U.S.A. v. Commonwealth of Kentucky

• Decision Date: 02 May 2001
• Docket Number: No. 00-5247,00-5247
• Citation: 252 F.3d 816
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Commonwealth of Kentucky; Kentucky Natural Resources & Environmental Protection Cabinet, Secretary, Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 816

252 F.3d 816 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Commonwealth of Kentucky; Kentucky Natural Resources & Environmental Protection Cabinet, Secretary, Defendants-Appellants.

No. 00-5247

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 2, 2001

Decided and Filed: June 5, 2001

Appeal from the United States District Court for the Western District of Kentucky at Paducah, No. 99-00087, Thomas B. Russell, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Candance G. Hill, Asst. U.S. Atty., John A. Bryson, Norman L. Rave, UNITED STATES DEPARTMENT OF JUSTICE, LAND & NATURAL RESOURCES DIVISION, Todd S. Aagaard, UNITED STATES DEPARTMENT OF JUSTICE, ENVIRONMENT DIVISION APPELLATE SECTION, Washington, D.C., Washington, D.C., for Appellee.

Randall McDowell, Natural Resources and Enviormental Protection Cabinet, Mark A. Posnansky, OFFICE OF LEGAL SERVICES, Frankfort, Kentucky, for Appellants.

Before: NORRIS and COLE, Circuit Judges; STEEH, District Judge. ^*

OPINION

R. GUY COLE, JR., Circuit Judge.

The Commonwealth of Kentucky, acting through the Secretary of the Kentucky Natural Resources and Environmental Protection Cabinet ("Cabinet"), appeals from the district court's ruling that federal law preempts permit conditions imposed by the Cabinet relating to the disposal of radioactive waste in a landfill operated by the United States Department of Energy ("DOE"). For the following reasons, we AFFIRM the judgment of the district court.

I. BACKGROUND

The Paducah Gaseous Diffusion Plant (the "Plant") is an active uranium enrichment facility owned by the DOE, located in McCracken County, Kentucky. The Cabinet regulates disposal of solid waste at the Plant through the issuance of permits. In 1994, DOE submitted a permit application to the Cabinet for the construction and operation of a contained solid waste landfill at the Plant. In February 1995, the Cabinet issued a permit to DOE authorizing the construction of the landfill.

After verifying that DOE had completed construction in accordance with the approved plans, the Cabinet issued another permit to DOE on November 4, 1996, authorizing operation of the landfill. This operating permit contained conditions relating to the disposal of radioactive materials in the landfill. Specifically, Condition 11 prohibited DOE from placing in the landfill "[s]olid waste that exhibits radioactivity above de minimis levels." Condition 12 prohibited DOE from placing in the landfill "solid waste that contains radionuclides . . . until a Waste Characterization Plan for radionuclides has been submitted to the Division of Waste Management for review and approval."

DOE appealed the imposition of these permit conditions through Kentucky's administrative process. On January 15, 1999, a state Hearing Officer issued a report recommending that the Secretary affirm the Cabinet's imposition of the challenged permit conditions. DOE filed objections and the Cabinet responded. On February 18, 1999, the Secretary entered a final order affirming and adopting the Hearing Officer's report and recommendation. The Secretary accordingly dismissed DOE's administrative appeal.

DOE then filed a petition for judicial review of the Cabinet's final action in Kentucky state court on March 22, 1999. Under Kentucky law, DOE was required to file its petition for state court review of the Cabinet's action within thirty days of the Cabinet's final order. See Ky. Rev. Stat. §224.10-470(1). DOE alleges that it filed its state court action to preserve its rights under state law.

On April 1, 1999, ten days after filing its state court action, DOE filed the instant action in the United States District Court for the Western District of Kentucky seeking declaratory and injunctive relief. In its complaint, DOE challenged the permit conditions at issue on the grounds that: (1) the Atomic Energy Act of 1954, 42 U.S.C. §§2011-2297g-4, preempts state regulations relating to the disposal of radioactive materials; (2) the conditions violate the federal government's sovereign immunity from state regulation; and (3) the Commonwealth failed to comply with its own statutes and regulations in imposing the conditions. On April 27, 1999, the Cabinet filed a motion to dismiss DOE's complaint, arguing that: (1) the district court should decline jurisdiction over DOE's action based upon the discretion accorded it under the Declaratory Judgment Act, 28 U.S.C. §2201, and under the Burford abstention doctrine, see Burford v. Sun Oil Co., 319 U.S. 315 (1943); (2) DOE's preemption and sovereign immunity claims fail to state a claim for which relief can be granted; and (3) the challenged permit conditions comport with Kentucky law.

The district court denied the Cabinet's motion to dismiss on November 5, 1999. The court found that it was not required to decline jurisdiction over the case inasmuch as DOE had presented a facially conclusive claim of federal preemption, the resolution of which did not require the court to interpret state law or make factual findings. The court further found that federal law preempts the Cabinet's attempt to regulate DOE's disposal of radioactive waste in the landfill. The court accordingly entered judgment for DOE and dismissed the case.

On appeal, the Cabinet argues that: (1) the district court erred in concluding that the challenged permit conditions are preempted by federal law; and (2) the district court should have abstained from hearing this case based upon the discretion accorded it under the Declaratory Judgment Act and the Burford abstention doctrine.

II. DISCUSSION

A. Statutory and Regulatory Overview

Congress enacted the Atomic Energy Act ("AEA") in 1954 to promote the development of atomic energy for peaceful purposes under a program of federal regulation and licensing. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 206-07 (1983). Congress has subsequently amended the AEA to create a dual regulatory structure, whereby the federal government regulates the "radiological safety aspects involved in the construction and operation of a nuclear plant," and the states "retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, costs, and other related state concerns." Id. at 205, 103 S. Ct. 1713.

The AEA regulates three different classes of radioactive material: source material, special nuclear material, and byproduct material. See 42 U.S.C. §2014(e), (z), (aa). Source material includes uranium, thorium, and other materials that DOE deems necessary for the production of special nuclear material. 42 U.S.C. §§2014(z), 2091. Special nuclear material includes plutonium, enriched uranium, and other material capable of releasing substantial quantities of atomic energy. 42 U.S.C. §§2014(aa), 2071. Byproduct material includes "(1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." 42 U.S.C. §2014(e).

The AEA grants DOE and the Nuclear Regulatory Commission exclusive responsibility for regulating source, special nuclear, and byproduct material. See 42 U.S.C. §2201(b), (i)(3). Pursuant to this authority, DOE has developed and implemented an extensive regulatory regime for managing radioactive materials and limiting the release of radioactivity.See, e.g., General Environmental Protection Program, DOE Order 5400.1 (1988); Radiation Protection of the Public and the Environment, DOE Order 5400.5 (1990); Radioactive Waste Management, DOE Order 435.1 (1999) (establishing requirements for managing low-level radioactive waste, including waste characterization, waste treatment, disposal, and environmental monitoring). These regulatory standards are designed to assure that the public, workers, and the environment are not exposed to unsafe levels of radiation. See DOE Order 435.1 §4.

In 1976, Congress passed the Resource Conservation and Recovery Act ("RCRA"), which amended the Solid Waste Disposal Act of 1965, 42 U.S.C. §§6901-6992k. Congress enacted the RCRA to end the environmental and public health risks associated with the mismanagement of hazardous waste. See Sierra Club v. United States Dep't of Energy, 734 F. Supp. 946, 947 (D. Colo. 1990). Generally, the RCRA prohibits the treatment, storage, or disposal of hazardous waste at private or governmental facilities without a permit issued by either the United States Environmental Protection Agency ("EPA") or an authorized state. See id.; 42 U.S.C. §§6925(a), 6961. The RCRA expressly contemplates that state and local governments will play a lead role in solid waste regulation. See 42 U.S.C. §6901(a)(4).

Under the RCRA, hazardous waste is defined as "solid waste, or [a] combination of solid wastes[,]" that, for enumerated reasons, creates public health and environmental dangers. 42 U.S.C. §6903(5). "Solid waste," however, does not include "source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954." 42 U.S.C. §6903(27). Indeed, the RCRA expressly provides:

Nothing in this chapter shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to . .. the Atomic Energy Act of 1954 except to the extent that such application (or regulation) is not inconsistent with the requirements of such Act[].

42 U.S.C. §6905(a).

B. Preemption

Under the Constitution's Supremacy Clause, U.S. Const. art VI, §2, Congress may preempt state law so long as it acts within its constitutionally delimited powers. See M'Culloch v. Maryland, 17 U.S. 316, 427 (1819) ("It is of the...