434 F.Supp.2d 988 (E.D.Wash. 2006), CV-04-5128, United States v. Manning

Docket NºCV-04-5128-AAM.
Citation434 F.Supp.2d 988
Party NameUNITED STATES of America, Plaintiff, and Fluor Hanford Inc., and Tri-City Industrial Development Council Intervenor-Plaintiffs. v. Jay MANNING, in his official capacity as Director of the Washington Department of Ecology, the Washington Department of Ecology, and the State of Washington, Defendants, and Yes On I-297: Protect Washington, et al., Int
Case DateJune 12, 2006
CourtUnited States District Courts, 9th Circuit, Eastern District of Washington

Page 988

434 F.Supp.2d 988 (E.D.Wash. 2006)

UNITED STATES of America, Plaintiff,

and

Fluor Hanford Inc., and Tri-City Industrial Development Council Intervenor-Plaintiffs.

v.

Jay MANNING, in his official capacity as Director of the Washington Department of Ecology, the Washington Department of Ecology, and the State of Washington, Defendants,

and

Yes On I-297: Protect Washington, et al., Intervenor-Defendants.

No. CV-04-5128-AAM.

United States District Court, E.D. Washington.

June 12, 2006

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[Copyrighted Material Omitted]

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Cynthia J. Morris, David Kaplan, Kenneth C. Amaditz, Cynthia Huber, U.S. Department of Justice, Washington, DC, Michael James Zevenbergen, U.S. Attorney's Office, Seattle, WA, William Herbert Beatty, U.S. Attorney's Office, Spokane, WA, for Plaintiff.

Colin Deihl, James R. Spaanstra, Kristen Shults Carney, Lynn M. Kornfeld, Faegre and Benson LLP, Denver, CO, Stephen B. Cherry, Fluor Daniel Hanford Inc., Richland, WA, Matthew J. Segal, Stephen Alan Smith, Michael K. Ryan, Preston Gates & Ellis LLP, Seattle, WA, for Intervenor-Plaintiffs.

Laura J. Watson, Andrew A. Fitz, Elliott S. Furst, Katharine G. Shirey, Joseph Earl Shorin, III, Attorney General of Washington, Olympia, WA, for Defendants.

Gerald M. Pollet, Michael J. Robinson-Dorn, Seattle, WA, for Intervenor-Defendants.

Page 992

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, INTER ALIA

MCDONALD, Senior District Judge.

BEFORE THE COURT is the Motion For Summary Judgment filed by the United States of America (United States) (Ct.Rec.136), joined in by Fluor Hanford (Fluor) and the Tri-City Industrial Development Council (TRIDEC). Also before the court is TRIDEC's Motion For Partial Summary Judgment (Ct.Rec.140).

Oral argument was heard on May 23, 2006. Kenneth C. Amaditz, Esq., and David Kaplan, Esq., presented argument on behalf of the United States. Matthew J. Segal, Esq., presented argument on behalf of intervenor-plaintiff TRIDEC. Colin Deihl, Esq., presented argument on behalf of intervenor-plaintiff Fluor. Andrew A. Fitz, Esq., and Laura J. Watson, Esq., presented argument on behalf of the State of Washington (State) defendants. Michael J. Robinson-Dorn, Esq., and Gerald M. Pollet, Esq., presented argument on behalf of intervenor-defendants.

I. BACKGROUND

The United States, TRIDEC, and Fluor (collectively referred to herein as "plaintiffs") challenge the constitutionality of Washington's Cleanup Priority Act (CPA), 1 RCW Chapter 70.105E, enacted into law pursuant to Initiative 297 (I-297) passed by Washington voters in the November 2004 election. They seek a declaration that the CPA is invalid in its entirety, alleging it: 1) violates the Supremacy Clause of the United States Constitution (Article VI, Clause 2); 2) violates the sovereign immunity of the United States; and 3) violates the dormant Commerce Clause of the United States Constitution (Article I, Section 8, Clause 3). In addition, TRIDEC asserts the CPA violates the Contract Clause of the United States Constitution (Article I, Section 10).

The stated purpose of the CPA, RCW 70.105E.010 (Section 1), is:

[T]o prohibit sites at which mixed radioactive and hazardous wastes have contaminated or threaten to contaminate the environment, such as at the Hanford Nuclear Reservation, from adding more waste that is not generated from the cleanup of the site until such waste on-site has been cleaned up and is stored, treated, or disposed of in compliance with all state and federal environment laws.

(Emphasis added).

To that end, the CPA requires mixed waste facilities, such as the Hanford Nuclear Reservation (Hanford), to obtain a final facility permit under the federal Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901-6992k, and state law, and to meet all closure and corrective action requirements before the facility may accept any additional mixed wastes not generated at the facility. For mixed waste facilities that have been granted a sitewide permit, such as Hanford, final facility permits must be applied for and obtained for each unit or facility within the site where mixed wastes are, or will be, stored or disposed, prior to transporting to, storing or disposing at the facility any additional mixed wastes not generated at the facility. RCW 70.105E.040(2) and (6)[Section 4(2) and (6) ]. 2 The Hanford Site currently does not have a final facility permit for each unit or facility within the site.

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This court certified certain questions to the Washington Supreme Court regarding interpretation of the CPA. On July 28, 2005, the state supreme court provided answers to those questions, with the exception of the question relating to severability. United States v. Hoffman, 154 Wash.2d 730, 116 P.3d 999 (2005). 3 The answers to those questions are discussed in detail infra.

Enforcement of the CPA is currently restrained pursuant to order of this court.

II. SUMMARY JUDGMENT STANDARD

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Under Fed.R.Civ.P. 56, a party is entitled to summary judgment where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Semegen v. Weidner, 780 F.2d 727, 732 (9th Cir.1985). Summary judgment is precluded if there exists a genuine dispute over a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The moving party has the initial burden to prove that no genuine issue of material fact exists. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Id. The party opposing summary judgment must go beyond the pleadings to designate specific facts establishing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In ruling on a motion for summary judgment, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Nonetheless, summary judgment is required against a party who fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual disputes regarding other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

III. DISCUSSION

A. Supremacy Clause

The Supremacy Clause mandates that "the laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., Art. VI, Cl. 2.

1. Preemption

[S]tate law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.

Page 994

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984).

Plaintiffs contend the CPA is an attempt to regulate radioactive materials for safety purposes and therefore, falls within the field of regulation preempted by the Atomic Energy Act (AEA) of 1954, 42 U.S.C. §§ 2011-2297g-4. Furthermore, they contend the CPA stands as an obstacle to maintaining exclusive federal control over the management and disposal of radioactive materials. The AEA covers three different classes of radioactive material: source material, special nuclear material, and byproduct material. 42 U.S.C. § 2014(e), (z), (aa). The radioactive material at Hanford, or proposed to be sent there, consists of AEA radionuclides, either in "pure" form, or as a component of mixed waste (the other component being hazardous material). 4

In Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 212, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), the United States Supreme Court stated unequivocally that "[t]he federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states." (Emphasis added). Thus, for example, "[a] state moratorium grounded in safety concerns falls squarely within the prohibited field." Id. at 213, 103 S.Ct. 1713. 5 In a subsequent opinion in English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990), the Court clarified, but did not narrow, its holding in Pacific Gas, stating:

[N]ot every state law that in some remote way may affect the nuclear safety decisions made by those who build and run nuclear facilities can be said to fall within the pre-empted field.... Instead, for a state law to fall within the pre-empted zone, it must have some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels.

Id. at 85, 110 S.Ct. 2270 (emphasis added). 6

The pre-empted field is defined, in part "by reference to the motivation behind the state law." Id. at 84, 110 S.Ct. 2270. 7 That motivation is relevant is confirmed

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by the AEA which provides that "nothing ... shall be construed to affect the authority of any State or local agency to...

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2 practice notes
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    • Federal Cases United States District Courts 9th Circuit Western District of Washington
    • 25 Mayo 2012
    ...under Resource Conservation and Recovery Act ("RCRA") determined by Massachusetts test); see also United States v. Manning, 434 F.Supp.2d 988, 1016 (E.D. Wash. 2006) aff'd, 527 F.3d 828 (9th Cir. 2008) (even if surcharge qualified as regulatory charge under RCRA, would still have ......
  • Pettinato v. Allegheny County, 070811 PAWDC, 11cv0448
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    • Federal Cases United States District Courts 3th Circuit
    • 8 Julio 2011
    ...Circuit have recognized situations where the statute of limitations in a federal action may be tolled. See e.g. Eubanks v. Clarke, 434 F.Supp.2d 1022, 1031 (1977) ("We glean from Burnett, Hoosier Cardinal Corp., Holmberg and Moviecolor Limited that federal courts should utilize equitab......
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  • United States v. City of Renton, 052512 WAWDC, C11-1156JLR
    • United States
    • Federal Cases United States District Courts 9th Circuit Western District of Washington
    • 25 Mayo 2012
    ...under Resource Conservation and Recovery Act ("RCRA") determined by Massachusetts test); see also United States v. Manning, 434 F.Supp.2d 988, 1016 (E.D. Wash. 2006) aff'd, 527 F.3d 828 (9th Cir. 2008) (even if surcharge qualified as regulatory charge under RCRA, would still have ......
  • Pettinato v. Allegheny County, 070811 PAWDC, 11cv0448
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • 8 Julio 2011
    ...Circuit have recognized situations where the statute of limitations in a federal action may be tolled. See e.g. Eubanks v. Clarke, 434 F.Supp.2d 1022, 1031 (1977) ("We glean from Burnett, Hoosier Cardinal Corp., Holmberg and Moviecolor Limited that federal courts should utilize equitab......