep. No. 93-980.
To recognize any regulatory authority in DOE over a privately owned and operated
facility would be to ignore the inherent conflict between DOE's statutorily
recognized mission of atomic energy research and development and operation of the
nuclear weapons complex and the regulatory checks on such power that are
necessary to protect the public health and the environment.
2. The AEA Allows Relinquishment To States Of NRC's Regulatory Authority Over
Possession and Disposal of LLRW.
In 1959, the AEA was amended to provide for relinquishment of certain licensing
and regulatory authority from the Commission in favor of state regulatory
authority. 42 U.S.C. § 2021. NRC and the states may enter into agreements
providing for the discontinuance of NRC authority over radioactive materials. 42
U.S.C. § 2021(b). During the duration of the agreement "it is recognized that the
state shall have authority to regulate the materials covered by the agreement for
the protection of the public health and safety from radiation hazards." Id.
States to which NRC has relinquished its authority are called "Agreement States."
Amici include full Agreement States, such as the State of Washington. [9] As an
Agreement State, the State of Texas' regulatory powers extend to the WCS
facility. [10]
3. WCS Is Not Exempt From AEA Regulation.
Under the AEA, no person may receive,
possess, or dispose LLRW unless licensed by the NRC or an Agreement State. 42
U.S.C. §§ 2014(s), 2111 et seq., 2091 et seq., 2071 et seq. The word "person" is
defined broadly to mean:
(1) any individual, corporation, partnership, firm, association, trust, estate,
public or private institution, group, Government agency other than the
Commission, any State or any political subdivision of, or any political entity
within a State, any foreign government or nation or any political subdivision of
any such government or nation, or other entity; and (2) any legal successor,
representative, agent, or agency of the foregoing.
42 U.S.C. § 2014(s).
As a "person" proposing to receive, possess, and dispose LLRW, WCS must comply
with applicable licensing requirements. WCS attempts to evade this fact by
arguing that if DOE were to accept its bid, whereby it would take and dispose
DOE-generated LLRW at its privately owned and operated facility, it would be
exempt from regulation.
a) DOE's Partial Exemption Under the AEA Does Not Apply to WCS.
DOE asserts that it is partially exempt from NRC licensing and regulation. [11]
As a successor agency to the AEC, DOE asserts that it is excluded from the AEA's
definition of "person." 42 U.S.C. § 2014(s). [12] By regulation, NRC exempts DOE
from licensing requirements in certain situations. E.g. 10 C.F.R. § 30.4.
Any partial exemption DOE may have from AEA regulation does not extend to WCS.
Only DOE and the NRC are legal successors to the AEC. 42 U.S.C. §§ 5814, 5841.
Furthermore, there is no indication that WCS, should DOE accept its bid, would be
a "representative, agent, or agency" of DOE eligible to share in an exclusion
from the definition of "person." The AEA does not define "representative,"
"agent," or "agency." When a word is not defined by statute, it must be
construed in accordance with its ordinary and natural meaning as well as the
overall policies and objectives ofthe statute. United States v. Lowe 118 F.3d
300 (5th Cir. 1997) (citations omitted).
The word "representative" is defined as "one that exemplifies or typifies others
of the same class; a delegate or agent for another." Webster's II New
Riverside University Dictionary (1988). "Agent" means "one that acts as the
representative of another; a representative of a government or administrative
department of a government." Id. "Agency" is defined as "a business or service
officially acting for others; a governmental department of administration or
regulations." Id.
Even if its bid were accepted, WCS would not be a representative or agent of DOE.
To the contrary, WCS proposes that it become a private licensee of DOE whereby
it would acquire and dispose of DOE waste, taking title to the waste at the door
of the WCS facility. Preliminary Injunction, Conclusion of Law No. 9. To consider
WCS a representative or agent of DOE for purposes of exemption from NRC licensing
is contrary to the policies and objectives of the AEA. See Section A. 1., supra,
and Section B, infra.
b) The Contractor Exemption Under the AEA Does Not Apply to WCS.
Section 110 of the AEA, 42 U.S.C. § 2140, provides that "[n]othing in this
chapter 142 U.S.C. § 2131 et seq.] shall be deemed----(a) to require a license
for.... (2) the construction and operation of facilities under contract with and
for the account of the Commission." WCS asserts that subsection (2) is applicable
to its proposed receipt and disposal of DOE LLRW. However, this provision has
nothing to do with disposal of LLRW.
By its terms, 42 U.S.C. § 2131 et seq. does not address disposal of LLRW or its
component parts. As used in 42 U.S.C. § 2131 et seq., "facility" refers to
production or utilization facilities, not to LLRW disposal facilities. Although
"facility" is not explicitly defined under the AEA, the chapter to which the
provision refers, 42 U.S.C. § 2131 et seq. concerns production or utilization
facilities. [13] For instance, 42 U.S.C. § 2136 provides that the Commission may
group the facilities licensed under 42 U.S.C. § 2133 or § 2134 into classes which
"may include either production or utitlization facilities or both, upon the basis
of the similarity of operating and technical characteristics of the facilities."
The provisions of 42 U.S.C. § 2131 et seq. are not applicable to WCS.
c) NRC Regulatory Exemptions For DOE Related Activities Do Not Apply To WCS.
NRC may grant certain exemptions from regulation if it determines that the
exemption does not put the common defense and secunty or public health and safety
at risk. E.g. 42 U.S.C. § 2111. With respect to DOE related activities, NRC has
established a limited exemption from the licensing requirements of Parts 30, 40,
and 70:
"....any prime contractor of the Department is exempt from the requirements
for a license set forth in sections 81 and 82 of the Act and from the regulations
in this part to the extent that such contractor. under his prime contract with
the Department manufactures, produces, transfers, receives, acquires, owns,
possesses, or uses byproduct material for: (a) The performance of work for the
Department at a United States Government-owned or controlled site, including
the transportation of byproduct material to or from such site and the performance
of contract services during temporary interruptions of such transportation....
10 C.F.R. § 30.12 (emphasis added); see also 10 C.F.R, §§ 40.11, 70.11 [14]
The
exemption is not applicable to WCS for two reasons. First, WCS's disposal of LLRW
would be governed by the LLRW disposal requirements of 10 C.F.R. Pt. 61. Part 61
establishes procedures and criteria applicable to "....all persons in the United
States" proposing to dispose LLRW received from other persons. While Part 61
does not apply to one who disposes one's own waste, it does apply to WCS because
WCS proposes to dispose LLRW generated by DOE. Id.; 10 C.F.R. §§ 20.2001 to
20.2007, 61.1(b). Part 61 contains no exemption from regulation for DOE-related
activities. 10 C.F.R. § 61.6. [15]
Second, WCS does not fall within the limited exemption. The exemption applies
only to DOE prime contractors performing work for DOE at DOE-owned or
controlled sites. The exemption does not apply to all DOE related
activities. [16] WCS would not be exempt from regulation under 10 C.F.R. Part 30,
40, or 70 because WCS is not a "prime contractor" nor is the WCS site "owned or
controlled" by DOE.
Neither the Act nor the regulations define "prime contractor" or "controlled."
Webster's Dictionary defines "prime" to mean "first in degree or rank; first in
time, order, or sequence" and "contractor" as " a person who agrees to furnish
materials or perform services at a specified price, esp. for construction."
Webster's II New Riverside University Dictionary (1988). Under WCS's
proposal, WCS would acquire DOE-generated waste from DOE for disposal and take
title to the waste at the door of the WCS facility. There is no indication that
it would act in any way as a first or general contractor for DOE and therefore is
not a "prime contractor" for purposes of the exemption.
Even if WCS were considered a prime contractor, the WCS site would not be
"Government owned or controlled." The regulations do not define "controlled" but
in this context, Amici submit that control must include the ability to give
direction regarding the operation of the site and the authority to regulate the
site. This is consistent with the dictionary definition of "control": "authority
or ability to regulate, direct, or influence." Id. A disposal site that is
privately owned and operated is not controlled by DOE. If DOE has no ownership
interest in the facility, there is no assurance that it will have any control
over the facility. The regulations do not establish any method for determination
of adequate control or oversight if a "prime contractor" is exempted. 10 C.F.R.
§§ 30.12, 40.11, 70.11. Furthermore, as explained above, DOE has no authority to
regulate WCS. Even if WCS may be considered a prime contractor, its facility is
not owned by DOE and it cannot be controlled by DOE. Therefore, WCS is not exempt
from regulation under 10 C.F.R. Part 30, 40, or 70.
Because WCS is not exempt from regulation, state regulatory authority is
unaffected. WCS's proposal is precisely the kind of activity that is intended to
be regulated by the NRC or Agreement States under the AEA. The disposal of LLRW
by a private company at a private site simply cannot occur without a license
issued by the NRC or an Agreement State. This is not a question of DOE policy. It
is a statutory requirement. WCS's proposal is illegal and was appropriately
rejected by DOE. This court should instruct DOE that it has no authority to
entertain such a proposal.
4. WCS Is Subject to State Regulation Even Assuming, Arguendo, That NRC
Rules Exempt It From NRC Regulation.
Even assuming, arguendo, that WCS were exempt from NRC regulation pursuant
to NRC rules, WCS would remain subject to state regulation. An Agreement State
program must be (i) compatible with the NRC's program for regulation and (ii)
adequate to protect the public health and safety with respect to the materials
covered by the agreement. 42 U.S.C. § 2021(d)(2). A state program need not be
identical to and, in fact, may be more stringent than the NRC program. Id.; 42
U.S.C. § 2021(o); See 62 Fed. Reg. 46,517 (1997).
For instance, even if WCS were exempt from 10 C.F.R. Part 30 under 10 C.F.R. §
30.12, it would not necessarily be exempt from state regulation under similar
state provisions. The preliminary injunction, however, denies Texas its authority
to regulate. It unlawfully allows WCS to circumvent state requirements merely by
agreeing to dispose DOE waste.
B. DISPOSAL OF LLRW AT THE WCS FACILITY ABSENT STATE REGULATION IS INCONSISTENT
WITH THE LOW- LEVEL RADIOACTIVE WASTE POLICY AMENDMENTS ACT OF 1985.
The Low-Level Radioactive Waste Policy Act of 1980, as amended by the Low-Level
Radioactive Waste Policy Amendments Act of 1985 ("Policy Amendments Act"),
specifically addresses the disposal of LLRW, establishing state and federal
responsibilities for waste disposal. 42 U.S.C. § 2021b et seq. [17] Under
the Policy Amendments Act, non-federal disposal facilities that accept federal
waste are subject to state regulation. 42 U.S.C. § 2021d(b)(1)(B).
The need to address LLRW disposal arose when the number of available commercial
disposal facilities decreased, causing concern that disposal capacity would be
limited. S. Rep. No. 96-548, reprinted. 1980 U.S.C.C.A.N. 6933. In order to lift
the national burden of disposal from the remaining disposal facilities, Congress,
with significant input from the states, established responsibilities for waste
disposal. H.R. Rep. 99-314(II), 99th Cong., 1st Sess. 1985, reprinted, 1985
U.S.C.C.A.N. 3002.
Under the Policy Amendments Act, the states are declared responsible for the
disposal of LLRW generated by the state as well as certain other wastes. 42
U.S.C. §§ 2021c, 2021d. To carry this out, the states are authorized to enter
into compacts for the establishment and operation of regional disposal
facilities. 42 U.S.C. § 2021d. Compacts to which Congress has consented can
restrict access to the regional disposal facility to members ofthe compact. 42
U.S.C. § 2021d(d). To date, nine compacts have been established and consented to
by Congress. 42 U.S.C. § 2021d [18]
The disposal of some federal LLRW, including that generated by DOE, is a federal
responsibility. 42 U.S.C. §§ 2021c(a)(1)(B), 2021d(b)(1)(A) and (2). The
separation of commercial and federal disposal responsibilities was meant to
preserve the existing disposal patterns between commercial and federal
facilities. H.R. Rep. 99-314(11), 99th Cong., 1st Sess. 1985, reprinted. 1985
U.S.C.C.A.N. 3002. Federal LLRW disposal facilities are not subject to compact
action. 42 U.S.C. § 2021 d(b)(2). Commercial facilities that accept federal waste
are subject to compact action as well as state regulation:
[LLRW] owned or generated by the Federal Govemment that is disposed of at a
regional disposal facility or non-Federal disposal facility within a State that
is not a member of a compact shall be subject to the same conditions,
regulations, requirements, fees, taxes, and surcharges imposed by the compact
commission and by the State in which the facility is located, in the same manner
and to the same extent as any [LLRW] not generated by the Federal Government.
42
U.S.C. § 2021d(b)(1)(B).
Thus, where Congress specifically addressed the disposal of LLRW, it made it
clear that disposal, at a private facility, of LLRW generated by the federal
government is subject to state regulation. Disposal of DOE waste at a commercial
facility not subject to state regulation would be contrary to the Policy
Amendments Act and could serve to disrupt the disposal policies established by
Congress.
IV. CONCLUSION
Based on the foregoing, Amici respectfully request that the preliminary
injunction be reversed and vacated.
Respectfully Submitted,
[signed by all Attorneys General of Amici Curiae States and proper official
associates]
===========
[1] The Federal Facilities Compliance Act amended the Resources Conservation and
Recovery Act making DOE fully subject to state and federal hazardous waste laws.
[2] Not surprisingly, external regulation of DOE-owned sites has recently been
recommended. See Advisory Committee on External Regulation of Department of
Energy Nuclear Safety, Improving Regulation of Safety at DOE Nuclear
Facilities, Final Report, December 1995.
[3] DOE has acknowledged that decisions concerning disposal of DOE waste must be
made in consultation with the states. Brief p. 23. Congress has directed DOE to
consult with states in relation to its environmental restoration and waste
management activities. 42 U.S.C. §§ 7274g(a)(5), 7274k(b)(f).
[4] When Congress transferred to DOE the AEC functions of research and
development and operation of the nuclear weapons complex, it specified that
"[w]ith respect to any functions transferred by this Act and exercised after the
effective date of this Act, reference in any other federal law to any department,
commission, or agency, or officer or office the functions of which are so
transferred shall be deemed to refer to the Secretary or other official or
component of the Department in which this Act vests such functions. 42 U.S.C. §
7297. The Energy Reorganization Act contains similar language regarding functions
transferred to the NRC. 42 U.S.C. § 5871(h). Therefore, references to
"commission" contained in the AEA and related to the NRC functions of licensing
and regulatory authority mean NRC, not DOE. Though without any authority to
regulate privately owned and operated facilities, DOE regulates its own
facilities. See 42 U.S.C. § 2201.
[5] This brief assumes that at least some of the waste that would be disposed by
WCS is LLRW rather than naturally occurring radioactive material ("NORM") or
naturally occurring and accelerator produced radioactive material ("NARM").
The disposal of LLRW can include NORM or NARM. The NRC does not currently
regulate NORM/ NARM. See Reynolds, Who's Going To Regulate NORM?, 22 N. Ky. L.
Rev. 5 (1995). Some states have established applicable regulations. Id.
[6] Some of the waste may initially emit significant amounts of radiation; other
low-level waste may continue to emit lower levels of radiation for long periods
of time because of the long half-lives of the radionuclides in question.
Montange, Federal Nuclear Waste Disposal, 27 Nat. Res. J. 309, 358 (1987).
[7] DOE manages its own use of radioactive materials primarily through internal
orders giving significant discretion to the field offices. See Hess, Hanford:
Cleaning Up Ihe Most Contaminated Place In The United States, 38 Ariz. L.
Rev. 165, 195 (1996). Even for its own facilities, DOE has enacted only minimal
rules governing radioactive materials. See 10 C.F.R Pt. 835.
[8] The Department of Energy Organization Act, 42 U.S.C. § 7101 et seq.,
reinforces the separation of functions. 42 U.S.C. §§ 7112, 7133(a)(8).
[9] In non-Agreement States, state authority is specifically preserved in some
circumstances. E.g, 42 U.S.C. § 2023. Amici, however, do not fully address the
authority of a non-Agreement State over WCS.
[10] Amici note that the NRC and the State of Texas have entered into an
agreement whereby the NRC has relinquished authority to Texas. Under a provision
in Texas law, Texas can only issue a license for disposal of LLRW to a public
entity. Tex. Health and Safety Code § 401.203 (Vernon 1992). The district court
concluded that Texas had recognized that no license was needed for disposal of
DOE LLRW. Preliminary Injunction, Conclusion of Law 7. This is, however,
contraindicated by the letter from Dan Pearson, Executive Director for the TNRCC,
to Kenneth Bigham dated Decanber 13, 1996.
[11] Under the Energy Reorganization Act of 1974, NRC does in fact regulate DOE
in certain circumstances not relevant here. 42 U.S.C. § 5842. NRC licensing
authority was extended to cover facilities when their purpose would lead to
commercial as distinguished from research and development use. S. Rep. No.
93-980.
[12] DOE's exclusion from the definition of "person" for all purposes is not
clear. See 42 U.S.C. §§ 5871(h), 7297; footnote 6, supra. The asserted purpose
ofthe DOE exemption has been to avoid interference with nuclear weapons
production. Disposal of LLRW, however, is not weapons production. This is
consistent with Congressional intent to separate regulatory functions from
developmental and promotional functions. Supra.
[13] "Production facilities" and "utilization facilities" concern the production
and use of special nuclear materials. 42 U.S.C. §§ 2014(v) and (cc).
[14] Texas has adopted a form of this exemption. 25 Tex. Admin. Code §
289.201(2).
[15] Under NRC regulations, except as specifically provided in Part 61, a person
subject to Part 61 is not subject to Parts 30, 40, or 70. 10 C.F.R §§ 30.11(d),
40.14(d), 70.14(d). A person not subject to Part 61 remains subject to Parts 30,
40, and 70. Id.
[16] The second full paragraph of 10 C.F.R § 30.12 provides that certain DOE
prime contractors and subcontractors are exempt from regulation "when the
Commission determines that the exemption of the prime contractor or subcontractor
is authorized by law; and that, under the terms of the contract or subcontract,
there is adequate assurance that the work thereunder can be accomplished without
undue risk to the public health and safety." See also 10 C.F.R §§ 40.11, 70.11.
There is no indication that WCS or DOE has requested or received such an
exemption.
[17] Prior to this time, the federal statutes did not regulate LLRW by name,
except insofar as Congress directed the NRC to include as part of its reports to
Congress its activities "protecting the public against the hazards of low-level
radioactive waste emissions from licensed nuclear activities and facilities." 42
U.S.C. § 5877(c)(6). With the Policy Act of 1980, Congress first added a
definition of "LLRW" to the Atomic Energy Act. 42 U.S.C. § 2021b(9). NRC's
regulations regarding land disposal of LLRW were subsequently established. 42
Fed. Reg. 57,463 (1982). In general, more specific and recent statutes prevail
over more general older ones absent a clear intention otherwise. Matagorda County
v. Law, 19 F.3d 214 (5th Cir. 1994).
[18] The Texas Compact has been passed by the states in the Compact. The House
of Representatives has passed legislation authorizing the Compact. H.R 629.
TABLE OF AUTHORITIES
Cases:
Matagorda County v. Law,
19 F.3d 214 (5th Cir. 1994) 20
United States v. Lowe
118 F.3d 300 (5th Cir. 1997) 14
Statutes:
42 U.S.C. § 2013(d) 6
42 U.S.C. § 2014(s) 12,13
42 U.S.C. § 2021 11
42 U.S.C. § 2021(d)(2) 19
42 U.S.C. § 2021(o) 20
42 U.S.C. § 2021b et seq 20
42 U.S.C. § 2021b(9) 21
42 U.S.C. § 2021d 21
42 U.S.C. § 2021d(b)(1)(B) 20, 22
42 U.S.C. § 2021d(b)(2) 22
42 U.S.C. § 2021d(d) 21
42 U.S.C. § 2023 12
42 U.S.C. § 2131 et seq 15
42 U.S.C. § 2133 15
42 U.S.C. § 2134 15
42 U.S.C. § 2136 15
42 U.S.C. § 2140 15
42 U.S.C. § 2201 8
42 U.S.C. § 2282a 10
42 U.S.C. § 5801(c) 7
42 U.S.C. § 5842 13
42 U.S.C. § 5841(f) 10
42 U.S.C. § S871(h) 7
42 U.S.C. § 5877(c) (6) 20
42 U.S.C. § 7101 et seq 10
42 U.S.C. § 7112 10
42 U.S.C. § 7151(a) 10
42 U.S.C. § 7297 7
42 U.S.C. §§ 2014(s), 2111 et seq., 2091 et seq., 2071 et seq. 12
42 U.S.C. §§ 2014(s); 2071 et. seq., 2019 et seq., 2111 et seq. 7
42 U.S.C. §§ 2014(v) and (cc) 15
42 U.S.C. §§ 2021c(a)(1)(B); 2021d(b)(1)(A) and (2) 22
42 U.S.C. §§ 2021c, 2021d 21
42 U.S.C. §§ 2111 et seq., 2091 et seq., 2071 et seq. 8
42 U.S.C. §§ 5813; 7112 10
42 U.S.C. §§ 5814(c), 5841(f) 7
42 U.S.C. §§ 5871(h), 7297 13
42 U.S.C. §§ 7274g(a)(5); 7274k(b)(f) 5
Ch. 724, § 1, 60 Stat. 755 6
Federal Facilities Compliance Act 3
Resources Conservation and Recovery Act 3
Tex. Health & Safety Code § 401.203 (Vernon 1992) 12
Regulations
10 C.F.R. § 30.12 16, 18, 20
10 C.F.R. § 30.4 13
10 C.F.R. § 61.1(b) 17
10 C.F.R. § 61.2 9
10 C.F.R. § 61.6 17
10 C.F.R. §§ 30.11(d), 40.14(d), 70.14(d) 17
10 C.F.R. §§ 30.12, 40.11, 70.11 16, 18
10 C.F.R. Pt. 30 16, 20
10 C.F.R. Pts. 30, 40, 70 16, 17
10 C.F.R. Pt. 61 17
10 C.F.R. Pt. 835 10
10 C.F.R. Pts. 19, 20, 30, 40, 61, 70 8, 9
48 C.F.R. Pt. 970 10
47 Fed. Reg. 57,463 (1982) 20
62 Fed. Reg. 46,517 (1997) 20
25 Tex. Admin. Code § 289.201(2) 16