United SUMS
environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
vvEPA
DIRECTIVE NUMBER:
9990.0;
TITLE: RCRA Regulation of Wastes Handled by DOE Facilities'
APPROVAL DATE:
EFFECTIVE DATE: 6/22/83
ORIGINATING OFFICE: OGC
E FINAL
D DRAFT
STATUS
REFERENCE (other documents)
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&EPA
United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Request
Interim Directive Number
9990.0
Originator Information
Name of Contact Person
Tony Baney
Mail Code
WH-527
Telephone Number
382-4460
Lead Office
D OERR
D OSW
D OUST
H OWPE
D AA-OSWER
Approved for Review
Signature of Office Din
Date
Title
RCRA Regulations of Wastes Handled by DOE Facilities
Summary of Directive
The application of RCRA authority to DOE facilities,
Wastes, Mixtures of Chemical and Nuclear Wastes
Department of Energy Facilities
Hazardous Waste Facilities at DOE
Nuclear.,, Chemical Wastes
Nuclear Wastes Chemical
Type of Directive (Manual. Policy Directive. Announcement, etc.}
Interpretation
Does this Directive Supersede Previous Directive(s)?
No Does It Supplement Previous Directive(s)?
If "Yes" to Either Question. What Directive (number, title!
D New
LJ Revision
Review Plan
D AA-OSWER
D OERR
U OSW
D OUST
D OWPE
D Regions
D OECM
D OGC
D OPPE
D
Other (Specify!
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer
Date
Signature of OSWER Directives Officer
Date
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
22 JUN 1983
•rnct or
• tMCHAk COUNSEL
MEMORANDUM
RCRA Regulation of Wastes Bandied by
DOE Facilities
SUBJECT
FROM: A. James Barnes
Acting General Counsel (LE-130,
TO: Pasquale A. Alberico
Acting Director
Office of Federal Activities (A-104)
Issue Presented;
In your June 2, 1983 memorandum, you have asked whether
RCRA applies to Department of Energy C'DOE") facilities.
Conclusion;
RCRA does apply to DOE facilities, including those operated
under authority of the Atomic Energy Act of 1954, as amended
("ASA"), 42 U.S.C. 12011 et seq. However, specific RCRA
regulations may not apply to some aspects of DOE operations, if
it is determined, on a case-by-case basis, that the application
of those regulations would be inconsistent with the requirements
of the AEA. In addition, RCRA does not apply to "source, special
nuclear.or byproduct materials" as defined by the AEA. \J
\l This memorandum will use the term "nuclear wastes" to
* refer to wastes consisting of "source, special nuclear
or byproduct material". Other types of wastes are referred
to herein as "chemical wastes".
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Discussion;
A. Huelear Wastes
The only materials which EPA can regulate under HCEA are
"solid wastes'1 and "hazardous wastes" (which are a subset of
"solid wastes"). Section 1004(27) of RCRA expressly exempts
from the definition of "solid waste":
source, special nuclear or byproduct
material as defined by the Atomic
Energy Act of 1954, as amended.
Thus, it is clear that RCRA does not apply to nuclear wastes
handled at DOE facilities.
B. Chemical Wastes
Section 6001 of RCRA expressly provides that federal
facilities which manage wastes are subject both to EPA and
state requirements respecting the control and abatement of
solid waste or hazardous waste disposal. However, such regu-
lation of chemical wastes at.DOE facilties is limited by
Section 1006 of RCRA, which provides in part that;
[n]othing in this Act shall be construed
to apply to (or to authorize any state...
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
[the AEA].
While this provision clearly precludes any EPA or state
regulation that would be inconsistent with DOE responsibilities
under the AEA, we cannot agree with DOE's contention 2/ that
because "the AEA itself establishes a regulatory framework
by which DOE...is authorized to prescribe and enforce regula-
tions and other requirements necessary for the sound management
of the AEA activities," any application of EPA's hazardous
waste management regulations would be inconsistent with the
requirements of the AEA (DOE Letter, p. 2).
2/ This contention was expressed in a letter (copy attached)
~ dated November 14, 1980, from Stephen Greenleigh, Assistant
* * 1 *->» '-vlronment at DOE to the former Associate
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First, OOE's analysis would render the cited language in
Section 1006 a nullity. By its very presence in RCRA,-that
provision-clearly suggests that there may be some activities
and wastes subject to the AZA which EPA can regulate.
Second, the notion that national security considerations
dictate a general exemption of all DOE AEA facilities is belied
by Section 6001 of RCRA, which authorizes the President to:
exempt any solid waste management facility
of any department...in the executive branch
from compliance with [a federal or state solid
or hazardous waste] requirement if he determines
it to be in the paramount interest of the United
States to do ao.
If the application of a federal or state standard to DOE facili-
ties is inimical to national security, DOE may seek a Presidential
"paramount interest" exemption from those standards. Absent
such an exemption, the applicability or inapplicability of EPA
and state solid and hazardous waste regulations must depend on
their consistency (or inconsistency) with AEA requirements.
Third, 'the AEA provision which DOE cites as evidence of
its broad regulatory authority under the AEA (Section 161(i)(3))
does not by itself compel the conclusion that the regulation
of DOE facilities under RCRA would necessarily be inconsistent
with that authority. 3/ Section 161(1)(3) authorizes DOE to •
prescribe "standards and restrictions governing the ...operation
of facilities used to conduct [AEA activities] in order to
protect health and to minimize danger to life and property."
Even if we admit the possibility that all of EPA's hazardous
waste regulations could be inconsistent with the standards and
restrictions of facility operations promulgated by DOE under
this provision, there is no way of determining this without a
comparison of the two sets of standards. Neither EPA nor DOE
has undertaken such a comparison. Indeed, in its correspondence,
DOE has not identified a single RCRA regulation that is incon-
sistent with requirements that DOE facilities must meet under
the AEA.
3/ It has already been judicially determined that the fact
~ that RCRA may overlap with another statute does not mean
that RCRA regulations are inapplicable. CMA v. EPA. 673 F.2d
507 (D.C. Cir. 1982).
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. In Its letter, -DOE also asserts that Section 161(j) of
the AEA preempts any application of RCRA to chemical wastes
managed at DOE facilities. Section 161(J) provides that DOE
a*y:
without regard to the provisions of the
Federal property and Administrative Services
Act of 1949...or any other law, make such
disposition as it may deem desirable of (1)
radioactive materials, and (2) any other
property, the special dispositen of which
is, in the opinion of [DOE] in the interest
of the national security.
Again, this provision does not compel the conclusion reached by
DOE. Section 161(j) was adopted in 1959, well before enactment -
of RCRA and any manifestation of Congressional concern about the
problem of hazardous waste disposal. The quoted section,'despite
its "without regard to... any other law" provision, cannot be con-
strued to limit the application of a law enacted seventeen years -
later, which pertains to an area of concern that: (1) is unrelated
to Federal disposition of property 4/; (2) specifically requires
all Federal facilities to meet applicable state and Federal solid
waste management requirements; and (3) establishes a special
procedure for exempting Federal facilities from those requirements
if it is in the "paramount interest" of the United States to do so.
Thus, in our opinion, Section 161(j) cannot be construed to confer
on DOE facilities a blanket exemption from RCRA requirements. 5/
4/ It is doubtful that the term "property" in Section 161(1)
"~ even encompasses wastes. The citation in Section 161(j) -
to the Federal Property and Administrative Services Act of 1949,
the title of Section 161(j) ("surplus materials") as well as
references to the purchasing and leasing of property in other
paragraphs of Section 167 all suggest that the term has a very
traditional meaning and does not include sludges, garbage, tars,
trash and other wastes. ....
i
5/ Although we believe that §161(j) was not intended to abridge
" subsequently enacted statutes pertaining to different subject
matter, it is an elementary principle of statutory construction
that inconsistent provisions must be resolved in favor of the later
enacted statute. See, e.g.„ Georgia y. Pennsylvania R. Co.. 324
U.S. 439, 456-57 (T9^5)TjLnternational Telephone fc Telegraph Co.
v. General Telephone and Electronics Corp.. 516 F.ad 9U> 935
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In short, we cannot conclude that DOE activities under the
AŁA, limply by their virtue of being AEA activities, are exempt
from RCRA requirements. However, ve do not reject the possibility
that sooe RCRA regulations might be inconsistent with AEA require-
ments and therefore inapplicable to DOE facilities. Such inconsis-
tency can only be determined on a case-by-case basis. EPA and
DOE should be able to identify inconsistent regulations by a
cooperative effort.
•
C. Mixtures of Chemical Wastes and Nuclear Wastes
EPA'i authority to regulate chemical wastes at DOE facilities
may be limited to the extent that such wastes are mixed with nuclear
wastes. An argument can be made that any regulation of mixtures of
chemical and nuclear waste would amount to de facto regulation of
nuclear wastes, and is thus precluded underTection 1004(27).
It may also be argued that the addition of small quantities of
nuclear waste to solid waste does not remove such solid wastes
from RCRA jurisdiction.
Further information .as to the precise nature of such mixtures'
is necessary in order to reach a definite legal position on this
issue, which goes far beyond the question of whether DOE facilities
are subject to RCRA regulatory requirements. 6/ Ve would need to
consult further with DOE on this matter and to~analyze additional
data before making a final decision.
Attachment
cc: Lee Thomas
Regional Counsel, Regions 1-X
6/ Our interpretation would affect our ability to regulate
" private facilities handling mixtures of nuclear and chemical
wastes and our ability to bring imminent hazard actions under
Section 7003 of RCRA.
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Department of Energy
Washington, D.C. 20585 NQV 141980
Kr. Junes X. Rogers, Esq.
Associate Central Counsel
U.S. Environmental Protection
Agency
A-131
401 M Street, S.W.
Washington, D.C. 20460
Dear Mr. Rogers;
In a July 30, 1980 letter to you I called to your attention
an issue regarding the applicability-of IPA's hazardous
waste nanagenent prograja established under authority of the
Resource Conservation and Recovery Act (RCRA) (Pub. L.
94-580), to certain Department of Energy programs conducted
under authority of the Atomic Energy Act o i954 (ASA)
(42 tJ.S.C. 2011 et seq.) This letter is intended to convey
the position of the Department of Energy with regard to this
issue.
Section 1006(4) of RCRA provides:*
Nothing in this Act shall be construed to apply to
(or to authorize any State, interstate, or local
authority to regulate) any activity vr substance
which, is subject to...the Atomic Enei^4 Act of
1954 (42 U.S.C. 2011 and following) except to the
extent that such application (or regulation) is
not inconsistent with the requirements of (the
Atomic Energy Act].
*
The Department of Energy recognizes its*- statutory obligation
to comply with all applicable Federal, State, interstate
and local requirements, whether substantive or procedural,
for the control and abatement of hazardous waste. • It is
DOE*i policy to comply fully with the Congressional mandate
contained la section €001 of RCRA for all activities to
which that statute applies, for the reasons discussed
below, bowever, DOE believes that-section 1006(a) of RCRA
aahes IPX's hazardous waste management regulations
inapplicable to DOE activities performed under authority of
the AEA.
As successor to the Atomic Energy Commission, DOS is directed
by section 31(a) of the AŁA (42 U.S.C. {2051(a)) to maXe
arrangements for the conduct of research and development
activities relating tot
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4g
(1} auclear processes:
(2) . the theory and production of atomic energy, including
processes, materials, and devices related to such
production;
(3) utilization of special nuclear material and
radioactive aaterial for medical, biological, agricultural,
health, or military purposes;
(4) utilization of special nuclear aaterial, atomic
energy, and radioactive material and processes entailed
in the utilization or production of atonic energy or
such material for all other purposes* including industrial
or commercial uses, the generation of usable energy,
and the demonstration of advances in the commercial or
industrial application of atomic energy;
(5) the protection of health and the promotion of
safety during research and production activities; and
• *
(6) the preservation and enhancement of a viable
environment by developing sore efficient methods to
meet the Nation's energy needs.
DOS is also authorized and directed by section 4Kb) of
the AEA (42 D.S.C. S20€l(b)) to 'produce or to provide for
the production of special nuclear material in its own production
facilities.* Section 91 (a) of the ASA (42 U.S.C. $2121(a))
further authorizes DOE to perform research and development
work in the military application of atomic energy, and to
engage in the production of atomic weapons. These statutory
provisions constitute the basic legal authority for DOE to
engage in its various atomic energy activities. Accordingly,
it may readily be seen that these activities are 'subject
to" the AEA within the meaning of section, 1006 (a) of RCKA.
4.
The application of EPA'a hazardous waste management regulations
to these DOE atomic energy activities would be applicative
and inconsistent with the requirements of the AEA and with
DOE's responsibilities under that statute, because the AEA
itself establishes a regulatory framework by which DOS, as
successor to the Atomic Energy Commission, is authorized to
prescribe and enforce regulations- and other requirements
necessary for the sound management of its AEA Activities.
Section 161(1)(3) of the AEA (42 U.S.C. $2201(1)(3)), for
example, authorizes DOE to prescribe regulations necessary
•to govern any activity authorized pursuant to this chapter,
including standards and restrictions governing the design,
location, and operation of facilities used in the conduct of
each activity, in order to protect health and to minimize
<»• ***<-,. nr property.* Paragraph (j) of the same
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. * o
.section ^-authorizes S0E, 'without regard to... any ether
lav," to e»ake such disposition as it may deem desirable of
CD radioactive jaaterials end (2) any other property, the
special disposition, ©f which is, in the opinion of IDOS3 , in
the interest of the national security 0 ..." Sn light of this
bread regulatory authority conferred upon DOE by the AEA,
a^y effort to subject DOE's atonic energy activities , '
•specially activities involving the disposition of radioactive
materials, to further regulatory requirements under the RCRA
hazardous waste program would be duplicative and inconsistent
with DOS's discharge of the responsibilities conferred upon
it by the AEA. •
o
Specif ictlly, mesa's authorization of any State regulatory
power is inconsistent with the ATA to the extent (that RCRA
is Interpreted to apply to any radioactive materials, because
the AŁA scheme for the regulation of atonic energy has been
authoritatively interpreted as preempting any State regulation
of radiation hazards which is not sanctioned by the AŁA
itself, northern States Power Co. v. Minnesota, 447 F.2d :
1143 (Ith Cir. 1971), aii'd, 405 U.S. 1035 (1972). Accord ,
Train v. Colo* Public Interest Research Group, 426"''D.S. 1
T197e)t in which a unanimous Supreme Court at page II
States, supra , as holding "that the AEA ereated a
pervasive regulatory scheme, vesting exclusive authority to
regulate the discharge of radioaptive effluents froa nuclear
power plants in the XEC, and pre -cap ting the States from
regulating such discharges." The applicability of the doctrine
of preemption is generally dependent upon whether' under the
circumstances of a particular case a State requirement
stands as an obstacle to the accomplishment of the Federal
purpose, northern States holds, however, that the regulatory
scheme embodied in the AJ:A is sufficiently pervasive to
preempt all State regulation of radiation hazards, regardless
of factual circumstances, unless sanctioned by the AŁA
itself:
(Regulation of the radioactive effluents discharged
froa a nuclear power plant is inextricably intertwined
with the planning, construction and entire operation
iBf the facility.... Congress vested the XEC with the
authority to resolve the proper balance between desired
industrial progress and adequate health aad safety '
standards. Only through the application and enforcement
of uniform standards promulgated by a national agency
vill these dual objectives be assured.... In short, a
dual system of licensing and regulation with control
exerted by both the states and the Federal government
over the level of radioactive effluents discharged
frea nuclear power plants would create an obstacle
to the accomplishment and execution of the full
*ur?oses and objectives of Congress* » 44? F.2d at
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•
.Although the particular language cited above refers to
'preemption of State regulation of 'radioactive effluents,'
the Kcrthern States court and courts in successive cases
have without exception viewed the-AUt as preeapting, except
to the extent authorized by the ATA itiolf, all State
regulation of radiation hazards generally. See, e.g.,
pnited States v. City of New York, 463 F. Supp. 6&4 (S.D.
M-;Y.tf l»78)i Pacific Legal Foundation v. State Energy
Resources Conservation ana Developnent Corcds* ion 7472 F. Supp.
191 (S.D. Gal., i879)j Pacific Gas ana electric Co. v.
State Energy Resources Conservation and Development, Cormission,
489 T. Supp* 699 JE.D. Cal., 1980). A» the Northern States'
court stated, 'Congress intended Federal occupancy of
regulations over all radiation hazards except where jurisdiction
was expressly ceded to the States [i.e., by the ATA).' 447
F.2d at 1150. •
All of these cases involve State efforts to regulate
coaaercial nuclear power plants. Accordingly, these cases
in their analysis of Federal preemption focus upon the
Federal interest associated with the connercial development
of nuclear energy. Even acre compelling, froa the standpoint
of preemption, is the Federal interest associated with
DOE's ASA activities, which deal priaarily with national
security and the national defense. Thus, there can be no doubt
that the AZLA's preeaption of State regulation of radiation
hazards in the eorsnercial context is equally preemptive
in the context of DOE1* atomic energy activities under
any factual circuastances. There is nothing in RCRA itself
or its legislative history to suggest that RCRA was intended
to alter the preemptive aspect of the AEA regulatory structure,
and we believe that the language of section 1006 (a) of RCRA
plainly disdains any such intention. Accordingly, it is
our view that radioactive materials produced in connection
with COS's AŁA activities axe not subject to regulation
under RCRA.
Indeed, this s&ae legal conclusion would appear equally
valid for aonradioactive wastes produced by DOE's ASA prograas,
in view of the national security interests associated with
those prograas. Although section 3009 of RCRA provides that
no State requirements may be less,-stringent than the EPA
requireaents, there is no eoaparable provision which woultt
prevent any State froa adopting requireaents which are more
stringent than EPA's. Both RCRA and the implementing EPA
regulations provide that approvable state plans must be
•equivalent to" and "consistent with" Federal requireaents,
but the fact reaains, as EPA stated in its May 19, 1980,
Federal Register preanble (45 FR 33385), that 'States may
ilr events under their own laws which are more
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stringent than the Federal requirements". This possibility
is further underscored by the new language added to section
3.©es pursuant to section 14 of *.L. 16-482, the Solid Waste
Disposal Act Amendments of 1980, vhieh provides that "toothing
in this title shall be construed to prevent any State or
political subdivision thereof from imposing any requirements
including those for site selection, vhich are sore stringent
than lIPA's] regulation's.* Such State requirements must be
fulfilled by Federal agencies to the extent that section
feel of RCPA is applicable, failure ©r inability of a
particular Federal or non-Federal facility to comply could
result in the State's refusal to issue a RC8A permit, the
consequent cessation of all hazardous vaste treatment,
storage or disposal operations at that facility, and perhaps
even the closure of that facility*.
Even conceding the probable good faith ef all concerned
State and Federal agencies, DOS anticipates that-some.States'
may prescribe hazardous vaste requirements which could be
unnecessarily restrictive but arguably not "inconsistent"
vithin the meaning of section 123.32 Łf the EPA regulations.
Asy actual occurrence of this type vhieh interfered vith the*
conduct ef DOS activities under the ASA weuid clearly be
inconsistent vith the ASA provisions .discussed above, vhich
^rovide sufficient direction and authority for DOS itself to
manage those activities in an environmentally acceptable
Banner. The mere possibility of such an occurrence, aeasured
against the national defense implications ef the DOS activities,
argues for recognition ef the preemptive effect ef the ASA
regulatory scheme under any factual circumstances for
nonradioaetive as veil as radioactive vastes* The breadth
of the language employed by Congress in section 1006(a) of
fcCRA supports this yiev. Ead the legislative intent been to
apply that section's exclusionary effect only to radioactive
saterials, Congress could easily have chosen language having
only that narrow effect. Instead, section 1006(a) is broadly
drafted to exclude from KCSA's aabit "any activity er substance*
(esphasis added) vhieh is subject to the ASA, to the extent
that the application ef *CRXvould be inconsistent. Accordingly,
ve believe that section 1006 (a) ef RCSA oust be read in '
conjunction vith the ASA to exclude nonradieaetive as well
as radioactive ASA program vastes froa KCKA's coverage.
2 vish to stress DOS's commitment to the sound management of
'all activities, including vaste disposal, conducted under
the ASA. DOE is currently in the process ef issuing aev
environmental/ safety and health management directives to
replace the existing directives vhich were developed by
DOE's predecessor agencies. The result of this process vill
be a series ef Orders and supplemental chapters establishing
all ef DOE's
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E*«:iiSnC.d1°1ei*«lly .«e«,.ful.
Sincerely,
H. Grcenleigh
nt General Counsel
vironreent
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