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AGO 1985 No. 3 - January 25, 1985
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- DEPARTMENT OF SOCIAL AND HEALTH SERVICES ‑- STATE MONITORING AND REGULATION OF RADIOACTIVE EMISSIONS FROM FEDERAL NUCLEAR FACILITY

The State of Washington does not have the requisite authority, under federal law, to regulate radioactive emissions from a federal nuclear facility‑-except for air emissions, which may be monitored by the State Department of Ecology under the federal Clean Air Act amendments of 1977.

                                                              - - - - - - - - - - - - -

                                                                 January 25, 1985

Honorable Dick Nelson
State Representative, 32nd District
340 House Office Building
Olympia, Washington 98504

Cite as:  AGO 1985 No. 3                                                                                                                  

 Dear Sir:

             By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

             To what extent does the state have the authority to monitor and regulate radioactive emissions from a federal nuclear facility such as the PUREX plant on the Hanford reservation?

             We answer your question in the manner set forth in our analysis.

                                                                      ANALYSIS

             In this age of acronyms the PUREX facility referred to in your letter obtains its name as an abbreviation of "Plutonium and Uranium Extraction."  The plant extracts plutonium and uranium from spent defense fuel.  The facility is owned by the Energy Research and Development Administration (ERDA), an arm of the United States Department of Energy (DOE) created by the Energy Regorganization [Reorganization] Act of 1984.1/ The plant is operated under a contract with Rockwell  [[Orig. Op. Page 2]] Hanford Operations, Inc.  As an ERDA nuclear facility, the PUREX plant is subject to the provisions of the Atomic Energy Act of 19542/ (AEA) under 42 U.S.C.A. § 5817(a).3/ The PUREX Plant is a "production facility" under the federal regulations promulgated under the AEA.4/

             Supremacy Clause‑-General State Authority

             Under the supremacy clause of the United States Constitution5/ it is a seminal principle of law ". . . that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. . . ."  M'Culloch v. Maryland, 4 Wheat 316, 426 (1819).  From this principle a corollary is deduced ". . . that the activities of the Federal government are free from regulation by any state. . . ."6/

             However, as also stated in Mayo "It lies within congressional power toauthorize regulation, . . . by the state of federal instrumentalities."7/ Thus our first task, in responding to your question, is to determine whether Congress has enacted environmental legislation allowing the states to regulate radioactive emissions from a federally-owned nuclear facility such as the PUREX plant.  In addition we must also note and identify whatever state legislation may have been enacted that may be utilized in the exercise of such federally-granted regulatory authority.

              [[Orig. Op. Page 3]]

            A.  Federal Water Pollution Control Act

             The first possible source of state authority to regulate federal facilities is the Federal Water Pollution Control Act (FWPCA) as amended.8/

             By virtue of a 1977 amendment that act expressly requires that federal facilities meet state procedural and substantive standards for water pollution emissions.9/ That amendment nullified the U.S. Supreme Court ruling in EPA v. State Water Resources Control Board, 426 U.S. 200 (1976) that federal installations discharging water pollutants in a state were not required to secure discharge permits from the state pursuant to the National Pollution Discharge Elimination System.  Thus, under the amendment, Congress clearly has authorized the states to regulate water pollutants from federal facilities10/ to the extent that those pollutants are subject to the FWPCA.  The critical question, here posed, therefore, is whether the FWPCA regulates radioactive water pollution emissions.

             [[Orig. Op. Page 4]]

            The FWPCA makes it unlawful to discharge "pollutants" into navigable waters without a permit; and 33 U.S.C. § 1362(6) provides that the term "pollutant" includes radioactive materials.  Moreover, under 33 U.S.C. § 1370, Congress authorized the states to adopt and enforce water pollution standards regarding such pollutants as long as the state standards were not less stringent than federal ones.  Thus, on the face of the statutory language it would logically appear that states can regulate radioactive emissions under the FWPCA.

             Nevertheless, inTrain v. Colorado Public Interest Research Group, Inc., 426 U.S. 1 (1976) the Supreme Court ruled otherwise‑-holding that the Environmental Protection Agency (EPA) did not have the authority to promulgate rules regulating the three types of radioactive materials (source, byproduct11/ and special nuclear materials) which are controlled by the Atomic Energy Commission (AEC)12/ under the AEA.  The Court based its holding on the FWPCA's legislative history which reflected a congressional intention not to alter the AEC's control over the discharge of source, byproduct, and special nuclear materials.  Therefore, the Court reasoned, "pollutants" subject to regulation under the FWPCA do not include such materials.

             Although the Court's ruling in Train related only to the authority of the EPA to regulate radioactive emissions under the FWPCA, the decision must necessarily apply as well to the states under 33 U.S.C. § 1323(a), supra, since the same definition of "pollutants" controls.  It therefore follows that the states do not have the authority under that federal legislation to regulate radioactive emissions from a federal facility (such as the PUREX plant) into the waters of the state.

             [[Orig. Op. Page 5]]

            B.  Agreement State Authority

            Prior to 1959, the development of nuclear energy had been an uniquely federal concern.  In that year, the Congress amended the AEA by enacting a provision, 42 U.S.C.A. § 2021, to enable the states to assume some nuclear regulatory authority upon agreement between the state and the Atomic Energy Commission.13/ We next consider that federal legislation.

            42 U.S.C. § 2021(b) provided that the states could enter into agreements with the Atomic Energy Commission to allow them to regulate byproduct materials, source materials and special nuclear materials in quantities not sufficient to form a critical mass within the state's borders.14/ However, under 42 U.S.C. § 2021(c), Congress withheld authority from the states to regulate radioactive discharges from nuclear production facilities such as the PUREX plant, saying:

             "No agreement entered into pursuant to subsection (b) shall provide for the discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of‑-

             "(1) the construction and operation of any production or utilization facility;

             ". . ."

             Thus, Congress gave and took away at the same time.  While this 1959 enactment granted authority to agreement states to regulate nuclear materials, it withheld from the states the authority to regulate radioactive emissions from a production facility.  Accord, in the context of nuclear power generating plants, Northern States Power Company v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), affirmed 405 U.S. 1035 (1972).

             InNorthern States Power, the court held that the federal government has the exclusive authority under the doctrine of  [[Orig. Op. Page 6]] preemption to regulate the construction and operation of nuclear power plants, including regulation of radioactive effluents discharged from the plants.  In its analysis the court relied, in part, upon the language of 42 U.S.C. § 2021(c),supra.  In turn, although nuclear power generating plants are utilization facilities, the same analysis should apply to a DOE production facility such as the PUREX plant.  Thus, it must be concluded that the State of Washington does not, as an agreement state, have the authority (through the Department of Social and Health Services) to monitor emissions from a facility such as the PUREX plant under the AEA.15/

             C.  Nuclear Waste Policy Act of 1982

            Congress enacted the Nuclear Waste Policy Act of 198216/ to establish programs for the development of repositories for the safe permanent disposal of high level nuclear waste and spent fuel, and to provide for the safe stabilization and long-term protection of sites for the disposal of low level radioactive waste.  That Act, which we next consider, details a schedule for the development of repositories for the disposal of high level nuclear waste.  42 U.S.C. § 10137 requires the Secretary of Energy to establish and negotiate agreements regarding state participation in decision making and the provision of information to states where repository sites are being studied.  However, nowhere in the act did Congress explicitly grant authority to the states to regulate solid radioactive waste emissions from a federal nuclear production  [[Orig. Op. Page 7]] facility.  Therefore this 1982 federal law does not directly affect state authority over a federal facility such as the PUREX plant.

             D.  Federal Clean Air Act

             Finally, and with more success, we consider the federal Clean Air Act.17/ Like the FWPCA, the Clean Air Act was also amended in 1977 to make it clear that federal facilities must comply with both procedural and substantive state or local government air pollution standards.18/ That amendment explicitly overruled the Supreme Court's holding inHancock v. Train, 426 U.S. 167 (1976) that‑-while federal facilities must comply with state air pollution standards substantively‑-the federal government, in discharging air pollutants, did not need to obtain a permit from the state involved.19/ Thus, under the amendment, Congress has clearly  [[Orig. Op. Page 8]] granted authority to the states to regulate air emissions from a federal facility.

             The next issue, in turn, is whether the state's general power to regulate air emissions from federal facilities includes authority over radioactive air emissions.  And here, unlike the Water Pollution Act (FWPCA), we find that the Congress amended the Clean Air Act to explicitly include radioactive byproduct materials within the definition of "air pollutant."20/ Thereby, Congress made the full regulatory framework of the Clean Air Act available for radioactive pollutants emitted from federal nuclear facilities.

             Pursuant to 42 U.S.C. § 7416, the states retained the authority to regulate the emission of air pollutants as long as state standards were at least as strict as the federal rules.21/ Reading this section in conjunction with the definitional section clearly indicates congressional intent that the individual states have the power to regulate radioactive air emissions from nuclear facilities such as (in this case) the PUREX plant.

             This conclusion is bolstered by a reading of the legislative history which indicates that the legislation would not preempt  [[Orig. Op. Page 9]] states and localities from setting and enforcing stricter air pollution standards for radiation than the federal standards, and would not follow the holding of Northern States Power Co. V. Minnesota,supra, in the context of radioactive air pollution.  See H.R. Conf. Rep. No. 564, 95th Cong., 1st Sess. 143, reprinted in 1977 U.S. Code Cong. and Ad. News 1502, 1523.22/

             E.  Washington Clean Air Act

             The State of Washington has implemented a program to comply with the requirements of the Federal Clean Air Act under chapter 70.94 RCW, the Washington Clean Air Act.  Under RCW 70.94.331(2), the Washington Department of Ecology (WDOE)23/ has the power to adopt by rule and regulation air quality standards and emission standards for the control or prohibition

             ". . . of emissions to the outdoor atmosphere of dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substances, or any combinations thereof . . . which it determines most feasible for the purposes of this chapter."  RCW 70.94.331(2)(c).24/

              [[Orig. Op. Page 10]]

            The statute provides various enforcement mechanisms to the WDOE and the local authorities including issuing orders,25/ obtaining injunctive relief,26/ pursuing criminal penalties,27/ imposing civil fines,28/ requiring permits for new or modified sources,29/ and accepting assurances of discontinuance.30/

             Conclusion

             From the foregoing analysis we conclude that a state (e.g., the State of Washington) does not have the authority to regulate radioactive emissions from a federal nuclear facility such as the federally-owned PUREX plant‑-except for air emissions, which may be monitored by the State under the federal Clean Air Act Amendments of 1977.  The State Legislature may amend the Washington Clean Air Act, chapter 70.94 RCW, to require the WDOE and/or the appropriate local air authority to set standards for radioactive air pollution and to enforce these standards.  We are aware of no other federal statutes which have expressly granted the states authority over radioactive emissions from a federal nuclear production facility.

             This completes our consideration of your question.  We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

ALLEN T. MILLER, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

 1/42 U.S.C. § 5801, et seq.

 3/". . . Such functions of the Administrator under this Act as are applicable to the nuclear activities transferred pursuant to this title shall be subject to the provisions of the Atomic Energy Act of 1954, as amended, and to other authority applicable to such nuclear activities. . . ."

 4/10 C.F.R. § 50.2(a).

 5/ART: VI, Cl. 2.

 6/Mayo v. United States, 319 U.S. 441, 445 (1943).

 7/Id. at 446 (Emphasis supplied).

 8/33 U.S.C. § 1251, et seq.

 9/See 33 U.S.C. § 1323(a) which provides in pertinent part:

 "(a) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges.  The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. . . ."

 10/See S.R. No. 95-370, 95th Cong., 1st Sess., 67, reprinted in 1977 U.S. Code Cong. and Ad. News 4326, 4392.

 11/Radioactive waste discharges from the PUREX plant are byproduct materials as defined in 42 U.S.C. § 2014(e), see New Britain v. AEC, 308 F.2d 648, 649 (D.C. Cir. 1962) andHarris County v. AEC 292 F.2d 370, 371 (5th Cir. 1961).

 12/The AEC was succeeded in its regulatory capacity by the Nuclear Regulatory Commission (NRC) under the Energy Reorganization Act of 1974, 88 Stat. 1233, 42 U.S.C. § 5801, et seq.

 13/Pub. L. No. 86-373, § 1, 73 Stat. 688.

 14/The State of Washington became an agreement state and the legislature enacted chapter 70.98 RCW designating the Department of Social and Health Services as the radiation control agency.

 15/Federal supremacy is reflected in the Department of Social and Health Services enabling act as radiation control agency.  RCW 70.98.090 provides:

 "The agency or its duly authorized representative shall have the power to enter at all reasonable times upon any private or public property for the purpose of determining whether or not there is compliance with or violation of the provisions of this chapter and rules and regulations issued thereunder, except that entry into areas under the exclusive jurisdiction of the federal government, or security areas under the direct or indirect jurisdiction of the federal government, shall be effected only with the concurrence of the federal government or its duly designated representative."  (Emphasis supplied)

 17/42 U.S.C. § 7401, et seq.

 18/42 U.S.C. § 7418 provides:

 "Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, and each officer, agent, or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity.  The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner.  This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. No officer, agent, or employee of the United States shall be personally liable for any civil penalty for which he is not otherwise liable."

 19/See H.R. No. 294, 95th Cong., 1st Sess., 12, reprinted in 1977 U.S. Code Cong. and Ad. News 1077, 1089.

 20/42 U.S.C. § 7602(g) provides:

 "The term 'air pollutant' means any air pollution agent or combination of such agents, including any physical chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air."

 21/42 U.S.C. § 7416 provides:

 "Except as otherwise provided in . . . nothing in this Act shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 111 or 112 [42 USCS § 7411 or 7412], such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section."

 22/One caveat to the state's power to regulate radioactive air pollution at the PUREX plant should be noted.  Under 42 U.S.C. § 7418(b), the President may exempt a federal facility from compliance with state requirements "if he determines it to be in the paramount interest of the United States to do so, . . ."  However, such exemption may not be granted for a period to exceed one year unless the President makes a new determination.  This federal exemption power could turn the state's authority to control air pollution from federal facilities into an illusion.

 23/Under RCW 43.21A.060(3) the WDOE inherited the powers, duties, and functions of implementing the Washington Clean Air Act formerly performed by the Department of Health and the State Air Pollution Control Board.

 24/The legislature might want to amend this section and also the definitional section of RCW 70.94.030 to explicitly include radioactive emissions within the definition of air contaminants.  This change in the law would then mandate that the WDOE adopt radioactive emission standards and would permit the local authorities to adopt stricter rules.

 25/RCW 70.94.332

 26/RCW 70.94.425

 27/RCW 70.94.430

 28/RCW 70.94.431

 29/RCW 70.94.152

 30/RCW 70.94.435

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