Application of the Resource Conservation and Recovery Act to the Department of Energy's Atomic Energy Act Facilities
| Decision Date | 09 February 1984 |
| Docket Number | 84-2 |
| Citation | 8 Op. O.L.C. 6 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Application of the Resource Conservation and Recovery Act to the Department of Energy's Atomic Energy Act Facilities |
Theodore B. Olson Assistant Attorney General Office of Legal Counsel.
The nuclear production and weapons facilities that are operated by the Department of Energy (DOE) pursuant to the Atomic Energy Act (AEA) are generally subject to the requirements of the Resource Conservation and Recovery Act (RCRA) governing the disposal of solid wastes, including applicable standards regulations, permit requirements, and enforcement mechanisms. 42 U.S.C. § 6961.
Particular RCRA regulations or requirements may not apply to DOE facilities when the application of such regulation or requirement would be inconsistent with specific requirements of the AEA that flow directly from DOE's statutory mandate to develop and use atomic energy. 42 U.S.C. § 6905(a).
Whether a particular RCRA regulation or requirement is inconsistent with the requirements of the AEA must be analyzed by DOE and the Environmental Protection Agency on a case-by-case basis. However, § 1006(a) of RCRA, 42 U.S.C. § 6905(a), should relieve DOE from compliance with RCRA regulations or requirements (1) if they conflict with prescriptive directives contained in the AEA itself, such as the AEA restrictions on public disclosure of restricted data; (2) if compliance would prevent DOE from carrying out authorized AEA activities; or (3) if compliance would be inconsistent with specific operational needs of a facility that are unique to the production of nuclear material or components. In addition, a state may not exercise veto power over the establishment or operation of a DOE facility, either by denying necessary permits, or by seeking injunctive relief because of noncompliance with a RCRA regulation that is inconsistent with the AEA.
MEMORANDUM OPINION POR THE ASSISTANT ATTORNEY GENERAL, LAND AND NATURAL RESOURCES DIVISIONThis responds to your request for our analysis regarding whether or to what extent, the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA) applies to chemical wastes generated by nuclear production and weapons facilities owned by the Department of Energy (DOE) and operated under authority provided by the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011 et seq. (AEA). The context for your request is a difference of opinion between DOE and the Environmental Protection Agency (EPA) over whether waste treatment and disposal facilities and methods used at DOE's Atomic Energy Act plants are subject to RCRA standards, permit requirements, and enforcement mechanisms. DOE has taken the position that § 1006(a) of RCRA, 42 U.S.C. § 6905(a), which provides that RCRA does not apply to "activities] subject to... the Atomic Energy Act of 1954 ... except to the [ 7] extent such application (or regulation) is not inconsistent with the requirements of such Act[], " exempts its AEA facilities from all RCRA regulation. EPA contends that DOE's AEA facilities are subject to RCRA, as are all other federal facilities, but that specific RCRA regulations may not apply to some aspects of DOE's operations, if application of those regulations would be inconsistent with particular requirements flowing directly from the language or purpose of the AEA.[1]
We have received submissions from DOE and EPA on the applicability of RCRA, including copies of previous correspondence between those agencies on the issue. Based on our review of those materials, discussions with your Division and personnel at DOE and EPA, and our own research, we have concluded that EPA's interpretation of § 1006(a) represents the sounder view of the law. For the reasons set forth below, we conclude that DOE's Atomic Energy Act facilities are generally subject to the requirements of RCRA, including compliance with applicable standards, regulations, and permitting requirements, and are generally subject to the enforcement mechanisms established by RCRA. Section 1006(a) leaves open the possibility, however, that particular RCRA regulations or requirements are not applicable to DOE's facilities, or to a particular facility, because such regulations or requirements would be "inconsistent with the requirements of [the AEA]." We do not interpret "requirements of [the AEA], " as used in § 1006(a), as broadly as DOE urges, i.e., to encompass all DOE regulations, s, and directives that apply to, or may affect, health and safety aspects of its Atomic Energy Act facilities. Rather, in order to give reasonable content to § 1006(a), we must interpret the term "requirements" more narrowly, as EPA urges, in light of the somewhat different purposes of the AEA and RCRA.
Thus, we believe that § 1006(a) would relieve DOE from compliance with RCRA only in particular circumstances where DOE can demonstrate that application of a regulation or requirement would be inconsistent with specific requirements of the AEA that flow directly from DOE's statutory mandate to develop and use atomic energy. Although it is difficult in the absence of particular facts to give precise content to the term "requirements, " we believe DOE could demonstrate that particular aspects of RCRA should not apply to operation of its facilities (or particular facilities), for example: if the RCRA regulation would conflict with prescriptive directives contained in the AEA itself, including principally the restrictions on public disclosure of "restricted data;"[2] if compliance would prevent DOE from carrying out authorized Atomic Energy Act activities; or if compliance with a particular regulation or require- [ 8] ment would be inconsistent with specific operational needs of a facility that are unique to the production of nuclear material or components.
Obviously, this interpretation does not provide an exact or necessarily comprehensive standard. We attempt below to provide as much guidance as possible to you and to EPA for implementation of our conclusions. In the abstract, however, we cannot determine which particular aspects of RCRA, or particular regulations, would be "inconsistent with the requirements of [the AEA]." That determination must be made by your agency and EPA based on an analysis, from both a general and a facility specific perspective, of how implementation of RCRA will affect the operation of DOE's Atomic Energy Act facilities.
RCRA, passed in 1976, established a broad regulatory scheme governing the generation, transportation, storage, and disposal of solid wastes. Under that Act, the practice of "open dumping" is prohibited, see 42 U.S.C. § 6945, and the states are encouraged by federal financial and technical assistance to prepare and submit to EPA for approval overall plans for regulation of solid waste. See Id. §§ 6931, 6948. The treatment, storage, and disposal of solid wastes considered by EPA to be "hazardous wastes"[3] are subject to a permit requirement, see Id. § 6925. and generators, transporters, and owners or operators of facilities for the treatment, storage, and disposal of solid wastes must meet such minimum standards promulgated by EPA "as may be necessary to protect human health and environment." See Id. §§ 6922, 6923, 6924. As under the regulatory schemes established by the Clean Air Act, 42 U.S.C. §§ 7401 et seq., and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (FWPCA), RCRA authorizes the states to administer the regulatory scheme, including issuance of permits and enforcement of sanctions for violations, if the Administrator of EPA finds that a state's regulatory scheme is "equivalent" to the federal scheme.[4] No state may impose any requirements for the management of hazardous wastes that are less stringent than the standards promulgated by EPA, but states are expressly authorized to impose requirements that are more stringent than federal standards. See 42 U.S.C. § 6929. RCRA also provides for private "citizens suits" against persons, including the United States, for violation of any permit, standard, regulation, condition, requirement, or order that has become effective pursuant to RCRA. See Id. § 6972. [ 9]
The question before us is whether the regulatory scheme imposed by RCRA, including both federal and state regulation of hazardous wastes, applies to chemical wastes produced by DOE's production and weapons facilities operated pursuant to authority provided in the AEA.[5] These facilities, which are generally owned by DOE and operated by private contractors, produce special nuclear material and components used in research, development, testing, and production of nuclear weapons.[6] Operation of the facilities generates various waste streams, including chemical wastes that are considered to be "hazardous wastes" under EPA criteria and regulations. These wastes are generated by a variety of industrial processes, including metal working, electroplating, chemical extraction, machining, fabrication, and assembly and cleaning of solvent parts.
Our analysis here turns on the two sections of RCRA that deal with regulation of federal facilities and activities: § 6001, 42 U.S.C. § 6961, which explicitly subjects all federal facilities and activities to state and federal regulation under RCRA; and § 1006(a), 42 U.S.C § 6905(a), which precludes regulation under RCRA of any "activity or substance" subject, inter alia, to the AEA "except to the extent such application [of RCRA] (or regulation) is not inconsistent with the requirements of such Acts." Section 6001 provides in pertinent part:
Each department, agency, and instrumentality of the...
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