Ecology Law Quarterly
Volume 7 | Issue 4
Article 2
March 1979
Nuclear Waste Management: A Challenge to
Federalism
Patricia Lucas
Follow this and additional works at: http://scholarship.law.berkeley.edu/elq
Recommended Citation
Patricia Lucas, Nuclear Waste Management: A Challenge to Federalism, 7 Ecology L.Q. (1979).
Available at: http://scholarship.law.berkeley.edu/elq/vol7/iss4/2
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Nuclear Waste Management: A
Challenge to Federalism
PatriciaLucas*
For scientists and government administrators as well as for the
public at large, disposal of waste materials from nuclear reactors has
become a highly controversial problem. There is much dispute, for example, over whether the technology exists, or can be developed, for
safe, permanent disposal of radioactive waste materials.' Uncertainty
about the proper treatment of such waste and the potential risks inherent in existing disposal methods have led some to conclude that generation of additional waste, or at least construction of new nuclear power
plants, should be deferred until a reasonable solution to the waste
problem has been found. 2 Skepticism about the feasibility of safe disCopyright © 1979 by the ECOLOGY LAW QUARTERLY.
* B.A. 1976, Rice University; Third Year Student, School of Law, University of California, Berkeley; Comments Editor, Ecology Law Quarterly.
I. This Article does not examine the arguments concerning the existence of adequate
waste disposal technology. The technical sections of the paper provide a background for a
more comprehensive understanding of the related legal and political problems. Significant
technical authorities stand on both sides of the "adequate technology" dispute. Several have
concluded that technology necessary to achieve waste management goals is presently available.
See, e.g.,
REPORT OF THE
NUCLEAR ENERGY POLICY STUDY GROUP, NUCLEAR
POWER ISSUES AND CHOICES 266 (1977) [hereinafter cited as NUCLEAR POWER]; Oversight
Hearingson Nuclear Waste Management before the Subcommittee on Energy and the Environment ofthe House Committee on Interior and Insular Affairs, 95th Cong., 1st Sess. 11 (1977)
(statement of Dr. Charles Hebel) [hereinafter cited as 1977 Hearings]; Cohen, The Disposal
of Radioactive Wastesfrom Fission Reactors, SCIENTIFIC AM., June 1977, at 21. Others
maintain that there remain fundamental questions and problems with waste disposal technology and that, in any case, present technology is not adequate to achieve safe waste disposal. See, e.g., NUCLEAR FUEL CYCLE COMMITTEE OF THE CALIFORNIA ENERGY
COMMISSION,
STATUS OF NUCLEAR FUEL REPROCESSING,
SPENT
FUEL STORAGE
AND
HIGH-LEVEL DISPOSAL 232 (Draft Report 1978) [hereinafter cited as ENERGY COMMISSION
REPORT]; [1978] 8 ENVIR. REP. (BNA) 1914-15, referring to statements by George
Buchananne, Chief of the United States Geological Survey, Office of Hydrology, and Dr.
Terry Lash, a staff scientist at the Natural Resources Defense Council.
2. The House Government Operations Committee has recommended that Congress
and the President propose a moratorium on nuclear power plant licensing until waste
problems are resolved. The Committee's report states: "So long as the problem remains
unresolved, the public's health and safety and the viability of nuclear power in this country
are threatened." [1978] 9 ENvIR. REP. (BNA) 6-7. The Committee's recommendation represents a view shared by many. See, e.g., Speech by J. Gustave Speth, member of the Council
on Environmental Quality, ALI-ABA Conference on Atomic Energy Licensing and Regulation (Sept. 29, 1977). California state law requires that no nuclear power plant may be
permitted to use land until the state Energy Resources Conservation and Development
ECOLOGY LAW QUARTERL Y
[Vol. 7:917
posal methods for radioactive waste is contributing to a decline in opti3
mism over the use of nuclear power to meet growing energy needs.
Nevertheless, as related as successful nuclear waste management
may be to the future of commercial nuclear power, 4 the waste problem
is a separate issue itself. Even if no more radioactive waste were generated, great quantities of waste material must be managed in a manner
5
that assures safe isolation from the biosphere for long periods of time.
The administrative and technical challenges of nuclear waste manageCommission finds that "the United States through its authorized agency has approved and
there exists a demonstrated technology or means for the disposal of high-level nuclear
waste." CAL. PUB. RES. CODE § 25524.2 (West 1977). This statute has been held unconstitutional in a recent federal court ruling. Pacific Legal Foundation v. State Energy Resources
Conservation and Dev. Comm'n, No. 78-71 I-E, slip op. (S.D. Cal. Mar. 6, 1979). But see
Tribe, California Declines the Nuclear Gamble.- Is Such a State Choice Preempted?7 ECOLOGY L.Q. 679 (1979). Maine and Wisconsin have enacted legislation similar to the California statute. See ME. REV. STAT. tit. 10, § 253 (Supp. 1978). The Wisconsin legislation
consists of an order by the Wisconsin Public Services Commission made August 17, 1978.
[1978] 9 ENVIR. REP. (BNA) 707.
3. See, e.g., COMPTROLLER GENERAL OF THE UNITED STATES, NUCLEAR ENERGY'S
DILEMMA: DISPOSING OF HAZARDOUS RADIOACTIVE WASTE SAFELY I (1977) [hereinafter
cited as COMPTROLLER GENERAL REPORT]; Wall St. J., Feb. 12, 1979, at 1, col. 6 & at 31,
cols. 4-5. In 1975, the Energy Research and Development Administration (ERDA) estimated that by the year 2000, nuclear power would supply as much as 1,250,000 megawatts of
electric capacity (MWe). ERDA's estimate was revised downward in July, 1976 and ranges
from 450,000 to 800,000 MWe. By September, 1976, the estimate was reduced to a range
from 380,000 to 620,000 MWe. NUCLEAR POWER, supra note 1, at 5.
4.
n view of the objections to nuclear power based on the inadequacy of waste disposal technology (see note 1 supra), the development of such technology may encourage the
use of nuclear power by eliminating a major objection to it. However, the waste disposal
issue is only one of many objections to nuclear power. Significant uneasiness about the
safety of power plant operations, the risk of terrorist theft of nuclear materials, the possibility of nuclear accidents, and the dangers inherent in the transportation of nuclear materials
are all factors which contribute to the growing disfavor of nuclear power. See, e.g., Critical
Mass J., Aug. 1978, at 1, col. 2. The development of a safe waste disposal system would not
lessen the controversy over these problems. The relationship between continued generation
of nuclear waste and a resolution of the waste disposal problem, once stated strongly by the
President's Interagency Review Group in a draft report on nuclear waste, has now been
described by the same group as a neutral one. NUCLEONICS WEEK, Oct. 19, 1978, at 1.
5. The term "waste management" is used to refer to all processes related to the handling and storage of nuclear waste, including long-term disposal. "Disposal" of nuclear
waste would be more accurately referred to as "isolation from the biosphere," since radioactive materials cannot be "disposed of" as other waste materials are. At the present time,
military waste includes seventy-four million gallons of high-level liquid waste now in storage (defined in text accompanying note 19 infra). Commercial liquid waste now in storage
amounts to approximately 600,000 gallons. COMPTROLLER GENERAL REPORT, SUpra note 3,
at 4. However, this comparison may be misleading: the concentration of radioactivity is
much greater in commercial waste, and the amount of commercial waste is increasing more
rapidly than military waste. NUCLEAR POWER, supra note 1, at 244 n.(b). In addition, military and research activities have produced thirteen million cubic feet of transuranic-contaminated waste (defined in text accompanying notes 16-18 infra). The precise amount of
contaminated waste and stored spent fuel attributable to commercial activities is not known
at this time. COMPTROLLER GENERAL REPORT, supra note 3, at 5.
1979)
NUCLEAR WASTE MANAGEMENT
ment must be confronted regardless of future decisions concerning the
continued use of nuclear energy.
One of the most troublesome legal aspects of nuclear waste management is whether control should lie with the federal government or
with the states. Traditionally, the federal government has exercised extensive regulatory control over all aspects of nuclear energy, and has
developed and administered the existing regulatory framework for
managing radioactive waste. However, many states have actively challenged exclusive federal control over permanent waste disposal, and
specifically over the siting of federally-owned permanent waste repositories. These states claim that the state should be able to decide for
itself, or at least have greater influence in deciding, whether a repository will be sited within the state. Several existing state laws and others
under consideration are designed to prevent the federal government
from siting nuclear waste repositories within the state, or to condition
6
such siting on approval by the state legislature.
While it is doubtful whether states currently have the legal authority to regulate or exclude waste repositories, there is widespread feeling
that they should have such authority. Federal law requires that waste
repositories be located on federally-owned land, and the limited power
which states may exercise over federal property does not extend to regulation or prohibition of repositories. 7 However, the states feel that in
view of the very significant regional effects of such a siting, they should
not be deprived of the right to participate in the siting and planning of
repositories merely because the repository itself is located on land
6. States which have passed waste disposal bans are: Colorado (SB-3) (1977); Louisiana (H-14) (1977); Minnesota (H-1215) (1977) (requires legislative approval); Montana (H254) (1977); Oregon (S-272) (1977, expired 1978); South Dakota (H-822) (1977) (requires
legislative approval); and Vermont (H-261) (1977) (requires legislative approval). Critical
Mass J., June 1978, at 9-11.
States which have considered such bans during 1978 include: California (A-3385) (bans
until NRC and EPA establish formal criteria for siting and operating waste disposal sites);
Illinois (H-2824) (bans out-of-state waste); Mississippi (H-212); Nebraska (L-759) (requires
legislative approval); New Mexico (HJR-4); New York (A-10351); Ohio (S-468); and West
Virginia (S-326). Id; Critical Mass J., July 1978, at 12, cols. 1-2.
The State of Delaware, while not prohibiting waste disposal, has indicated concern over
the siting of a waste disposal facility against a state's will by urging its congressional representatives to support a federal bill which would grant states veto power over federal repository-siting decisions. (Delaware House Concurrent Resolution 81) (1978). See note 8 infra.
Critical Mass J., June 1978, at 9.
Furthermore, Michigan, Texas, Ohio, and New York have each successfully blocked
attempts by the Department of Energy to explore and test-drill on possible repository sites.
NUCLEONICS WEEK, Aug. 24, 1978, at 6-7.
On the other hand, the State of Nevada appears to be willing to accept a nuclear waste
repository. A committee of Nevada governmental and civic leaders has endorsed a proposal
to store radioactive wastes at the Nevada Test Site near Las Vegas and elsewhere in the
state. S.F. Chronicle, Jan. 11, 1979, at 22, col. 6.
7. See text accompanying notes 121-34 infra.
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which the states cannot control. Furthermore, public opinion has become an important factor in this emotionally charged issue. Residents
of areas under consideration as possible sites have vigorously insisted
on their right to prevent a local siting, and the state statutory prohibitions express such demands.
Congress has responded to the demands embodied in state waste
disposal laws by considering several bills which would remove the legal
obstacles to a state's authority to regulate or prohibit waste disposal
facilities. A number of bills effectively shift the final decision-making
authority in repository-siting questions from the federal government to
the states." Another bill authorizes concurrent federal and state regulation of waste disposal facilities. 9 Since Congress clearly has the power
to allocate regulatory authority between the federal government and
the state, the critical questions are whether such state power is desirable, what limits, if any, the Congress should place on state authority to
regulate or exclude repositories, and what benefits and problems would
result from granting states veto power over siting decisions.
This Article explores answers to these questions by assimilating
the general legal principles of federalism and the unique factors involved in the nuclear waste problem. Part I presents a background of
the technical problems of nuclear waste management. Part II describes
8. The 95th Congress considered the following bills. In view of the controversy surrounding state veto over repository siting, it is not unlikely that the 96th Congress will consider similar proposals.
H.R. 2675, 95th Cong., 1st Sess., 123 CONG. REC. H646 (daily ed. Jan. 31, 1977) was
introduced to the House Committee on Interior and Insular Affairs by Representatives Carr
and Ruppe (Mich.). The bill calls for notice to the state legislature, and legislative approval
prior to construction.
H.R. 5369, 95th Cong., 1st Sess., 123 CONG. REC. H2451 (daily ed. Mar. 22, 1977) was
introduced to the same committee by Representative Skubitz (Kan.). It follows H.R. 2675,
except that it requires approval by statewide referendum rather than by legislative vote.
S. 1008, 95th Cong., 1st Sess., 123 CONG. REC. S4137 (daily ed. Mar. 15, 1977) was
introduced to the Senate Committee on Energy and Natural Resources by Senator Riegle
(Mich.). Its provisions are identical to H.R. 2675.
S. 1105, 95th Cong., 1st Sess., 123 CONG. REc. S4676 (daily ed. Mar. 23, 1977) was
introduced to the same committee by Senator Leahy (Vt.). Its provisions are nearly identical
to H.R. 2675 and S. 1008.
S. 1623, 95th Cong., 1st Sess., 123 CONG. REC. S8896-97 (daily ed. June 6, 1977) was
introduced to the Senate Committee on Environment and Public Works by Senator McGovern (S.D.). It contains a provision for notice similar to the other bills, and prohibits construction in the event of disapproval by either legislative vote or referendum.
9. H.R. 9190, 95th Cong., 1st Sess., 123 CONG. REC. H9657 (daily ed. Sept. 19, 1977),
titled "Radioactive Waste Management Act of 1977," was introduced to the House Committees on Armed Services, Interior and Insular Affairs, and Interstate and Foreign Commerce
by Representative Vento (Minn.). The bill provides for, inter alia, notice to the governor
and appropriate state agencies, and for public hearings, before the Nuclear Regulatory
Commission (NRC) can license a repository within the state. The bill sanctions concurrent
regulation of radioactive discharges from NRC-licensed facilities, as well as construction
and operation of federal repositories.
1979]
NUCLEAR WASTE MANAGEMENT
the existing federal regulatory scheme and the role which 'states currently may play in nuclear energy decision-making. Part III reviews
the constitutional principles relevant to the states' authority to control
nuclear waste disposal, and concludes that state waste disposal laws are
not constitutionally sanctioned. Part IV discusses the options available
to the federal government in response to state waste disposal regulation. This Article concludes that states should be given the final authority in the siting of waste repositories, subject to federal intervention
only when necessary to preserve the goals of the national nuclear waste
management program.
I
THE TECHNOLOGY OF NUCLEAR WASTE MANAGEMENT
A.
The Nature of Nuclear Wastes
In the process of decaying over long periods of time, radioactive
wastes release dangerous ionizing radiation.' 0 This radiation is caused
by the presence of either fission products or transuranic elements, or
both. Fission products are created when a uranium nucleus or another
heavy element splits after capturing a neutron. "I These fission products
have half-lives ranging from a few seconds up to about thirty years,
and may remain hazardous for up to several hundred years.12 Transuranic elements (TRU) are heavier than uranium,' 3 and are formed
when uranium atoms absorb neutrons without splitting. Because of
their long half-lives of up to hundreds of thousands of years,' 4 these
materials must be isolated from the environment for long periods.' 5
Various forms of waste are produced by different stages of the fuel
cycle. The largest quantities of radioactivity, and thus the greatest potential hazards, result from the generation of wastes from the actual
10. The more intense the radiation released, the more dangerous is the radioactive material. High-intensity radiation may cause death or severe damage such as cancer or genetic
diseases. Low-intensity levels are less clearly correlated with incidences of death and disease. G. EICHHoLz, ENVIRONMENTAL ASPECTS OF NUCLEAR POWER 87, 121-33 (1977).
11. NUCLEAR POWER, supra note 1, at 243 n.(a).
12. 1977 Hearings,supra note 1, at 2 (statement of Dr. Charles Hebel). A half-life is
defined as the time required for half of the original radioactive mass to decay. ENERGY
COMMISSION REPORT, supra note 1, at 121. While it is commonly thought that nuclear
materials are particularly hazardous if they have very long half-lives, this is not precisely
correct. Radiotoxicity is determined in part by a material's rate of decay, and since radionuclides with shorter half-lives decay more rapidly, those materials pose a greater radiation hazard. See id
13. These elements include, most notably, plutonium; also, neptunium, americium, and
curium. NUCLEAR POWER, supra note 1, at 243 n.(a).
14. 1977 Hearings,supra note 1, at 3 (statement of Dr. Charles Hebel).
15. Materials with longer half-lives are less radioactive than those with shorter halflives. See note 12 supra. However, because radiotoxicity decreases as a material decays, the
radioactivity level of longer-lived substances decreases more slowly. See ENERGY COMMISSION REPORT, supra note 1, at 121; G. EICHHOLZ, supra note 10, at 539 (Table 159).
ECOLOGY LAW QUARTERLY
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reactor processes. 16 These wastes from the "back end" of the fuel cycle
include low-level ("contaminated") waste, high-level waste from
reprocessing activities, and spent fuel which has not been reprocessed.
Low-level waste (LLW) is material not originally radioactive
which has become so through exposure to either radioactive fission
products or TRU. 17 Comprising the largest volume of waste material,' 8
LLW generally consists of clothing and equipment used in the fuel cycle. High-level waste (HLW) is the acid solution remaining after spent
fuel elements have been dissolved in a reprocessing procedure.19 HLW
is extremely radioactive, containing nearly all the fission products from
the spent fuel and small amounts of TRU not recovered by reprocessing. HLW has a long radiotoxic life, and generates high levels of pen20
etrating radiation and a great deal of heat.
Spent fuel, which contains fission products, TRU, and fissionable
uranium and plutonium, rLust be treated as waste if it is not
reprocessed.2' Like HLW, it is highly radioactive, and remains hazard22
ous for long periods of time.
B.
Waste Management." A Survey of Problems and Proposed
Solutions
Any system devised to manage nuclear wastes must consider the
full scope of operations from treatment at the reactor site and interim
storage through final long-term disposition. The present regulatory
16. Wastes produced from fuel cycle activities other than reactor operations include:
tailings from uranium mining and milling, and gaseous effluents from various fuel cycle
activities. 1977 Hearings, supra note 1,at 3 (statement of Dr. Charles Hebel).
17. Id
18. Id
19. Federal regulations define HLW as "those aqueous wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes
from subsequent extraction cycles, or equivalent, in a facility for reprocessing irradiated
reactor fuels." 10 C.F.R. § 50, app. F (2) (1978).
The exclusion of spent fuel elements and TRU-contaminated wastes from this definition has caused some difficulties in waste management administration. See notes 31, 54, 55
infra. However, it is generally recognized that HLW, spent fuel, and TRU waste are similar
in the hazards they pose. In fact, NRC does not regard the above cited definition as exclusive. See COMPTROLLER GENERAL REPORT supra note 3, at 70 (letter from Lee Gossick,
NRC Executive Director for Operations, to the GAO). The California Energy Resources
Conservation and Development Commission has defined "high-level nuclear wastes" to include spent fuel and TRU waste as well as liquid waste from reprocessing. See ENERGY
COMMISSION REPORT, supra note 1,at 122.
20. COMPTROLLER GENERAL REPORT, supra note 3, at iii. HLW generates heat at a
3
rate of 50 to 100 W/ft , and emits 120 MCi of radiation per year per 1000 MWe reactor
served. G. EicHHoLz, supra note 10, at 557.
21. Spent fuel is defined as "[niuclear reactor fuel that has been irradiated (used) to the
extent that it can no longer effectively sustain a chain reaction." G. EICHHOLZ, supra note
10, at 673 app.
22. COMPTROLLER GENERAL REPORT, supra note 3, at iv. See also 1977 Hearings,
supra note 1,at 3 (statement of Dr. Charles Hebel).
19791
NUCLEAR WASTE MANAGEMENT
structure is thus weakened by a subdivision of responsibility.23 Not
surprisingly, the history of waste management has been one of errors
and disappointments. 24 This poor administrative record and the resulting public concern should compel the federal government to require
the same extensive regulatory control of waste management activities
25
that it has imposed on other aspects of nuclear energy use.
1. Low-level Waste
Because of its lower radioactivity, LLW is presently not subject to
the special regulatory requirements that control HLW.2 6 For example,
the federal government may delegate authority to regulate LLW disposal to the states,2 7 and industry has responsibility for both short and
long-term management procedures subject to state and federal government standards. 28 Final disposition for LLW has been shallow land
burial in six commercial sites and five federal sites.2 9 However, the
Nuclear Regulatory Commission (NRC) has expressed some dissatisfaction with the existing regulatory scheme. NRC feels that although
state regulation generally provided adequate protection of public
health and safety, 30 state programs lack the resources and overall coordination necessary for the most efficient LLW management. 3 1 A comprehensive management program under federal control, with state
23. See text accompanying notes 77-80 infra.
24. NUCLEAR POWER, supra note 1, at 263, 266. Among the most troublesome practices and problems are: shallow burial of solid wastes contaminated by TRU, COMPTROLLER
GENERAL REPORT, supra note 3, at 5-6; neutralization of liquid HLW, id, at 40-41; leaks in
tanks containing liquid HLW, see note 34 infra. While these problems have been the result,
at least in part, of technological failures, many of the technical problems were aggravated or
left unsolved because of institutional difficulties. See, e.g., NUCLEAR POWER, supra note 1,
at 244. See generally COMPTROLLER GENERAL REPORT, supra note 3.
25. See COMPTROLLER GENERAL REPORT, supra note 3, at iv-v.
26. See text accompanying notes 36-39, 90 infra.
27. Atomic Energy Act § 274(b)(1), 42 U.S.C. § 2021(b)(1) (1976).
28.
M. WILLRICH & R. LESTER, RADIOACTIVE WASTE: MANAGEMENT AND REGULA-
TION 62 (1977) [hereinafter cited as WILLRICH & LESTER].
29. COMPTROLLER GENERAL REPORT, supra note 3, at 5. The commercial sites are
located at: Beatty, Nevada; Hanford, Washington; Barnwell, South Carolina; Maxey Flats,
Kentucky; West Valley, New York; and Sheffield, Illinois. These sites are all located on
state-owned land, except the Hanford site which is on federally-owned land leased to the
State of Washington. See Nuclear Regulatory Commission, Low Level Waste Disposal,Task
Force Report, 42 Fed. Reg. 13,366 (1977) [hereinafter cited as NRC Report on Low-Level
Waste].
30. NRC Report on Low-Level Waste, supra note 29, at 13,367.
31. Id. One problem of state LLW management has been improvident burial of TRUcontaminated waste. Proposed federal regulations would have required that such waste be
buried only on federal land. Atomic Energy Commission, Transuranic Waste Disposal,Proposed StandardsforProtectionAgainst Radiation, 39 Fed. Reg. 32,921 (1974). These regulations were not adopted, however. See C.F.R. §§ 20.302, .304, .306 (1978). Five of the six
commercial sites have suspended burial of TRU wastes. WILLRICH & LESTER, supra note
28, at 62.
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participation, would facilitate adequate disposal capacity and avoid site
32
proliferation.
2. High-level Waste
Commercial and military reprocessing activities have produced
considerable quantities of HLW, 33 most of which is stored in liquid or
partially solidified form in underground or surface tanks. 34 HLW will
continue to accumulate from military and research reprocessing, but
commercial reprocessing has been deferred indefinitely. 35 Federal regulations presently require that HLW be solidified within five years after
reprocessing, and that the solidified waste be delivered to a federal repository within ten years after reprocessing.3 6 Industry is responsible
32. See ARC Report on Low-Level Waste, supra note 29, at 13,366.
33. Six hundred thousand gallons of commercial waste are stored at Nuclear Fuels
Services, Inc., in West Valley, New York. As of January, 1977, a total of seventy-four million gallons of military waste has been stored at the Hanford Reservation near Richland,
Washington, at the Savannah River plant near Aiken, South Carolina, and at the Idaho
National Engineering Laboratory at Idaho Falls, Idaho.
COMPTROLLER GENERAL REPORT,
supra note 3, at 3-4.
34. The acidic nature of HLW requires that it be stored in stainless steel tanks. Because of the high cost and short supply of stainless steel immediately after World War II,
much of the waste was neutralized and stored in carbon steel tanks. "Neutralization" as it is
used here refers to the removal of the acidic quality of the waste rather than to the decay of
its radioactivity.
The carbon steel tanks have not lasted as expected, and leaks have been detected. The
most serious leakage problem has occurred at Hanford where twenty leaks have spilled approximately 450,000 gallons of neutralized waste. Leaks have also occurred at Savannah
River. While no deaths or injuries have as yet been attributed to these leaks, the radioactive
hazards will remain for many years. WILLRIcH- & LESTER, supra note 28, at 18.
Technology has subsequently been developed that will reduce considerably the risk of
leakage. All the Hanford leaks occurred with tanks built before 1956. Id at 18. It is felt
that the causes of the tank failures are generally understood and that more modern designs
will eliminate the problems encountered at Hanford. G. EICHHOLZ, supra note 10, at 565.
See Dau & Williams, Secure Storage of Radioactive Waste, ELECTRIC POWER RESEARCH
INST. J., July/Aug. 1976, at 10. Furthermore, risk of dispersion into the ground can be
minimized by building catch basins and by careful choice of underlying soils. G. EICHHOLZ,
supra note 10, at 588.
Nevertheless, storage of HLW is not an attractive choice for long-term disposition.
First, tank storage of liquid waste requires to a considerable extent perpetual surveillance.
Second, and more important, the possibility of leakage is always present. ]d at 588. However, it should be noted that solidification, the principal alternative to tank storage, produces
additional waste streams. Id at 569.
35. See note 53 infra.
36. 10 C.F.R. § 50, app. F (2) (1978).
Solidification processes differ depending principally on whether or not HLW has been
neutralized. Neutralized HLW can be only partially solidified into salt cakes from which
most, but not all, of the water is removed. Salt cakes cannot be converted into more stable
forms such as powder or glass, except on a very small scale. NUCLEAR POWER, supra note 1,
at 249-50.
Acidic HLW, on the other hand, can be converted to a dry powdery material through a
process called calcination. See G. EICHHOLZ, supra note 10, at 569-78, for a technical discussion of various methods of calcination. Calcined waste is more easily transported and
19791
NUCLE R
WASTE MANA GEMENT
for interim storage, solidification, and transportation to the repository
site. 37 At that point, the federal government will take permanent cus38 and bury it in a repository located on federallytody of the HLW,
39
owned land.
Permanent disposal of HLW is the necessary culmination of waste
management efforts because of the long time periods during which the
wastes remain potentially harmful. Interim storage is useful during the
initial period when wastes are extremely radioactive and generate large
amounts of heat; such storage relieves permanent disposal systems of
some design problems resulting from the dissipation of this heat. However, safety requires that the radioactive wastes be effectively isolated
from the environment.
A number of permanent disposal options have been suggested.
One of the less feasible methods proposed is transmutation, a process
which transforms radioactive elements into shorter-lived radioactive
materials by bombarding them with neutrons. However, such a process
is technically quite difficult, and hazardous as well.40 Although watercooled canals and air-cooled vaults would provide good interim storage
because of their heat-removal capabilities, they too are undesirable as
long-term disposal methods because of the constant surveillance required and the accident and sabotage risks posed.4 1 Extraterrestrial
disposal would be prohibitively expensive, and carries the risk of radioactive release on an unsuccessful launch attempt. 42 Storage in the
ocean is not feasible because no known container will withstand the
less likely to seep out into surrounding soil from long-term storage containers than are liquid
HLW or salt cakes. Id. at 567; NUCLEAR POWER, supra note 1, at 250. However, calcined
waste has notable disadvantages: it is readily soluble in water, and would be easily dispersed
in an accident. COMPTROLLER GENERAL REPORT, supra note 3, at 3 1. Both these difficulties
can be solved by encasing the calcined waste in glass-like materials. The possibility of further immobilization through vitrification is perhaps the most important advantage of calcination over neutralized salt cakes. See NUCLEAR POWER, supra note 1, at 250. This process
of vitrification produces a solidified waste with a low leachability by water and a low dispersibility, and which remains stable at reasonably high temperatures. See G. EiCHHOLz, supra
note 10, at 575-78. Vitrified waste also preserves the volume reduction originally achieved
through solidification by calcination. The volume of resolidified HLW is eight times smaller
than the spent fuel which was reprocessed. NUCLEAR POWER, supra note I, at 249. However, the volume of TRU waste produced by solidification would approximately equal that
of the spent fuel. As a result, the volume requirement for ultimate storage is about the same
whether or not spent fuel is reprocessed and HLW solidified. The heat generated in either
situation would be the same. Id at 259. The final step in preparing vitrified waste for
permanent disposal is emplacement in a stainless steel canister, designed to act as an additional barrier between the waste and the environment. Id
37. See NUCLEAR POWER, supra note 1, at 262.
38. 10 C.F.R. § 50, app. F (2) (1978).
39. Id at (3).
40. 1977 Hearings, supra note I, at 5 (statement of Dr. Charles Hebel); see G.
EICHHOLZ, supra note 10, at 585-87.
41. G. EICHHOLZ, supra note 10, at 590.
42. Id at 614-16.
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corrosive effects of sea water for the necessary time period.4 3 Furthermore, disposal in the ocean bed or in Antarctic ice would encounter
legal as well as technical problems. 4
Currently, the most viable option appears to be permanent burial
in deep geologic formations. Geologic burial combines the advantages
of isolation from the biosphere, minimum surveillance, and minimum
risk of inadvertent release.45 For this reason, research and developin the United States has bement of HLW permanent storage 4systems
6
isolation.
geologic
on
focus
gun to
Because the surrounding geological formations are the primary
barriers preventing release of radioactive waste, the burial site must be
carefully chosen to meet certain important criteria. Salt formations
have a number of properties which make them leading candidates for
repository sites. 47 The presence of salt indicates the absence of circulating ground water at the site, which is the principal mechanism of transporting waste to the surface. 48 Salt is abundant and easily mined, it
conducts heat readily, shields well against radiation, and is structurally
strong. Salt flows plastically under pressure and in time seals any
cracks that form. 49 However, salt formations frequently contain pockets of brine which would tend to migrate toward the heat-generating
waste canisters and corrode them.50 On balance, freedom from ground
water intrusion makes salt preferable to the other likely possibilities,
5
granite and shale. '
NUCLEAR POWER, supra note 1, at 255.
44. Id at 255-56.
45. 1977 Hearings,supra note 1, at 5-7 (statement of Dr. Charles Hebel). In deep geologic burial, the waste containers are not exposed to corrosive elements of water or air.
More importantly, however, the containers are supplemented by the geologic barrier, by far
the more enduring. See note 51 infra.
46. Id. at 5 (statement of Dr. Charles Hebel). See COMPTROLLER GENERAL REPORT,
supra note 3, at xi.
47. The Oak Ridge National Laboratory has done a considerable amount of research
over the last fifteen years on the use of salt formations as waste repositories. This technical
"head start" has encouraged ERDA's focus on salt formations. See [1976] 2 NUCLEAR REG.
REP. (CCH) 20,046.
48. NUCLEAR POWER, supra note 1, at 256.
49. Id. However, the plasticity of salt may be a disadvantage in retrievable storage of
spent fuel. See note 57 infra.
50. NUCLEAR POWER, supra note 1, at 256-57. However, brine will not have the effect
of transporting radioactivity to the surface as does ground water. Id at 257.
51. It is hoped that the geologic barrier will do more than insulate buried waste from
groundwater intrusion. If a repository were sited in a rock other than salt, or if water did
somehow invade the salt formation, it is calculated that groundwater in a repository site
would take approximately 1,000 years to reach the surface. The slow movement of groundwater and the considerable distance it would have to travel are responsible for the delay.
Cohen, supra note 1, at 28. Moreover, the radioactive wastes would move much more slowly
than the groundwater itself, because of ion exchange delay. An ion of waste would repeatedly exchange with ions of the surrounding rock, and eventually reenter solution and move
43.
1979]
3.
NUCLEAR WASTE MANAGEMENT
Spent Fuel as Waste
No technology has been developed for the long-term storage or
permanent disposal of spent fuel because it was assumed that the fuel
would be reprocessed.5 2 However, all commercial reprocessing has
now been indefinitely deferred. 3 If spent fuel is not reprocessed, it 5is5
treated as a waste material,5 4 and stored to await permanent disposal.
on with the water. This process delays transport, depending on the particular ion, by factors
from 100 to 100,000. Id; NUCLEAR POWER, supra note 1, at 258.
While the small likelihood of groundwater intrusion makes salt deposits attractive for
repository sites, technology may be able to improve on the natural advantages of salt. Australian scientists have developed a synthetic rock which is stable, insoluble in water, and
contains a crystal structure within which radioactive waste can be contained. The rock
would then be encased in metal cylinders and buried in granite, thus obviating the elasticity
problem encountered with salt. See note 57 infra. This process is expected to cost twice as
much as burial of vitrified waste in salt. See ENVIRONMENT, Oct. 1978, at 21.
.
52. Nuclear plants discharge one-quarter to one-third of the reactor core each year.
Such spent fuel was to have been stored and cooled six months before shipment to a
reprocessing facility. COMPTROLLER GENERAL REPORT, supra note 3, at 51. Reprocessing
recovers the fissionable uranium and plutonium in spent fuel elements and allows these
materials to be recycled for their energy value. The procedure thus increases the energy
efficiency of the nuclear fuel cycle. In addition, reprocessing may serve to reduce the risks
involved in permanent disposal by decreasing the amounts of TRU in wastes. However, this
risk reduction may not be significant when balanced against the additional short-term risks
of more complex management procedures. NUCLEAR POWER, supra note 1, at 34, 248-49.
53.
EXECUTIVE OFFICE OF THE PRESIDENT, ENERGY POLICY AND PLANNING, THE NA-
[hereinafter cited as NATIONAL ENERGY PLAN]. The main
reason for the deferral was fear of the proliferation made possible by reprocessing, which
separates plutonium, with its weapon-making potential, from the other materials in spent
fuel. Id; [1977] 8 ENVIR. REP. (BNA) 979 (comment by Secretary of Energy James Schlesinger),
The deferral of reprocessing was not proposed to discourage the nuclear industry by
limiting the fuel supply. The same policy profile which presents the deferral also emphasizes
the use of nuclear power as a means for "meeting the United States energy deficit." NATIONAL ENERGY PLAN, at XX
TIONAL ENERGY PLAN, supra at XII. Indeed, the deferral may benefit the nuclear industry.
The extra costs of reprocessing may make the procedure commercially unattractive. See
WILLRICH & LESTER, supra note 28, at 103. Furthermore, the elimination of reprocessing
simplifies the fuel cycle and resulting management procedures. Any reduction in the dangers of permanent disposal that reprocessing may achieve must be balanced against the risks
involved in reprocessing itself and in handling HLW. NUCLEAR POWER, supra note I, at
248-49. See also note 52 supra.
54. Spent fuel has not been defined as high level waste by any federal statute or regulation. COMPTROLLER GENERAL REPORT, supra note 3, at iii. For this reason, there is some
uncertainty as to what legal standards govern the treatment of spent fuel as waste. Because
the radioactivity of spent fuel is approximately equal to that of the liquid waste from
reprocessing, it would be desirable to require the same management safeguards for spent
fuel as are applied to the HLW. H.R. 9190 proposes an amendment to the 1954 Atomic
Energy Act which would provide that federal waste repositories receive HLW, TRU-contaminated waste, and spent fuel. H.R. 9190, 95th Cong., 1st Sess. § 3(b)(a) (1977). See note
9 supra.
55. Commercial spent fuel currently is stored in water-filled basins located at the reactor sites. To date, 5200 tons of spent fuel have accumulated, and that amount is expected to
rise to 37,900 tons by 1990. NEWSWEEK, Jan. 15, 1979, at 83. Such storage originally was
intended as an interim measure until the elements could be shipped [or reprocessing. COMPTROLLER GENERAL REPORT, supra note 3, at 51. There are two away-from-reactor storage
ECOLOGY LAW QUARTERLY
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Disposal plans for spent fuel should, however, provide for retrievable
storage, because spent fuel represents a potential energy source if
reprocessing again becomes a part of the commercial fuel cycle. 5 6 Predesign conserving the option of retrievability places a considerable
57
straint on the development of geologic repositories.
II
ADMINISTERING THE TECHNOLOGY OF NUCLEAR WASTE
MANAGEMENT
While the adequacy of current waste management technology is a
sites: Nuclear Fuel Services, Inc. at West Valley, New York, and General Electric at Morris,
Illinois. Only the latter is currently accepting fuel, and pursuant only to contractual agreement. Department of Energy, Transcript of Public Meeting on Spent Fuel Policy, at 47 (Oct.
26, 1977) [hereinafter cited as Spent Fuel Policy].
The deferral of reprocessing has created a backlog at these storage sites. It may be safe
to store spent fuel in this manner for a much longer period than was first planned as spent
fuel appears to remain stable in aqueous environments. Some has been so stored safely for
more than ten years. NUCLEAR POWER, supra note 1, at 254. However, the available storage
sites are nearing capacity. The utilities must increase their storage capacities, attempt to
place more fuel in these sites than they were originally designed to accommodate, or face
shutdown of plant operations. For a discussion of these options, and particularly of the
hazards of compacted storage, see COMPTROLLER GENERAL REPORT, supra note 3, at 51-59.
Pursuant to a proposed policy, the federal government intends to take custody of spent
fuel, and thereby provide a solution to the backlog problem. In view of the reprocessing
deferral, this policy is a necessary expansion of the federal responsibility for permanent
disposal of HLW. See [1977] 1 NUCLEAR REG. REP. (CCH) 1021; WILLRICH & LESTER,
supra note 28, at 104. Fuel transfers will be voluntary. Government purpose is only to
remove the uncertainty caused by the reprocessing deferral. Spent Fuel Policy, supra at 11.
Pursuant to the Administration's non-proliferation policy, the federal government will also
offer to accept spent fuel from foreign countries. 1d at 11-12. Interim storage and transport
will remain the duty of the utilities. However, the federal government is willing to provide
interim storage facilities if private facilities are not reasonably available. Id at 10. When
the fuel arrives at the governmentally approved storage site, title will be transferred to the
government. Utilities will pay a fixed one-time fee to cover the cost of storage and ultimate
disposal. No credit will be given for the energy value of the plutonium and uranium contained in the spent fuel. However, should reprocessing be resumed, the utilities will have the
fuel returned or will be compensated for its net energy value. Id at 6. In this way, the
federal spent fuel policy preserves the retrievability option, at least as far as industry is
concerned.
56. H.R. 9190, 95th Cong., 1st Sess. (1977), requires that spent fuel be retrievably
stored, while HLW and TRU waste be permanently stored. Id. § 3(b)(b). See notes 9, 54
supra.
57. 1977 Hearings,supra note i, at 6 (statement of Dr. Charles Hebel). Generally, the
same technology that has been developed for permanent disposal of HLW by deep geologic
burial can be applied if spent fuel is to be treated as waste. Spent fuel and HLW would
place essentially the same volume and heat load requirements on repository design. See
note 36 supra. However, the necessity of maintaining access to the waste for a certain period
after emplacement presents technical problems. See WILLRICH & LESTER, supra note 28, at
40-42. This is especially true if salt is selected as the repository site: the natural plasticity of
salt will tend to close up the mined openings, making retrieval very difficult or impossible.
See text accompanying note 49 supra.
NUCLEAR WASTE MANAGEMENT
1979]
topic of considerable controversy, 58 one of the most important obstacles
to a successful waste management program is political rather than technical: state challenge to the traditional plenary federal authority over
nuclear energy. In order to consider the allocation of waste management responsibility between the federal and state governments, it is first
necessary to examine the existing federal statutory schemes which are
supplemented by state regulations as specifically authorized.
A.
FederalAuthority Over Nuclear Waste
From its beginnings in the highly secret "Manhattan Project" of
World War 11, 59 nuclear energy research in the United States has been
controlled by the national government because of the international security and defense aspects of atomic weaponry technology. 60 The
Atomic Energy Act of 194661 estalblished a scheme of total federal control, including federal ownership of all fissionable material and creation of the Atomic Energy Commission (AEC) to control development
of nuclear energy. Because the role of private industry was limited to
government contracts,62 the states had no apparent interest in regulating
the nuclear industry.
In 1954, the federal government relinquished its title to all nuclear
materials in order to encourage ,private development of nuclear energy
for commercial purposes. 6 3 Such private use, however, was to be conducted under a comprehensive regulatory scheme administered by
AEC.64 No provision was made for state regulation of industrial nuclear facilities, other than preservation of the traditional state authority
to regulate the generation, sale, or transmission of electric power. 65
When industry began to develop nuclear energy in response to the
Atomic Energy Act of 1954 (1954 Act), some states began to issue regu58. See note 1 supra and accompanying text.
59. See Murphy & La Pierre, Nuclear 'Moratorium" Legislation in the States and the
Supremacy Clause:. A Case of Express Preemption, 76 COLUM. L. REv. 392, 394-95 (1976)
[hereinafter cited as Murphy & La Pierre].
60. See Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1147, 3 ERC 1041,
1044 (8th Cir. 1971), afdmem. 405 U.S. 1035 (1972).
61. The Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 (1946).
62. Murphy & La Pierre, supra note 59, at 395.
63. See the Atomic Energy Act of 1954, ch. 1073, 68 Stat. 919 (current version at 42
U.S.C. §§ 2011-2296 (1976)).
64. Licenses were required for possession, transfer, or use of byproduct material, source
material, or special nuclear material, and for construction or operation of production and
utilization facilities. 1954 Act §§ I1 (e), (p), (s), (t), (v), 41, 57, 62, 81, 68 Stat. 923, 924, 928,
932, 935 (current version at 42 U.S.C. §§ 2014 (e), (v), (z), (aa), (cc), 2061, 2077, 2092, 2111
(1976)).
65. 1954 Act, ch. 1073, § 1, 68 Stat. 960 (1954) (current version at 42 U.S.C. § 2018
(1976)). See generally Murphy & La Pierre, supra note 59, at 397-98.
ECOLOGY LAW Q UARTERL Y
[Vol. 7:917
lations. 66 When states sought to invoke their police power to protect
public health and safety and to regulate industry within the state, state
regulation presented the possibility of conflict with AEC regulation.
Congress recognized the need to permit state participation and cooperation in nuclear energy development, and to define a federal/state allocation of responsibility. In 1959, the 1954 Act was amended to allow a
state to assume certain licensing and regulatory responsibilities pursuant to an agreement between the state governor and AEC.67 The federal government, however, retains complete authority in the absence of
such agreement or upon termination or expiration of the agreement. 68
Certain areas of regulation are excluded from state control under all
69
circumstances.
The Energy Reorganization Act of 197470 abolished AEC, and assigned its research and development responsibilities to the Energy Research and Development Administration (ERDA), and its licensing
and regulatory functions to the Nuclear Regulatory Commission
(NRC). 7 1 The 1974 Act makes explicit, for the first time, federal responsibility for waste management. ERDA is specifically assigned the
task of "encouraging and conducting research and development, including demonstration of commercial feasibility and practical applications of the. . . storage [phase] . . . related to the development of use
of energy from . . . nuclear . . . sources."' 72 ERDA facilities for storage of HLW are subject to the licensing requirements of NRC. 73 With
passage of the Department of Energy Organization Act (DOE Act) in
1977,74 ERDA was abolished and its functions transferred to the
newly-established Department of Energy (DOE). 75 The responsibilities
76
of NRC remain unaffected.
Responsibility for achieving safe handling and disposal of wastes
is subdivided among several federal agencies despite congressional intent to centralize waste management was outlined in DOE Act.77 For
66. For a description of state regulatory activity during this period, see Frampton, Radiation Exposure-The Need/or a NationalPolicy, 10 STAN. L. REV. 7, 29-40 (1957).
67. Act of September 23, 1959, Pub. L. No. 86-373, § 1, 73 Stat. 688 (current version at
42 U.S.C. § 2021 (1976)). States which have entered into NRC agreements are referred to as
agreement states. For a more detailed discussion of the amendment, see text accompanying
notes 81-93 infra.
68. Atomic Energy Act § 274(b), (j), 42 U.S.C. § 2021(b),(j) (1976).
69. Id § 274(c), 42 U.S.C. § 2021(c).
70. 42 U.S.C. §§ 5801-5891 (1976).
71. ERDA §§ 2, 104(a), (b), (c), 201(0, 42 U.S.C. §§ 5801, 5814(a),(b),(c), 5841(f).
72. Id § 103(2), 42 U.S.C. § 5813(2).
73. Id § 202(3), (4), 42 U.S.C. § 5842(3), (4).
74. 42 U.S.C.A. §§ 7101-7352 (West Supp. 1977).
75. DOE Act § 301, 42 U.S.C.A. § 715 1(a).
76. See id § 203(a)(8), 42 U.S.C.A. § 7133(a)(8).
77. DOE Act provides that one of the functions of the eight Assistant Secretaries shall
be responsibility for nuclear waste management, and specifically, "the establishment of tern-
19791
NUCLEAR WASTE MANA GEMENT
example, DOE is responsible for developing and demonstrating commercially feasible waste management technologies, and specifically for
establishing and managing federal waste repositories. 78 In addition to
its licensing and regulatory functions, NRC determines the specific risk
79
and performance criteria for various waste management functions.
The Environmental Protection Agency (EPA) establishes general environmental standards for waste management activities.80
B.
Federaly-AuthorizedState Regulation of Nuclear Waste
When the states developed an interest in regulating nuclear energy, there was considerable doubt as to the ability of the states to assert such regulatory power. At first, AEC's response was merely to
affirm a policy of cooperation. 8' In order to define carefully the bounds
of state and federal authority, Congress amended the Atomic Energy
Act in 1959 to provide that NRC would transfer some aspects of its
regulatory authority to those states which entered into an agreement
with AEC.8 2 The authority of the state is limited to the time period of
the agreement. When the agreement expires or is terminated by
NRC,8 3 federal authority is resumed and state authority terminates.
States may not, under the NRC agreement, establish regulatory standards other than those "coordinated and compatible" with federal standards. 84 This language has been interpreted to require that85 state
radiation protection standards be identical with those of NRC.
porary and permanent facilities for storage, management, and ultimate disposal of nuclear
wastes." Id. § 203(a)(8)(c), 42 U.S.C.A. § 7133(a)(8)(C). The committee report on this legislation indicated that the purpose of this section was to ensure that these responsibilities
would be "centralized and coordinated at high level in the Department," S. REP. No. 164,
95th Cong., 1st Sess. 23, reprintedin [1977] U.S. CODE CONG. & AD. NEWS 854, 857.
78. ERDA § 202(3), (4), 42 U.S.C. § 5842(3), (4) (1976). The waste management program has recently been expanded to include development of technology for long-term storage of spent fuel, and to ensure the availability of long-term storage facilities by 1985. See
NATIONAL ENERGY PLAN, supra note 53, at 72-73.
79. NUCLEAR POWER, supra note I, at 263-64.
80. COMPTROLLER GENERAL REPORT, supra note 3, at 6.
81. See Murphy & La Pierre, supra note 59, at 398.
82. Atomic Energy Act § 274(b), 42 U.S.C. § 2021(b) (1976). There are currently
twenty-five agreement states. 1977 Hearings, supra note 1, at 82 (statement of Ralph
Carlone).
83. NRC may terminate an agreement with a state if it determines that such action is
necessary to protect public health and safety. Atomic Energy Act § 274(j), 42 U.S.C.
§ 2021(j) (1976). Notwithstanding an agreement, NRC may issue rules, regulations, or orders to protect the common defense and security, to protect restricted data, or to guard
against loss or diversion of special nuclear material. Id. § 274(m), 42 U.S.C. § 2021(m).
84. Id § 274(g), 42 U.S.C. § 2021(g).
85. The Joint Committee on Atomic Energy stated that "[iun most cases, it is intended
that State and local standards should be the same as Federal standards in order to avoid
conflict, duplication, or gaps." S. REP. No. 870, 86th Cong., 1st Sess. 9, 11, reprintedin
[1959] U.S. CODE CONG. & AD. NEWS 2872, 2882 [hereinafter cited as the 1959 REPORT].
AEC ruled that state standards must be uniform with its own standards. Atomic Energy
ECOLOGY LAW QUARTERL Y
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The most explicit restrictions on state authority are found in the
statutory language which prevents, under all circumstances, state assumption of regulatory responsibility over certain areas. Subsection (c)
of section 274 provides that NRC retains authority over
(1) the construction and operation of any production or utilization facility; (2)the export from or import into the United States of byproduct,
source, or special nuclear material, or of any production or utilization
facility; (3) the disposal into the ocean or sea of byproduct, source, or
special nuclear waste materials as defined in regulations or orders of
the Commission; (4) the disposal of such other byproduct, source, or
special nuclear material as the Commission determines by regulation or
thereof, not
order should, because of the hazards or potential hazards 86
Commission.
the
from
license
a
without
of
disposed
so
be
The rationale for excluding these areas from state regulation, as explained by the Joint Committee on Atomic Energy, is twofold: first,
these areas involve complex technical problems and significant safety
hazards which can best be confronted and controlled by federal resources,8 7 and second, public policy questions may be raised which
should be resolved on the federal level.88
These specific restrictions prevent NRC from delegating its authority over HLW disposal. Subsection (4) prohibits state assumption
of authority over the disposal of byproduct material determined by
NRC to represent a special hazard. Thus, the statute preserves the possibility of subsequently designating any other material, e.g., spent fuel,
as one the disposal of which must be regulated by NRC.8 9 In addition,
NRC regulations specify that it retains regulatory authority over transfer, storage, and disposal of HLW even in agreement states. 90
Thus, while the states can exercise limited regulatory authority
under the 1959 amendment to the 1954 Act and a NRC agreement,
control over HLW disposal is specifically retained by the federal government. This is not altered by the statutory assurance that the states
Commission, Byproduct, Source and Special Nuclear Materials in Quantitiesnot Sufficient to
Form a Critical Mass, Criteria/orGuidance of States andAEC in Discontinuance of AEC
Regulatory Authority andAssumption Thereof by States Through Agreement, 26 Fed. Reg.
2536, 2537 (1961).
86. Atomic Energy Act § 274(c), 42 U.S.C. § 2021(c) (1976). While this provision prohibits NRC from discontinuing its authority and does not explicitly prevent the states from
regulating these areas, the courts have ruled that this provision has the effect of implicitly
preempting state regulation. See text accompanying notes 148-54 infra.
87. 1959 REPORT, supra note 85, at 3, 10-11.
88. Id. at 11.
89. Certainly, the addition of spent fuel to this special category of materials excluded
from state control would be consistent with the Joint Committee's reasoning about serious
technical hazards and significant public policy problems. See text accompanying notes 8788 supra.
90. 10 C.F.R. § 150.15(a)(4) (1978). This regulation specifically excludes LLW, and
thus allows state LLW regulation.
19791
NUCLEAR WASTE MANA GEMENT
retain their traditional police power with regard to health and safety
issues not related to radiation hazards. 9' Under what circumstances a
state law actually regulates "for purposes other than protection against
radiation hazards," 92 and whether such regulation may conflict with
federal radiation regulations are questions which the 1959 amendment
fails to resolve. An examination of the federal preemptive power in the
nuclear energy field may supply some answers to these questions as
well as resolve other issues of federal/state allocation of waste manage93
ment responsibility.
C. State Participationin Federal Waste Management. The Policy of
Deference
Although the states are precluded from unilaterally regulating
HLW disposal under the agreement provision of the 1959 amendment
to the 1954 Act, the states have long been involved with federal disposal efforts pursuant to the traditional federal policy of cooperation with
the states in the field of nuclear energy. Particularly with regard to the
site selection program for waste repositories, ERDA and DOE have
emphasized the crucial importance of state cooperation, participation,
and agreement. 94 ERDA announced to the public the general goals
and specific plans of its site selection program, 95 and DOE has said it
intends to work closely with state and local agencies and concerned
private groups. 96 State response to the site selection program has not
been favorable, primarily because the history of ERDA site explorations indicates inadequate state involvement.
1. Kansas
After preliminary studies revealed the feasibility of HLW disposal
in salt deposits, 97 AEC announced in June, 1970 that it would construct
a federal waste repository in an abandoned salt mine near Lyons, Kan*as.9 8 Shortly before this announcement, on April 27, 1970, AEC informed the local congressman, Joe Skubitz, of its plan, known as
91. Atomic Energy Act § 274(k), 42 U.S.C. § 2021(k) (1976).
92. Id
93. See text accompanying notes 135-83 infra.
94. InformationalHearings on NuclearFuel Reprocessingand Waste Disposalbefore the
California Energy Resources Conservation and Development Commission 12-13 (Jan. 31,
1977) (statement by Dr. George W. Cunningham, Acting Deputy Assistant Administrator
for Nuclear Energy, ERDA) [hereinafter cited as Cunningham].
95. The announcement came on December 13, 1976. The program is an ambitious one.
Geologic formations of interest will be studied in thirty-six of the forty-five mainland states
containing such formations. See [1976] 2 NUCLEAR REG. REP. (CCH) 20,046.
96. See, e.g., Cunningham, supra note 94, at 13; COMPTROLLER GENERAL REPORT,
supra note 3, at 15.
97. COMPTROLLER GENERAL REPORT, supra note 3, at 8.
98. Id
ECOLOGY LAW QUARTERLY
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Project Salt Vault. Skubitz questioned whether this project would differ from earlier proposals which had proved hazardous. Unsatisfied
with the AEC response, Skubitz challenged Project Salt Vault in committee and on the House floor. 99 Meanwhile, local citizens indicated
their strong opposition to the project."°° A year after the AEC announcement, new geologic evidence revealed serious technical
problems with the chosen site. 10 These problems, together with the
significant popular opposition, led AEC to abandon the project in
1972.102
2. Michigan
The pattern of events surrounding ERDA's site selection activities
in the State of Michigan is similar to the Kansas episode. In late 1975
and early 1976, ERDA and its contractor, Union Carbide, sought permits to drill in northern Michigan. It was not made clear at that time
whether the proposed drilling was exploratory in nature, or whether
this particular site had already been selected for waste disposal. Indeed, there are indications that ERDA itself was unsure of its plan for
the area. 10 3 ERDA notified Congressman Philip Ruppe of Michigan
about the proposed drilling on May 25, 1976. Concerned that ERDA
was closer to a final decision than it publicly acknowledged, Ruppe
criticized ERDA for failing to seek the informed participation of the
Michigan people. Ruppe further requested congressional subcommittee hearings in Michigan to provide a forum for local opinion on waste
disposal in the area. The ERDA activity became a major public controversy. 104
Governor William Milliken asked ERDA to grant to Michigan a
veto power over a decision to place a nuclear waste repository in the
state. 10 5 ERDA refused to surrender its right to site the facility despite
state opposition, though it continued to express great concern for state
99. SUBCOMMITTEE ON ENERGY AND THE ENVIRONMENT OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS OF THE U.S. HOUSE OF REPRESENTATIVES, 95TH CONG., 1ST
SESS., PROPOSED NUCLEAR WASTE STORAGE IN MICHIGAN 2-3 (Comm. Print
[hereinafter cited as 1977
100. Id
3) (1977)
REPORT].
101. There was a possibility of water entry into the repository and subsequent leakage of
radioactivity. Past oil and gas exploration wells had left holes which probably could not be
capped to prevent water from flowing in. 1977 Hearings, supra note 1, at 72 (statement of
Dr. Terry Lash). In addition, a nearby salt mine used large amounts of water to dissolve the
salt. Some of this water had been lost within the geologic formation and could find its way
to the buried waste.
COMPTROLLER GENERAL REPORT,
supra note 3, at 8.
The degree of influence that the public response had on the final AEC decision to
withdraw is not clear. Compare 1977 REPORT, supra note 99, at 3, with COMPTROLLER GENERAL REPORT, supra note 3, at 8.
103. 1977 REPORT, supra note 99. at 3-4.
104. Id at 4. In November, 1976, local voters overwhelmingly opposed waste reposito102.
ries in their counties. COMPTROLLER GENERAL
105. 1977 REPORT, supra note 99, at 4.
REPORT,
supra note 3, at 15.
1979]
NUCLEAR WAlSTE MANAGEMENT
cooperation and approval.'°6 Finally, in September, 1976, ERDA Administrator, Dr. Robert Seamans, formally replied to Governor Milliken's request. Seamans explained plans for state participation in the
development of site selection criteria, and then stated ERDA's position
with respect to state veto: "[Tihe project will be terminated in Michigan
if the state raises issues on the project connected with these criteria [for
site selection], and their application, that are not resolved through a
mutually-acceptable procedure."107 ERDA's proposal for state involvement thus fell short of granting veto power to either the governor
or the state legislature. It was, however, accepted as suitable by Governor Milliken. 0 8
Subsequent to the Michigan episode, the principles underlying the
policy of deference were afforded statutory protection in DOE Act.
Various bureaucratic mechanisms have been designed to ensure the inclusion of state and local governments in the formulation and implementation of federal energy policies. For example, governors may
establish Regional Energy Advisory Boards, which will make recommendations to the Secretary of Energy about energy issues in their region. 10 9 If the Secretary does not adopt recommendations offered by a
Regional Board, he must publish his reasons for doing so."I0 Second,
because of the "pivotal role of the states in the implementation of many
energy policy initiatives,"' DOE Act requires that the President seek
the active participation of regional, state, and local agencies and officials. " 2 Mere notification is not sufficient to ensure that the states have
adequate input into policy formulation. Finally, intergovernmental relations will receive special attention from an Assistant Secretary to provide for coordination of activities, communication, and responsiveness
energy policies to the needs of state and local governof national
13
ments.
3.
New Mexico
In the Carlsbad area of New Mexico, DOE is presently developing
a Waste Isolation Pilot Plant (WIPP) where it hopes to demonstrate
that TRU-contaminated waste can be stored safely and permanently.' "4
106. Id at 5.
107. Letter from Dr. Robert Seamans to Governor William Milliken (Sept. 17, 1976),
reprintedin id at 11 app.
108. 1977 REPORT, supra note 99, at 7-8.
109. DOE Act § 655(a), (c), 42 U.S.C.A. § 7265(a), (c) (West Supp. 1977).
110. Id.§ 655(d), 42 U.S.C.A. § 7265(d).
111. S.REP. No. 164, 95th Cong., 1st Sess. 61, reprintedin [1977] U.S. CODE CONG. &
AD. NEWS 854, 915.
112. DOE Act § 801(a)(2), 42 U.S.C.A. § 732 1(a)(2) (West Supp. 1977).
113. Id. § 203(a)(6), 42 U.S.C.A. § 7133(a)(6).
114. See COMPTROLLER GENERAL REPORT,supra note 3, at 9, 21; Wall St. J., Aug. 29,
1978, at 1, col. 1.
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[Vol.
At one point, some federal authorities felt that an advantage of the
New Mexico site was the fundamentally positive response from state
and local authorities.' 15 However, it now appears that there is at best a
mixed response from officials and local residents, some of whom are
strongly opposed to the project."16 In response to this public anxiety,
New Mexico Senator Pete Domenici has secured a reassurance from17
DOE that the state will have an absolute veto power over the project."
III
THE CONSTITUTIONALITY OF STATE REGULATION OF HIGHLEVEL WASTE DISPOSAL
Public dissatisfaction with the federal government's attempts to
build nuclear waste repositories in Kansas, Michigan, and New Mexico
remains strong. Some states feel that more significant state input into
the federal waste management administration would not be enough,
and have enacted statutes that attempt to exclude repositories."l 8 The
asserted state control over the activities of a federal administrative program in an area traditionally under federal authority, such as nuclear
energy, is subject to constitutional limitations. The doctrine of federal
property restricts state authority over activities on federal land, and
would preclude state regulation or prohibition of nuclear waste repositories on federal property. " 9 Even apart from the property issue, states
may be without authority to regulate nuclear waste disposal because
federal law regarding nuclear energy preempts any state statute or regulation which frustrates the congressional purpose of achieving safe
waste disposal. 120 An examination of the doctrines of federal property
and federal preemption indicates the doubtful constitutionality of the
state waste disposal laws.
115.
See COMPTROLLER GENERAL REPORT, supra note 3, at 21.
116. See Wall St. J., Aug. 29, 1978, at 29, col. 1; N.Y. Times, Jan. 22, 1978, § 1, at 20,
col. 2; NUCLEONICS WEEK, Oct. 12, 1978, at 3.
117. See Wall St. J., Aug. 29, 1978, at 29, col. 1; NUCLEONICS WEEK, Sept. 7, 1978, at 2;
id, Oct. 12, 1978, at 3.
However, subsequent to this informal agreement, DOE has expressed its opposition to
federal grants of veto power to states over repository site selection. See 47 U.S.L.W. 2495
(1979).
118. To date, states seeking to ban nuclear waste disposal within the state have either
excluded disposal outright or made the construction of a disposal facility contingent on legislative approval. It is possible that some states may attempt to regulate disposal facilities by
setting safety standards for construction and operation. Such standards could effectively
prohibit the facilities. This section will consider the constitutionality of state standards governing waste disposal, as well as state prohibitions.
119. See text accompanying notes 121-34 infra.
120. See text accompanying notes 135-83 infra.
19791
NUCLEAR WASTE MANA GEMENT
A.
State Jurisdictionover FederalProperty
The constitutional doctrines regarding control of federal property
would invalidate state regulation of nuclear waste repositories, which
by federal regulation are required to be located on federally-owned
land. 12 1 States may regulate federal installations only when Congress
has clearly and unambiguously authorized such regulation. 22 Under
article I, section 8, clause 17 of the United States Constitution, 2 3 the
federal government exercises exclusive jurisdiction over federal lands
24 If
purchased with the consent of the state in which they are located.
the state has not consented, article IV, section 3, clause 2125 governs
rather than article 1.126 Pursuant to article IV, the states have general
jurisdiction over the property as if it were owned by a private individual.' 27 However, an exception to the article IV state jurisdiction is encountered when the federal property is used in the exercise of a power
of the national government enumerated in article I, section 8. In order
that state regulation should not frustrate the exercise of an enumerated
power, a federal facility used pursuant to such a power will not be subject to state authority. 28 Because federal authority to site and build
nuclear waste repositories is based on an enumerated power, 29 state,
10 C.F.R. § 50, app. F (3) (1978).
Hancock v. Train, 426 U.S. 167, 8 ERC 2100 (1976); EPA v. State Water Resources
Board, 426 U.S. 200, 8 ERC 2089 (1976).
The Constitution provides that Congress shall have power
To exercise exclusive Legislation in all Cases whatsoever, over such District
(not exceeding ten Miles square) as may, by Cession of particular States, and the
Acceptance of Congress, become the Seat of the Government of the United States,
and to exercise like Authority over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings; ....
U.S. CONST. art. 1,§ 8, ci. 17.
124. S.R.A., Inc. v. Minnesota, 327 U.S. 558 (1946); Fort Leavenworth R.R. Co. v.
Lowe, 114 U.S. 525 (1885).
125. The Constitution provides that "[t]he Congress shall have Power to dispose of and
make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. CONST. art. IV, § 3, cl.2.
126. See Engdahl, State and FederalPower Over Federa/Property, 18 ARIz. L. REV. 283,
297 (1976). The Property Clause in article I of the Constitution contains the specific requirement that land to which the clause applies be"purchased by the Consent of the Legislature
of the State in which the Same shall be .... " U.S. CONST. art. 1, § 8, cl.17.
127. See Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885); United States v.
Lewisburg Area School Dist., 539 F.2d 301, 307 (3rd Cir. 1976).
128. See, e.g., Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885). This case held
that federal property in Kansas used for a fort, because employed for a governmental function, "will be free from any such interference and jurisdiction of the State as would destroy
or impair [its] effective use for the purposes designed." Id at 539.
See also Hancock v. Train, 426 U.S. 167, 179, 8 ERC 2100, 2105-6 (1976); EPA v. State
Water Resources Control Board, 426 U.S. 200, 211, 8 ERC 2089, 2093 (1976); Mayo v.
United States, 319 U.S. 441, 447-48 (1943).
129. The constitutional bases for federal authority over nuclear waste disposal, and over
nuclear energy in general, are Congress' war powers and its power to regulate interstate
121.
122.
Control
123.
ECOLOGY LAW QUARTERL Y
[Vol. 7:917
laws attempting to regulate repositories can have no effect. The "enumerated powers" exception to article IV state jurisdiction operates independently of the federal preemption doctrine; 130 a state law asserting
jurisdiction over federal property need not conflict with an act of Congress to be required to yield on federal property.' 3' Rather, the rationale of the rule is intergovernmental immunity: 32 state law must not be
allowed to interfere with constitutionally authorized federal activities. 133
Thus, in the absence of explicit congressional authorization, states
are precluded from regulating use of federal property for waste repositories. However, even if Congress eliminated the property doctrine obstacle by expressly subjecting repository sites to state jurisdiction, not
all constitutional objections would necessarily be removed. State laws
which too narrowly restrict federal activities are not controlling on federal property and federal law remains applicable. 134 Moreover, if state
law is in conflict with federal law, it may be invalidated altogether
under the doctrine of federal preemption.
commerce. U.S. CONST. art. 1, § 8, cls. 3, 11-14. Congressional power to regulate United
States property (id art. IV, § 3, cl. 2) was also asserted as a basis for federal power when the
federal government reserved title to all special nuclear materials. See text accompanying
notes 61-62 supra. However, the property power was eliminated as a basis for federal authority in 1964 when Congress provided for private ownership of special nuclear materials.
Private Ownership of Special Nuclear Materials Act, Pub. L. No. 88-489, §§ 1, 2, 78 Stat.
602 (1964). Congress has asserted that the commerce and defense powers are'sufficient bases
for federal regulation of nuclear energy. See H.R. REP. NO. 1702, 88th Cong., 2d Sess. 6-8,
19-20 (1964); S. REP. No. 1325, 88th Cong., 2d Sess. 6-8, 19-20, reprinted in [1964] U.S.
CODE CONG. & AD. NEWS 3105, 3111, 3123-24. See generaly Murphy & La Pierre, supra
note 59, at 434-37. Courts have concluded that there is "no doubt" as to Congress' power to
regulate "the entire spectrum of atomic energy." E.g., Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1147, 3 ERC 1041, 1044 (8th Cir. 1971), affidmem., 405 U.S. 1035
(1972).
130. See Engdahl, supra note 126, at 299.
131. See, e.g., Johnson v. Maryland, 254 U.S. 51 (1920) (state law penalizing for driving
without a license does not apply to federal employees, though it is not preempted by any
federal statute).
132. See Engdahl, supra note 126 at 371-76.
133. The doctrine of intergovernmental immunity developed in cases which held that
federal facilities are not subject to state taxation. See, e.g., Graves v. New York ex rel.
O'Keefe, 306 U.S. 466 (1939); Van Brocklin v. Tennessee, 117 U.S. 151 (1886); McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316 (1819). Application of the doctrine has been extended
beyond the area of taxation, to prevent any state interference with governmental use of
federal property. See, e.g., United States v. Georgia Pub. Servs. Comm'n, 371 U.S. 285
(1963), and Public Utils. Comm'n v. United States, 355 U.S. 534 (1958) (state agencies cannot regulate contracts between common carriers and the federal government regarding shipments of goods owned by the federal government or its employees).
134. New Mexico State Game Comm'n v. Udall, 410 F.2d 1197 (10th Cir.), cer. denied
396 U.S. 961 (1969); see Hunt v. United States, 278 U.S. 96 (1928) (state game laws ineffective to restrict killing of animals in national park or forest for ecological purposes).
NUCLEAR WASTE MANAGEMENT
19791
B.
FederalPreemption of State Regulation
Apart from the problem of jurisdiction over federal property, state
regulation of nuclear waste repositories faces the constitutional difficulty of preemption by federal law governing nuclear energy matters.
The preemption doctrine determines the extent to which state regulatory power must yield to federal authority. A state law is invalid if
"Congress has either explicitly or implicitly declared that the States are
prohibited from regulating" that subject matter. 35 When Congress explicitly asserts exclusive federal jurisdiction, the courts must then determine whether a particular state law comes within the scope of the
preemption clause.' 36 Even when there is no express preemption, intent to preempt state regulation may be implied. In such cases, the
courts consider: 1) the language and legislative history of the federal
statute, 137 2) the pervasiveness of the federal scheme of regulation,
38
and 3) whether the subject matter regulated involves "a field in which
the federal interest is so dominant that the federal system will be as-
139
sumed to preclude enforcement of state laws of the same subject."'
However, there is a strong presumption against preemption of state police powers. Federal law will supersede state "police power" regulation
only when "a complete ouster of state power" was clearly intended by
Congress. '0 On the other hand, even where Congress has not precluded state regulation altogether, a state law is invalid to the extent it
actually conflicts with a valid federal statute.' 4' If a state law "stands
as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress,"' 4 2 it must yield to federal law under the
143
Supremacy Clause.
135. Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 11 ERC 1273, 1274 (1978).
136. See, e.g., Railway Employees' Dep't v. Hanson, 351 U.S. 225, 232 (1956); Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
137. See, e.g., Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 147-50
(1963).
138. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Traditionally one of the
factors analyzed in "implied preemption" cases, the "pervasiveness" element has been questioned as a useful indicator of Congressional intent and apparently discarded as an analytical tool. De Canas v. Bica, 424 U.S. 351, 359-60 (1976); N.Y. Dep't of Social Servs. v.
Dublino, 413 U.S. 405, 415 (1973). However, more recently, the Court has again endorsed
the "pervasiveness" factor as evidence of congressional purpose. Ray v. Atlantic Richfield
Co., 435 U.S. 151, 157, 11 ERC 1273, 1274 (1978).
139. Ray v. Atlantic Richfield Co., 435 U.S. 151, 159, 11 ERC 1273, 1274 (1978).
140. De Canas v. Bica, 424 U.S. 351, 357 (1976). See also, Jones v. Rath Packing Co.,
430 U.S. 519, 525 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1977). See
generally Catz and Leonard, The Demise of the Implied Preemption Doctrine, 4 HASTINGS
CONST. L.Q. 295 (1977).
141. Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 11 ERC 1273, 1275 (1978).
142. Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also Jones v. Rath Packing Co.,
430 U.S. 519, 526, 540-41 (1977).
143. U.S. CONST. art. VI, cl. 2.
The analysis which follows will consider whether state waste disposal laws are invalid
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[Vol. 7:917
In applying a preemption analysis to state regulation of nuclear
waste disposal, a court will examine the relationship between such state
laws and relevant federal law. The federal statute most relevant to the
federal/state allocation of regulatory authority in the area of nuclear
energy is section 274 of the Atomic Energy Act.144 A preemption analysis should examine first whether section 274 preempts state regulation
by reserving certain specific responsibilities to the federal government,
and second, the scope of any preemptive intent, i.e., what types of state
regulation Congress intended to prohibit.
C
The Casefor Preemption of State Nuclear Waste DisposalLaws
Express preemption requires an explicit declaration of exclusive
federal authority. Section 274 contains no such provision with regard
to state regulation of HLW disposal, or of radioactive hazards generbecause of a conflict with federalstatute. In the absence of a relevant federal statute, a state
law may be challenged on the ground that it imposes an unreasonable burden on interstate
commerce, and the resolution would involve a balancing of federal and state interests similar to parts of a statutory preemption analysis. See, e.g., Bibb v. Navaho Freight Lines, Inc.,
359 U.S. 520 (1959). However, where there is a conflicting federal statute, generally the
argument against the state law is much stronger on preemption grounds than on Commerce
Clause grounds. Cf.. e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 179 n.29, 11 ERC
1273, 1283 n.29. (The district court found that the challenged state law was preempted by
federal statute and therefore never reached the Commerce Clause issue. Id. at 156, 11 ERC
at 1274). For this reason, this Article will not discuss the possibility of invalidating state
waste disposal laws as unreasonable burdens on interstate commerce.
A recent dictum of the Supreme Court suggests that state bans of nuclear waste disposal
may not be unreasonable burdens on interstate commerce. In City of Philadelphia v. New
Jersey, 437 U.S. 617, 11 ERC 1770 (1978), the Court held that a state prohibition of importation of wastes from other states violates the Commerce Clause, but added that not all protectionist regulation by the states was necessarily unconstitutional. Laws which banned
importation of items which by "their very movement risked contagion and other evils, ...
'did not discriminate against interstate commerce as such, but simply prevented traffic in
noxious articles, whatever their origin." 1d.at 628-29, 11 ERC at 1775. The cases cited by
the Court involved quarantines against diseased livestock. Asbell v. Kansas, 209 U.S. 251
(1908); Reid v. Colorado, 187 U.S. 137 (1902).
While nuclear waste would correctly be described as a dangerous article the movement
of which "risk[s] contagion and other evils," there is an important difference between state
waste disposal bans and the state statutes upheld by the Court in the cases cited. The quarantine laws prevented the risk of danger from spreading to other states, and facilitated the
confinement of the danger to its state of origin where itwould eventually be eliminated. On
the other hand, waste disposal bans do not prevent the spread of a temporary hazard, but
constitute a state's refusal to deal with a long-term danger to national health and safety.
However, it is possible that the Court would be willing to allow states to exclude nuclear
waste generated outside the state without finding a violation of the Commerce Clause, especially if the state generated no nuclear waste of its own. The extent to which the
,Philadelphiadictum about seventy-year old livestock quarantines is applicable to the nuclear waste disposal problem remains to be seen. In any case, even if state waste disposal
bans. do not unreasonably interfere with interstate commerce, they are unconstitutional if
they are preempted by a federal statute.
144. Atomic Energy Act § 274, 42 U.S.C. § 2021 (1976). See text accompanying notes
82-92 supra for a detailed discussion of the provisions of this section.
19791
NUCLEAR WASTE MANAGEMENT
ally. 45 In Northern States Power Co. v. Minnesota,14 6 the Eighth Circuit rejected the district court's finding that section 274 expressly
preempted state regulation of radioactive effluents from nuclear power
plants.147 However, the court did determine that Congress has implic145. Atomic Energy Act § 274(k), 42 U.S.C. § 2021(k). It is arguable that section 274's
declaration of exclusive NRC jurisdiction, except where such authority has been assumed by
a state subject to an agreement, constitutes an express preemption clause. See Murphy & La
Pierre, supra note 59, at 445-47. However, the precise scope of the intended preemption
remains uncertain due to the section's affirmance of state authority to regulate "for purposes
other than protection against radiation hazards." Nevertheless, this uncertainty as to preemptive scope is not necessarily fatal to an express preemption argument. Rice v. Santa Fe
Elevator Corp., 331 U.S. 218 (1947). In Rice, the Court resorted to an analysis of legislative
history to determine the scope of preemption, once it had determined that the statute expressly preempted state law. Id at 229-38. See Bischoff, Nuclear Power Regulation:Defining
the Scope of State Authority, 18 ARIZ. L. REV. 987, 995 n.61 (1976).
146. 447 F.2d 1143, 3 ERC 1041 (8th Cir. 1971), afl'dmem., 405 U.S. 1035 (1972). Because the Supreme Court summarily affirmed the decision of the Eighth Circuit, there is
some doubt as to its precedential value, since the precedential value of summary dispositions
is less certain than that of plenary dispositions. See Edelman v. Jordan, 415 U.S. 651, 671
(1974). However, a summary disposition is a decision on the merits of the case, and does
bind lower federal courts and state courts. Hicks v. Miranda, 422 U.S. 332, 344 (1975).
While a summary affirmance adopts the holding of the lower court, it does not necessarily
adopt that court's reasoning. Fusari v. Steinberg, 419 U.S. 379, 391-92 (1974) (Burger, C.J.,
concurring).
Whatever its status as Supreme Court law, the precise holding of the Eighth Circuit was
rendered moot by Congress with passage of the Clean Air Act Amendments of 1977, Pub. L.
No. 95-95, 91 Stat. 685 and Pub. L. No. 95-190, 91 Stat. 1393 (codified at 42 U.S.C.A.
§§ 7401-7642 (West Supp. 1977)). The term "air pollutant" now includes radioactive materials, id § 7602(g), which in turn means that states may regulate radioactive air pollution
under the Clean Air Act, 42 U.S.C.A. §§ 7401-7642 (West Supp. 1977). Congress allows
states to establish standards more stringent than federal standards, contrary to the holding in
Northern States. See H.R. REPORT No. 294, 95th Cong., 1st Sess. 43 & n.8 reprinted in
[1977] U.S. CODE CONG. & AD. NEWS 1077, 1121 & n.8. While the passage of these amendments means that the holding of Northern States is no longer the law, it also suggests that
Congress may have believed that in the absence of such a statute, the states were precluded
from regulating radioactive hazards resulting from power plant emissions. Alternatively, it
may be that Congress was just clarifying an ambiguous situation. Moreover, even a congressional overruling of Northern States does not compel the conclusion that Congress disapproves of federal preemption in other areas of nuclear regulation, e.g., waste disposal. See
Pacific Legal Foundation v. State Energy Resources Conservation and Dev. Comm'n, No.
78-71 1-E, slip op. at 21 n.5 (S.D. Cal. Mar. 6, 1979).
In a decision subsequent to Northern States, the Supreme Court resolved the ambiguity
which a summary affirmance of the Eighth Circuit's decision may have caused. In Train v.
Colorado Public Interest Research Group, 426 U.S. 1, 8 ERC 2057 (1976), the Supreme
Court cited Northern States in support of its statement that "[s]tates are precluded from
" Id at 16 n.12, 8 ERC at
playing any role in several significant areas of regulation ....
2062 n. 12. In Train, the Court determined that the Environmental Protection Agency has no
jurisdiction under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976),
as amended by Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566, to regulate
discharges of radioactive materials into navigable waterways. NRC has exclusive jurisdiction over such discharges. 426 U.S. at 11-25, 8 ERC at 2060-65. Thus, the discussion in
Northern States that subsection (c) of section 274 of the Atomic Energy Act, 42 U.S.C.
§ 2021(c) (1976), precludes state regulation in certain areas of nuclear energy matters has
been expressly endorsed by the Supreme Court in Train.
147. 447 F.2d at 1147, 3 ERC at 1044.
ECOLOGY LAW QUARTERLY
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itly preempted state regulation by providing that NRC should retain
48
Examining the
jurisdiction over radioactive power plant emissions.
language of section 274 itself, the court found an implicit assertion of
exclusive federal authority over nuclear energy. 149 The creation of a
complicated statutory scheme ceding to the states limited regulatory
authority over some activities involving radiation hazards strongly implies that, absent such statutory authorization, the federal government
50
Since state authority
has exclusive authority over radiation hazards.'
is expressly confined in duration and scope to the terms of the NRC
agreement,' 5 1 the possibility of concurrent jurisdiction over radiation
hazards is negated. 52 The inclusion in subsection (k) of a guarantee
that nothing in section 274 limits state authority "to regulate activities
53
for purposes other than protection against radiation hazards"1 would
of a NRC agreebe unnecessary if states had authority, independent
54
well.'
as
hazards
radiation
regulate
to
ment,
Applying the Northern States rationale to state regulation of HLW
disposal, such regulation would be preempted by section 274 and NRC
regulations because that section requires that NRC retain jurisdiction
over HLW disposal. 55 Furthermore, the pervasiveness of the federal
regulatory scheme and the presence of a dominant federal interest
would indicate preemption of state waste disposal laws, just as they
were found to compel preemption of state regulation of radioactive air
pollution in Northern States.
The comprehensiveness of federal regulation in the area of nuclear
energy, and nuclear waste management in particular, indicates congressional recognition of the importance of centralized authority in this
area. 56 Responsibility for waste disposal technology has been under148. Id. at 1147-54, 3 ERC at 1044-49. Subsequent to Northern States, federal courts
have twice held that section 274 implicitly preempts state regulation of nuclear energy.
United States v. City of New York, 12 ERC 1600 (S.D.N.Y. 1978); Pacific Legal Foundation
v. State Energy Resources Conservation and Dev. Comm'n, No. 78-71 1-E, slip op. (S.D.
Cal. Mar. 6, 1979).
149. 447 F.2d at 1147-50, 3 ERC at 1044-46.
150. Id. at 1148-1150, 3 ERC at 1044-46.
151. Atomic Energy Act § 274(b), (c), 42 U.S.C. § 2021(b), (c) (1976); see text accompanying notes 82-83, 86-89 supra.
152. 447 F.2d at 1149, 3 ERC at 1045.
153. Atomic Energy Act § 274(k), 42 U.S.C. § 2021(k) (1976).
154. The purpose of subsection (k) is to leave no doubt that state authority to regulate
non-radiation hazards, which is independent of state authority under a NRC agreement, is
not impaired by the restrictions which section 274 places on the authority to regulate radiation hazards which a state can assume under an agreement. See 447 F.2d at 1149-50, 3 ERC
at 1046; 1959 REPORT, supra note 85, at 12.
155. Subsection (c) of section 274, 42 U.S.C. § 2021(c) (1976), together with NRC regulations, indicate that the NRC retains exclusive authority over HLW disposal. See text accompanying notes 89-90 supra.
156. See discussion at 447 F.2d at 1153, 3 ERC at 1048 for a description of the comprehensive federal regulatory scheme over nuclear energy.
1979]
NUCLEAR WASTE MANAGEMENT
taken as a federal function. 57 The federal government takes custody
159
of HLW'5 8 and may in the future take custody of spent fuel as well.
Federal regulations require that permanent waste repositories be located on federal property.160 Such pervasive federal control evidences
congressional intent to preempt state waste disposal laws.
Another factor in the preemption analysis is whether there is a
dominant federal interest in the subject matter of the state regulation:
i e., whether the subject matter requires "exclusive federal regulation in
order to achieve uniformity vital to national interests."' 6' Obviously,
the national interest embodied in federal regulation of nuclear waste
disposal is the concern for safe and effective isolation of radioactive
hazards from the biosphere.16 2 Although state standards for repository
construction and operation which are less stringent than federal requirements could endanger the interest in safe waste disposal, state regulations at least as strict as federal standards do not compromise the
federal interest in public safety. This argument, set forth by the State
of Minnesota in Northern States in support of its radioactive air pollution standards for nuclear power plants stricter than the federal rules,
was rejected. 163 The court held that the more stringent state standards
would interfere with a competing national interest: the development of
nuclear power.' 64 Since more burdensome state requirements would
157. ERDA § 103(2), 42 U.S.C. § 5813(2) (1976). See text accompanying notes 72-73
supra.
158. 10 C.F.R. § 50, app. F (2) (1978).
159. See note 55 supra.
160. 10 C.F.R. § 50, app. F (3) (1978).
161. Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143-44 (1963).
162. The importance of the concern for public health and safety finds statutory support
in the Energy Reorganization Act of 1972, 42 U.S.C. §§ 5801-5891 (1976), in which DOE is
given responsibility for developing nuclear waste storage facilities. ERDA § 103(2), 42
U.S.C. § 5813(2). See text accompanying note 72 supra. The Act also refers to NRC licensing of DOE facilities for long-term storage of HLW. Id § 202(3), (4), 42 U.S.C. § 5842(3),
(4). See text accompanying note 73 supra. In outlining the purposes of the statutes contained in the Act, Congress included the goal of assuring public health and safety. Id
§ 2(a), 42 U.S.C. § 5801(a). This goal is clearly relevant to the DOE assignment to develop a
nuclear waste storage program.
Another purpose of the legislation, as expressed by Congress, is to promote national
energy self-sufficiency, which may also be relevant to the nuclear waste program. Successful
waste management would benefit the nuclear industry, directly by solving its long-term storage difficulties and indirectly by removing the waste problem from the range of public misgivings about nuclear power. This benefit to the nuclear industry would promote nuclear
power as a source of energy and enhance the likelihood that nuclear power would fulfill its
role in the national program to reach energy self-sufficiency. However, this relationship
between successful waste disposal and energy self-sufficiency is more attenuated than that
between waste disposal and public health and safety. Moreover, it is uncertain that such a
chain of events would follow, because successful waste disposal may not significantly affect
public opinion about nuclear power and so may not strengthen the nuclear industry overall.
See note 4 supra,
163. 447 F.2d at 1153, 3 ERC at 1048.
164. The Northern States court noted that Congress declared the development of nu-
ECOLOGY LAW QUARTERL Y
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tend to discourage or perhaps even preclude the construction of power
plants,1 65 the court viewed uniform national regulation as necessary to
preserve a national interest. To the extent that the lack of an adequate
waste disposal program discourages development of nuclear power, the
same argument applies against more stringent state standards for repository regulation.
Moreover, stricter state regulation of repositories involves a further danger not encountered in state regulation of power plants because
repository regulation may endanger the very interest it appears to protect: the concern with achieving the safest and most effective waste disposal technologically possible. 166 If each state is free to enact safety
standards so stringent that repository construction in that state becomes
economically unfeasible, the effect is the same as if the states had prohibited repositories outright. If the states with the most geologically
and demographically suitable sites have expressly or effectively excluded repositories from their territory, 67 the federal government
would be compelled to site its disposal facilities in any willing state,
even though less desirable geological characteristics would increase the
overall risk of disposal. 68 While the individual states which have
banned repositories might be spared the risks of radiation danger from
repository failure, the overall risk to health and safety would be increased. For this reason, the national interest in safe waste disposal
requires uniform federal regulation of repository safety standards,
which indicates that congressional regulation of waste repositories
should preempt concurrent regulation.
clear energy to be an objective of the Atomic Energy Act, 42 U.S.C. §§ 2011-12 (1976). See
447 F.2d at 1153, 3 ERC at 1048.
165. See id. at 1153-54, 3 ERC at 1048-49.
166. See note 4 supra. On the other hand, the development of nuclear energy, or as it
applies in the 1974 Energy Reorganization Act, the promotion of national energy self-sufficiency, may not be a congressional purpose relevant to federal nuclear waste management
legislation. See note 162 supra. Even assuming that it would be relevant, there is no need
for an accommodation of the "nuclear development" objective with the "health and safety"
objective with regard to preemption of state waste disposal laws, as there was with regard to
the Minnesota law in Northern States. See 447 F.2d at 1153-54, 3 ERC at 1049. Both objectives would indicate that state regulation of waste repositories should be preempted. The
difference from the Northern States analysis lies in the fact that after a point, stricter state
standards for repositories conflict with public health and safety as well as with nuclear
development. See text accompanying notes 167-68 infra.
167. This is not an unlikely scenario. Understandably, the states which have been considered most attractive geologically for repository siting have been the most interested in
passing legislation regulating or prohibiting repositories. Compare [1976] 2 NUCLEAR REG.
REP. (CCH) 20,046 (listing states studied by ERDA as possible repository sites) with note 6
supra.
168. See text accompanying notes 47-51 supra.
In the shorter term, even before state vetoes would require the siting of repositories at
undesirable locations, the vetoes are likely to delay the progress of the waste management
program, a result contrary to the national interest. See [1978] 8 ENVIR. REP. (BNA) 1914-15.
1979]
D.
NUCLEAR WASTE MANAGEMENT
An Argument against Preemption of State Waste DisposalLaws
and a Rebuttal
An alternative interpretation of section 274 indicates that not all
state waste disposal laws may necessarily be preempted. This result
may be reached by focusing on subsection (k), which guarantees that
"[n]othing in this section shall be construed to affect the authority of
any State or local agency to regulate activities for purposes other than
protection against radiation hazards."' 69 The Northern States court
viewed subsection (k) as an additional indication that states are without
authority to regulate radiation hazards except pursuant to a NRC
agreement.' 7 0 Even if the court's analysis is accurate, that conclusion
does not itself solve the preemption problem, because the term "radiation hazards" is not defined either in the statute itself or in the legislative history. Indeed, it appears that the failure to define "radiation
hazards" or to insert any other clause defining the preemptive scope of
the 1959 amendment to the 1954 Act, was deliberate.' 7 1 Congress apparently preferred to leave preemption decisions to judicial determination on a case-by-case basis.
A careful definition of "radiation hazards" is necessary because
subsection (k) is the Atomic Energy Act's most precise statement concerning the allocation of authority between the states and the federal
government: federal law clearly does not preempt state regulation of
non-radiation hazards. The narrowest definition would permit states to
regulate all aspects of nuclear facilities that are unrelated to radiation
hazards: e.g., thermal pollution, nonradioactive air pollution, and
safety standards for non-nuclear equipment. 72 However, legislative
history indicates that a broader exception was intended. A congressional committee, which significantly declined to define radiation
169.
Atomic Energy Act § 274(k), 42 U.S.C. § 2021(k) (1976).
170. 447 F.2d at 1151-52, 3 ERC at 1047.
171. A congressional committee on the 1959 amendment to the 1954 Act stated:
Under this bill which gives explicit reference to the interests of the Federal and
State governments, we think it would be fairly apparent, as many of us now believe
under the existing Atomic Energy Act, that there has been an area of preemption.
We considered the desirability of writing [an express preemption clause], and we
decided against it, primarily for the reason that it is practically impossible to try to
define, taking into account all of the various gray areas and special circumstances
that might arise, where these areas of preemption should begin or end.
Hearingsbefore the Joint Committee on Atomic Energy on Federal-StateRelationships in the
Atomic Energy Field 307, 86th Cong., Ist Sess. (1959) [hereinafter cited as 1959 Hearings].
172. See Marshall v. Consumers Power Co., 65 Mich. App. 237, 237 N.W.2d 266 (1975).
In an action seeking a declaration that a nuclear power plant was a nuisance, the Michigan
Court of Appeals held that state courts were preempted from considering allegation concerning the plant's emergency core cooling system and the possibility of a nuclear accident,
because these matters dealt with radiation hazards. 237 N.W.2d at 274. However, state
courts could consider and the state could regulate nonradiological hazards, such as the creation and effects of steam, fog, and icing from the plant's cooling pond. Id at 274-75.
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hazards, offered zoning laws as the only example of state regulation
authorized by subsection (k). 173 The committee may have felt that
states should be allowed to consider what would normally be thought
of as radiation hazards when zoning nuclear facilities. A state court
upheld a zoning regulation on the basis of subsection (k), despite the
fact that such regulation was arguably not strictly "for purposes other
than protection against radiation hazards."' 74 On the other hand, a
more recent holding by a federal court indicates that a city cannot j ustify its regulation of nuclear reactors on the ground that its ordinance is
merely a "siting" regulation relating only to non-radiation hazards. 7 5
The court noted that the city's administrative proceedings clearly considered radiation hazards of the reactor's location. 76 It concluded that
the ordinance could not be upheld on the ground that it regulated nonradiation hazards in addition to radiation hazards. 177 Taken together,
173. 1959 Hearings,supra note 171, at 400.
174. Northern California Ass'n. to Preserve Bodega Head and Harbor, Inc. v. Public
Utilities Comm'n, 61 Cal.2d 126, 390 P.2d 200, 37 Cal. Rptr. 432 (1964). The California
Supreme Court held that zoning laws can prohibit siting of a nuclear power plant near an
active earthquake fault. The Court commented:
In view of subdivision (k) of section [274], respondent Commission unquestionably has authority to inquire into safety questions apart from radiation
hazards. Accordingly, since the location of an atomic reactor at or near an active
earthquake fault zone involves safety considerations in addition to radiation
hazards, it is clear that the federal government has not preempted the field, at least
with respect to the phase of protecting the public from hazards other than radiation
hazards, and that the states' powers in determining the locations of atomic reactors
are not limited to matters of zoning or similar local interests other than safety.
Id at 133, 390 P.2d at 204, 37 Cal. Rptr. at 436. While the Court in a conclusory manner
states that it is regulating nonradiation hazards in upholding a refusal to site the nuclear
plant on a fault zone, it is not clear what types of hazards actually support this decision.
Obviously, it is not desirable to locate any power plant, or any building for that matter, near
an earthquake fault. In that sense, it is the earthquake hazards rather than the radiation
hazards that are being considered. However, the radiation hazard is the greatest danger
avoided by prohibiting the siting of a nuclear plant on a fault, and that danger is much
greater than the danger of siting another type of plant there. NRC recently ordered the
closing of five nuclear power plants because of the uncertainty of the plants' earthquake
safety. A NRC spokesman explained that an earthquake could break the piping in the
plants' cooling systems, causing the release of radioactive water or steam into the environment. N.Y. Times, Mar. 14, 1979, at Al, col. 3 & AI8, cols. 2-3. Indeed, zoning ordinances
which discriminate between nuclear and non-nuclear facilities may be presumed to regulate
radiation hazards. In cases such as Bodega Head and Harbor, it is impossible to isolate
radiation and nonradiation considerations, as was done in Marshall v. Consumers Power
Co., 65 Mich. App. 237, 237 N.W.2d 266 (1975). The congressional authorization of zoning
regulation eliminates the necessity for insisting on the accuracy of the California Court's
statement that zoning goes to regulation of nonradiation hazards.
Contra In Re Consolidated Edison Company of New York, Inc., [1975] 2 NUCLEAR
REG. REP. (CCH) 20,018 (N.Y. Sup. Ct. 1975) (federal law does preempt local zoning
laws).
175. United States v. City of New York, 12 ERC 1600 (S.D.N.Y. 1978).
176. Id. at 1607-08. The district court implicitly rejected the California court's reasoning in Bodega Headand Harborthat regulation of location of nuclear reactors is not regulation of radiation hazards.
177. The court's holding is not necessarily inconsistent with the zoning exception sug-
NUCLEAR WASTE MANAGEMENT
1979]
these cases indicate that there is no consistent standard for distinguishing radiation from nonradiation hazards. Thus, the literal language of
subsection (k) does not by itself define the limits of the legitimate authority of the states to regulate nuclear energy.
An argument can be made that the purpose of subsection (k) indicates the types of state regulations which should be viewed as regulating non-radiation hazards. The legislative history of the 1959
amendment to the 1954 Act suggests that section 274 preempts only
state regulation which attempts to establish standards for radiation
safety. Congressional hearings on the 1959 amendment focussed primarily on the potential danger of dual federal-state radiation standards. An AEC representative stated:
We think [dual regulation] leads to divided responsibility and may lead
to bad safety controls because you have too many cooks in the broth, so
the speak, without any one level of government having a primary responsibility for it to assure that these uses of material are appropriately
78
regulated. 1
If Congress' primary concern in restricting state authority over radiation hazards was to avoid dual sets of safety standards, then it follows
that state laws which do not set standards would not come within the
preemptive scope of section 274, notwithstanding the fact that they may
incidentally regulate radiation hazards. Under such a rationale, state
laws which exclude nuclear waste disposal facilities altogether would
not be impliedly preempted by section 274. Moreover, even state standard-setting laws preempted under this interpretation179of section 274
would be valid if specifically sanctioned by Congress.
Even if state waste disposal laws are not preempted by the
language of section 274 under this alternative interpretation, or if they
are specifically authorized by Congress, such state laws will nevertheless fail to survive a preemption analysis if the indices of the preemp80
tive intent apart from statutory language point toward preemption.1
gested by the committee report (see text accompanying note 173 supra), which would allow
state regulation of reactor location even though radiation hazards are regulated thereby.
However, the decision does place a limit on the scope of the exception: i.e., when siting
considerations are based entirely or primarily on radiation hazards, application of the zoning exception would clearly frustrate congressional intent to preempt state regulation of radiation hazards.
178. 1959 Hearngs,supra note 171, at 315.
179. H.R. 9190, 95th Cong., 1st Sess., 123 CONG. REC. S8896-97 (daily ed. June 6, 1977),
considered by Congress last term, would authorize concurrent regulation of repository construction and operation. See note 9 supra. Another example of congressional sanction of
state standard-setting in the area of nuclear power is the Clean Air Act Amendments of
1977, 42 U.S.C.A. §§ 7401-7626 (West Supp. 1977). Authorizing state emissions standards
for radioactive air pollution, the Amendments constitute a congressional reversal of the preemption holding of Northern States Power Co. v. Minnesota, 447 F.2d 1143, 3 ERC 1041
(8th Cir. 1971), aff'dmem., 405 U.S. 1035 (1972). See note 146 Supra.
180. See text accompanying notes 137-39 supra.
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The "dominant federal interest" ground is independent evidence of implied preemption and may invalidate state laws which are either sanctioned or not otherwise invalidated by federal statutory language.' l8
As discussed previously,18 2 state laws which set repository safety standards stricter than federal requirements or which prohibit repositories
altogether, conflict with the dominant federal interest in safe waste disposal and frustrate the congressional purposes set forth in federal waste
management legislation.' 8 3 This clear conflict between federal and
state authority indicates that such state waste disposal laws are subject
to federal preemption.
Another argument that can be made in support of state nuclear
waste disposal regulation is that such state laws are not preempted because Congress lacks the authority to prevent state regulation of nuclear waste disposal. This argument is based on the "inherent state
power" doctrine of NationalLeague of Cities v. Usery.184 In that case,
the Supreme Court held that the tenth amendment to the United States
Constitution precludes Congress from exercising its power in a manner
that impairs a state's "ability to function effectively in a federal system."'' 8 5 Under that rule, the Court struck down a federal law regulating wages and hours of state employees. The applicability of the Usery
doctrine to a particular act of Congress depends on whether Congress
attempts to regulate a state function essential to sovereignty, and has
been limited to cases involving regulation of state governmental functions. The Usery Court describes state power to control state employees' wages and hours as an "undoubted attribute of state
sovereignty."'' 86 The Court cited as another example of such an attribute a case involving an attempt by Congress to designate the site of a
state capital. 8 7 Indeed, an extension of Usery beyond the area of state
governmental functions would allow the tenth amendment to nullify
the Supremacy Clause. As the power to exclude waste repositories is
not essential to the integrity of state government, it follows that the
181. "Even if Congress has not completely foreclosed state legislation in a particular
area, a state statute is void to the extent that it actually conflicts with a valid federal statute."
Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 11 ERC 1273, 1274 (1978). "Actual conflict
with a federal statute" can be viewed as a very strong case of the "dominant federal interest"
argument. When Congress legislates on a matter, it elevates a "dominant federal interest" to
statutory significance, clarifying the importance of that interest to the federal government.
Such has been the case with the federal interest in safe and effective nuclear waste disposal,
which is now a statutory goal. See text accompanying notes 72-73 & note 162 supra.
182. See text accompanying notes 161-68 supra.
183. See note 162 supra.
184. 426 U.S. 833 (1976).
185. Id at 843, quoting Fry v. United States, 421 U.S. 542, 547 n.7.
186. Id at 845.
187. Coyle v. Oklahoma, 221 U.S. 559 (1911).
1979]
NUCLEAR WASTE MANAGEMENT
exercise of such power is not protected against congressional abrogation by the tenth amendment.
IV
FEDERAL RESPONSE TO STATE REGULATION OF NUCLEAR
WASTE DISPOSAL
State laws governing waste disposal present the federal government with three options: to initiate legal challenge on property and
preemption grounds, to accede to the states' requests by respecting outright exclusions and observing state safety standards, or to validate the
asserted state authority through congressional legislation. The choice
among these three possibilities is largely a matter of policy and politics.
A.
Legal Challenge
There is little question that state regulation of waste repositories
would be ruled invalid in a constitutional challenge. The lack of state
authority to regulate federally-owned disposal facilities is clear, and
preemption by federal law is likely, especially for repository bans and
for safety standards stricter than federal ones. However, while invalidation of such state regulation would remove significant obstacles to
the federal waste management program, the very existence of the state
laws indicates a serious political problem which will not be resolved
but aggravated by their invalidation. The states seek a greater influence in federal decisions about repository siting and construction, and
some states insist on their right to exclude nuclear waste entirely.
These demands are no less politically potent because they may be legally untenable. State waste disposal regulations are signs of a problem
that the federal government cannot ignore.
B. Deference
Cognizant of the discontent indicated by these state laws, the federal government may understandably be reluctant to invalidate them
on constitutional grounds. Federal waste management authorities are
concerned with the necessity for state cooperation and involvement in
waste disposal policies. 1 1 Anxious to avoid antagonizing the states by
insisting on its legal suprema'cy, 189 the federal government has deferred
188. See, e.g., Spent Fuel Policy, supra note 55, at 63-64.
189. Even when Congress has ultimate legislative authority in an area, the federal government frequently must work together with the states to achieve effective execution of Congressional goals. Moreover, no action by the federal government can be immune to public
opinion, the principal force behind the state waste disposal laws. Even an executive agency
such as DOE, not directly responsible to the voters, must account for its actions to the public, through its Secretary and ultimately-the President.
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to the states' formal and informal expressions of willI90 in order to accommodate state interests.' 9'
However, deference in the name of political expedience has practical limits. The states may be allowed to exclude repositories--explicitly, or effectively through prohibitively stringent safety
standards-only as long as there remains a geologically satisfactory site
in a willing state. When the last geologically reasonable site becomes
unavailable for a repository, the issue of repository siting is no longer
wholly or even primarily political. The political disadvantages of antagonizing a state must be weighed against the health and environmental as well as the political problems that would result from a poor
choice for a repository site. In view of the considerable significance of
site selection in reducing the risk of repository failure and waste release, 92 deference should be abandoned not only to ensure a geologically reasonable site, but to obtain the safest repository site available. 193
C.
FederalLegislation to Expand State Authority
The policy of deference has proved to be unacceptable to the states
to ensure them of the role they seek in waste disposal decisions. States
recognize that deference cannot guarantee a real opportunity for
significant involvement, because federal waste management authorities
can unilaterally alter their policy at any time, without necessarily accounting to the public. Furthermore, the deference policy cannot protect the states from legal challenge by qualified parties other than the
federal government. 194 A federal statute sanctioning state regulation of
190. State waste disposal legislation may be considered a formal expression of state will.
Examples of informal expressions are the Michigan governor's letter to ERDA (see note 105
supra and accompanying text), and New Mexico's request to DOE for veto power (see text
accompanying note 117 supra).
191. Of course, a decision by the federal government not to challenge a state statute does
not protect the statute from challenge by a private plaintiff who is able to allege harm sufficient to support a claim of standing. Utility companies may be able to allege such harm,
since state prohibition or regulation of nuclear waste disposal could render economically
impossible further use of nuclear reactors for power production and thereby injure the utilities by depriving them of the intended use of their property. Such alleged harm is not too
remote to support a claim of standing. Cf. Pacific Legal Foundation v. State Energy Resources Conservation and Dev. Comm'n, No. 78-71 I-E, slip op. at 7-8 (S.D. Cal. Mar. 6,
1979) (employee of utility company has standing to challenge state law prohibiting licensing
of nuclear power plants until adequate waste disposal technology is demonstrated because
law prevented progress of utility project which in turn caused employee to lose his job).
Notwithstanding their legal capacity to challenge state waste disposal laws, whether or not
the utilities would consider such a challenge to be in their best political and economic interests remains to be seen.
192. See text accompanying notes 47-51 supra.
193. See WILLRICH & LESTER, supra note 28, at 111. This argument assumes the unacceptability of continuing to handle HLW and spent fuel under the current methods of indefinite tank storage and reactor-site storage. See notes 34 & 55 supra.
194. See note 191 supra.
1979]
NUCLEAR WASTE MANAGEMENT
waste repositories would clearly obviate both these difficulties. A federal law could insulate state regulation against constitutional attacks by
private parties based on the property doctrine or the preemptive intent
evidenced by the language of section 274. Moreover, it would constitute a more permanent assurance of the federal government's intent to
defer: while an administrative policy can be changed by a decision internal to the bureaucracy, policy embodied in a statute can be altered
only by the slow and politically arduous processes of modification or
repeal.
Congressional authorization of state repository regulation would
thus appease the states' demand for a more significant role in federal
decisions, for the most part without compromising the national interest
in safe waste disposal. Several of the conditions that existed in 1959
which led Congress to conclude that concurrent regulation would be
inappropriate 195 have changed considerably in the past twenty years.
In 1959, it appeared that the states were not willing to assume greater
responsibility in regulating radiation hazards; this is clearly not the case
today.' 96 Furthermore, greater numbers of trained personnel and ex97
pert consultants are available today to assist state regulatory efforts.1
Congress explicitly rejected the notion that concurrent regulation is inappropriate in all areas of nuclear energy, when it sanctioned state authority over radioactive air pollution in the Clear Air Act Amendments
of 1977.198 If Congress should authorize states to set safety standards
for waste repositories, such state regulation would further rather than
frustrate the national interest in safe waste disposal, provided that state
standards are at least as stringent as federal requirements. 99
However, a statutorily sanctioned policy of deference allowing
states to regulate repositories presents the same problems as does the
informal administrative policy. State standards or exclusions may
eventually interfere with the congressional goal for nuclear waste dis195. The Northern States court discussed the evidence of congressional intent to prohibit
dual regulation of radiation hazards. 447 F.2d at 1149-50, 3 ERC 1045-46.
196. See Bischoff, supra note 145, at 1019.
197. Id While there is some evidence that states still lack the technical capability to
participate in regulation of nuclear energy problems (see [1978] 8 ENViR. REP. (BNA) 191415), this argument is relevant primarily with regard to state safety standards for repositories,
and not with regard to state veto power where decisions would not necessarily be based on
technical knowledge.
198. 42 U.S.C.A. §§ 7401-7626 (West Supp. 1977). See note 146 supra.
199. H.R. 9190, 95th Cong., 1st Sess., 123 CONG. REC. H9657 (daily ed. Sept. 19, 1977),
which would provide for concurrent regulation of repository construction and operation,
requires that state standards be as stringent or more stringent than federal standards. However, even this requirement does not eliminate the "too many cooks" danger inherent in
concurrent regulation: inadequacy of state enforcement programs. See text accompanying
note 178 supra. On balance, Congress may decide that the advantages of concurrent regulation of repositories outweigh the risks of uncertain enforcement, as it has done in the areas
of air and water pollution.
ECOLOGY L4W QUARTERLY
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posal: safe and effective isolation of waste. 20 When such interference
occurs, state laws will be subject to federal preemption. Even if state
regulation of repositories were specifically authorized, state laws cannot
be allowed to frustrate national goals expressly announced by Congress. 20 1 This frustration is the essence of what the preemption doctrine
is intended to eliminate. Thus, preemption confines congressionally
sanctioned state authority over waste repositories, for the same reason
that changes in administrative policy restrict the limits of informal federal deference to state will: federal primacy must be asserted when
states' decisions endanger an important national goal.
CONCLUSION
Both a policy of deference and congressional authorization of state
waste disposal laws are appropriate federal responses to the state dissatisfaction and public discomfort evidenced by the recent state nuclear
waste legislation. Each allows states to exercise their own will with regard to repository siting within state territory up to the point where the
national goal of safe waste disposal is threatened, and each provides a
mechanism for reassertion of ultimate federal authority to protect federal interests in the national health and safety. The remaining option,
legal challenge to the state laws on constitutional grounds, is unacceptable, because it seeks to eliminate the symptoms of the problem without attempting to deal with its cause.
As between the two acceptable choices, formal statutory sanction
of state laws is preferable from the states' perspective. A federal statute
would be more durable and more effective than a federal administrative policy in protecting the states' power to effectuate its own choice
about federal waste disposal in-state. 20 2 On the other hand, the federal
waste management bureaucracy would likely prefer the informal deference policy because, should it become necessary to restrict state autonomy to ensure safe waste disposal, this would be more easily
accomplished through a change in policy than through a long and ex20 3
pensive legal challenge to state laws based on preemption.
Regardless of the choice Congress may ultimately make between
an informal deference to state will and a statutory authorization of
state control over federal repositories, the controversy over
state/federal authority over waste disposal has already had a significant
effect. Public anxiety over the highly emotional issue of local disposal
of nuclear waste, and the assertions of state control over waste disposal
200. See text accompanying notes 166-68 supra.
201. See text accompanying notes 180-83 supra.
202. See text accompanying note 194 supra.
203. DOE has indicated to Congress its opposition to granting states veto power over
federally selected repository sites. 47 U.S.L.W. 2495 (1979).
19791
NUCLEAR WASTE MANA GEMENT
to which public opinion has given rise, have made the nation and the
federal bureaucracy itself more aware of the status of the waste management program. State resistance to federal siting efforts and the passage of state waste disposal legislation has compelled the federal
government to provide for the states a more significant role in waste
management decisions. 2° Moreover, state power to exclude federal repositories, either under a policy of deference or pursuant to Congressional authorization, would give states additional political leverage
over federal waste disposal decisions that mere vocal input into planning discussions cannot match. 20 5 Ideally, the spotlight of public attention and the political pressure of effective state veto power will
contribute to a more successful waste management program, without
impeding progress toward the immediate goal of siting and developing
permanent repositories.
204. See text accompanying notes 107-08, 117 supra.
205. State veto power puts states in a bargaining position with federal waste management authorities whereby they would have the "leverage" necessary to exact concessions in
the way of additional safety assurances in exchange for allowing the repository to be located
within the state. Of course, all such bargaining would be subject to the principles of federal
preemption.