U.S. Appeals Court Tosses I-297
Published on May 22, 2008
Ruling says state’s 2004 Cleanup Priority Act is preempted by federal law
In a new setback to Washington’s efforts to impose restrictions on the disposal of hazardous and radioactive wastes at the Hanford Nuclear Reservation, the U.S. Ninth Circuit Court of Appeals has upheld a federal district court decision that Washington’s Cleanup Priority Act (CPA) interferes with federal prerogatives in regulating radioactive wastes.
Click here to download decision
The CPA was passed as Initiative 297, which was overwhelming approved by
state voters in November 2004.
While the 9th circuit decision accepts that the state and federal government entered into a legally-binding agreement and consent order in 1989 for the regulation and cleanup of hazardous wastes at Hanford, and accepts that the federal government and its contractors have since been cited for numerous violations, it concludes that the initiative went beyond the statutory bounds of the laws that framed the 1989 agreement.
“Although the desire to take action against further environmental contamination and to protect the health and welfare of the community is understandable,” Judge M. Margaret McKeown wrote for the three-judge panel, “we conclude the statute enacted through the passage of Initiative 297, the Cleanup Priority Act, is preempted by federal law.”
The ruling further defines what, for decades, has often been a murky line between the authority that Congress delegated to states to regulate non-radioactive hazardous chemicals, and the exclusive authority that Congress gave to federal defense and energy agencies to regulate radioactive material under the Atomic Energy Act of 1954.
The problem, at nuclear materials processing facilities like Hanford, is that plutonium and other radioactive material is often processed and disposed of in solutions with hazardous chemicals. While much of the regulatory progress at Hanford and other badly contaminated federal nuclear sites has been made by states using their authority to address the dangerous chemicals in the waste stream, there are frequently disputes about where the line is between that state’s authority on the chemical waste, and the federal authority on the radioactive materials.
“Unquestionably,” Judge McKeown wrote, “the State has the authority to regulate nonradioactive hazardous materials, and does so primarily through [its delegated authority to enforce two federal statutes]. The parties also agree that the regulation of pure radionuclides is governed by the Atomic Energy Act. The question we address here is whether the regulation of the radioactive component of mixed waste is preempted by the Atomic Energy Act.”
In making its ruling, the federal appeals court relied on certification language provided by the Washington Supreme Court which did find that the CPA expanded that existing authority of the state in the area of mixed wastes. Moreover, the appeals court confirmed the finding of Federal District Court Judge Alan McDonald that because the 2004 initiative directly asserted jurisdiction in the area of “radiation hazards” it had gone over the line.
“The Atomic Energy Act preempts the Cleanup Priority Act if (1) the purpose of the Cleanup Priority Act is to regulate against radiation hazards, or (2) if the CPA directly affects decisions concerning radiological safety. We hold that the CPA is preempted on both grounds.”
Spokane city councilman Bob Apple was among the named intervenors in the case (along with the Washington Public Interest Group, Heart of America Northwest, and others) who sided with the Washington Department of Ecology in defending the initiative. The Tri-City Industrial Development Council intervened on the side of the federal government and its contractor.
Posted May 22nd