Re: Do State Environmental Laws Apply To The New National Nuclear Security Agency?

[Marsden and June Chen <doobage@localnet.com>]

I read the first paragraphs of your piece on the New National Security
Agency and
the application of State Laws - did not go any further, because of my
understanding of the current system. I have been told that the world is
divided
into "really hot" and "low level" radiation. Originally the Nuclear Regulatory
Agency regulated all systems, then this role was passed to the U.S.
Department of
Energy. DOE regulates and oversees every bit of the "really hot" systems
and waste
and States are allowed no role; DOE, USEPA and the States all participate
in the
"low level" concerns. If Congress has so written Section 3261 that the NNSA
will
not be subject to State Laws, it is not a roll-back of environmental laws
but only
a continuation of the existing system. We know how poorly the NRC and the
DOE has
handled high level radioactive waste and the NNSA will continue the horror
show.

Seth Kirshenberg wrote:

> Potential Roll-Back Of Environmental Laws: Do State Environmental Laws
> Apply To The New National Nuclear Security Agency?
>
> Below is an analysis that Energy Communities Alliance received regarding
> Section 3261 of the FY2000 Defense Authorization bill (attached is the same
> document in Rich text Format).  The analysis concludes that the new
> National Nuclear Security Agency ("NNSA") may not have to comply with State
> environmental laws and permits, orders, regulations, agreements, etc.
>
> Section 3261 arguably creates some ambiguity in the laws which oversee
> DOE's Defense activites.  We should be careful and ensure that state laws
> do apply, as Congress seems to be trying to do with Section 3261, to this
> new Federal Agency.
>
> -------------------------------------------------------------------------
> ANALYSIS OF SECTION 3261 OF THE
> FY 2000 DOD AUTHORIZATION BILL
> AS REPORTED BY CONFERENCE COMMITTEE
>
> SUMMARY
>         Title XXXII of the Department of Defense Authorization bill for
fiscal
> year 2000, as reported by the conference committee, contains provisions
> creating a new entity, called the National Nuclear Security Agency
> ("NNSA").  Under Title XXXII, the NNSA will oversee all operations at four
> national laboratories and five nuclear weapons production facilities.
> Subtitle E of the conference committee's bill includes the following
> provision on environmental compliance:
>
>      SEC. 3261. ENVIRONMENTAL PROTECTION, SAFETY, AND     HEALTH
> REQUIREMENTS.
>         (a) COMPLIANCE REQUIRED.-The Administrator [of the NNSA]
> shall ensure that the Administration [i.e., the NNSA] complies with all
>     applicable environmental, safety, and health statutes and substantive
>        requirements.
>         (b) PROCEDURES REQUIRED.-The Administrator shall develop
> procedures for meeting such requirements.
>          (c) RULE OF CONSTRUCTION.-Nothing in this title shall diminish the
>          authority of the Secretary of Energy to ascertain and ensure that
> such                    compliance occurs.
>
> At first blush, this provision appears to require that facilities subject
> to the authority of the NNSA comply with all environment, safety, and
> health laws.  However, there is a reasonable likelihood that a reviewing
> court might conclude that the language in (a) actually means that NNSA
> facilities do not have to comply with state environmental permits, orders,
> regulations, statutes or agreements.  This may seem counterintuitive, but
> it is quite possible in light of well-established caselaw regarding
> sovereign immunity.
>
> ANALYSIS
>
>          The legal doctrine of sovereign immunity derives from the
> Supremacy clause of the U.S. Constitution.  Hancock v. Train, 426 U.S. 167,
> 178 (1976).  It is premised on the ancient common law doctrine that "the
> King can do no wrong." Essentially, sovereign immunity precludes anyone
> from suing the government without the government's permission, i.e.,
> without legislation waiving the immunity.   It thereby prevents states from
> regulating the activities of the federal government.  Congress (and only
> Congress) may waive the government's sovereign immunity in a statute, but
> federal courts have demonstrated repeatedly that they will read statutory
> provisions waiving immunity extremely narrowly.  As the Supreme Court
> stated in Hancock, "[b]ecause of the fundamental importance of the
> principles shielding federal installations and activities from regulation
> by the States, an authorization of state regulation is found only when and
> to the extent there is a 'clear congressional mandate,' 'specific
> congressional action' that makes this authorization of state regulation
> 'clear and unambiguous.'" (footnotes omitted)  426 U.S. at 179.
>         The Hancock court interpreted the waiver of sovereign immunity in
the
> Clean Air Act, and the decision illustrates the problem that section 3261
> of Title XXXII presents.  Before 1970, the Clean Air Act encouraged, but
> did not require, federal agencies to comply with its mandates.  Congress
> determined that this voluntary system was not working, and in 1970 amended
> the act to require federal agencies to comply.  Specifically, Congress
> added section 118 to the Clean Air Act.  The first sentence of the section
> provides:
> Each department, agency, and instrumentality of . . . the Federal
> Government . . . shall comply with Federal, State, interstate, and local
> requirements respecting control and abatement of air pollution to the same
> extent that any person is subject to such requirements.
> 42 U.S.C. § 1857f.  The 1970 amendments also required the Environmental
> Protection Agency to establish ambient air quality standards.  Each state
> had to submit plans describing how the state would ensure air quality
> within the state would meet these standards.  Kentucky, like most states,
> submitted a plan that relied on permits as the mechanism for air pollution
> sources to submit emission-related information, to establish emissions
> limitations applicable to the source, and to establish a schedule for
> achieving compliance with the emissions limitation.  Kentucky sought to
> require several federal agencies (including DOE's Paducah plant, then
> managed by the Atomic Energy Commission) to obtain permits.  The federal
> agencies refused, arguing that section 118 of the Clean Air Act did not
> obligate them to obtain state permits.
> The Supreme Court agreed with the federal agencies. The Court stated, "[w]e
> are unable to find in section 118, on its face or in relation to the Clean
> Air Act as a whole, or to derive from the legislative history of the
> Amendments any clear and unambiguous declaration by the Congress that
> federal installations may not perform their activities unless a state
> official issues a permit." 426 U.S. at 180.  The Court noted that section
> 118 did not provide that federal agencies must comply with "all . . .
> requirements to the same extent as any other person," nor did it provide
> that federal agencies must "comply with all requirements of the applicable
> state implementation plan."   Id. at 182 (emphasis in original).  Instead,
> the court said, "section 118 states only to what extent - the same as any
> person - federal installations must comply with applicable state
> requirements; it does not identify the applicable requirements."  Id.
>         The Court agreed with the federal agencies' argument that the word
> "requirements," as used in section 118, meant only substantive
> requirements, not "procedural" requirements, such as permits or enforcement
> mechanisms.   (As described below, the Court's distinction between
> substantive and procedural requirements could come into play in
> interpreting section 3261.)  Consequently, the Court held that the federal
> agencies did not have to obtain permits from Kentucky, even though the
> permits were the exclusive means by which the state implemented and
> enforced the "substantive requirements" of the state's corollary of the
> Clean Air Act.
>
> In reaching this result, the Court:
>
> · Read section 118 to include the word "applicable" modifying
> "requirements," when the word "applicable" did not exist in section 118.
> · Ignored the phrase "to the same extent as any person" in section 118.
> · Created a distinction not present in the Clean Air Act between
> "procedural" and "substantive" requirements.
>
> Congress acted swiftly to nullify this decision and a companion decision
> concerning the Clean Water Act by amending both acts to waive immunity for
> procedural and substantive requirements (including permits).  This was not
> a simple matter of adding the words "procedural" and "permit."  The waiver
> grew from 69 words in the 1970 version to 221 words in the 1976 version.
>
> The Supreme Court demonstrated its continuing hostility to state regulation
> of federal facilities in Department of Energy v. Ohio, 503 U.S. 607, 112
> S.Ct. 1627 (1992).  That case involved the waivers of sovereign immunity in
> the Resource Conservation and Recovery Act ("RCRA") and the Clean Water
> Act.  The issue was whether either act allowed states to assess civil
> penalties against federal agencies for violation of state water quality or
> hazardous waste laws.  The Court analyzed the following language from the
> Clean Water Act:
>
> "any citizen may commence a civil action on his own behalf--
>         "(1) against any person (including ... the United States ...) who is
> alleged to be in violation of (A) an effluent standard or limitation under
> this chapter or (B) an order issued by the Administrator or a State with
> respect to such a standard or limitation....
> "The district courts shall have jurisdiction ... to enforce such an
> effluent standard or limitation, or such an order ... as the case may be,
> and to apply any appropriate civil penalties under [33 U.S.C. s 1319(d) ]."
> 33 U.S.C. s 1365(a) (emphasis added).  It also analyzed the following
> language from RCRA:
>
> [A]ny person may commence a civil action on his own behalf--
>         (1)(A) against any person (including ... the United States) ...
who is
> alleged to be in violation of any permit, standard, regulation, condition,
> requirement, prohibition, or order which has become effective pursuant to
> this chapter ...
>         (B) against any person, including the United States ... who has
> contributed or who is contributing to the past or present handling,
> storage, treatment, transportation, or disposal of any solid or hazardous
> waste which may present an imminent and substantial endangerment to health
> or the environment....
> * * *
>         ... The district court shall have jurisdiction ... to apply any
> appropriate civil penalties under [42 U.S.C. §§ 6928(a) and (g) ].
> 42 U.S.C. s 6972(a) (emphasis added).  The court held that neither of these
> sections authorized the imposition of civil penalties against federal
> agencies.  It also held that the "federal facilities" provisions of the
> Clean Water Act and RCRA did not authorize states to impose civil penalties
> against federal agencies.  Shortly after the decision in DOE v. Ohio,
> Congress passed the Federal Facility Compliance Act, which amended RCRA to
> clearly waive the federal government's sovereign immunity from civil
> penalties.  The RCRA waiver of immunity is now 454 words long.
>
> Now re-consider the language of section 3261.  Under it, the Administrator
> must ensure compliance only with "applicable" statutes and "substantive"
> requirements.  A state could certainly argue that the phrase "applicable
> statutes" includes statutes that "clearly and unambiguously" waive
> sovereign immunity for substantive and procedural requirements, such as the
> Resource Conservation and Recovery Act, the Clean Air Act, and the Clean
> Water Act.  A state could also argue that the section is not a waiver of
> immunity at all, but simply an admonishment to the NNSA Administrator to
> comply with environment, safety and health requirements.  However, the NNSA
> would certainly argue that only federal statutes are "applicable"; that in
> any case the NNSA is required only to comply with the provisions of
> statutes themselves, not with any requirements of implementing regulations;
> and that the NNSA does not have to comply with any "non-substantive"
> requirements, including permits or administrative enforcement mechanisms,
> such as orders.  In making this last argument, the NNSA could cite to the
> distinction that the Supreme Court made in Hancock between substantive and
> procedural requirements.
>
>         The facilities that will be transferred to the NNSA pose a
significant
> potential for environmental harm.  Indeed, several are on the National
> Priorities List under CERCLA, and DOE estimates that cleaning up and
> decommissioning these sites alone will cost tens of billions of dollars.
> (Keep in mind also that under section 3291(b), the Secretary has discretion
> to transfer additional DOE facilities to the NNSA.)  The primary reason
> these costs are so high is that these facilities operated without any
> external environmental regulation.  In addition to their existing problems,
> all of the facilities that are proposed for transfer to the NNSA will
> continue to generate and manage significant quantities of hazardous and
> mixed (radioactive and hazardous) wastes in the future.
> Given the existing problems at NNSA candidate facilities and the potential
> for additional problems at those facilities in the future, we must ensure
> that these facilities continue to be subject to state environmental
> regulation.  As the above analysis demonstrates, there is reason for
> concern that section 3261 may not accomplish this goal.