Washington v. Abraham, CV-03-5018-AAM.

• Decision Date: 24 January 2005
• Docket Number: No. CV-03-5018-AAM.,CV-03-5018-AAM.
• Citation: 354 F.Supp.2d 1178
• Parties: State of WASHINGTON, Plaintiff, v. Spencer ABRAHAM, Secretary of Energy, et al., Defendants.
• Court: U.S. District Court — District of Washington

354 F.Supp.2d 1178

State of WASHINGTON, Plaintiff, v. Spencer ABRAHAM, Secretary of Energy, et al., Defendants.

No. CV-03-5018-AAM.

United States District Court, E.D. Washington.

January 24, 2005.

Joseph Earl Shorin, III, Kritie Carevich, Attorney General of Washington Department of Ecology, Olympia, WA, for Plaintiff.

William Herbert Beatty, Spokane, WA, Cynthia Huber, U.S. Department of Justice Environment and Natural Resources Div., Washington, DC, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, INTER ALIA

MCDONALD, Senior District Judge.

BEFORE THE COURT is plaintiff's Motion For Partial Summary Judgment On HWMA Claim (Ct.Rec.122) and defendants' Cross-Motion For Partial Summary Judgment On Plaintiff's HWMA Claim (Ct.Rec.145).

These motions were heard with oral argument on January 11, 2005. Andrew A. Fitz, Esq., argued for the plaintiff. Michael Zevenbergen, Esq., argued for the defendants.

I. BACKGROUND

In its original complaint, plaintiff State of Washington sought declaratory and injunctive relief against defendants Spencer Abraham, Secretary of the United States Department of Energy, and the Department of Energy itself (DOE), alleging DOE had decided to ship radioactive and radioactive/hazardous mixed transuranic waste to the Hanford Nuclear Reservation (Hanford) in violation of the National Environmental Policy Act (NEPA) and in violation of Washington's Hazardous Waste Management Act (HWMA). On May 9, 2003, this court entered a preliminary injunction against defendants, enjoining them from making any further shipments of transuranic waste (TRU) to Hanford pending final resolution of this litigation. The preliminary injunction was issued based on the court's finding there were "serious questions" regarding a NEPA violation and the balance of hardships tipped in favor of the State.

The State filed an amended complaint on August 19, 2004 which re-alleges the NEPA and HWMA claims. Both the State and defendants now move for summary judgment with respect to the HWMA claim, set forth as Count 3 in the amended complaint.

II. DISCUSSION

The State of Washington administers a hazardous waste program authorized under the federal Resource and Conservation Recovery Act (RCRA), 42 U.S.C. § 6901 et seq. This program includes the HWMA, RCW 70.105. The State contends TRU mixed with non-radioactive hazardous waste (TRUM) which DOE intends to ship to Hanford from Battelle Columbus Laboratory in Ohio will violate the HWMA and its implementing regulations, Washington Administrative Code (WAC) 173-303 once it arrives at Hanford.¹ This is so, according to the State, because this additional waste is "land-disposal restricted" (LDR) and will not be stored at Hanford solely for the purpose of accumulating enough hazardous waste as necessary to facilitate proper recovery, treatment or disposal. WAC 173-303-140(2)(a) and 40 C.F.R. § 268.50(a)(2).² The State contends Hanford already has more than enough LDR waste which is in violation of the HWMA because it is not being stored solely for the purpose of facilitating proper recovery, treatment or disposal thereof. According to the State, this violation will continue unabated for as long as TRUM is stored at Hanford unless DOE provides for treatment of the waste to LDR standards or is subject to an enforceable compliance schedule that provides for certification dates for the waste to be moved to the Waste Isolation Pilot Plant (WIPP) located in New Mexico, in lieu of such treatment.

A treatment, storage or disposal facility may store LDR wastes for up to one year unless the State can demonstrate such storage is not solely for the purpose of accumulating such quantities of hazardous waste as necessary to facilitate proper recovery, treatment, or disposal. 40 C.F.R. § 268.50(b). If such storage extends beyond one year, the facility has the burden of proving the storage is solely for the purpose of accumulating sufficient quantities to facilitate proper recovery, treatment or disposal. 40 C.F.R. § 268.50(c). According to the State, DOE does not intend to ship off-site TRUM to Hanford solely to allow for the accumulation of such quantities of hazardous waste as necessary to facilitate proper recovery, treatment or disposal, but rather to shift such waste away from other sites to allow the early closure of those sites; a lack of current characterization capacity at those other sites; and a desire by DOE to eliminate storage currently utilized for TRUM at those other sites.

DOE contends 1996 amendments to the 1992 WIPP Land Withdrawal Act (LWA)³, Pub.L. 102-579, 106 Stat. 4777 (1992), preclude the State from applying HWMA LDR provisions to TRUM bound for Hanford or already stored there. The amended Act, Section 9(a)(1)⁴, provides that:

With respect to transuranic mixed waste designated by the Secretary for disposal at WIPP, such waste is exempt from treatment standards promulgated pursuant to section 3004(m) of the Solid Waste Disposal Act (42 U.S.C. 6924(m)) and shall not be subject to the land disposal prohibitions in section 3004(d), (e), (f), and (g) of the Solid Waste Disposal Act.⁵

According to DOE, TRUM bound for Hanford or already stored there has been "designated by the Secretary [of the Department of Energy] for disposal at WIPP" and therefore, is not subject to treatment standards or land disposal prohibitions. DOE asserts that TRUM exempt from the land disposal prohibitions of section 3004(d), (e), (f), and (g) (42 U.S.C. § 6924(d), (e), (f), and (g)) is necessarily exempt from the storage prohibition in section 3004(j) (42 U.S.C. § 6924(j)). § 3004(j) provides:

In the case of any hazardous waste which is prohibited from one or more methods of land disposal under this section [§ 3004] (or under any regulations promulgated by the [EPA] Administrator under any provision of this section) the storage of such hazardous waste is prohibited unless such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal.

(Emphasis added).

DOE acknowledges that while Section 9(a)(1) explicitly precludes application of the LDR provisions of the federal RCRA, it does not explicitly prohibit the application of similar requirements under state law. Nevertheless, DOE asserts those state law requirements are preempted because they would preclude "accomplishment of the full purposes and objectives of" the amended LWA. According to DOE, "it is impossible to imagine how the state LDR provisions could be compatible with the relevant provisions of the WIPP Land Withdrawal Act and its amendments, the purpose of which is to exempt TRUM waste from identical LDR provisions under the RCRA." DOE notes that the federal RCRA LDR provisions are incorporated by reference into the HWMA and its accompanying regulations and furthermore, the HWMA, RCW 70.105.109, acknowledges the State's authority to regulate hazardous waste may be preempted by federal law.

A. Plain Language/Plain Meaning

DOE contends the plain language of Section 9(a)(1), read in conjunction with 42 U.S.C. § 6924(j), exempts TRUM intended to be shipped to Hanford, or already stored at Hanford, from RCRA and HWMA treatment standards, disposal prohibitions, and, in turn, the storage prohibition of § 6924(j). Therefore, DOE says resort to legislative history is unnecessary.

The State disagrees. It contends the phrase "with respect to transuranic mixed waste designated by the Secretary for disposal at WIPP" is ambiguous in light of the language of Section 9(a)(1) as a whole, and in light of the amended LWA as a whole. Therefore, the State says it is appropriate to resort to legislative history which, according to the State, indicates the exemption from treatment standards, disposal prohibitions and, in turn the storage prohibition, is intended to apply only to TRUM at WIPP itself.⁶

"[W]hen the statute's language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms." Hartford Underwriters Insurance Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000). In Hartford, the U.S. Supreme Court reiterated what it had previously said in Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992):

[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. [Citations omitted]. When the words of a statute are unambiguous, then, this first canon is also the last: "judicial inquiry is complete." [Citation omitted].

Consistent with Hartford and Connecticut National Bank is another recent pronouncement from the Supreme Court in Lamie v. United States Trustee, 540 U.S. 526, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004), quoting United States v. Granderson, 511 U.S. 39, 68, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994):

If Congress enacted into law something different from what it intended, then it should amend the statute to conform it to its intent. "It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think ... is the preferred result."

Based on these decisions, and focusing solely on the specific language in the exemption-"[with] respect to transuranic mixed waste designated by the Secretary for disposal at WIPP"-DOE's contention that the exemption applies to TRUM at DOE sites other than just WIPP would be persuasive. In performing a "plain language/plain meaning" analysis, however, this court is not limited to an examination of the language in the exemption "paragraph." "In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the...