U.S. v. Manning

527 F.3d 828

UNITED STATES of America, Plaintiff-Appellee, v. Jay MANNING, in his official capacity as Director of the Washington Department of Ecology; Washington Department of Ecology; State of Washington, Defendants-Appellants, and Yes on I-297: Protect Washington; Bob Apple; Washington Public Interest Research Group; Adam Kline; Toby Nixon; Heart of America Northwest, Defendant-Intervenors, v. Fluor Hanford Inc.; Tri-City Industrial Development Council, Plaintiff-Intervenors-Appellees.

United States of America, Plaintiff-Appellee, v. Jay Manning, in his official capacity as Director of the Washington Department of Ecology; Washington Department of Ecology; State of Washington, Defendants, and Yes on I-297: Protect Washington; Bob Apple; Washington Public Interest Research Group; Adam Kline; Toby Nixon; Heart of America Northwest, Defendant-Intervenors-Appellants, v. Fluor Hanford Inc.; Tri-City Industrial Development Council, Plaintiff-Intervenors-Appellees.

United States of America, Plaintiff-Appellee, v. Jay Manning, in his official capacity as Director of the Washington Department of Ecology; Washington Department of Ecology; State of Washington, Defendants-Appellees, and Yes on I-297: Protect Washington; Bob Apple; Washington Public Interest Research Group; Adam Kline; Toby Nixon; Heart of America Northwest, Defendant-Intervenors, v. Fluor Hanford Inc., Plaintiff-intervenor, and Tri-City Industrial Development Council, Plaintiff-Intervenor-Appellant.

No. 06-35613.

No. 06-35664.

No. 06-35765.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 3, 2007.

Filed May 21, 2008.

Andrew A. Fitz, Assistant Attorney General (argued); Laura J. Watson, Assistant Attorney General; and James R. Schwartz, Assistant Attorney General; Olympia, WA, for the defendants-appellants, cross-appellees.

Michael Jay Robinson-Dorn (argued), Katy Anne King, Ian Jeremy Mensher, and Joseph Shaughnessy, Seattle, WA, for the intervenor-appellants.

John A. Bryson, Assistant United States Attorney (argued); Matthew J. McKeown, Acting Assistant Attorney General; Cynthia J. Morris, Assistant United States Attorney; Kenneth C. Amaditz, Assistant United States Attorney; and David Kaplan, Assistant United States Attorney; Washington, DC, for the plaintiff-appellee.

Colin C. Deihl (argued) and Kristen S. Carney, Faegre & Benson LLP, Denver, CO, for the intervenor-appellee Fluor Hanford, Inc.

Matthew J. Segal (argued), Stephen A. Smith, and Michael K. Ryan, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Seattle, WA, for the intervenor-appellee, cross-appellant Tri-City Industrial Development Council.

Appeals from the United States District Court for the Eastern District of Washington; Alan A. McDonald, District Judge, Presiding. D.C. No. CV-04-05128-AAM.

Before: M. MARGARET McKEOWN and RICHARD R. CLIFTON, Circuit Judges, and WILLIAM W. SCHWARZER,^* District Judge.

McKEOWN, Circuit Judge:

The Hanford Nuclear Reservation ("Hanford") in Washington is one of the largest sites in the country for the treatment, storage and disposal of radioactive and non-radioactive hazardous waste, currently storing over 53 million gallons of mixed radioactive and nonradioactive hazardous waste. During World War II, the United States government constructed Hanford to manufacture plutonium for military purposes. In re Hanford Nuclear Reservation Litig., 521 F.3d 1028, 1039-40 (9th Cir.2008) (as amended).¹ Over the decades, the United States Department of Energy ("DOE") has disposed of approximately 450 billion gallons of contaminated water and liquid mixed waste on the site. At least one million gallons of high-level mixed radioactive and non-radioactive hazardous waste have leaked into the environment and approximately 170 miles of groundwater beneath Hanford are contaminated. In addition, tens of millions of gallons of waste are stored at Hanford in tanks that were constructed in the 1940s and meant to last only twenty years. As of 2004, there was a backlog of over 22,000 cubic meters of low-level mixed waste and transuranic mixed waste awaiting treatment and disposal.

In 1989, Washington's Department of Ecology ("Ecology"), the DOE, and the United States Environmental Protection Agency ("EPA") entered into the Hanford Federal Facility Agreement and Consent Order, also known as the Tri-Party Agreement, to bring Hanford into compliance with federal and state environmental laws. However, according to Ecology, since signing the agreement, the DOE and its contractors have been cited numerous times for violations of federal and state hazardous and mixed waste laws and requirements.

The present appeal arises out of an effort by Washington voters "to prevent the addition of new radioactive and hazardous waste to the Hanford nuclear reservation until the cleanup of existing contamination is complete." United States v. Hoffman, 154 Wash.2d 730, 116 P.3d 999, 1001 (2005). Although the desire to take action against further environmental contamination and to protect the health and welfare of the community is understandable, we conclude that the statute enacted through the passage of Initiative 297 ("I-297"), the Cleanup Priority Act ("CPA"), is preempted by federal law. This result is dictated by a plain reading of the Washington statute, as interpreted by the Washington Supreme Court, as well as longstanding principles of federal preemption.

I. BACKGROUND

A. GLOSSARY

The field of environmental law has spawned multiple acronyms. Many of these acronyms are well recognized, like EPA, while others, like HWMA, are not. For ease of reference, we offer the following glossary of terms:

AEA          Atomic Energy Act       42 U.S.C. §§ 2011-2259
             of 1954
CERCLA       Comprehensive           42 U.S.C. §§ 9601-9675
             Environmental
             Response
             Compensation, and
             Liability Act of 1980
CPA          Cleanup Priority Act    RCW Chapter 70.105E
DOE          United States
             Department of
             Energy
EPA          United States
             Environmental
             Protection Agency
Ecology      Washington
             State Department
             of Ecology

FFCA         Federal Facility        Pub. L. No. 102-386
             Compliance Act of       106 Stat. 1505 (codified
             1992                    in scattered sections of
                                     42 U.S.C.)
HWMA         Hazardous Waste         RCW Chapter 70.105
             Management Act
MTCA         Model Toxics            RCW Chapter 70.105D
             Control Act
RCRA         Resource                42 U.S.C. §§ 6901-6992k
             Conservation and
             Recovery Act of
             1976

B. STATUTORY FRAMEWORK FOR HAZARDOUS WASTE MANAGEMENT

Hazardous waste is regulated at both the federal and state levels. The Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992k, enacted in 1976 in response to the environmental and public health risks associated with the mismanagement of hazardous waste, created a permit scheme for the treatment, disposal, or storage of hazardous waste. See id. § 6925(a); United States v. Kentucky, 252 F.3d 816, 822 (6th Cir.2001). Under the RCRA, states may apply to the EPA for authorization to administer a hazardous waste program in lieu of the federal program. 42 U.S.C. § 6926(b). Washington is authorized to administer its own program, and does so through the Hazardous Waste Management Act ("HWMA"), RCW 70.105.

Despite federal cleanup efforts, hazardous waste contamination continued to be a problem. Ecology claims that federal facilities, including Hanford, were among the worst offenders. In 1992, Congress enacted the Federal Facilities Compliance Act ("FFCA") to make it "as clear as humanly possible" that Congress was waiving federal sovereign immunity and making federal facilities subject to state laws. 138 Cong. Rec. H9135-02 (daily ed. Sept. 23, 1992) (statement of Rep. Dingell); see 42 U.S.C. § 6961. This act also added a provision to the RCRA that requires the DOE to submit its treatment plans for mixed waste to the states for approval, modification, or disapproval. 42 U.S.C. § 6939c.

Disposal of nuclear and radioactive materials falls, however, into a special category and is separately regulated by the federal government. Thus, "solid waste" regulated by the RCRA does not include "source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954."² 42 U.S.C. § 6903(27). "The [Atomic Energy Act, ("AEA"), 42 U.S.C. §§ 2011 2259] enacted in 1954, established a comprehensive regulatory scheme for military and domestic nuclear energy." Natural Res. Def. Council v. Abraham, 388 F.3d 701, 704 (9th Cir. 2004). Amendments to the AEA in 1959 gave states some regulatory authority, but the Atomic Energy Commission, now the Nuclear Regulatory Commission, "retain[ed] exclusive regulatory authority over `the disposal of such ... byproduct, source, or special nuclear material as the Commission determines ... should, because of the hazards or potential hazards thereof, not be disposed of without a license from the Commission.'"³ Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 250, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984) (quoting 42 U.S.C. § 2021(c)(4)).

Radioactive waste that is subject to regulation under the AEA frequently may be mixed with non-radioactive waste that is regulated by the RCRA. No separate federal statute regulates this "mixed waste."⁴ See Kentucky, 252 F.3d at 822. However, the DOE and the EPA have issued rules stating that mixed waste will be subject to dual regulation: the AEA will govern the radioactive component and the RCRA or comparable state legislation will govern the non-radioactive component. See, e.g., 51 Fed.Reg. 24,504 (July 7, 1986); 52 Fed. Reg. 15,937 (May 1, 1987); 53 Fed.Reg. 37,045 (Sept. 23, 1988). This dual regulatory structure is the source of the conflict engendered by the CPA.

C...