Application of the Resource Conservation and Recovery Act to the Department of Energy's Atomic Energy Act Facilities

Application of the Resource Conservation and Recovery Act
to the Department of Energy’s Atomic Energy Act Facilities
The nuclear production and weapons facilities that are operated by the Department o f Energy
(D O E) pursuant to the Atomic E nergy Act (AEA) are generally subject to the requirements o f
the Resource Conservation and Recovery Act (RCRA) governing the disposal o f solid wastes,
including applicable standards, regulations, permit requirem ents, and enforcement mecha­
nism s. 42 U .S.C. §69 6 1 .
Particular R CRA regulations or requirem ents may not apply to DOE facilities when the applica­
tion o f such regulation or requirement would be inconsistent with specific requirements o f the
AEA that flow directly from DO E’s statutory m andate to develop and use atomic energy. 42
U.S.C. § 6905(a).
W hether a particular RCRA regulation or requirem ent is inconsistent with the requirements o f
the AEA m ust be analyzed by DO E and the Environm ental Protection Agency on a case-by-
case basis. How ever, § 1006(a) o f RCRA, 42 U.S.C. § 6905(a), should relieve DOE from
com pliance with RCRA regulations or requirem ents (1) if they conflict with prescriptive
directives contained in the AEA itself, such as the AEA restrictions on public disclosure of
restricted data; (2) if compliance would prevent DOE from carrying out authorized AEA
activities; or (3) if compliance w ould be inconsistent with specific operational needs o f a
facility that are unique to the production o f nuclear material or components. In addition, a
state may not exercise veto power o ver the establishm ent or operation of a DOE facility, either
by denying necessary permits, or by seeking injunctive relief, because o f noncompliance with
a RCRA regulation that is inconsistent with the AEA.
February 9, 1984
M em orandum O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l ,
Land and N a t u r a l R e s o u r c e s D iv is io n
This responds to your request for our analysis regarding whether, or to what
extent, the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et
seq. (RCRA) applies to chemical wastes generated by nuclear production and
weapons facilities owned by the Department of Energy (DOE) and operated
under authority provided by the Atomic Energy Act of 1954, as amended, 42
U.S.C. §§ 2011 e t seq. (AEA). The context for your request is a difference of
opinion between DOE and the Environmental Protection Agency (EPA) over
whether waste treatment and disposal facilities and methods used at DOE’s
Atomic Energy Act plants are subject to RCRA standards, permit require­
ments, and enforcement mechanisms. DOE has taken the position that § 1006(a)
of RCRA, 42 U.S.C. § 6905(a), which provides that RCRA does not apply to
“activit[ies] . . . subject t o . . . the Atomic Energy Act of 1954 . . . except to the
6
extent such application (or regulation) is not inconsistent with the requirements
of such Act[],” exempts its AEA facilities from all RCRA regulation. EPA
contends that DOE’s AEA facilities are subject to RCRA, as are all other
federal facilities, but that specific RCRA regulations may not apply to some
aspects of DOE’s operations, if application of those regulations would be
inconsistent with particular requirements flowing directly from the language or
purpose of the AEA.1
We have received submissions from DOE and EPA on the applicability of
RCRA, including copies of previous correspondence between those agencies
on the issue. Based on our review of those materials, discussions with your
Division and personnel at DOE and EPA, and our own research, we have
concluded that EPA’s interpretation of § 1006(a) represents the sounder view
of the law. For the reasons set forth below, we conclude that DOE’s Atomic
Energy Act facilities are generally subject to the requirements of RCRA,
including compliance with applicable standards, regulations, and permitting
requirements, and are generally subject to the enforcement mechanisms estab­
lished by RCRA. Section 1006(a) leaves open the possibility, however, that
particular RCRA regulations or requirements are not applicable to DOE’s
facilities, or to a particular facility, because such regulations or requirements
would be “inconsistent with the requirements of [the AEA].” We do not
interpret “requirements of [the AEA],” as used in § 1006(a), as broadly as DOE
urges, i.e., to encompass all DOE regulations, orders, and directives that apply
to, or may affect, health and safety aspects of its Atomic Energy Act facilities.
Rather, in order to give reasonable content to § 1006(a), we must interpret the
term “requirements” more narrowly, as EPA urges, in light of the somewhat
different purposes of the AEA and RCRA.
Thus, we believe that § 1006(a) would relieve DOE from compliance with
RCRA only in particular circumstances where DOE can demonstrate that
application of a regulation or requirement would be inconsistent with specific
requirements of the AEA that flow directly from DOE’s statutory mandate to
develop and use atomic energy. Although it is difficult in the absence of
particular facts to give precise content to the term “requirements,” we believe
DOE could demonstrate that particular aspects of RCRA should not apply to
operation of its facilities (or particular facilities), for example: if the RCRA
regulation would conflict with prescriptive directives contained in the AEA
itself, including principally the restrictions on public disclosure of “restricted
data;”2 if compliance would prevent DOE from carrying out authorized Atomic
Energy Act activities; or if compliance with a particular regulation or require-
1D OE’s position has been challenged in recently filed litigation involving D O E’s Y-12 Plant in O ak Ridge,
Tennessee, at which nuclear w eapons com ponents are fabncated and assem bled. Legal Envt'l Assistance
Found, v. Hodel, C.A. No. 3 -8 3 -5 2 (E.D. Tenn filed Sept. 2 0 ,1 9 8 3 ). In addition, we understand that D OE is
currently negotiating with officials in South C arolina w ith respect to regulation o f waste handling at Atomic
Energy A ct facilities in that state, and that those officials have taken the position that operation o f those
facilities should be conditioned on receipt o f state waste handling perm its under the RCRA scheme.
2 See 42 U.S.C. §§ 2161-2168.
7
ment would be inconsistent with specific operational needs of a facility that are
unique to the production of nuclear material or components.
Obviously, this interpretation does not provide an exact or necessarily com­
prehensive standard. We attempt below to provide as much guidance as pos­
sible to you and to EPA for implementation of our conclusions. In the abstract,
however, we cannot determine which particular aspects of RCRA, or particular
regulations, would be “inconsistent with the requirements of [the AEA].” That
determination must be made by your agency and EPA based on an analysis,
from both a general and a facility specific perspective, of how implementation
of RCRA will affect the operation of DOE’s Atomic Energy Act facilities.
I. Background
RCRA, passed in 1976, established a broad regulatory scheme governing the
generation, transportation, storage, and disposal of solid wastes. Under that
Act, the practice of “open dumping” is prohibited, see 42 U.S.C. § 6945, and
the states are encouraged by federal financial and technical assistance to
prepare and submit to EPA for approval overall plans for regulation of solid
waste. See id. §§ 6931, 6948. The treatment, storage, and disposal of solid
wastes considered by EPA to be “hazardous wastes”3 are subject to a permit
requirement, see id. § 6925. and generators, transporters, and owners or opera­
tors of facilities for the treatment, storage, and disposal of solid wastes must
meet such minimum standards promulgated by EPA “as may be necessary to
protect human health and environment.” See id. §§ 6922,6923,6924. As under
the regulatory schemes established by the Clean Air Act, 42 U.S.C. §§ 7401 et
seq., and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.
(FWPCA), RCRA authorizes the states to administer the regulatory scheme,
including issuance of permits and enforcement of sanctions for violations, if
the Administrator of EPA finds that a state’s regulatory scheme is “equivalent”
to the federal scheme.4 No state may impose any requirements for the manage­
ment of hazardous wastes that are less stringent than the standards promulgated
by EPA, but states are expressly authorized to impose requirements that are
more stringent than federal standards. See 42 U.S.C. § 6929. RCRA also
provides for private “citizens suits” against persons, including the United
States, for violation of any permit, standard, regulation, condition, require­
ment, or order that has become effective pursuant to RCRA. See id. § 6972.
3 “H azardous w aste” is defined by R C R A to mean “a solid w aste, o r com bination of solid wastes, which
because o f its quantity, concentration, o r physical, chem ical, o r infectious characteristics may —
(A ) cause, o r significantly co n trib u te to an increase in m ortality or an increase in serious
irreversible, o r incapacitating reversible, illness; or
(B ) pose a substantial present o r potential hazard to human health or the environm ent when
im properly treated, stored, transported, or disposed of, o r otherw ise managed.”
42 U .S.C . § 6903(5). EPA is responsible fo r identifying the characteristics o f hazardous wastes and listing
p articu lar hazardous w astes that are su b ject to the hazardous waste m anagem ent provisions o f RCRA. Id.
§6921.
4 Compare 42 U .S.C . § 6926 (RCRA) with 42 U .S.C. § 7410 (C lean A ir Act) and 33 U.S.C. § 1342(FW PC A )
8
The question before us is whether the regulatory scheme imposed by RCRA,
including both federal and state regulation of hazardous wastes, applies to
chemical wastes produced by DOE’s production and weapons facilities oper­
ated pursuant to authority provided in the AEA.5 These facilities, which are
generally owned by DOE and operated by private contractors, produce special
nuclear material and components used in research, development, testing, and
production of nuclear weapons.6 Operation of the facilities generates various
waste streams, including chemical wastes that are considered to be “hazardous
wastes” under EPA criteria and regulations. These wastes are generated by a
variety of industrial processes, including metal working, electroplating, chemi­
cal extraction, machining, fabrication, and assembly and cleaning of solvent
parts.
Our analysis here turns on the two sections of RCRA that deal with regula­
tion of federal facilities and activities: § 6001,42 U.S.C. § 6961, which explic­
itly subjects all federal facilities and activities to state and federal regulation
under RCRA; and § 1006(a), 42 U.S.C § 6905(a), which precludes regulation
under RCRA of any “activity or substance” subject, inter alia, to the AEA
“except to the extent such application [of RCRA] (or regulation) is not inconsis­
tent with the requirements of such Acts.” Section 6001 provides in pertinent part:
Each department, agency, and instrumentality of the execu­
tive, legislative, and judicial branches of the Federal Govern­
ment (1) having jurisdiction over any solid waste management
5 The questioo we address here is applicability o f RCRA to nonnuclear wastes generated by D O E’s
facilities. The only m aterials that can be regulated under RCRA are “solid w astes” and “hazardous w astes”
(which are a subset o f “solid wastes” ). Section 1004(27) o f RCRA, 42 U.S.C. § 6903(27), expressly exem pts
from the definition o f “solid w aste” : “ source, special nuclear, o r byproduct m aterial as defined by the Atomic
Energy A ct o f 19S4, as am ended.” Thus, RCRA leaves undisturbed DOE’s authority to regulate the disposal
o f source, special nuclear, and byproduct wastes, which we understand are for the m ost part handled
separately from nonnuclear wastes. DOE has not indicated that its waste stream s include other nuclear
m aterial that does not fall within the categories o f source, special nuclear, and byproduct wastes.
6 DOE, as successor to the Atomic Energy C om m ission’s research and developm ent responsibilities, see 42
U.S.C. §§ 5814(c), 5817 (1976) (transfer o f functions to Energy Research and Developm ent A dm inistration);
42 U .S.C. § 7151 (Supp. V 1981) (transfer o f functions from Energy Research and D evelopm ent A dm inistra­
tion to DOE), is authorized by § 31(a) o f the AEA, 42 U.S.C. § 2051(a), to make arrangem ents for the
conduct o f research and developm ent activities relating to
(1) nuclear processes;
(2) the theory and production o f atomic energy, including processes, materials, and devices
related to such production;
(3) utilization o f special nuclear m aterial and radioactive material for m edical, biological,
agricultural, health, or m ilitary purposes;
(4) utilization o f special nuclear m aterial, atomic energy, and radioactive m aterial and pro­
cesses entailed in the utilization o r production o f atom ic energy o r such material for all other
purposes, including industrial or com m ercial uses, the generation o f usable energy, and the
dem onstration o f advances in the com m ercial o r industrial application o f atomic energy;
(5) the protection o f health and the promotion o f safety during research and production
activities; and
(6) the preservation and enhancem ent o f a viable environm ent by developing more efficient
methods to m eet the N ation’s energy needs.
Id. D OE is further authorized to “produce or to provide for production o f special nuclear m aterial in its own
production facilities,” id. § 2061(b), to perform research and developm ent w ork in the m ilitary application of
atom ic energy, id. § 2121(a), and to engage in the production o f atomic weapons, id.
9
facility or disposal site, or (2) engaged in any activity resulting,
or which may result, in the disposal of solid waste or hazardous
waste shall be subject to, and comply with, all Federal, State,
interstate, and local requirements, both substantive and proce­
dural (including any requirement for permits or reporting or any
provisions for injunctive relief and such sanctions as may be
imposed by a court to enforce such relief), respecting control
and abatement of solid waste or hazardous waste disposal in the
same manner, and to the same extent, as any person is subject to
such requirements, including the payment of reasonable service
charges. Neither the United States, nor any agent, employee, or
officer thereof, shall be immune or exempt from any process or
sanction of any State or Federal Court with respect to the en­
forcement of any such injunctive relief.
This section further provides that the President may exempt any “solid waste
management facility”7 of any Executive Branch department, agency, or instru­
mentality from compliance with RCRA requirements “if he determines it to be
in the paramount interest of the United States to do so.” Id. Section 6001 was
modeled on parallel provisions in the Clean Air Act and the FWPCA, both of
which subject federal facilities to the regulatory schemes imposed by those
Acts and provide for Presidential exemptions.8
If § 6001 were the only provision dealing with the applicability of RCRA to
federal facilities or activities, our analysis would end here. The operation of
DOE’s Atomic Energy Act facilities is plainly an “activity resulting . . . in the
disposal of hazardous wastes,” and therefore within the explicit waiver of
sovereign immunity for federal facilities provided by §6001.9 Indeed, we
understand that DOE does not contest the applicability to those facilities of the
FWPCA.10 Specific problems that have arisen because of the application of the
FWPCA to DOE’s Atomic Energy Act facilities have been dealt with through
negotiations between EPA and DOE, resulting in most cases in agreements that
govern DOE’s compliance with the FWPCA.
7 R C R A ’s definition o f this term includes system s for collection, separation, recycling, and recovery of
solid w astes, system s fo r resource conservation, and facilities fo r the treatm ent o f solid w astes. See 42 U.S.C.
§ 6903(29).
8 See 42 U .S.C . § 7418 (C lean Air Act); 33 U.S.C. § 1323 (FW PCA), discussed m S. Rep. No. 988, 94th
C ong., 2d Sess. 2 4 (1 9 7 6 ).
9 G iven the broad definition o f “solid w a ste m anagem ent facility," D O E’s Atomic Energy Act facilities
w ould in m ost cases also be considered “so lid waste m anagem ent facilities;” if wastes w ere disposed on site,
D O E w ould be considered to have ju risd ictio n over “disposal sites.” Therefore those facilities would
probably also fall w ithin the first category o f federal facilities described in § 6001.
10 The FW PC A does not include a provision com parable to § 1006(a) o f RCRA making the FW PCA
subordinate, at least in som e circumstances, to the AEA o r o th er statutes. Rather, the effect o f § 511 (a) o f the
FW PC A , 33 U .S.C . § 1371 (a), is to make the FW PCA prevail in the event o f inconsistencies between that Act
and o th er law s o r regulations. Section 511(a) provides, in pertinent part, that “ [tjhis chapter [FWPCA] shall
not be co n stru ed as . . . lim iting the authority o r functions o f any officer or agency of the U nited States under
any law o r regulation not inconsistent with th is chapter.”
B ecause the C lean A ir A ct is not generally enforced through a perm it system , DOE has not had relevant
experien ce w ith potential inconsistencies b etw een the AEA and that Act.
10
However, unlike the FWPCA, RCRA explicitly addresses, in § 1006(a), its
relationship to certain other statutes, including the AEA. Section 1006(a)
provides in full text that:
Nothing in this chapter shall be construed to apply to (o r to
authorize any State, interstate, or local authority to regulate)
any activity o r substance which is subject to the Federal Water
Pollution Control Act [33 U.S.C. §§ 1251 et seq.], the Safe
Drinking Water Act [42 U.S.C. §§ 300f et seq.], the Marine
Protection, Research and Sanctuaries Act of 1972 [33 U.S.C.
§§ 1401 et seq.], or the Atom ic Energy A ct o f 1954 [42 U.S.C.
§§ 2011 et seq .] except to the extent that such application (or
regulation) is not inconsistent with the requirements o f such
Acts.
42 U.S.C. § 6905(a) (emphasis added).
If operation of DOE’s Atomic Energy Act facilities is an “activity . . . subject
to . . . the Atomic Energy Act” within the meaning of this section, which we
believe it is,11 § 1006(a) by its terms would preclude application of RCRA
regulations or requirements “except to the extent. . . not inconsistent with the
requirements of [the AEA].” The crux of the question before us is the meaning
of that proviso in § 1006(a).
DOE contends that this proviso proscribes any application of RCRA regula­
tions and requirements to its Atomic Energy Act facilities, and therefore also
proscribes any regulatory authority by EPA or the states over those facilities.
The comparison required by the language of the proviso and its context within
§ 1006(a), according to DOE, is between overlapping regulatory schemes, not
between individual regulations or requirements imposed by those schemes.
DOE argues that § 1006(a) is intended to make it clear that RCRA’s regulatory
scheme would be subordinate to those of other enumerated statutes so as to
avoid subjecting the same activity or substance to varying sources of regulation
having the potential for conflict. DOE asserts that comparison of the regula­
tory schemes established by the AEA and RCRA reveals three major inconsis­
tencies in the treatment of federal facilities under those Acts:
(1) the AEA does not provide for any state role in permitting
of federal facilities, while RCRA provides for state permitting
programs and enforcement, and allows state requirements to be
more stringent than those imposed by federal regulation;
11 It could be argued that the term “activity" as used in § 1006(a) is intended only to include the activity o f
handling o r treating solid wastes, w hich arguably is not “ subject to” the AEA. However, we construe
“activity” in § 1006(a) consistently w ith the use o f the same term in § 6001, w hich provides that any federal
“activity resulting . . . in the disposal o f solid w aste or hazardous waste” is subject to R CRA . (E m phasis
added.) As w e note above, w e believe that term clearly includes the operation o f D O E’s A tom ic Energy A ct
facilities.
11
(2) the AEA places authority in DOE to determine appropri­
ate standards for waste handling for public health and safety,
while RCRA places that authority in EPA and the states;12
(3) the AEA restricts access to and dissemination of restricted
data pertinent to the design or construction of nuclear weapons
and production and use o f special nuclear material, while RCRA
requires that EPA and state officials have access to information
on the generation and handling of hazardous wastes and to waste
sites, and generally provides for public availability of information.
DOE contends that the cumulative effect of these inconsistencies is to exempt
from RCRA’s scheme of regulation the operation of DOE’s Atomic Energy
Act facilities.
EPA accepts the premise that national security and other considerations may
require some adjustments in the application of hazardous waste regulations to
DOE’s Atomic Energy Act facilities and agrees with DOE’s assertion that
continued operation of certain facilities cannot be dependent on permission
granted by state officials. EPA disagrees, however, with DOE’s argument that
the effect of the “except to the extent. . . not inconsistent” proviso in § 1006(a)
is to exempt entirely DOE’s Atomic Energy Act facilities from RCRA. Rather,
EPA interprets that proviso to require a case-by-case comparison of RCRA
regulations with specific requirements of the AEA. In that regard, EPA argues
that regulations or directives governing hazardous waste treatment and dis­
posal that DOE issues under the authority of § 161 (i)(3) would not generally be
“requirements o f ’ the AEA, but rather should, for the most part, be considered
as incidental to DOE’s statutory mandate to promote the development, use, and
control of atomic energy.13EPA interprets “requirements,” as used in § 1006(a),
to mean prescriptive directives contained in the statute itself, such as the
AEA’s provisions governing restricted data, or particular regulations and or­
ders shown to be necessary to implement DOE’s particular statutory mandate.
12 D O E cites § 161(i)(3) o f the AEA, 4 2 U.S.C. § 2201 (i)(3), as the basis for its authority to prescribe
regulations and directives governing the treatm en t and disposal of solid wastes at its facilities. That section,
enacted as part o f several general powers granted to the A tom ic Energy C om m ission under the AEA, grants
D O E authority to:
prescribe such regulations or o rd ers as it may deem necessary . . . (3) to govern any activity
authorized pursuant to this chapter, including standards and restrictions governing the design,
location, and o p eration o f facilities u sed in the conduct o f such activity, in o rder to protect health
and to m inim ize danger to life or p roperty.
P ursuant to this authority D O E has issued a n internal order governing chem ical waste disposal practices at its
A tom ic E nergy A ct facilities. DOE O rd e r 5480.2 (D ec. 13, 1982). The hazardous waste management
procedures established by that order fo llo w , “to the extent practicable," regulations issued by EPA under
R CR A , but the o rder states that facilities adm inistered un d er the authority of the AEA are not bound by
RCRA requirem ents.
19 EPA p oints out that the primary c o n cern o f C ongress w hen it passed the AEA in 1954 was to develop a
schem e for th e prom otion o f atomic energy and protection o f the public from radioactive hazards. The general
grant o f au th o rity to regulate health and safety aspects o f atom ic energy facilities should be interpreted in
light o f the leg islativ e history o f the A EA , w hich EPA asserts does not suggest that DO E is authorized, much
less required, to establish a regime for th e control o f non-radioactive w astes.
12
EPA recognizes that some specific applications of hazardous waste regulations
would probably have to yield to regulation by DOE, but believes this conclu­
sion cannot be made on a general, abstract basis, but only with reference to
specific AEA activities, and specific aspects of hazardous waste regulation.
That review, EPA asserts, should be sufficient to protect DOE’s particular
concerns about protection of restricted data and the effect of state regulation
and permit requirements.
II. Analysis
Neither the language nor the legislative history of § 1006(a) necessarily
provides a dispositive answer to the question before us. However, reading the
language of that provision in light of the structure and purpose of both RCRA
and the AEA, we conclude that Congress did not intend that section to provide
a categorical exemption from RCRA for DOE’s Atomic Energy Act facilities.
Rather, that section is most reasonably read to establish a priority among those
statutes in cases in which a particular conflict exists between RCRA and
accomplishment by DOE of the congressionally mandated purposes of the
AEA.
We start with the language of § 1006(a). Although that language might be
said to be somewhat ambiguous, the inclusion of the “except to the extent. . .
not inconsistent” proviso suggests that Congress contemplated that some as­
pects of RCRA would apply to activities and substances subject to the enumer­
ated statutes.14 DOE interprets that proviso, however, to apply only to privately
owned nuclear power facilities licensed by the Nuclear Regulatory Commis­
sion (NRC) under the AEA. DOE argues that, absent that proviso, the exemp­
tion from RCRA for all “activities]... subject to [the AEA]” would encompass the
operation of such private nuclear power facilities, and thereby exempt those
facilities from state or federal regulation under RCRA — a result DOE argues
was clearly not intended by Congress. Thus, DOE contends that inclusion of
the proviso was necessary to preserve EPA’s jurisdiction under RCRA over the
disposal of nonnuclear chemical wastes by privately owned nuclear power
facilities, but Congress did not also intend to provide for implementation and
enforcement of RCRA with respect to federal activities “subject to the [AEA].”
14 This reading is logically intended w ith respect to the three statutes listed in that section in addition to the
AEA: the FW PC A , the Safe Drinking W ater Act, and the M arine Protection, Research and Sanctuaries Act of
1972. T hose statutes each regulate some aspect o f the dumping o f m aterials, including w aste products, into
bodies o f w ater — an area also subject to regulation under RCRA and therefore potentially involving
overlapping and inconsistent regulations. It is m ost logical to read the “except to the extent . . . not
inconsistent” proviso to m ean, with respect to those statutes, that in the event o f an actual inconsistency
betw een the regulations and obligations required by those statutes and by RCRA, the requirem ents o f the
enum erated statutes prevail. This reading is also suggested by § 1006(b), 42 U .S.C. § 6905(b), w hich directs
the A dm inistrator o f EPA to “ integrate all provisions o f RCRA fo r purposes o f adm inistration and enforce­
m ent and to avoid duplication, to the m aximum extent practicable, w ith the appropriate provisions o f ’ several
statutes adm inistered by the EPA, including the FW PCA, the Safe Drinking W ater Act, and the M arine
Protection, Research and Sanctuaries Act o f 1972. This section indicates clearly that C ongress contem plated
that RCRA w ould apply in some respects to activities and substances subject to those three acts.
13
DOE’s argument would require us to draw a distinction, for the purpose of
§ 1006(a), between activities of fed era l agencies “subject to” the AEA and
activities of p riva te individuals “subject to” the AEA. However, the language
of § 1006(a) does not make any such distinction, and no such distinction is
suggested in the legislative history of that section. Indeed, DOE’s argument
could render the proviso completely superfluous, because nothing in the lan­
guage or legislative history of RCRA would prevent the NRC from making
virtually the same argument that DOE makes for categorical exemption from
RCRA.15 Thus, although DOE’s interpretation is not entirely implausible, we
are not persuaded that it is the correct one, at least in the absence of relevant
and clear supporting legislative history.
Unfortunately, the legislative history of RCRA is silent with respect to
exactly what Congress did intend § 1006(a) to mean. The language that became
§ 1006(a) was originally included in the House bill, without explanation. See
H.R. Rep. No. 1491, 94th Cong., 2d Sess. 53 (1976) (House Report). The
House bill did not include a waiver of sovereign immunity for federal facilities
comparable to § 6001, but rather included a provision that would have sub­
jected federal agencies to a separate scheme of regulation administered by
EPA. See House Report at 24—25,45. The Senate bill, by contrast, adopted the
approach used in the FWPCA and the Clean Air Act with respect to federal
facilities. Section 4 of the Senate bill added to the existing Solid Waste
Disposal Act a new section that would require “[a]ll federal agencies . . . to
comply with State and local controls on solid waste and hazardous waste
disposal as if they were private citizens. This includes compliance with all
substantive and procedural requirements, and specifically any requirements to
obtain permits.” S. Rep. No. 988, 94th Cong., 2d Sess. 24 (1976) (Senate
Report). The Senate bill also included a definition of hazardous waste, not in
the House bill, that specifically exempted “source, special nuclear, and byproduct
materials,” and materials subject to permits under § 402 of FWPCA. See
Senate Report at 25, 26. The Senate Report notes, with respect to that defini­
tion, that “[r]adioactive material is included in the definition of hazardous
waste, except to the extent actually regulated under the [AEA].” Id. at 26.
Differences between the House and Senate bills were reconciled without a
formal conference, and therefore no conference report or statement of manag­
ers exists to explain the compromise reached. This compromise substituted the
Senate provision that subjected federal facilities to regulation under RCRA,
including state regulation, and a definition of solid waste that included the
Senate’s language excluding source, special nuclear, and byproduct materials.
13 T he N R C , as successor to the licen sin g functions o f the Atomic Energy C om m ission, see 42 U.S.C.
§ 5 8 4 1 (0 , is g enerally subject to the sam e restrictions, and has m any o f the sam e general pow ers, as DOE,
under the term s o f the AEA . F o r example, th e NRC and its licensees are fully subject to the “restricted data”
provisio n s o f th e AEA . M oreover, the N R C could conceivably argue that § 161 (t)(3) gives it authority to
im pose licen se conditions on private n u c le ar plants to address hazardous waste disposal problem s, and that
those co n d itio n s are “requirem ents of* th e AEA that w ould be inconsistent with RCRA, much as DOE has
argued. A lthough w e th in k it highly unlikely that the N R C w ould m ake th at argum ent, it would considerably
undercu t the in terp retatio n o f § 1006(a) u rg e d by DOE.
14
The compromise also included the House’s language, which became § 1006(a),
with respect to the effect of the AEA and other enumerated statutes. The
debates on the conference bill do not discuss the for inclusion of that provision,
or its intended effect. See, e.g., 122 Cong. Rec. 33817 (Sept. 30, 1976) (re­
marks of Sen. Randolph); id. at 32599 (Sept. 27, 1976) (remarks of Rep.
Skubitz).
Although he legislative history does not provide specific guidance on the
intended effect of § 1006(a), it contains no indication Congress contemplated
that some activities of federal agencies would be wholly exempt from federal
and state regulation under RCRA. To the contrary, the language used by both
the House and Senate consistently is that “all federal agencies” would be
subject to regulation of their solid waste disposal practices, either under the
separate regulatory scheme set up by the House bill, or under the waiver of
sovereign immunity in the Senate bill. See, e.g., House Report at 5, 48-49;
Senate Report at 23.
Moreover, the legislative history of RCRA contains some indication that
Congress intended that the solid waste disposal practices of federal agencies be
treated comparably to disposal of pollutants under the FWPCA and the Clean
Air Act. See, e.g., Senate Report at 24 (noting that § 223 “parallels section 118
of the Clean Air Act and section 313 of the Federal Water Pollution Control
Act”); House Report at 45-47 (discussion of Administrative Conference’s
recommendations). We must assume that Congress was fully aware of the
scope of those Acts. We note that the Supreme Court’s decision in Train v.
Colorado Public Interest Research Group, Inc., 426 U.S. 1 (1976), was issued
on June 1, 1976, shortly before completion of the Committee reports on the
House and Senate bills, and well before adoption of the conference bill in
September 1976. That case presented the issue of EPA’s jurisdiction under the
FWPCA to regulate the discharge of source, byproduct, and special nuclear
material into the environment. Respondents included a private nuclear power
generating station licensed by the Atomic Energy Commission, and federal
facility operated for the Energy Research and Development Administration
(the immediate predecessor to DOE’s authority) to fabricate plutonium into
nuclear weapons parts. See 426 U.S. at 4, 5 & n.5. In concluding that the
FWPCA did not authorize EPA to regulate discharges of source, byproduct,
and special nuclear materials, the Court placed great weight on the legislative
history of the FWPCA indicating that Congress understood the AEA’s exclu­
sive jurisdiction to extend only to regulation of those radioactive materials. See
426 U.S. at 17 & n. 14,21-23. If Congress believed that the Court had misinter­
preted the scope of the AEA, or that a different result should obtain with
respect to solid waste disposal practices of federal agencies, it could have
addressed the issue in the legislative history of RCRA.16
16 In RCRA, Congress did set up a schem e slightly different from that o f the FW PCA in one respect. As
noted above, in the event o f an inconsistency the FW PCA by its term s prevails over other federal statutes and
regulations. By contrast, § 1006(a) o f RCRA provides that RCRA will yield to the AEA in the event o f an
Continued
15
In addition, Congress provided in § 6001 for categorical exemptions from
federal and state regulation, if the President determines that such exemption
would be “in the paramount interest of the United States.” 42 U.S.C. § 6961.
The inclusion of such authority suggests that Congress intended categorical
exemptions from RCRA, such as that urged by DOE, to be obtained through a
Presidential waiver, rather than through application of § 1006(a).17
Nonetheless, while we cannot construe the language of § 1006(a) to exempt
all of DOE’s activities under the AEA from RCRA regulation, that section
must be interpreted to exempt some aspects of “activities] . . . subject to” the
AEA from regulation under RCRA, i.e., if application of RCRA would be
inconsistent with particular “requirements” of the AEA. The scope of the term
“requirements,” as used in § 1006(a), is not illuminated by the language or
legislative history of RCRA. The commonly understood meaning of the term
implies some prescriptive content, i.e., specific directives that require an agency
or a person to take or refrain from taking certain actions, to follow certain
procedures, or to meet certain standards and regulations. See generally M issis­
sip p i R iver Fuel Corp. v. Slayton, 359 F.2d 106, 119 (8th Cir. 1966). For the
most part, the AEA does not impose specific prescriptive requirements in that
sense, at least with respect to aspects of activities that might overlap with, or be
inconsistent with, regulations, standards, and procedures established pursuant
to RCRA. Rather, insofar as we consider it here, the AEA generally provides
underlying authority for certain types of activities intended to carry out the
purposes of the Act.18 Those purposes focus specifically on the development
and use of atomic power for military and civilian applications:
It is . . . declared to be the policy of the United States that —
(a) the development, use and control of atomic energy shall be
directed so as to make the maximum contribution to the general
welfare, subject at all times to the paramount objective of mak­
ing the maximum contribution to the common defense and
security; and
(b) the development, use, and control of atomic energy shall
be directed so as to promote world peace, improve the general
16 ( . . . continued)
inconsistency. W e do not believe that d istin ctio n is m aterial to o ur analysis here. Those provisions do reflect
som ew hat d ifferen t congressional priorities for the tw o statutes when an inconsistency exists; the difference,
how ever, does not lend any particular su p p o rt to D O E’s central legal argum ent that the relevant com parison
under § 1006(a), for the purpose of determ ining when an inconsistency exists, is betw een entire regulatory
schem es, rath er than betw een particular applications o f those schemes.
17 W e note th at § 1006(c) o f RCRA, 42 U .S .C . § 6905(c), w hich was added m 1980 by Pub. L. No. 96-^82,
94 Stat. 2334, specifically vests in the Secretary o f the Interior the exclusive responsibility for im plem enting
hazardous w aste regulations w ith respect to coal m ining w astes. Although this section w as added to RCRA by
a later-enacted statute, and therefore is o f lim ited value in determ ining the legislative intent of the drafters o f
§ 1006(a), it dem onstrates that when C ongress intends to carve out a categorical exem ption from RCRA for
certain types o f activities, it can do so in c le a r and explicit term s.
l i See S. Rep. No. 1699, 83rd Cong , 2d Sess. 1 4 -1 5 ,1 9 , 2 6 (1 9 5 4 ).
16
welfare, increase the standard of living, and strengthen free
competition in private enterprise.
42 U.S.C. §2011.
One exception to this general lack of prescriptive “requirements” in the AEA
is afforded by those provisions of the AEA that establish standards and proce­
dures for identification and handling of “restricted data,” which is defined to
include “all data concerning (1) design, manufacture, or utilization of atomic
weapons; (2) the production of special nuclear material; or (3) the use of
special nuclear material in the production of energy.” 42 U.S.C. § 2014(y).
Subchapter II of the AEA requires that such data be handled pursuant to
detailed provisions governing its protection and disclosure. 42 U.S.C. §§ 2161—
2168.19 We believe that these provisions fall within the commonly understood
meaning of the term “requirements,” and therefore that particular RCRA
provisions or regulations governing access to information concerning the dis­
posal of hazardous wastes or access to wastes sites must yield if they are
inconsistent with particular requirements imposed by the AEA with respect to
the handling of restricted data.20
We also believe that § 1006(a) would preclude a state from exercising veto
power over the establishment or operation of a DOE facility, either by denying
the necessary permits or by seeking an injunction in court against continued
operation of the facility because of noncompliance with RCRA. Clearly, a state
could not refuse to issue a RCRA permit, or request injunctive relief, based on
DOE’s noncompliance with an aspect of state or federal RCRA regulation that
19 Pursuant to these provisions, access to restricted data is limited to individuals who have undergone
background investigations, and is contingent on a determ ination that perm itting such persons to have access
will not endanger the common defense and safety. 42 U.S C. § § 2 163, 2165 We note that sensitive
inform ation that does not fall w ithin the category o f “restricted data" may nonetheless be classified as
“national security inform ation'’ under Executive O rder 12356, and therefore required to be handled pursuant
to the provisions o f that Executive O rder In addition, the Secretary o f Energy has authority under the AEA to
prescribe regulations o r issue orders to prohibit the unauthorized dissem ination of certain unclassified
inform ation if such dissem ination “could reasonably be expected to have a significant adverse effect on the
health o r safety o f the public o r the common defense and security by significantly increasing the likelihood o f
(A) illegal production o f nuclear weapons, o r (B) theft, diversion, or sabotage o f nuclear m aterials, equip­
ment, or facilities.’' 42 U.S.C § 2168. It is possible that particular access and disclosure provisions of RCRA
may conflict with such restrictions in some instances, in which case we believe the restrictions authorized by
the AEA w ould prevail.
20 As EPA points out, however, the possibility o f conflict betw een the restricted data provisions o f the A EA
and the access and disclosure provisions o f RCRA does not necessarily mean that DOE can refuse categori­
cally to grant access to its facilities o r to deny inform ation to EPA and state officials responsible for enforcing
RCRA. It may well be that not all inform ation about hazardous waste disposal at DOE’s facilities w ould
require special protection, or w ould fall within the definition o f restricted data, or w ithin the scope o f
“national security inform ation” required to be classified by Executive O rder 12356. In addition, it w ould
probably be feasible in many cases to require those officials to obtain appropriate security clearances in order
to gain access to d ata necessary to determ ine com pliance with RCRA regulations.
We also do not rule out entirely the possibility that some information about the production of nuclear
w eapons and m aterials at D OE’s facilities is so sensitive that access must be restricted to D O E personnel, or
to DOE and EPA personnel. This level o f detail should be identified and worked out by D OE in cooperation
with EPA. W e note that EPA is w orking with o th er federal agencies, including the D epartm ent o f Defense, to
ensure that im plem entation o f the RCRA program does not com prom ise sensitive information or the national
security, and has w orked w ith DOE to accom m odate national security concerns under the FW PCA.
17
is inconsistent with the requirements of the AEA, within the meaning of
§ 1006(a). For example, we do not believe a state could refuse to issue a permit
based on DOE’s proper refusal under the “restricted data” provisions of the
AEA to grant the state access to particular restricted data or to make such data
publicly available.
In addition, even if a state could establish that DOE had not fully complied
with RCRA regulations and standards not superseded by virtue of § 1006(a),
i.e., those that are consistent with the AEA, we have serious reservations
whether a state could effectively shut down DOE’s operation by denying a
permit or by obtaining an injunction to enforce compliance, particularly where
alternative, less drastic means of enforcement exist. While the AEA does not in
so many words require DOE to operate its Atomic Energy Act facilities, the
clear purpose of the statute is to authorize and encourage operation of such
facilities, and the authority provided represents a congressional judgment that
such activities should be carried out at a federal level. We believe therefore that
it may well be “inconsistent with” the AEA itself to permit a state to veto
operation of a federal facility authorized under the Act.21 See generally
W einberger v. Romero-Barcelo, 456 U.S. 305, 315 n.9 (1982); California v.
U nited States, 438 U.S. 645, 668 n.21, 679 (1978); First Iowa Hydro Electric
C ooperative v. F ederal P ow er Com m ’n, 328 U.S. 152, 181-82 (1946); Okla­
homa v. G uy F. Atkinson Co., 313 U.S. 508, 534-35 (1941). A state could,
nonetheless, include in a permit certain compliance schedules or other condi­
tions intended to bring DOE’s facilities into compliance with RCRA standards
or requirements that lie within the scope of § 1006(a), and could seek judicial
enforcement of those conditions through means short of an injunction against
continued operation. See, e.g., W einberger v. Romero-Barcelo, 456 U.S. 305,
315 n.9 (1982).22 DOE would of course have the opportunity to seek review of
21 W e do not believe, however, that any state regulation under R CR A of D O E’s Atomic Energy Act
facilities w ould necessarily be precluded a s “inconsistent.” RCRA clearly provides for a significant state role
in the prom ulgation and enforcement o f standards for the treatm ent and disposal o f solid waste, even with
respect to federal facilities. See 42 U.S.C. § 6961. A lthough w e believe that serious questions would be raised
if a state attem pted to close a DOE facility for failure to comply w ith state perm itting or substantive
requirem ents, m uch state regulation co u ld probably be accom m odated consistent w ith D O E’s statutory
m andate. W e understand th at DOE and EPA have w orked together and with the states to im plem ent the
standards and perm itting requirements set forth in the FW PC A , and w e know o f no persuasive reason why
cooperation w ith state authorities with resp ect to hazardous waste disposal under RCRA would not also be
possible.
22 Even though the state m ight not be ab le to enforce th e permit (or denial of a perm it) by an injunction
against continued operation o f a facility , the permit itself, and the perm itting process, would not be
m eaningless. A state (o r private citizen) co u ld , for exam ple, seek declaratory relief that DOE should comply
w ith p articu lar R CR A requirem ents or stan d ard s em bodied in a state perm it or required as a prerequisite for
o btain in g the perm it. In addition, under Executive O rder 12088, there w ould be an opportunity for internal
Executive B ranch resolution of particular disputes. E xecutive O rder 12088 requires the head o f each
Executive agency to insure that the ag en cy com plies w ith the “same substantive, procedural, and other
requirem ents th at w ould apply to a p riv ate person” under a number o f environm ental statutes, including
R CR A , and to cooperate w ith EPA and state, interstate, an d local agencies in the prevention, control, and
abatem ent o f environm ental pollution. T h e order directs th at conflicts betw een the EPA and an Executive
B ranch agency, o r betw een an Executive Branch agency an d a state, interstate, or local agency, regarding
violatio n s o f those environm ental statutes be resolved by the Office o f M anagem ent and Budget, if such
co n flicts can n o t be resolved through effo rts o f the EPA.
18
such conditions to determine that they are reasonably related to bona fide
health and safety objectives and not designed to force closure of the facility.
DOE argues that the AEA does not provide for any state role in regulation of
federal facilities, citing in particular the 1965 amendments to § 271 of the Act,
42 U.S.C. § 2018, that clarified Congress’ intent that the states could not
regulate “any activities of the [Atomic Energy] Commission.” We agree with
DOE that, prior to enactment of RCRA, federal facilities operated pursuant to
the AEA were immune from state regulation of waste disposal practices,
because of the lack of any clear waiver of sovereign immunity in the AEA or
any other statute that would allow such regulation. The effect of the 1965
amendments to § 271 of the AEA, however, is largely irrelevant to our analysis
here. Those amendments were intended explicitly to clarify an ambiguity in the
extent to which the AEA waived sovereign immunity over regulation of the
transmission and generation of electricity by federal facilities. The legislative
history recited by DOE in support of its argument reflects that this was
Congress’ particular concern; that history reflects further that Congress in­
tended to make clear that the federal facilities at issue stood on the same
footing as all other federal agencies. See, e.g., I l l Cong. Rec. 18702 (1965)
(remarks of Rep. Hosmer); id. at 19821 (remarks of Sen. Pastore).
At that time, however, no federal facilities were subject to state regulation of
hazardous waste disposal practices. Therefore, our analysis here must focus on
the effect of the subsequent waiver of sovereign immunity in § 6001 of RCRA
and the exception to that waiver carved out by § 1006(a) of that statute. In that
regard, we believe that the waiver of sovereign immunity in § 6001 is suffi­
ciently “clear and unambiguous,” see Hancock v. Train, 426 U.S. 167, 179
(1976), to overcome the general principle that federal facilities and activities
are immune from regulation by the states. Although § 1006(a) creates some
ambiguity with respect to application of that waiver to “activit[ies]. . . subject
to . . . the [AEA],” we do not believe that ambiguity undercuts the clarity or
effectiveness of the waiver contained in § 6001.23
Thus, we concur with EPA’s conclusion that the thrust of § 1006(a) of
RCRA is not to exempt completely DOE’s Atomic Energy Act facilities from
23 W e Dote that the issue w hether states could regulate w aste disposal practices o f federal facilities under
the AEA prior to RCRA is different from the issue w hether states could then regulate w aste disposal by
privately owned facilities licensed under the AEA. The first issue is one o f sovereign im m unity — w hether
C ongress has clearly and explicitly authorized the states to regulate the federal governm ent in a particular
aspect o f its activities. The second issue is one o f preem ption — w hether Congress has, in the exercise o f its
constitutional authority, preem pted state regulation o f private activities. Thus, even prior to RCRA, the states
could regulate disposal o f nonnuclear w astes by private licensees, because the AEA did not preem pt such
regulation. See, e.g., Pacific Gas and Electric Co. v. State Energy Resources Conservation & Development
Comm ’n, 461 U.S. 190 (1983); Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 1 6 -1 7 &
n.14 (1976); Illinois v. Kerr-McGee Corp., 677 F.2d 571, 580 (7th C ir. 1982); Northern States Power Co. v.
State o f Minnesota, 447 F.2d 1143, 1149-50 (8th Cir. 1971), a ffd , 405 U.S. 1035 (1972); 42 U.S.C.
| 202 l(k ) (“ (n]othing in this section authorizing lim ited state agreem ents for regulation o f n uclear m aterial
shall be construed to affect the authority o f any State o r local agency to regulate activities for purposes other
than protection against radiation hazards”). B ecause neither the AEA nor any other statute prior to R CR A
clearly w aived sovereign im m unity, how ever, states could not then sim ilarly regulate hazardous w aste
disposal practices o f federal facilities.
19
state and federal regulation of hazardous waste disposal, but rather to avoid
inconsistencies between RCRA and the unique national security and health
problems created by operation of nuclear facilities under the AEA. To the
extent that operation of those facilities is comparable to operation of other
manufacturing and industrial facilities, Congress intended that they be subject
to the standards and requirements imposed by RCRA on all other federal
government facilities, and enforced by EPA and the states. To the extent there
are actual inconsistencies, however, the AEA would control; this feature of the
statutory scheme should be responsive to DOE’s particular and clearly legiti­
mate concerns about the protection of sensitive information and the possibility
of state vetoes over operation of its facilities, while also meeting EPA’s
concern that RCRA regulations apply, to the extent possible, uniformly through­
out the federal government.24
DOE argues in addition, however, that its regulations and directives under
§ 161(i)(3) of the AEA governing the disposal of nonnuclear wastes also
constitute “requirements” of the AEA, considered in the context of the purpose
and scope of DOE’s authority under the AEA. DOE contends that this authority
“necessarily and essentially pertains” to accomplishment by DOE of the pur­
poses of the AEA, and is “an essential ingredient of the scheme of the [AEA].”
Under this analysis, DOE’s regulations or directives governing disposal of
nonnuclear wastes would control, at least to the extent they are inconsistent
with state or federal regulations and requirements under RCRA. The logical
result of this argument is that DOE could totally exempt its Atomic Energy Act
facilities from RCRA regulation by prescribing regulations or directives that
differ somewhat from otherwise applicable RCRA regulations and standards.
We believe that this argument stretches the language and purpose of § 161(i)(3)
beyond that intended by Congress when it enacted the AEA.25 It is highly
24 I f D O E ’s specific concern cannot b e m et adequately under this scheme, it may obtain a Presidential
w aiver for p articu lar facilities, or for all its Atomic Energy Act facilities, pursuant to § 6 0 0 1 , 42 U.S.C.
§6961.
25 W e do not suggest that, in the absence o f RCRA, D O E could not use the authority provided by § 161(i)(3)
to regulate the disposal o f nonnuclear w astes at its A tom ic Energy Act facilities. C ertainly the language of
that p rovision, giving D OE the authority “ to prescribe . . standards and restrictions governing the design,
location, and operation o f facilities used in the conduct o f such activity, in order to protect health and to
m inim ize dan g er to life o r property,” 42 U .S.C . § 2201 (i)(3), is broad enough to encom pass such regulation.
T he g ran t o f discretionary authority u n d e r that section to prescribe such regulations, how ever, does not
com pel the conclusion that such regulations would be requirem ents o f the AEA.
Section 161(i)(3) w as given a very narro w interpretation in Reynolds v. United States, 286 F.2d 433, 438
(9th C ir. 1960), a case involving criminal prosecution o f an individual for trespass in a 390,000 square mile
area surrounding the Eniw etok Proving G rounds (used for nuclear bom b testing), which had been designated
as a clo sed area by the A tom ic Energy C om m ission on the basis o f authority provided in § 161 (i)(3). Based on
its reading o f the legislative history o f § 161(i)(3), the court concluded that the authority provided by that
section applies o nly to activities of private industry licensed by the A EC, and not “to the Com m ission’s own
activ ities.” 286 F.2d at 43 8 -3 9 . We b eliev e the co u rt’s reading o f that legislative history was strained in
reaching the result that an individual c o u ld not be subject to serious crim inal penalties for violating a
regulation th at arguably exceeded the C om m ission’s authority. The logic o f the court’s reading o f § 161 (i)(3)
is that th e A tom ic E nergy Commission — and now DOE — would have no authority w hatsoever to take
actions to protect the health and safety o f its workers o r o f the public from nonnuclear hazards created by its
ow n activ ities. W e do not believe Congress intended that result.
20
unlikely that Congress even considered possible problems caused by the dis­
posal of nonnuclear wastes when it enacted the AEA in 1954. Indeed, the
dimensions of the nation’s hazardous waste problem were not generally ac­
knowledged until more than a decade after enactment of the AEA. See gener­
ally Senate Report, supra, at 6; H.R. Rep. No. 899, 89th Cong., 1st Sess. 7-9
(1965) (discussing Solid Waste Disposal Act of 1965, Pub. L. No. 89-272, 79
Stat. 992). Rather, the focus of the AEA, inasmuch as it deals with disposal
problems, is with regulation of nuclear wastes generated by atomic facilities.
See Pacific G as and E lectric Co. v. State Energy Resources Conservation &
D evelopm ent Com m ’n, 461 U.S. 190 (1983); Train v. Colorado Public Interest
Research Group, Inc., 426 U.S. 1, 16-17 & n.14 (1976); Northern States
P ow er Co. v. Minnesota, 447 F.2d 1143, 1149-50 (8th Cir. 1971), a f f d, 405
U.S. 1035 (1972). There is no suggestion in the AEA or its legislative history
that § 161(i)(3) was intended to require DOE to establish a comprehensive
regime for the control of nonnuclear wastes, or that Congress considered such
authority to be necessary to accomplishment of the purposes of the AEA. That
section is, rather, most reasonably interpreted as a general grant of discretion­
ary authority to DOE to make whatever incidental regulations it deems neces­
sary to insure that its facilities are operated safely and with minimal risk to
health, life, and property. See generally Bram er v. United States, 412 F. Supp.
569,575, 577 (C.D. Cal.), a ffd , 595 F.2d 1141 (9th Cir. 1976) (interpreting 42
U.S.C. § 2051); Blaber v. United States, 332 F.2d 629, 631 (2d Cir. 1964)
(interpreting 42 U.S.C. § 2051).
By contrast, RCRA is clearly and explicitly intended to provide a compre­
hensive scheme for regulation of the disposal of nonnuclear wastes by private
entities and by the federal government. See Senate Report, supra, at 2-7;
House Report, supra, at 2-5. In light of the clear intent and the comprehensive­
ness of RCRA, we are unwilling to interpret § 1006(a) to mean that, merely by
exercising its discretionary authority under the AEA with respect to nonnuclear
wastes, DOE can exempt itself from RCRA’s regulatory scheme.
We recognize nonetheless that there may be particular operational needs or
problems generated by the unique requirements of DOE’s nuclear operations
that in some cases will require some modification in, or exemption from,
particular substantive standards imposed by the EPA or the states pursuant to
RCRA. For example, it may be that inclusion of small amounts of nuclear
wastes in a chemical waste stream would require some modification in other­
wise applicable RCRA standards or regulations,26 or that certain aspects of
industrial processes that are unique to the fabrication of nuclear weapons
materials and components require different handling of solid wastes generated
26 The inclusion o f sm all amounts o f nuclear m aterials in such stream s w ould not necessarily prohibit EPA
from regulating those streams m erely because RCRA does not apply to certain types o f nuclear m aterials.
That such wastes are commingled with nonnuclear wastes suggests that in many cases the am ount of nuclear
waste would not be large enough to require special handling, and therefore there would be no reason for
exclusive D OE control over its handling. We believe these types o f problems could be addressed by EPA and
DOE in their discussions to im plem ent this opinion.
21
by those processes.27 Those situations will have to be identified and handled by
DOE and EPA on a cooperative basis, in accordance with the interpretation of
§ 1006(a) we have outlined here.
Conclusion
Implementation of this opinion will require DOE and EPA to discuss in
detail the impact of RCRA regulations on operation of DOE’s Atomic Energy
Act facilities, and to determine how best to accommodate the purposes of the
AEA with the specific requirements of RCRA. We recognize that the advice
given here is general, and may not resolve many of the particular questions that
will arise in the course of those discussions. We note, however, that EPA has
conducted similar discussions with DOE in order to implement provisions of
the FWPCA, and has engaged in such discussions with other federal agencies,
including the Department of Defense, to implement the requirements of RCRA
and the FWPCA. We suggest that those discussions might provide a framework
for addressing the applicability of RCRA to DOE’s Atomic Energy Act facili­
ties. We will, of course, be available to provide additional legal analysis,
should that prove necessary.
Theodore B. O lso n
Assistant Attorney General
Office o f Legal Counsel
27 T he internal D O E o rd er prescribing hazardous waste m anagem ent practices, see DO E O rder 5480.2 (Dec.
13 ,1 9 8 2 ), appears to contem plate this ty p e o f problem. U n d er that o rder, full com pliance w ith the prescribed
procedures (m ost o f w hich are consistent w ith RCRA) m ay be excused “due to unique characteristics o f the
sites an d /o r facilities . . . o r due to unrealistically high costs com pared to the risks involved.” If full
com pliance cannot be achieved because o f high costs, “alternative methods o f handling waste that will
provide com parable levels o f safety and environm ental protection at reduced costs” m ust be taken.
A lthough w e d o not suggest that ev ery situation that m ight w arrant relaxation o f D O E’s internal order
w ould co n stitu te an inconsistency for purposes o f § 1006(a), those types o f situations could possibly provide
a basis for noncom pliance with particular RCRA requirem ents, if the particular characteristics or high costs
involved arise because o f the unique nature o f the nuclear processing operations.
22