State of Washington v. Chu

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, 
Plaintiff-Appellee,
v.
STEVEN CHU,* Secretary of Energy;
US DEPARTMENT OF ENERGY,
Defendants-Appellants, No. 06-35227
and
YES ON I-297: PROTECT
 D.C. No.
CV-03-05018-AAM
WASHINGTON, Proposed OPINION
Intervention as Counterclaim;
GOVERNMENT ACCOUNTABILITY
PROJECT, Proposed Intervention as
Counterclaim; FLUOR HANFORD
INC.,
Defendants.

Appeal from the United States District Court
for the Eastern District of Washington
Alan A. McDonald, District Judge, Presiding
Argued and Submitted
October 16, 2007—Seattle, Washington
Filed March 10, 2009
Before: Richard D. Cudahy,** Stephen Reinhardt, and
Richard A. Paez, Circuit Judges.
*Steven Chu is substituted for his predecessor, Samuel W. Bodman, as
Secretary of Energy. Fed. R. App. P. 43(c)(2).
**The Honorable Richard D. Cudahy, Senior United States Circuit
Judge for the Seventh Circuit, sitting by designation.
3054
STATE OF WASHINGTON v. CHU 3055
Opinion by Judge Paez
STATE OF WASHINGTON v. CHU 3057
COUNSEL
Michael Zevenbergen, United States Department of Justice,
Washington, D.C.; John A. Bryson, Attorney, United States
Department of Justice, Washington, D.C., for the defendants-
appellants.
Andrew A. Fitz, Assistant Attorney General, State of Wash-
ington, Olympia, Washington, for the plaintiff-appellee.
Darrell G. Early, Deputy Attorney General, State of Idaho,
Boise, Idaho, for amici curiae the States of Idaho and Tennes-
see.
OPINION
PAEZ, Circuit Judge:
Between 1943 and 1987, the United States produced pluto-
nium for use in nuclear weapons manufacture at the Hanford
Nuclear Reservation in southeastern Washington near the
confluence of the Columbia, Snake, and Yakima Rivers. Plu-
tonium production and related activities at Hanford created
enormous amounts—in the millions of tons—of radioactive,
hazardous, and “mixed” radioactive and hazardous wastes,
much of it still at Hanford awaiting treatment and/or disposal.
The Department of Energy (“DOE”) is responsible for the
3058 STATE OF WASHINGTON v. CHU
treatment, storage, and disposal of this vast waste inventory.
This suit arises out of a longstanding dispute between the
State and DOE concerning DOE’s management of Hanford’s
existing backlog of mixed radioactive and hazardous waste,
commonly known as TRUM, and DOE’s decision to ship
additional “off-site” TRUM to Hanford for storage pending
the future disposal of such waste at the Waste Isolation Pilot
Plant (“WIPP”), a nuclear waste repository in southeastern
New Mexico where the wastes are expected to be placed in
a salt bed approximately 2,150 feet below the earth’s surface.
The State contends that DOE’s management of this TRUM
violates provisions of the State’s Hazardous Waste Manage-
ment Act (“HWMA”) and its implementing regulations,
which act in lieu of the federal provisions of the Resource
Conservation and Recovery Act of 1976 (“RCRA”), 42
U.S.C. §§ 6901-6992k. See 51 Fed. Reg. 3782 (Jan. 30, 1986)
(authorizing the State of Washington to administer its HWMA
in lieu of RCRA); Wash. Rev. Code §§ 70.105.020,
70.150.130; Wash. Admin. Code 173-303-140(2)(a).1 DOE
argues that it no longer has an obligation under HWMA to
treat TRUM waste or to limit the length of time such waste
is stored at Hanford or any other location, because the waste
has been “designated” by the Secretary of Energy “for dis-
posal at WIPP,” in accordance with the WIPP Land With-
drawal Amendment Act of 1996, Pub. L. 104-201,
§ 3188(a)(1) (also referred to as the “1996 WIPP Amend-
ments” or the “amended Act.”).
1
RCRA allows states to apply for authorization from the Environmental
Protection Agency (“EPA”) to administer a hazardous waste program. See
42 U.S.C. § 6926(b). Washington’s HWMA is one such authorized pro-
gram. See Wash. Rev. Code §§ 70.105.020, 70.150.130; Wash. Admin.
Code 173-303-140(2)(a). With respect to the land disposal restrictions that
are at the heart of this case, Wash. Admin. Code 173-303-140(2)(a) pro-
vides that land disposal restrictions for TRUM are the restrictions estab-
lished by the EPA in 40 C.F.R. § 268. For ease of discussion, we refer
throughout to the relevant federal regulations.
STATE OF WASHINGTON v. CHU 3059
After agreeing to dismiss without prejudice Counts 1 and
2 of the State’s amended complaint, the parties filed cross-
motions for summary judgment on the remaining claim of
whether TRUM “designated for WIPP” was exempt from
HWMA provisions by virtue of the amended Act. The district
court rejected DOE’s interpretation of the amended Act and
found that neither the plain text nor the legislative history
demonstrated that the “designation exemption” reached waste
at any location other than WIPP. See Washington v. Abraham,
354 F. Supp. 2d 1178, 1187 (E.D. Wash. 2005). Because the
district court found that the amended Act applied only to
WIPP, it declined to reach the preemption issue and awarded
summary judgment for the State. Id. We review de novo, and
affirm.
I. Background
Among the wastes generated during plutonium production
at Hanford were large quantities of transuranic waste. Trans-
uranic waste—which consists of a variety of materials,
including tools, equipment, protective clothing, rags, graphite,
glass, and other material contaminated during the production
and reprocessing of plutonium—is waste that has been con-
taminated with radioactive elements and carries a periodic
table value greater than uranium. Although it is less radioac-
tive than spent fuel or high-level waste, it is toxic and long-
lived. When transuranic waste is mixed with non-radioactive
hazardous waste, such as solvents or heavy metals, the result-
ing waste is known as “mixed” transuranic waste, or TRUM.
There are at least 37,000 drums and 1,200 large boxes of sus-
pected TRUM in “retrievable storage” —shallow, unlined soil
trenches—at Hanford, all of which has yet to be treated or
properly disposed. Because TRUM contains hazardous waste
(in addition to being radioactive), its storage, treatment, and
disposal is regulated under Subtitle C of RCRA, 42 U.S.C.
§§ 6921-6939, which was enacted by Congress in order to
subject hazardous waste like TRUM to stringent “cradle-to-
3060 STATE OF WASHINGTON v. CHU
grave” regulation.2 United Technologies v. EPA, 821 F.2d
714, 716 (D.C. Cir. 1987). Because RCRA, and its counter-
part the Federal Facilities Compliance Act (“FFCA”) are cru-
cial to our inquiry as to the effect of the “designation
exemption” in the amended Act, we begin our discussion
there.
A. RCRA
RCRA subjects TRUM to both “safe storage” requirements3
and land disposal restrictions.4 The land disposal restrictions
(“LDRs”) were added to Subtitle C of RCRA by the Hazard-
ous and Solid Waste Amendments of 1984 (“HSWA”), as part
of the Solid Waste Disposal Act (“SWDA”), see RCRA
§ 3004(b)-(m), 42 U.S.C. § 6924(b)-(m). The SWDA
amended RCRA to ensure that hazardous waste will only be
2
RCRA does not identify which wastes are hazardous and therefore sub-
ject to Subtitle C regulation because it leaves that designation to the EPA,
42 U.S.C. § 6921(a). TRUM, or “mixed waste,” however, is defined as
waste “that contains both hazardous waste and source, special nuclear, or
by-product material subject to the Atomic Energy Act of 1954
[(“AEA”)],” 42 U.S.C. § 6903(41). Accordingly, TRUM is subject to both
RCRA and the AEA. The AEA governs the radioactive component and
RCRA (or comparable state legislation such as HWMA) governs the non-
radioactive component. See, e.g., State Authorization To Regulate the
Hazardous Components of Radioactive Mixed Wastes Under the Resource
Conservation and Recovery Act, 51 Fed. Reg. 24,504 (July 3, 1986)
(announcing the EPA’s determination “that wastes containing both hazard-
ous waste and radioactive waste are subject to the RCRA regulation”);
New Mexico v. Watkins, 969 F.2d 1122, 1132 (D.C. Cir. 1992) (deferring
to the EPA’s conclusion that RCRA applies to mixed wastes).
3
The safe storage requirements call for pre-disposal TRUM to meet con-
tainer integrity and configuration requirements. See 42 U.S.C. §§ 6922,
6924; 40 C.F.R. Parts 262 and 264. There is no dispute in this case that
these “safe storage” requirements continue to apply to “designated” waste.
4
Under RCRA, “land disposal” is defined as including, but not limited
to “any placement of such hazardous waste in a landfill, surface impound-
ment, waste pile, injection well, land treatment facility, salt dome forma-
tion, salt bed formation, or underground mine or cave.” RCRA § 3004(k),
42 U.S.C. § 6924(k); see also 40 C.F.R. § 268.2.
STATE OF WASHINGTON v. CHU 3061
land-disposed if the waste involved as well as the disposal
unit meet very stringent requirements. Land disposal of haz-
ardous waste is prohibited unless that waste is “pretreated” in
a manner that minimizes “short-term and long-term threats to
human health and the environment,” RCRA § 3004(m), 42
U.S.C. § 6924(m),5 or unless the EPA determines, with “a rea-
sonable degree of certainty, that there will be no migration of
hazardous constituents from the disposal unit or injection
zone for as long as the waste [ ] remain[s] hazardous.” RCRA
§ 3004(d)(1), (e)(1), and (g)(5), 42 U.S.C. § 6924(d)(1),
(e)(1), and (g)(5). Further, EPA regulations governing land
disposal of hazardous waste requires comprehensive waste
analysis and record-keeping to certify that a waste is eligible
for land disposal (40 C.F.R. § 268.7), specifies treatment stan-
dards for the land disposal of restricted waste (40 C.F.R.
§§268.40-49), and specifies procedures for obtaining exemp-
tions (40 C.F.R. § 268.6). With respect to exemptions, the
EPA anticipated that there would be “relatively few cases in
which [a no-migration] demonstration can be made,” 51 Fed.
Reg. 40,572, 40,577 (Nov. 7, 1986),6 and that, if approved,
after a formal rulemaking process, the determination would
apply only to the land disposal “of the specific restricted
waste at the individual disposal unit . . . and would not apply
to any other restricted waste at that disposal unit, or to that
specific restricted waste at any other disposal unit.” 40 C.F.R.
§ 268.6(i); see also id. at § 268.6(a)(1)-(2) (requiring an
5
RCRA requires the EPA to set “levels or methods of treatment, if any,
which substantially diminish the toxicity of the waste or substantially
reduce the likelihood of migration of hazardous constituents from the
waste so that short-term and long-term threats to human health and the
environment are minimized.” See RCRA § 3004(m)(1)).
6
Indeed, the first no-migration petition to be approved by the EPA was
for the test-phase of WIPP. See 55 Fed. Reg. 47,700 (Nov. 14, 1990)
(allowing DOE to place a limited amount of untreated hazardous waste in
WIPP for the purposes of testing and experimentation). This approval was
later rendered moot when DOE cancelled the on-site testing because the
needed tests could be executed more cheaply above ground. See 60 Fed.
Reg. 40,379 (Aug. 8, 1995).
3062 STATE OF WASHINGTON v. CHU
“identification of the specific waste” in the petition, including
a “waste analysis” of the subject waste).
The LDRs also prohibited end-runs around the prohibitions
on land disposal by preventing TRUM from being stockpiled
in storage. These “storage prohibitions” restrict storage to that
which is “solely for the purpose of the accumulation of such
quantities of hazardous waste as are necessary to facilitate
proper recovery, treatment or disposal.” RCRA § 3004(j)
(emphasis added), 42 U.S.C. § 6924(j).7 The amount of time
a facility can store waste is limited to one year unless the
facility can prove that further storage is required in order to
facilitate the proper recovery, treatment or disposal under
§ 3004(j). See 40 C.F.R. § 268.50(b)-(c).8 Congress enacted
this provision because it “believed that permitting storage of
large quantities of waste as a means of forestalling required
treatment would involve health threats equally serious to
those posed by land disposal, and therefore opted in large part
for a ‘treat as you go’ regulatory regime.” Hazardous Waste
Treatment Council v. EPA, 886 F.2d 355, 357 (D.C. Cir.
1989). Under this regime, accumulation of untreated waste for
the purpose of reducing or closing other sites is strictly pro-
hibited. See, e.g., Edison Elec. Inst. v. EPA, 996 F.2d 326, 335
(D.C. Cir. 1993) (rejecting a reading of § 3004(j) that would
7
Section 3004(j) reads in its entirety as follows:
In the case of any hazardous waste which is prohibited from one
or more methods of land disposal under this section (or under
regulations promulgated by the Administrator under any provi-
sion of this section) the storage of such hazardous waste is pro-
hibited unless such storage is solely for the purpose of the
accumulation of such quantities of hazardous waste as are neces-
sary to facilitate proper recovery, treatment or disposal.
8
Part (b) of this regulation provides in full, “An owner/operator of a
treatment, storage or disposal facility may store such wastes for up to one
year unless the Agency can demonstrate that such storage was not solely
for the purpose of accumulation of such quantities of hazardous waste as
are necessary to facilitate proper recovery, treatment, or disposal.” 40
C.F.R. § 268.50(b).
STATE OF WASHINGTON v. CHU 3063
allow the accumulation and storage of wastes until qualified
treatment or disposal capacity becomes available).
B. FFCA
Congress emphasized its intention to apply this “treat as
you go” framework to federal facilities—like Hanford—in the
Federal Facility Compliance Act (“FFCA”), see Pub. L. No.
102-386, Title I, § 102(a), (b), 106 Stat. 1505, 1506 (1992)
(codified in scattered sections throughout 42 U.S.C.). The
FFCA was enacted specifically to motivate recalcitrant offi-
cials at federal facilities into addressing the continuing back-
logs of stored, untreated, mixed waste subject to RCRA’s
strict storage prohibitions. See H.R. Rep. 102-111, at 2
(1992), as reprinted in 1992 U.S.C.C.A.N. 1287, 1288. In par-
ticular, the FFCA waived sovereign immunity for the opera-
tion of federal facilities and clarified that states could impose
civil fines on federal facilities for violations of RCRA. See
FFCA § 102(a), 42 U.S.C. § 6961. The FFCA also provided
that with respect to TRUM at DOE facilities, DOE could
avoid the fines and penalties associated with RCRA violations
so long as it (1) developed “site treatment plans”—including
detailed management schedules regarding the treatment and
storage of various wastes—for the waste backlogs; (2) sub-
mitted those treatment plans for mixed waste to the states for
approval, modification, or disapproval; and (3) maintained
compliance with those plans. See FFCA § 102(c)(3)(B), 42
U.S.C. § 6939c (codified in RCRA).
At the time FFCA was enacted, DOE and the State of
Washington already had a pre-existing plan, the Hanford Fed-
eral Facility Agreement and Consent Order (“HFFACO”),
which satisfied the requirement of a “site treatment plan”
under 42 U.S.C. § 6939c(b)(1)(A)(ii). It is through the devel-
opment and maintenance of the HFFACO that the State and
DOE conferred as to, among other materials, the resolution of
Hanford’s substantial backlog of TRUM, which was other-
3064 STATE OF WASHINGTON v. CHU
wise being stored—before the additional shipments of “off-
site” TRUM—in violation of RCRA § 3004(j).9
C. 1992 WIPP Act
The same year FFCA was enacted to deal with the enor-
mous backlogs of nuclear waste at federal facilities, Congress
also proceeded with long-held plans for opening another fed-
eral waste repository in southeastern New Mexico known as
WIPP. See, e.g., Pub. L. 96-164, 93 Stat. 1259 (1979) (autho-
rizing the development of the WIPP site). Due to its unique,
geologically-stable salt formations, WIPP promised to be a
safe and permanent repository for a substantial fraction of the
nation’s weapons-related transuranic waste. The WIPP Land
Withdrawal Act of 1992 (“1992 WIPP Act”), Pub. L. No.
102-579, 106 Stat. 4777 (1992), withdrew the site from public
use, continued the test phase, and established a number of reg-
ulatory requirements that DOE was required to meet before
WIPP could receive transuranic wastes for permanent dis-
posal. See 1992 WIPP Act §§ 3, 8, 9. In particular, the 1992
WIPP Act required that WIPP, like any other facility, comply
with a number of existing regulatory frameworks, including
the LDRs that had been added to RCRA by the SWDA. See
id. at § 9(a)(1)(C); see also § 14(b)(2) (the statute’s savings
provision, stating that the 1992 WIPP Act did not “supersede
9
As of 1993, however, DOE and the State had failed to reach an agree-
ment regarding the details of a placeholder milestone for retrievably stored
TRUM and other transuranic and low-level wastes. This placeholder has
through a settlement related to this litigation been replaced—pending the
outcome of this appeal—by the revised M-91 milestone series, which
includes detailed time lines for treating TRUM in accord with HWMA, or
in the alternative to such treatment, “certifying” untreated TRUM (or
TRUM that has been processed to meet WIPP’s waste acceptance criteria
(“WAC”)) for shipment to WIPP. We note that the district court’s final
judgment provides that the revised M-91 milestones will remain enforce-
able so long as its judgment remains in effect.
STATE OF WASHINGTON v. CHU 3065
or modify” the land disposal restrictions that were part of the
[SWDA]).10
Four years later in 1996, in compliance with § 9(a)(1)(C) of
the 1992 WIPP Act and in light of WIPP’s unique geologi-
cally stable salt formations, DOE petitioned the EPA under
RCRA § 3004(d)(1)(C) for a “no migration determination”
with respect to WIPP. See 61 Fed. Reg. 42899 (Aug. 19, 1996).11
The import of this no-migration determination, like the no-
migration determination that had been approved for the test-
phase of WIPP, was that, if approved, it would allow WIPP
to comply with RCRA’s land disposal restrictions by demon-
strating that “hazardous constituents will not migrate out of
the WIPP disposal unit for as long as the wastes remain haz-
ardous (a regulatory period of up to 10,000 years).” Id.
While the “no migration” determination was pending, how-
ever, Congress amended the 1992 WIPP Act by passing the
WIPP Land Withdrawal Act Amendments (“1996 WIPP
Amendments”), Pub. L. No. 104-201, 104th Cong., 2d Sess.,
§§ 3181-91, 110 Stat. 2422, 2851-54 (1996). The effect of
several of those amendments on hazardous waste at Hanford
is what is in controversy here.
II. Discussion
The 1996 WIPP Amendments accomplished a number of
objectives related to the WIPP facility: they eliminated out-
dated statutory requirements regarding the test-phase of
WIPP; continued the EPA’s obligation to establish criteria for
10
This prohibition included “all terms and conditions of the No-
Migration Determination,” which DOE had secured for test-phase waste
disposal at WIPP. See 55 Fed. Reg. 47,709 (Nov. 14, 1990) (granting a
conditional no-migration variance to DOE for purposes of testing and
experimentation).
11
In 1995, DOE filed a “draft” petition with the EPA. See 60 Fed. Reg.
40,379 (Aug. 8, 1995).
3066 STATE OF WASHINGTON v. CHU
determining compliance with its disposal regulations; and
inserted a number of provisions designed to expedite the com-
mencement of WIPP operations.12 DOE argues that the 1996
WIPP Amendments also established that TRUM not located
at WIPP—including TRUM at Hanford or intended for ship-
ment to Hanford—is exempt from the storage prohibition in
§ 3004(j). According to DOE, such waste has been “desig-
nated by the Secretary [of the Department of Energy] for dis-
posal at WIPP,” see § 9(a)(1), and therefore, TRUM is no
longer “prohibited from one or more methods of land dispos-
al” as required for the storage prohibition in § 3004(j) to take
effect.13 DOE alleges that as long as the waste has been so
designated, and virtually all of the TRUM waste at Hanford
has been designated,14 DOE has no obligation under the
State’s HWMA to treat such waste or to limit the length of
time it is stored at Hanford, or any other location, prior to dis-
posal at WIPP.
DOE argues that the plain language of the “designation
exemption” in § 9(a)(1) read in conjunction with RCRA
§ 3004(j) requires that this court adopt its interpretation of
§ 9, and alternatively, that its interpretation of the designation
12
Stand-alone bills were introduced in the House (H.R. 1663, 104th
Cong., 1st Sess. (1995)), and Senate (S. 1402, 104 Cong., 1st Sess.
(1995)). Both bills contained the “designation” exemption discussed infra,
and both became part of the House and Senate versions of what would
later be titled the National Defense Authorization Act for Fiscal Year
1997. Differences were resolved in conference and the 1996 WIPP
Amendments emerged.
13
The 1996 WIPP Amendments do not, in enumerating the provisions
from which designated waste is exempt, mention the storage prohibition
in § 3004(j). However, § 3004(j) states that the storage prohibition is
applicable, “[i]n the case of any hazardous waste which is prohibited from
one or more methods of land disposal under this section . . . .” It is this
language on which DOE relies.
14
All TRUM, including remote-handled TRUM and TRUM containing
PCBs in concentrations at or exceeding 50 ppm, have been designated for
disposal at WIPP. See 63 Fed. Reg. 3624 (Jan. 23, 1998); 69 Fed. Reg.
39,449 (June 30, 2004); 69 Fed. Reg. 39,456 (June 30, 2004).
STATE OF WASHINGTON v. CHU 3067
exemption is entitled to “substantial deference” under Chev-
ron U.S.A. Inc. v. Natural Resources Defense Council, 467
U.S. 837 (1984), Skidmore v. Swift & Co., 323 U.S. 134,
139-40 (1944), or Auer v. Robbins, 519 U.S. 452, 462 (1997).
Under Chevron and its progeny, we first determine whether
Congress has “spoken to the precise question at issue.” Chev-
ron, 467 U.S. at 843. If we, after “employing traditional tools
of statutory construction, ascertain[ ] that Congress had an
intention on the precise question at issue, that intention is the
law and must be given effect.” Id. at 843 n.9.
These tools of construction require us first to engage
in a textual analysis of the relevant statutory provi-
sions and to read the words of statutes in their con-
text and with a view to their place in the overall
statutory scheme. If the proper interpretation is not
clear from this textual analysis, the legislative his-
tory offers valuable guidance and insight into
[c]ongressional intent. However, it is well estab-
lished that legislative history which does not demon-
strate a clear and certain congressional intent cannot
form the basis for enjoining regulations.
Resident Councils of Wash. v. Leavitt, 500 F.3d 1025, 1031
(9th Cir. 2007) (quoting Student Loan Fund of Idaho, Inc. v.
Dept. of Educ., 272 F.3d 1155, 1165 (9th Cir. 2001) (internal
citations and quotation marks omitted)). Our analysis of
§ 9(a)(1) reveals that Congress has clearly required that the
designation exemption be applied only to wastes at WIPP.15
15
We need not determine what level of deference to accord DOE’s inter-
pretation of § 9(a)(1), because we conclude that the section is unambigu-
ous. See Chevron, 467 U.S. at 842-43 (“If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”) Nonetheless,
if we were to conclude otherwise, we believe that DOE’s interpretation
would be entitled to little, if any, deference. “We give deference to an
agency’s interpretation of statutes and executive orders it is charged with
3068 STATE OF WASHINGTON v. CHU
A. The Text of Section 9(a)(1)
We begin our analysis with the language of § 9(a)(1) and
the statutory provisions invoked by that section. DOE argues
that the designation exemption plainly applies to wastes not
at WIPP. To determine what is “plain,” a “court must look to
the particular statutory language at issue, as well as the lan-
guage and the design of the statute was a whole.” McCarthy
v. Bronson, 500 U.S. 136, 139 (1991). Phrases that may seem
ambiguous in isolation may be clarified by statutory context.
United Sav. Ass’n v. Timbers of Inwood Forest Assoc., 484
U.S. 365, 371 (1988) (Scalia, J., for the majority) (“a provi-
sion that may seem ambiguous in isolation is often clarified
by the remainder of the statutory scheme . . . because only one
of the permissible meanings produces a substantive effect that
is compatible with the rest of the law”).
Section 9 of the original 1992 WIPP Act is titled “COM-
PLIANCE WITH ENVIRONMENTAL LAWS AND REGU-
LATIONS,” and provides that “[b]eginning on the date of the
enactment of this Act, the Secretary [of Energy] shall comply
with respect to WIPP” with the federal statutes and regula-
tions listed in subsections (A) through (H). See § 9. While
there is no question that the 1992 WIPP Act subjected the
WIPP facility to a panoply of environmental regulation
including the LDRs,16 the 1996 WIPP Amendments added
exemption language to Section 9, on which DOE now relies.
administering. When an agency interprets a statute outside its administra-
tion, however, we review that interpretation de novo.” Am. Fed’n of Gov’t
Employees v. Fed. Labor Relations Auth., 204 F.3d 1272, 1274-75 (9th
Cir. 2000) (citations and internal quotations marks omitted). Although
DOE is “responsible for the management of the [WIPP] Withdrawal,”
Pub. L. No. 102-579, § 4(a), 106 Stat. 4777, 4780 (1992), the 1992 WIPP
Act tasks the EPA and the State of New Mexico with monitoring DOE’s
compliance with the regulations and statutes outlined in § 9(a)(1), id. at
§ 9(a)(2), (c), (d).
16
The 1992 WIPP Act also established that WIPP was subject to EPA’s
Disposal Standards (40 C.F.R. § 191) as the performance requirements for
WIPP, see 1992 WIPP Act § 8(a), and criteria for determining the facili-
ty’s compliance with those Disposal Standards (40 C.F.R. § 194). In 1998,
the EPA certified that WIPP complied with those standards. See 63 Fed.
Reg. 27,354 (May 18, 1998).
STATE OF WASHINGTON v. CHU 3069
That language is found in subsection (a)(1), “after and
below subparagraph (H).” In its entirety, the amended Section
9(a)(1) provides:
SEC. 9. COMPLIANCE WITH ENVIRONMEN-
TAL LAWS AND REGULATIONS.
(a) In General.—
(1) Applicability.-Beginning on the date of
the enactment of this Act, the Secretary
shall comply with respect to WIPP, with—
(A) the regulations issued by the Admin-
istrator establishing the generally appli-
cable environmental standards for the
management and storage of spent nuclear
fuel, high-level radioactive waste, and
transuranic radioactive waste and con-
tained in subpart A of part 191 of title 40,
Code of Federal Regulations;
(B) the Clean Air Act (40 U.S.C. [§]
7401 et seq.);
(C) the Solid Waste Disposal Act (42
U.S.C. [§] 6901 et seq.);
(D) title XIV of the Public Health Ser-
vice Act (42 U.S.C. [§] 300f et seq.;
commonly referred to as the “Safe Drink-
ing Water Act”);
(E) the Toxic Substances Control Act
(15 U.S.C. [§] 2601 et seq.);
(F) the Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 (42 U.S.C. [§] 9601 et seq.);
3070 STATE OF WASHINGTON v. CHU
(G) all other applicable Federal laws
pertaining to public health and safety or
the environment; and
(H) all regulations promulgated, and all
permit requirements, under the laws
described in subparagraphs (B) through
(G).
With respect to transuranic mixed waste
designated by the Secretary for disposal at
WIPP, such waste is exempt from treatment
standards promulgated pursuant to section
3004(m) of the Solid Waste Disposal Act
(42 U.S.C. [§] 6924(m)) and shall not be
subject to the land disposal prohibitions in
section 3004(d), (e), (f), and (g) of the Solid
Waste Disposal Act.
Pub. L. No. 104-201, § 3188 (§ 9(a)(1)) (emphasis to the 1996
amendment added).
DOE argues that this amendment, which exempts desig-
nated TRUM waste from the land disposal prohibitions, and
by extension the identical HWMA provisions, establishes that
DOE no longer has an obligation to treat designated TRUM
waste or to limit the length of time such waste is stored at
Hanford or any other location prior to disposal at WIPP.
[1] DOE first argues that the doctrine of expressio unius est
exclusio alterius requires us to adopt its interpretation of the
designation exemption. This doctrine requires that “where
Congress includes particular language in one section of a stat-
ute but omits it in another section of the same Act, it is gener-
ally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.” See Beach v. Fed.
Bank, 523 U.S. 410, 418-19 (1998) (internal citations and
quotations omitted) (emphasis added). The cases that DOE
STATE OF WASHINGTON v. CHU 3071
cites in support of its proposition, however, are not on all
fours with the present case, because they do not involve dif-
ferences in language within the same statutory section. See id.
(explaining that because a statutory right of rescission could
cloud a bank’s title on foreclosure, that Congress “may well
have chosen to circumscribe that risk [in one part of the stat-
ute], while permitting recoupment damages regardless of the
date a collection action may be brought [in another part of the
statute].”); Or. Natural Res. Council, Inc. v. Kantor, 99 F.3d
334, 339 (9th Cir. 1996) (finding that because the section dis-
cussing the deadline for publishing the final regulation does
not mention the filing of the petition, the fact that the filing
of the petition is mentioned in another section does not pre-
clude a plain text reading of the publishing deadline).
[2] Unlike the cases cited by DOE, the exemption language
here falls within the 9(a)(1) subsection, as Congress con-
firmed when, in the savings provision of the 1996 WIPP
Amendments, Congress specifically referred to the exemp-
tion, “described in section 9(a)(1).” See § 14.17 Further,
§ 9(a)(1) begins by stating that as of “[the] date of the enact-
ment of this Act, the Secretary [of Energy] shall comply with
respect to WIPP,” with the federal statutes and regulations in
the subsequent subparagraphs. The plain and undisputed inter-
pretation of this language is that the WIPP facility must be in
compliance with the enumerated environmental regulations.
The second phrase (“with respect to [TRUM]”) is a sub-part
of Section 9(a)—“with respect to WIPP.” Congress’s decision
to place the designation exemption at this location indicates
17
Section 14, the “SAVINGS PROVISION,” addresses the effect of the
statute generally on the Clean Air Act and the Solid Waste Disposal Act.
Under the 1996 WIPP Amendments, this provision is unchanged, except
for the recognition of the designation exemption “described in section
9(a)(1).” Pub. L. No. 104-201, § 3188(d) (1996). Moreover, DOE has also
recognized the designation exemption as being in “Section 9(a)(1)(H)”—
a subsection of Section 9(a)(1). See 69 Fed. Reg. 39,456 (June 30, 2004)
(A DOE record of decision locating the designation exemption at Section
9(a)(1)(H)).
3072 STATE OF WASHINGTON v. CHU
that it meant for the designation exemption to apply only
“with respect to WIPP.”18
DOE also asserts that we must adopt its interpretation of
the designation exemption in order to give meaning to the
phrase “[w]ith respect to [TRUM] designated by the Secretary
for disposal at WIPP” in relation to the introductory phrase of
Section 9(a)(1), “with respect to WIPP.” “ ‘[S]tatutes must be
interpreted, if possible, to give each word some operative
effect.’ ” Andreiu v. Ashcroft, 253 F.3d 477, 480 (9th Cir.
2001) (en banc) (quoting Walters v. Metro. Educ. Enters.,
Inc., 519 U.S. 202, 209 (1997)). DOE argues that in order to
give meaning to the word “designate” and the designation
process itself, we must assume that Congress included the
word “designate” to distinguish the scope of the designation
exemption from the scope of the introductory phrase “with
respect to WIPP.” As a result, we would have to read the des-
ignation exemption as applying to wastes not at WIPP, as
opposed to only applying the exemption “with respect to
WIPP.”
Our reading of “the language and the design of the statute
as a whole,” McCarthy, 500 U.S. at 139, however, conflicts
with this interpretation and compels the opposite conclusion
—that the designation exemption extends only to wastes at
WIPP. First, the 1996 WIPP Amendments as a whole are
entirely focused on the ongoing establishment of the WIPP
site as a depository for transuranic waste. The language and
design of the statute as amended pertain solely to WIPP. No
section of the statute deals with the conditions, contents, or
18
Further, we have also stated that the doctrine of expressio unius est
exclusio alterius “ ‘is a rule of interpretation, not a rule of law,’ which we
have explained is ‘properly applied only when it makes sense as a matter
of legislative purpose.’ ” United States v. Fuller, 531 F.3d 1020, 1027 (9th
Cir. 2008) (quoting Longview Fibre Co. v. Rasmussen, 980 F.2d 1307,
1313 (9th Cir. 1992)). As we discuss below, we do not believe that DOE’s
interpretation fits with Congress’s purpose in enacting the 1996 WIPP
Amendments.
STATE OF WASHINGTON v. CHU 3073
schedules for the cleanup of wastes stored elsewhere. All ref-
erences to the existing regulatory schemes, with the exception
of the designated waste in question, emphasize that such regu-
lations, without revision or exception, pertain to WIPP.
Further, the treatment standards from which “waste desig-
nated . . . for disposal at WIPP” is exempt are critical. Such
waste is “exempt from treatment standards promulgated pur-
suant to section 3004(m) of the Solid Waste Disposal Act . . .
and shall not be subject to the land disposal prohibitions in
section 3004(d), (e), (f), and (g) . . . .” Because the treatment
standards are relevant “for wastes subject to land disposal
prohibitions,” RCRA § 3004(m), we turn to the land disposal
prohibitions to which the exemption refers.
[3] All of these prohibitions are plainly location-specific. A
waste is not subject to land disposal prohibitions only if there
is “a reasonable degree of certainty, that there will be no
migration of hazardous constituents from the disposal unit or
injection zone for as long as the waste [ ] remain[s] hazard-
ous.” RCRA § 3004(d)(1), (e)(1), & (g)(5) (emphasis added).
The EPA regulations implementing these provisions are just
as transparent. The regulations explain that no-migration
determinations apply only to the land disposal “of the specific
restricted waste at the individual disposal unit . . . and [do] not
apply to any other restricted waste at that disposal unit, or to
that specific restricted waste at any other disposal unit.” 40
C.F.R. § 268.6(i) (emphasis added). Accordingly, an exemp-
tion from the prohibition from land disposal is contingent
both on the identification of a specific restricted waste and the
identification of a specific disposal unit.
[4] The designation exemption does not, itself, specify the
disposal unit where the waste will actually be disposed—the
exemption provides only that waste be “designated for dis-
posal at WIPP”—but we need not look far to determine the
unit from which Congress intended to exempt the designated
waste. Congress explicitly identified “the individual disposal
3074 STATE OF WASHINGTON v. CHU
unit” when it chose to place the designation exemption within
§ 9(a)(1)—“with respect to WIPP.” DOE’s position is not to
the contrary. In fact, DOE acknowledges in its opening brief
that by amending the 1992 WIPP Act to include the designa-
tion exemption, “Congress [ ] in effect granted DOE the no-
migration determination that would have been required under
RCRA.” With this acknowledgement, DOE appears to recog-
nize that Congress did identify a disposal unit, and that desig-
nation of waste “for disposal at WIPP” allows DOE to only
and ultimately dispose of the waste at WIPP. Throughout this
litigation, DOE has never, in fact, argued that the designation
exemption allows DOE to land-dispose untreated but desig-
nated waste elsewhere on the basis that the designation itself
establishes that the waste is no longer “land-disposal prohibit-
ed.”
With respect to the storage prohibition, however, DOE
reverses course and argues that the designated waste escapes
RCRA’s storage prohibition wherever that waste may be
located. DOE arrives at this conclusion by reasoning that
because the storage prohibition applies only to “hazardous
waste which is prohibited from one or more methods of land
disposal,” see RCRA 3004(j), and designated waste is not
prohibited from land disposal at WIPP, the waste is in fact no
longer “land-disposal prohibited.”
This argument is not persuasive. First, by specifically
invoking the narrow scope of the land disposal prohibitions at
§ 3004(d)(1), (e)(1), and (g)(5)—and nowhere mentioning the
storage prohibition at § 3004(j)—Congress established that
the waste “designated by the Secretary for WIPP” is exempt
from the treatment standards and the land disposal prohibi-
tions with respect to WIPP. That is precisely what a no-
migration determination would have accomplished. Because
an exemption for WIPP says nothing about removing the land
disposal prohibition from designated wastes at other locations,
the logical consequence of Congress’s action is that the
wastes not at WIPP continue to be “prohibited from one or
STATE OF WASHINGTON v. CHU 3075
more methods of land disposal” and that the land disposal
restrictions, including the storage prohibition, apply at those
locations.
DOE’s attempts to rebut this argument by alleging that a
successful no-migration determination renders the storage
prohibition inapplicable to waste wherever such waste may be
stored. This argument is without merit. DOE’s citations to the
Federal Register and the Code of Federal Regulations, see 40
C.F.R. § 268.6, 268.50(d); 54 Fed. Reg. 36,967, 36,968 (Sep-
tember 6, 1989); 51 Fed. Reg. 40,572, 40,579 (Nov. 7, 1986),
are inscrutable. They provide no support for the proposition
that a no-migration determination for one location has the
effect of excluding from the storage prohibition similar waste
that is located at other locations. Rather, the sum of these cita-
tions merely stands for the principle that if the identified
waste is stored at an identified “no migration” location, and
a petition for a no-migration determination is successful, that
waste can be “stored” at that location without violating
RCRA’s storage prohibitions, so long as the no-migration
determination is valid.
[5] After reading the language of designation exemption in
the context of the statute as a whole, we conclude that DOE’s
interpretation of the designation provision is not compelled by
the plain meaning of the statute. The land disposal prohibi-
tions enumerated in the designation exemption simply provide
no basis on which to conclude that the specified provisions
permit exemptions for itinerant waste or waste wherever such
waste may be located. DOE’s argument along such lines,
which is not a position made explicit in any of DOE’s records
of decision designating waste for disposal at WIPP, nor sup-
ported by any reference to the statute’s implementing regula-
tions or to case law, is not compelled by the plain text of § 9
of the 1996 WIPP Amendments and is incompatible with the
land disposal prohibitions contained in § 3004(d)(1), (e)(1),
and (g)(5). Nonetheless, because our reading of § 9(a)(1)
reveals some ambiguity in the text of the statute itself, we turn
3076 STATE OF WASHINGTON v. CHU
to the legislative history of the WIPP Act for further “guid-
ance and insight into Congressional intent.” Resident Coun-
cils, 500 F.3d at 1031.
B. Legislative History
[6] After a careful review of the legislative record, we have
little difficulty concluding that, in amending § 9(a)(1), Con-
gress intended to remove regulatory obstacles to disposal once
the designated waste arrives at WIPP. In particular, there is
nothing in the legislative record that demonstrates that Con-
gress contemplated the removal of RCRA’s storage prohibi-
tion from waste located at facilities other than WIPP.
[7] First, the record is overwhelming that Congress’s pur-
pose in enacting the relevant 1996 WIPP Amendments was to
speed the opening of the WIPP facility. In particular, Con-
gress and DOE perceived that compliance with numerous
environmental regulations had delayed the commencement of
waste disposal at WIPP. RCRA’s land disposal restrictions,
for which DOE’s “no migration” determination was pending
before the EPA, were specially singled out as duplicative of
the regulations that governed the radioactive components of
transuranic wastes under the Atomic Energy Act. Further, the
EPA had stated in a letter to Senator Larry Craig, who was a
key sponsor of the original 1992 WIPP Act, that, in its view,
a no-migration determination for WIPP was unnecessary to
protect human health and the environment:
(1) The Agency believes that the human health and
environmental hazards presented by the radioactive
portion of the waste outweigh the hazards presented
by the RCRA hazardous constituents portion of the
waste; (2) The Agency also believes that compliance
with its comprehensive regulatory scheme under the
Atomic Energy Act (40 CFR Part 191), the extensive
WIPP Compliance Criteria (40 CFR Part 194), and
RCRA permit requirements (40 CFR Part 264) will
STATE OF WASHINGTON v. CHU 3077
adequately protect human health and the environ-
ment from releases of RCRA hazardous constituents.
In this light, the Agency, therefore believes that in
the narrow context of the WIPP which is subject to
comprehensive regulation under the AEA, the [1992
WIPP Act], and RCRA, that a demonstration of no
migration of hazardous constituents will not be nec-
essary to adequately protect human health and the
environment.
Letter from Mary D. Nichols, Assistant Administrator for Air
and Radiation and Elliott P. Laws, Assistant Administrator for
Solid Waste and Emergency Response, to Larry E. Craig,
United States Senate (Sept. 8, 1995).19
Accordingly, early drafts of the amended Act referred
explicitly to the no-migration determination for WIPP. The
text of the 1996 Amendments as they emerged from the
House’s Commerce Committee are illustrative. The relevant
draft section stated, again “after and below subparagraph
(H),” that
[w]ith respect to transuranic mixed waste designated
by the Secretary for disposal at WIPP, such waste is
exempt from the land disposal restrictions published
at part 268 of 40 C.F.R. because compliance with the
environmental radiation protection standards pub-
lished at part 191 of 40 C.F.R. renders compliance
with the land disposal restrictions unnecessary to
achieve desired environmental protection and a no
migration variance is not required for disposal of
transuranic mixed waste at WIPP.
H.R. Rep. No. 104-540, at 19 (1996). What is especially evi-
dent from this early draft is not only that the draft language
19
See Supplemental Excerpts of Record at 77-80.
3078 STATE OF WASHINGTON v. CHU
tracked the letter that Senator Craig received from the EPA,
but also that the phrase, “[w]ith respect to transuranic mixed
waste designated by the Secretary for disposal at WIPP,”
refers only to such waste at WIPP. Although this draft lan-
guage was later both abbreviated and made more specific by
enumerating the land disposal restriction provisions, the inten-
tion of Congress to remove regulatory burdens with respect to
the WIPP facility is overwhelming.
The House Commerce Committee’s section-by-section
analysis confirms this intent. The report states that the pur-
pose of the relevant amendment is to
. . . eliminate Solid Waste Disposal Act “no migra-
tion” requirements (40 CFR Part 268). WIPP
remains under the regulatory structure of 40 CFR
Parts 191, 194 and 264. In meetings with DOE and
EPA, both principal agencies indicated support for
the elimination of the 40 CFR Part 268 restrictions,
citing that their application would not be necessary
to adequately protect human health and the environ-
ment. Removing this unnecessary and duplicative
regulatory burden will have a beneficial effect on
opening WIPP and in ensuring a responsible use of
taxpayer funding during WIPP’s operation.
Id. at 11. Further, at the only hearing held on the 1996 WIPP
Amendments, those who testified repeatedly referred to the
fact that the amendment was designed to “exempt[ ] WIPP
from the no-migration standard . . . because it imposes unreal-
istically stringent performance requirements 2,000 feet below
the surface.” Waste Isolation Pilot Plant Land Withdrawal
Amendments Act: Hearing on H.R. 1663 Before the Subcomm.
on Energy and Power of the H. Comm. on Commerce, 104th
Cong. 4 (1995) (statement of Hon. Joe Skeen, Rep. New Mex-
ico); see also id. at 1-15.20
20
Indeed, we also find telling that following the 1996 WIPP Amend-
ments, the EPA terminated DOE’s no-migration petition and cited as the
STATE OF WASHINGTON v. CHU 3079
[8] That Congress wanted to avoid duplicative regulatory
schemes for depositing TRUM in a geologically unique dis-
posal site is logical and transparent. There is no indication—
and DOE points to none—that Congress intended that the des-
ignation of waste for disposal at WIPP would affect wastes
located at other facilities, or that Congress intended to re-
write or re-interpret the meaning or effect of the LDRs. Our
review of the legislative history of the 1996 WIPP Amend-
ments demonstrates that Congress intended that the designa-
tion exemption apply only to wastes at WIPP; this “intention
is the law and must be given effect.” Chevron, 467 U.S. at
843 n.9.
III. Conclusion
[9] The designation exemption in the 1996 WIPP Amend-
ments does not exempt designated TRUM wherever it may be
located from the land disposal prohibitions or the storage pro-
hibition of the State’s HWMA, which acts in lieu of the fed-
eral provisions of RCRA. Rather, the amended Act plainly
exempts designated waste from the storage and land-disposal
prohibitions “with respect to WIPP.” On this basis, we affirm
the district court’s grant of summary judgment to the State of
Washington.
AFFIRMED.
reason that the 1996 WIPP Amendments “exempted WIPP from the provi-
sions of the land disposal restrictions.” 61 Fed. Reg. 60,704 (Nov. 29,
1996) (terminating review of DOE’s no-migration petition, effective Oct.
1, 1996) (emphasis added).