Citations
- 434 F. Supp. 2d 988
Full opinion text
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, INTER ALIA
MCDONALD, Senior District Judge.
BEFORE THE COURT is the Motion For Summary Judgment filed by the United States of America (United States) (Ct. Rec.136), joined in by Fluor Hanford (Fluor) and the Tri-City Industrial Development Council (TRIDEC). Also before the court is TRIDEC’s Motion For Partial Summary Judgment (Ct.Rec.140).
Oral argument was heard on May 23, 2006. Kenneth C. Amaditz, Esq., and David Kaplan, Esq., presented argument on behalf of the United States. Matthew J. Segal, Esq., presented argument on behalf of intervenor-plaintiff TRIDEC. Colin Deihl, Esq., presented argument on behalf of intervenor-plaintiff Fluor. Andrew A. Fitz, Esq., and Laura J. Watson, Esq., presented argument on behalf of the State of Washington (State) defendants. Michael J. Robinson-Dorn, Esq., and Gerald M. Pollet, Esq., presented argument on behalf of intervenor-defendants.
I. BACKGROUND
The United States, TRIDEC, and Fluor (collectively referred to herein as “plaintiffs”) challenge the constitutionality of Washington’s Cleanup Priority Act (CPA), RCW Chapter 70.105E, enacted into law pursuant to Initiative 297 (1-297) passed by Washington voters in the November 2004 election. They seek a declaration that the CPA is invalid in its entirety, alleging it: 1) violates the Supremacy Clause of the United States Constitution (Article VI, Clause 2); 2) violates the sovereign immunity of the United States; and 3) violates the dormant Commerce Clause of the United States Constitution (Article 1, Section 8, Clause 3). In addition, TRI-DEC asserts the CPA violates the Contract Clause of the United States Constitution (Article I, Section 10).
The stated purpose of the CPA, RCW 70.105E.010 (Section 1), is:
[T]o prohibit sites at which mixed radioactive and hazardous wastes have contaminated or threaten to contaminate the environment, such as at the Han-ford Nuclear Reservation, from adding more waste that is not generated from the cleanup of the site until such waste on-site has been cleaned up and is stored, treated, or disposed of in compliance with all state and federal environment laws.
(Emphasis added).
To that end, the CPA requires mixed waste facilities, such as the Hanford Nuclear Reservation (Hanford), to obtain a final facility permit under the federal Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901-6992k, and state law, and to meet all closure and corrective action requirements before the facility may accept any additional mixed wastes not generated at the facility. For mixed waste facilities that have been granted a sitewide permit, such as Han-ford, final facility permits must be applied for and obtained for each unit or facility within the site where mixed wastes are, or will be, stored or disposed, prior to transporting to, storing or disposing at the facility any additional mixed wastes not generated at the facility. RCW 70.105E.040(2) and (6)[Section 4(2) and (6) ]. The Hanford Site currently does not have a final facility permit for each unit or facility within the site.
This court certified certain questions to the Washington Supreme Court regarding interpretation of the CPA. On July 28, 2005, the state supreme court provided answers to those questions, with the exception of the question relating to sever-ability. United States v. Hoffman, 154 Wash.2d 730, 116 P.3d 999 (2005). The answers to those questions are discussed in detail infra.
Enforcement of the CPA is currently restrained pursuant to order of this court.
II. SUMMARY JUDGMENT STANDARD
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Under Fed. R.Civ.P. 56, a party is entitled to summary judgment where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Semegen v. Weidner, 780 F.2d 727, 732 (9th Cir.1985). Summary judgment is precluded if there exists a genuine dispute over a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
The moving party has the initial burden to prove that no genuine issue of material fact exists. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party has carried its burden under Rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. The party opposing summary judgment must go beyond the pleadings to designate specific facts establishing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In ruling on a motion for summary judgment, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Nonetheless, summary judgment is required against a party who fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual disputes regarding other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.
III. DISCUSSION
A. Supremacy Clause
The Supremacy Clause mandates that “the laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., Art. VI, Cl. 2.
1. Preemption
[SJtate law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984).
Plaintiffs contend the CPA is an attempt to regulate radioactive materials for safety purposes and therefore, falls within the field of regulation preempted by the Atomic Energy Act (AEA) of 1954, 42 U.S.C. §§ 2011-2297g-4. Furthermore, they contend the CPA stands as an obstacle to maintaining exclusive federal control over the management and disposal of radioactive materials. The AEA covers three different classes of radioactive material: source material, special nuclear material, and byproduct material. 42 U.S.C. § 2014(e), (z), (aa). The radioactive material at Hanford, or proposed to be sent there, consists of AEA radionuclides, either in “pure” form, or as a component of mixed waste (the other component being hazardous material).
In Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), the United States Supreme Court stated unequivocally that “[t]he federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states.” (Emphasis added). Thus, for example, “[a] state moratorium grounded in safety concerns falls squarely within the prohibited field.” Id. at 213, 103 S.Ct. 1713. In a subsequent opinion in English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990), the Court clarified, but did not narrow, its holding in Pacific Gas, stating:
[N]ot every state law that in some remote way may affect the nuclear safety decisions made by those who build and run nuclear facilities can be said to fall within the pre-empted field.... Instead, for a state law to fall within the pre-empted zone, it must have some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels.
Id. at 85,110 S.Ct. 2270 (emphasis added).
The pre-empted field is defined, in part “by reference to the motivation behind the state law.” Id. at 84, 110 S.Ct. 2270. That motivation is relevant is confirmed by the AEA which provides that “nothing ... shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” Id., quoting 42 U.S.C. § 2021(k)(1982 ed.)(emphasis added). The other part which defines the preempted field of the AEA is the actual effect of a state law on nuclear safety. Thus, even if a state law were not motivated by radiological safety concerns, it would still be preempted if it so related to radiological safety as to effectively infringe upon the field preempted by the AEA. Id. at 85,110 S.Ct. 2270.
a. Regulation of “Pure” AEA Ra-dionuclides
The State and the intervenor-defendants (collectively referred to herein as the “defendants”) acknowledge that at least one provision of the CPA, RCW 70.105E.050(1) [Section 5(1) ], seeks to “directly” regulate “pure” AEA radioactive material for radiological safety reasons. Section 5(1) provides:
The department shall consider releases or potential releases, of radioactive substances or radionuclides as hazardous substances if the radioactive substance poses a risk of a carcinogenic, toxic, or any other adverse health or environmental effect. The department shall require corrective action for, or remediation of, such releases to meet the same health risk based minimum clean-up standards as adopted for other carcinogenic, toxic, or other hazardous substances posing similar risks pursuant to RCW 70.105D.030 [Model Toxics Control Act].
(Emphasis added).
The defendants contend, however, that Section 5(1) lies outside AEA’s preempted field because “no court has directly addressed whether the AEA preempts a statute such as the CPA, which directly regulates AEA radionuclides only in the context of cleaning up uncontrolled environmental releases.”
The AEA regulates nuclear material, regardless of whether it is considered waste. Legal Environmental Assistance Foundation, Inc. v. Hodel, 586 F.Supp. 1163, 1167 (1984). 42 U.S.C. § 2014(e) defines “byproduct material” as (1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium and thorium from any ore processed primarily for its source material content. This court cannot discern any significance in the distinction between waste that is “uncontrolled” versus “controlled” with regard to radiological safety levels and nuclear safety concerns. The plain language of Section 5(1) of the CPA belies any significance since it seeks to regulate not simply “releases,” but “potential releases” as well. Releases of AEA material implicate radiological safety just as much, if not more so, than unreleased AEA material. The concern of Section 5(1) with “uncontrolled” environmental releases of AEA materials constitutes a “nuclear safety concern” and it has a direct and substantial effect on the decisions of those who operate nuclear facilities, such as the United States Department of Energy (DOE) at Hanford, concerning radiological safety levels. The “entire field of nuclear safety concerns” includes “uncontrolled” releases of AEA material.
Defendants contend nothing in the AEA, its legislative history, in Nuclear Regulatory Commission regulations, or DOE internal orders specifically addresses cleanup of “uncontrolled” releases of radionuclides. Even assuming that is true, considering how long the AEA has been in existence, it is difficult to fathom that an issue about permissible state regulation of “uncontrolled” releases of AEA radionuclides would not have come to the fore until now. In this regard, it is noted that it took the Federal Facility Compliance Act of 1992 (FFCA) to make it unmistakably clear that states could apply their solid and hazardous waste laws at federal facilities, including those “respecting control and abatement of solid waste or hazardous waste disposal.” 42 U.S.C. § 6961(a)(emphasis added). And yet the balance of the RCRA also makes it unmistakably clear that RCRA has no application to AEA radionuclides. 42 U.S.C. § 6903(27); § 6905(a)(AEA radionuclides excluded from definition of “solid waste” of which hazardous waste is a subset). Considering RCRA and the preemption case law discussed above, this court is not persuaded that the AEA does not also preempt state regulation of “uncontrolled” AEA radionu-clides released to the environment.
The State contends the role of CERCLA as the federal framework for addressing the cleanup of released radionuclides proves that the field occupied by the AEA does not include such cleanup. This court disagrees. Nothing in CERCLA authorizes states to regulate within the field of nuclear safety concerns preempted by the AEA.
CERCLA authorizes the President of the United States to undertake cleanup actions, or to obtain injunctive relief requiring responsible parties to undertake such actions. 42 U.S.C. §§ 9604 and 9606. The President is authorized to enter into cooperative agreements with States to carry out actions authorized by § 9604. 42 U.S.C. § 9604(d)(1)(A). 42 U.S.C. § 9620(a)(4) of CERCLA subjects federal facilities that are not on the National Priorities List (NPL) to “state laws concerning removal and remedial action.” Most of the Hanford Site is on the NPL. In any event, § 9620(a)(4) does not provide an unequivocal, clear, or unambiguous authorization for States to regulate AEA materials released at federal facilities.
The Supremacy Clause shields federal activities from state regulation absent clear and unambiguous congressional consent. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 180 & n. 1, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988)(“[B]ecause the Supremacy Clause immunizes the activities of the Federal Government from state interference ..., direct state regulation of federal facilities is allowed only to the extent that Congress has clearly authorized such regulation”). The principle of sovereign immunity similarly shields federal facilities from lawsuits absent a clear and unambiguous, “unequivocally expressed,” congressional waiver allowing such suits. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). “[Wjhere Congress does not affirmatively declare its instrumentalities or property subject to regulation, the federal function must be left free of regulation.” Hancock v. Train, 426 U.S. 167, 179, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976). There is no reference to the AEA in § 9620(a)(4), and by the time this CERCLA provision was added in 1986, the broad preemptive scope of the AEA had already been established via such cases as Pacific Gas (1983).
This court also agrees with the United States that the “corrective action” referred to in Section 5(1) is pursuant to RCRA authority. See 42 U.S.C. § 6924. As noted, AEA radionuclides are specifically exempted from RCRA pursuant to 42 U.S.C. §§ 6903(27) and 6905(a). 42 U.S.C. § 9620(a)(4) of CERCLA does not refer to “corrective action,” instead referring to “removal and remedial action,” nor does it make reference to any of RCRA’s permitting requirements. As such, § 9620(a)(4) cannot be read to waive immunity for such “corrective action” or permitting requirements. Moreover, 42 U.S.C. § 9620® of CERCLA provides that “[njothing in [section 120] shall affect or impair the obligation of any department, agency, or instrumentality of the United States to comply with any requirement of the [RCRA], [42 U.S.C. § 6901 et seq.] (including any corrective action requirements).”
Section 5(l)’s “direct” regulation of “pure” AEA radionuclides is not outside the field of regulation preempted by the AEA.
b. Regulation of Hazardous Waste and Mixed Waste
The defendants assert that other than Section 5(1) of the CPA, all of the other provisions of the CPA are pursuant to the State’s RCRA authority to manage the hazardous component of mixed waste, the other component being AEA radionuclides.
Before the CPA existed, the State was involved in the regulation of the hazardous component of mixed waste at Hanford pursuant to its Hazardous Waste Management Act (HWMA), RCW Chapter 70.105. RCRA allows states to apply for United States Environmental Protection Agency (EPA) authorization to administer a hazardous waste program. 42 U.S.C. § 6926(b). In order to receive this authorization, a state hazardous waste program must be “equivalent” to the RCRA Subtitle C (42 U.S.C. §§ 6921-6939e) program established by EPA, must be “consistent” with the federal and state programs applicable in other states, and must provide for “adequate enforcement.” Id. The state-issued requirements authorized by EPA operate in lieu of equivalent federally-issued requirements in the federal program, and the authorized requirements become requirements of RCRA Subtitle C. 42 U.S.C. § 6926(b); 40 C.F.R. pt. 271. States may adopt requirements that are more stringent than federal law. 42 U.S.C. § 6929. EPA has authorized the State of Washington to administer its HWMA in lieu of RCRA. 51 Fed.Reg. 3782 (Jan. 30,1986).
Permits are generally required under RCRA and the HWMA for any facility, such as Hanford, that engages in the treatment, storage, or disposal (“TSD”) of hazardous wastes. There are two types of RCRA/HWMA TSD permits: an interim (Part A) permit and a final (Part B) permit. Washington Administrative Code (WAC) chapter 173-303. The permit, whether interim or final, establishes how specific waste is to be managed at TSD facilities.
The State, DOE, and the EPA entered into the Hanford Federal Facility Agreement and Consent Order (HFFACO) in 1989, otherwise known as the Tri-Party Agreement (TPA). Among the general purposes of the TPA is ensuring compliance with the permitting and corrective action requirements of RCRA and the HWMA. Compliance with the TPA is intended to satisfy corrective action requirements of the HWMA, related corrective provisions of RCRA, and DOE’s obligation under CERCLA. The TPA is also a federal facility agreement under CERCLA, 42 U.S.C. § 9620.
In 1994, the State granted Hanford a sitewide permit under the RCRA/HWMA for the treatment, storage, and disposal of hazardous waste. The sitewide permit sets forth standards applicable to hazardous waste and the hazardous component of mixed waste at each facility or unit covered by the permit. Under the sitewide permit, individual units at Hanford are operating under either “interim” or “final” status requirements. To date, only seven units at Hanford are operating under specific final status requirements. The remaining active units operate under interim status requirements. When the State of Washington Department of Ecology (Ecology) approves a Part B final permit application to address an additional individual unit, that modification becomes part of the sitewide permit. As discussed above, the CPA would require mixed waste facilities that have been granted a sitewide permit, such as Hanford, to obtain a final facility permit for each unit or facility within the site where mixed wastes are, or will be, stored or disposed, prior to transporting to, storing or disposing at the facility any additional mixed wastes not generated at the facility. This was not a requirement under the RCRA/HWMA permitting scheme.
In the certification proceedings before the Washington Supreme Court, the parties uniformly agreed the CPA’s definition of “mixed waste” does not apply to materials consisting solely of radioactive source, special nuclear, or byproduct materials. Hoffman, 154 Wash.2d at 738, 116 P.3d 999. The CPA, RCW 70.105E.030(9) (Section 3(9)), defines “mixed waste” as:
[A]ny hazardous substance or dangerous or extremely hazardous waste that contains both a nonradioactive hazardous component and a radioactive component, including any such substances that have been released to the environment, or pose a threat of future release, in a manner that may expose persons or the environment to either the nonradioactive or radioactive hazardous substance.
(Emphasis added).
The state supreme court determined that this definition of “mixed waste” expands the scope of regulated materials beyond the HWMA and the RCRA. According to the court:
[T]he CPA definition of mixed waste does not apply to purely radioactive Atomic Energy Act [AEA] of 1954 ... materials. However, the CPA encompasses materials that do not ‘designate’ as dangerous waste through the cross-reference to RCW 70.105.010(14) and encompasses materials that are not ‘solid waste’ through the cross-reference to RCW 70.105D.020(7)(b)-(d). Thus, the CPA does expand the scope of materials currently subject to regulation as mixed waste beyond the HWMA and the RCRA.
Id. at 744,116 P.3d 999.
“Hazardous substance” is defined in the CPA, RCW 70.105E.030(6) (Section 3(6)), as having the same meaning as that term is defined in RCW 70.105D.020(7) of the MTCA. RCW 70.105D.020(7)(d), states that “hazardous substance” means:
(a) Any dangerous or extremely hazardous waste as defined in RCW 70.105.010(5) and (6) [HWMA], or any dangerous or extremely dangerous waste designated by rule pursuant to chapter 70.105 RCW;
(b) Any hazardous substance as defined in RCW 70.105.010(14) [HWMA] or any hazardous substance as defined by rule pursuant to chapter 70.105 RCW;
(c) Any substance that, on March 1, 1989, is a hazardous substance under section 101(14) of the federal cleanup law, 42 U.S.C. Sec. 9601(14) [CERC-LA];
(d) Petroleum or petroleum products; and
(e) Any substance, or category of substances, including solid waste decomposition products, determined by the director by rule to present a threat to human health or the environment if released into the environment.
(Emphasis added).
RCW 70.105.010(14) defines “hazardous substances” to mean “any liquid, solid, gas, or sludge including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the criteria of hazardous waste as described in rules adopted under this chapter.” (Emphasis added).
The state supreme court determined that because RCW 70.105.010(14) defines “hazardous substances” disjunctively to mean “any liquid, solid, gas, or sludge including any material, substance, product, commodity, or waste,” the reach of the CPA extends to material that is not discarded’ and is not “waste.” The court concluded the CPA definition of “mixed waste” includes materials with a radioactive and a non-radioactive component that do not fall within the RCRA definition of “solid waste.” Hoffman, 154 Wash.2d at 743-44, 116 P.3d 999. Consistent with that answer, the court also concluded the CPA’s “naval exemption,” RCW 70.105E.080 (Section 8), “does not cover those materials (beyond reactor vessels or compartments) that may qualify as ‘mixed waste’ under the CPA via the broad definition of ‘hazardous substance.’ ” Id. at 746, 116 P.3d 999.
Under RCRA, “solid waste” is defined as:
[A]ny garbage, refuse, sludge from a waste treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include ... source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954....
42 U.S.C. § 6903(27)(Emphasis added).
“Hazardous waste” is a subset of “solid waste” and is defined under RCRA as:
[S]olid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may-
(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health, or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
42 U.S.C. § 6903(5)(Emphasis added).
Prior to the CPA, the State regulated only HWMA “dangerous wastes” or “extremely hazardous wastes” which are the state-law equivalent of RCRA “hazardous wastes.” Consistent with RCRA’s definition of “hazardous waste,” the State of Washington Department of Ecology, pursuant to the HWMA and RCRA, promulgated “Dangerous Waste Regulations,” which are found at WAC Chapter 173-303. These regulations “[designate those solid wastes which are dangerous or extremely hazardous to the public health and environment.” WAC 173-303-010. “Dangerous wastes” means solid wastes designated in WAC 173-303-070 through 173-303-100 as dangerous, or extremely hazardous or mixed waste. WAC 173-303-040. “Mixed waste” is defined in these regulations as “a dangerous, extremely hazardous, or acutely hazardous waste that contains both a nonradioactive hazardous component and, as defined by 10 CFR 20.1003, source, special nuclear, or by-product material subject to the Atomic Energy Act of 1954 (42 U.S.C.2011 et seq.).” Prior to the CPA, for certain materials to “designate” as dangerous wastes, threshold quantity requirements had to be met. Hoffman, 154 Wash.2d at 740, 116 P.3d 999 (citing WAC 173-303-090(8)(a)-(c)). Under the CPA, quantity is irrelevant. The CPA’s definition of “mixed waste” encompasses materials that are mixtures of AEA materials and other “hazardous substances” that do not designate as “dangerous waste” under existing state laws, and regardless of the quantity of “hazardous substances” in the mixture. The slightest amount of non-radioactive “hazardous substances” captures the mixture under the CPA’s definition of “mixed waste.”
State regulation of “solid” or “hazardous waste,” as those terms are defined by RCRA, is clearly not preempted. Indeed, it was never preempted, although at federal facilities such regulation was barred by sovereign immunity until passage of the Federal Facility Compliance Act. As discussed above, the AEA preempts regulation of AEA radionuclides for radiological safety purposes. “Mixed waste,” as that term is defined in RCRA, 42 U.S.C. § 6903(41), is waste “that contains both hazardous waste and source, special nuclear, or by-product material subject to the Atomic Energy Act of 1954.” This is essentially the same as the definition of “mixed waste” contained in the HWMA implementing regulations, cited above.
“While the RCRA governs the disposal of hazardous waste, and the AEA governs the disposal of radioactive waste, no statute specifically delegates authority to regulate a mixture of the two types of waste.” United States v. Kentucky, 252 F.3d 816, 822 (6th Cir.2001). In Kentucky, the U.S. Department of Energy (DOE) submitted a permit application to the State of Kentucky for the construction and operation of a contained solid waste landfill at the Paducah Gaseous Diffusion Plant operated by DOE. A permit was issued authorizing construction, and then a second permit was issued authorizing operation of the landfill. This second permit contained conditions relating to the disposal of radioactive materials in the landfill, including a condition that prohibited DOE from placing in the landfill “[sjolid waste that exhibits radioactivity above de minimis levels,” and another condition prohibiting DOE from placing in the landfill “solid waste that contains radionuclides ... until a Waste Characterization Plan for radionuclides has been submitted to the Division of Waste Management for review and approval.” A federal district court found DOE had presented a facially conclusive claim of federal preemption, the resolution of which did not require interpretation of state law or the making of factual findings.
The Sixth Circuit Court of Appeals affirmed, holding:
As the Supreme Court unequivocally stated in Pacific Gas & Electric, “the federal government has occupied the entire field of nuclear safety concerns, except for the limited powers expressly ceded to the states.” [Citation omitted]. Accordingly, the AEA preempts any state attempt to regulate materials covered by the Act for safety purposes. [Citation omitted]. Here, the challenged permit conditions specifically limit the amount of “radioactivity” and “radionu-clides” that DOE may place in its landfill. The sources of such “radioactivity” and “radionuclides” are materials covered by the AEA, i.e., source, special nuclear, and byproduct materials. [Kentucky] seeks to impose these conditions to protect human health and the environment. The permit conditions therefore represent an attempt ... to regulate materials covered by the AEA based on ... safety and health concerns, and are thus preempted.
The Sixth Circuit Court of Appeals observed that “[w]hile federal law does not preempt state regulation of solid waste, [citation omitted], states may not regulate the radioactive component of solid waste.” Id. at 824. “DOE has exclusive authority to regulate the radioactive component of waste mixtures, whereas EPA — or states authorized by EPA under the RCRA— retain the authority to regulate the non-radioaetive portion.” Id. The court then addressed whether Kentucky’s permit conditions violated the federal government’s sovereign immunity to state regulation of radioactive materials at federal facilities:
While the district court did not address DOE’s sovereign immunity argument in light of its holding that [Kentucky’s] regulations are preempted by federal law, DOE could have prevailed on this alternate theory as well. Neither the AEA nor any other federal law waives federal immunity from regulation of federal facilities by states with respect to materials covered by the AEA. While [Kentucky] is correct to point out that the RCRA waives federal immunity to state regulation of federal facilities with respect to solid waste ... the RCRA’s definition of “solid waste” expressly excludes materials covered by the AEA.
So long as the State of Washington limits itself to regulating the hazardous waste component of mixed waste, as those terms are defined in RCRA, it acts within its authority. The State cannot, however, regulate the AEA radioactive component of mixed waste. The HWMA, as implemented by the State of Washington through the “Dangerous Waste Regulations,” is consistent with the State’s RCRA authority, and hence received the approval of the EPA. The line of authority is clearly drawn. The United States regulates the AEA radioactive component of mixed waste and the State regulates the hazardous waste component. The question is whether the CPA, under the guise of RCRA authority, crosses the line and im-permissibly regulates the AEA radioactive component of mixed waste.
The State contends the CPA does not create new powers it did not already possess under the HWMA, but instead eliminates the State’s discretion in deciding how to use its existing powers. It is apparent to this court, however, that unlike the HWMA and its implementing “Dangerous Waste Regulations” which carefully limit their application to the hazardous waste component of mixed waste per RCRA authority, the CPA seeks to regulate “mixed waste” as a whole, including both the hazardous and the radioactive components. The CPA seeks to regulate the mixture in its entirety, rather than just the hazardous component. In doing so, it crosses the line and impermissibly regulates the AEA radioactive component.
The CPA exceeds RCRA authority and, as such, intrudes upon a field, (regulation of AEA radionuclides for radiological safety purposes), which is preempted by the AEA. Rather than limiting itself to the regulation of “hazardous waste,” as that term is defined by RCRA, the CPA extends its reach to material that is not solid waste, or even if solid waste, does not necessarily present a “hazard” as defined in 42 U.S.C. § 6903(5) because,' for example, there is not enough of it to constitute a “hazard.” This reveals that the true aim of the CPA is not the hazardous waste component of mixed waste, but rather the radioactive component. Confirming the same is the fact that Section 5(1), and other provisions noted above (see n. 16 supra), make no pretense of regulating simply mixed waste, but seek to regulate pure AEA material. Also confirming the same is that the CPA, through CERCLA and the MTCA, includes pure AEA radion-uclides within its definition of “hazardous substances.” Therefore, the CPA’s use of “hazardous substances” in its definition of “mixed waste” allows (1) use of non-radioactive hazardous substances, though not solid waste and existing in only trace amounts in the mixture, as a means of regulating the AEA radionuclide component of the mixture, and (2) regulation of pure AEA radionuclides that are not part of any mixture because those radionuclides qualify as “hazardous substances” in themselves.
The defendants appear to recognize that the state supreme court’s interpretation of the CPA definition of “mixed waste” renders that definition beyond the scope of permissible RCRA authority as exercised through the HWMA. The defendants contend, however, that a completely separate issue is how they interpret the CPA’s “operative” provisions which is that those provisions work through RCRA authority and therefore, are bounded within the confines of that authority. Thus, for example, the State says its interpretation of the “operative” provisions would be that it could not enforce Section 4(2)’s import moratorium against materials that do not constitute solid waste. The intervenor-defendants claim they concur in that interpretation, although they concede, as they must, that they do not necessarily speak for the balance of the Washington citizenry who may seek to enforce the CPA per the state supreme court’s interpretation of the CPA definition of “mixed waste” by filing the citizen suits authorized by RCW 70.105E.100CL).
The state supreme court’s interpretation of the CPA definition of “mixed waste” is a binding interpretation, Reinkemeyer v. Safeco Ins. Co. of Am., 166 F.3d 982, 984 (9th Cir.1999), based on the plain language of the CPA. It cannot be as easily and conveniently ignored as the defendants claim. It was the State who persuaded this court to certify questions to the state supreme court, including those relating to the CPA definition of “mixed waste.” In fact, the State represented that through the certified questions it was seeking a narrowing construction of the CPA which would withstand preemption and sovereign immunity challenges. Before the supreme court, the State argued for a construction of the definition of “mixed waste” which would have had the effect of making the CPA “co-extensive” with the HWMA and RCRA. Hoffman, 154 Wash.2d at 740-41, 116 P.3d 999. The State obviously did not succeed in getting such a narrowing construction.
The CPA is all about “mixed waste,” as that term is defined in RCW 70.105E.030(9), as opposed to how that term is defined in RCRA and the HWMA implementing “Dangerous Waste” regulations. The CPA refers to “mixed waste” and facilities that handle “mixed waste,” rather than “hazardous waste” and facilities that handle “hazardous waste.” Hazardous waste regulation, including the hazardous waste component of mixed waste, is already covered by the HWMA. The fact that the term “facility” under the CPA is defined as having the same meaning as it has under the HWMA — “all contiguous land and structures, other appurtenances, and improvements on the land used for recycling, storing, treating, incinerating or disposing of hazardous waste” — does not limit the CPA to regulation of “hazardous waste” under existing law (the HWMA). RCW 70.105E.030(4), citing RCW 70.105.010(ll)(emphasis added). The plain terms of the Section 4(2) moratorium on importation of “mixed waste” apply not just to merely “a facility,” but to “any facility owner or operator of a site storing, managing, processing, transferring, treating or disposing of mixed wastes.” (Emphasis added). The “mixed wastes” referred to in Section 4(2) are those “mixed wastes” defined in the CPA at RCW 70.105E.030(9). This is confirmed by the fact that the CPA defines “Site” as the “contiguous geographic area under the same ownership, lease, or operation where a facility is located, or where there has been a release of hazardous substances.” RCW 70.105E.030(14)(emphasis added). Critical “operative” provisions of the CPA refer to “hazardous substances,” as opposed to “hazardous waste.” See RCW 70.105E.040(6)(a) (Section 4(6)(a)) and RCW 70.105E.060(l)(a)(ii) and (iii) (Section 6(l)(a)(ii) and (iii)). And finally, that the CPA represents a fundamentally different approach to regulation of “mixed waste” is manifested by the fact that the “operative” provisions of the CPA require a permit not only under the HWMA, but under the CPA as well. See RCW 70.105E .040(2) (Section 4(2)) and RCW 70.105E.060(3) (Section 6(3)). The plain language of the CPA creates a new and separate permitting system, recognizing that the CPA seeks to regulate the entirety of the “mixed waste,” rather than just its hazardous component. If it indeed regulated only the hazardous component, only an HWMA permit would be required.
The State says it is appropriate to focus on mixed waste because the presence of AEA radionuclides in mixed waste has the effect of frustrating the State’s exercise of hazardous waste authority under the RCRA and the HWMA. Be that as it may, the State cannot seek to remedy that frustration by overstepping its RCRA and HWMA hazardous waste authority by means of the CPA so as to frustrate the federal government’s power over the radioactive component as provided by the AEA. As the Kentucky court recognized, no statute specifically delegates authority to regulate a mixture of the two types of waste. In the RCRA itself, Congress recognized the tension that would result from the State exercising its RCRA authority over the solid hazardous waste component of mixed waste and the federal government exercising its authority over the AEA radioactive component. Congress addressed this tension through provisions of the Federal Facility Compliance Act (FFCA), including 42 U.S.C. § 6939c, “Mixed Waste Inventory Reports and Plans.” Recognizing there was a concern that federal mixed waste was being stored in violation of RCRA’s land disposal requirements (LDRs), 42 U.S.C. § 6924(j), Congress required federal facilities to develop mixed waste inventories and site treatment plans for mixed waste, and delayed the imposition of penalties so long as federal agencies comply with plan requirements. At Hanford, the TPA represents the site treatment plan for mixed waste. Counsel for the State conceded at oral argument that the TPA does, at least to some extent, relieve the tension that arises from federal and state authorities exercising authority over the different components of mixed waste.
What Congress gave to the State in terms of authority over mixed waste, as defined in the RCRA, is limited to what is found in the RCRA, as amended by the FFCA. Congress gave the State no more authority than that, noting the State’s authority is limited to regulating the hazardous waste component of mixed waste. See 42 U.S.C. § 6939c(b)(2). Congress did not give the State a blank check to regulate mixed waste based on authority over the hazardous waste component.
The CPA makes the presence of radioactive materials, whether or not a component of “mixed waste,” as defined by the CPA, the trigger for all of its requirements. Furthermore, the plain language of the CPA indicates all of its “operative” provisions, and not just Section 5(1) discussed above, are motivated by radiological safety concerns. The “Policy” provision of the CPA, RCW 70.105E.020 (Section 2), states, among other things, that: “Use of Hanford as a national waste dump for radioactive and/or hazardous or toxic wastes will increase contamination and risks;” “The economy of Washington state, from agriculture to tourism, to fisheries, could be irreparably harmed from any accident releasing radiation or mixed radioactive and hazardous wastes;” and “It is state policy to protect Washington’s current and future residents, particularly children and other sensitive individuals, from the cumulative risks of cancer caused by all cancer-causing hazardous substances, including radionuclides, by ensuring that hazardous substance release and disposal sites meet the standards established pursuant to chapter 70.105D RCW [MTCA].” RCW 70.105E.020(1), (4) and (6)(emphasis added).
The CPA contains a “savings clause” at RCW 70.105E.040(1) (Section 4(1)) that “[t]he department of ecology shall regulate mixed wastes to the fullest extent it is not preempted by federal law, pursuant to chapter 70.105 RCW [the HWMA] and the further provisions of this chapter [the CPA].” (Emphasis added). The defendants contend this is a reflection of the then-existing limitation in the HWMA that “the department of ecology may regulate all hazardous wastes, including those composed of both radioactive and hazardous components, to the extent it is not preempted by federal law.” RCW 70.105.109. (Emphasis added). A comparison of these two provisions (RCW 70.105.109 of the HWMA and RCW 70.105E.040(1) of the CPA) is, however, evidence in itself that the CPA takes things a step further and focuses on the regulation of “mixed waste” as a whole, including the AEA radioactive component. Whereas in RCW 70.105.109, the reference is to regulation of “hazardous wastes,” RCW 70.105E.040(1) refers not to “hazardous wastes,” but to “mixed wastes.” In the HWMA, the focus is on “hazardous wastes,” even when it is a component of “mixed waste,” whereas in the CPA, the focus is on “mixed waste,” without any specific delineation of the radioactive component from the hazardous component. In any event, RCW 70.105E.040(1) does not “save” the CPA to any extent because the CPA’s regulation of “mixed wastes” is effectively a regulation of the AEA radioactive component thereof for safety purposes, a field which is preempted by the AEA. It is possible the HWMA may represent the fullest extent of the permissible regulation of the hazardous component of mixed wastes, but that is a determination the court need not, and will not, make at this time.
Even if there were a non-safety rationale for the CPA, the CPA is field preempted because it has a “direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels.” The CPA will: (1) require DOE and the Navy to meet cleanup levels established by the State for AEA radionuclides (Section 5(1); (2) prevent Hanford from importing “mixed waste,” including classified nuclear components generated by the Navy that qualify as “mixed waste” under the CPA, until Hanford attains State-established cleanup levels for AEA materials (Section 4(6)); (3) bar the import of “mixed waste” to Hanford for a significant period of time, thereby trumping DOE’s decision under the AEA that Hanford is an appropriate site for the disposal of such “mixed waste,” forcing DOE to find alternative pathways for such disposal, and disrupting DOE’s nationwide cleanup program for AEA materials (Section 4(2)); (4) prohibit the Navy from sending certain classified nuclear components to Hanford for disposal, thus trumping the determination of the United States that Hanford is the appropriate site for the disposal of these AEA materials (Section 4(2)); (5) prevent the Pacific Northwest National Laboratory (PNNL) from importing AEA materials that are essential to important nuclear research activities (Section 4(2)); (6) require DOE to provide the Department of Ecology with “an inventory based on actual characterization of AEA materials “potentially disposed” in unlined trenches (Section 6(l)(a)(ii)); (7) prevent DOE from expanding any land disposal unit where AEA materials have been released (Section 6(2)(b)); and (8) bar DOE from using methods it has deemed appropriate for the disposal of AEA waste and the closure of tanks containing AEA waste (Section 6).
The defendants do not deny that these things could happen, but assert there is no guarantee they will depending on the State’s interpretation and implementation of the CPA. There is, however, nothing for the State to interpret or substantively implement. The CPA says what it says in plain, mandatory language as confirmed by the Washington Supreme Court. Forcing plaintiffs to speculate how the CPA might be applied by the State, and to ponder the possibility of citizen suits, are enough in themselves to directly and substantially affect plaintiffs’ decisions about AEA materials.
There is no ripeness issue warranting delay pending the State’s interpretation and implementation of the CPA. On its face, and as confirmed by the state supreme court’s interpretation of the CPA’s definition of “mixed waste,” it is clear the purpose of the CPA is to regulate AEA radionuclides, either non-mixed “pure” AEA radionuclides, or the AEA radionuclide component of “mixed waste,” for radiological safety purposes. In turn, the CPA directly and substantially effects the decisions made by those who build or operate nuclear facilities concerning radiological safety levels. As such, the regulation of “mixed waste” sought by the CPA is field preempted by the AEA. Conflict preemption is not an issue because, as discussed above, the CPA does not simply represent another instance of the State exercising authority within the confines of the “hazardous waste” authority granted to it by the RCRA. The CPA goes beyond that authority, and it is precluded from doing so by virtue of the AEA.
Because the CPA regulates AEA materials for radiological safety purposes and cannot do so, it is, by definition, invalid in every set of circumstances. It is facially invalid under the Supremacy Clause and there are no circumstances under which it can be applied constitutionally. Green Mountain Railroad Corp. v. Vermont, 404 F.3d 638, 644 (2nd Cir.2005), cert, denied, - U.S. -, 126 S.Ct. 547, 163 L.Ed.2d 460 (2005) (“The facial/as-applied distinction would be relevant only if we might find some applications of the statute preempted and others not.... [WJhere a state statute is in direct conflict” with a federal statute “or one of its processes,” the “focus is the act of regulation itself, not the effect of the state regulation in a specific factual situation”). The CPA is in “direct conflict” with the AEA itself because it seeks to regulate AEA radionuclides for radiological safety purposes. The focus is on this “act of regulation,” not the effect of the regulation.
2. Sovereign Immunity
Because the Supremacy Clause immunizes the activities of the Federal government from State interference, direct state regulation of federal facilities is allowed only to the extent that Congress has clearly authorized such regulation. Goodyear, 486 U.S. at 180, n. 1, 108 S.Ct. 1704, citing Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 87 L.Ed. 1504 (1943).
Congress has not authorized the states to regulate AEA radionuclides for radiological safety purposes at federal facilities or anywhere else. As discussed above, this includes regulation of “uncontrolled” releases of “pure” AEA radionuclides. “Neither the AEA nor any other federal law waives federal immunity from regulation of federal facilities by states with respect to materials covered by the AEA,” and while “RCRA waives federal immunity to state regulation of federal facilities with respect to solid waste ... the RCRA’s definition of ‘solid waste’ expressly excludes materials covered by the AEA.” Kentucky, 252 F.3d at 825. The CPA’s regulation of AEA radionuclides, either “pure” radionuclides or as a component of “mixed waste,” not only is preempted by the AEA, it violates the sovereign immunity of the United States.
3. Conclusion
The CPA is field preempted and facially invalid as a whole. Therefore, it is unnecessary to determine whether individual sections of the CPA suffer from constitutional deficiencies apart from preemption and sovereign immunity, and whether the Contract Clause is violated. Nevertheless, the court will identify those other deficiencies and will address the Contract Clause in an effort to lessen the likelihood of piecemeal review by the Ninth Circuit Court of Appeals.
B. COMMERCE CLAUSE AND SECTION 4(2) OF THE CPA (RCW 70.105E.040(2))
In addition to granting Congress the power to regulate interstate commerce, the Commerce Clause has a “dormant” or “negative” aspect to it which restrains the ability of the states to discriminate against or impose substantial burdens on interstate commerce. Oregon Waste Sys. v. Department ofEnvt’l Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). Discrimination is “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Id. at 99, 114 S.Ct. 1345. “Waste” is an article of commerce and state law restrictions on its flow invokes the “dormant” Commerce Clause. Philadelphia v. New Jersey, 437 U.S. 617, 622-23, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). “No state may attempt to isolate itself from a problem common to the several States by raising barriers to the free flow of interstate trade.” Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 339-40, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992).
If a state law restricting the flow of interstate commerce is facially discriminatory, or discriminatory in its purpose or effect, it is subject to a strict scrutiny test. Under this test, discrimination against interstate commerce “is per se invalid, save in a narrow class of cases in which the [state] can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest.” C & A Carbone, Inc. v. Town of Clarkstovm, 511 U.S. 383, 392, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994). Once a plaintiff demonstrates that a regulatory scheme discriminates against interstate commerce, the burden shifts to the defendant to demonstrate that it has no other non-discriminatory means to advance a legitimate local interest. Granholm v. Heald, 544 U.S. 460, 125 S.Ct. 1885, 1905, 161 L.Ed.2d 796 (2005).
If a state law does not discriminate against interstate commerce, but regulates evenhandedly to effectuate a legitimate local interest, a more deferential standard applies. Under the Pike balancing test, the state law will be upheld unless the burden placed on interstate commerce is clearly excessive in relation to the putative local benefits. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).
1. Strict Scrutiny
Section 4(2) of the CPA is facially neutral in that it does not expressly distinguish between offsite “mixed waste” that is generated in-state, and “mixed waste” that is generated out-of-state. It simply requires that a “final facility permit” be obtained before “transporting to, storing or disposing at, the facility any additional mixed wastes not generated at the facility.” For example, if Hanford is the “facility,” Section 4(2), on its face, says no additional mixed waste generated at facilities in Washington or outside of Washington can be transported to, stored or disposed at Hanford, until Hanford obtains a “final facility permit.” Therefore, the question is whether Section 4(2) is discriminatory in either purpose or effect.
Certain language within the CPA itself clearly evidences a discriminatory purpose. RCW 70.105E.020, the “Policy” section of the CPA, states at subsection (1) that “[u]se of Hanford as a national waste dump for radioactive and/or hazardous or toxic wastes will increase contamination and risks” (emphasis added); and at subsection (2) that “[c]leanup is delayed and funds and resources diverted if facilities needed to treat or clean up existing waste are used for imported waste, and if larger facilities must be built to accommodate off-site wastes” (emphasis added). The concern expressed by the CPA is not that Hanford will be a “statewide” waste dump where other in-state facilities send their waste, but that it will be a “national” waste dump where facilities in other states send their waste.
Consistent with that concern is the naval exemption in the CPA (Section 8(2)) which gives certain waste generated in-state at the Puget Sound Naval Shipyard (PSNS) an exemption so that it can be sent to Hanford. While the naval exemption is facially neutral in that it does not distinguish between in-state and out-of-state naval facilities, it is uncontested that PSNS is the only naval facility which sends waste to Hanford. Although there is some waste generated in-state that would be subject to the import moratorium, there is no question that nearly all of the offsite waste which DOE intends to send to Hanford for disposal, and which is therefore subject to the import moratorium, will originate from locations outside the State of Washington.
Passage of the CPA in November 2004 followed on the heels of DOE’s January 2004 Final Hanford Site Solid (Radioactive and Hazardous) Waste Environmental Impact Statement (HSW EIS) announcing DOE’s decision to ship LLW (Low Level Waste) and MLLW (Mixed Low Level Waste) to Hanford for disposal, including a possible Upper Bound waste volume of 140,435 cubic meters of MLLW from off-site locations outside the State of Washington. The total Upper Bound Volume of MLLW is 198,852 cubic meters, with the remainder originating from in-state sources, including 58,414 cubic meters generated from the Hanford Site (including the Pacific Northwest National Laboratory (PNNL)), and 3 cubic meters generated from PSNS (not including sealed reactor vessels and compartments which are exempt from the import moratorium). (Ex. 6 to U.S. Reply Br., Ct. Rec. 210). Waste generated from the Hanford cleanup is not subject to the import moratorium.
The HSW EIS followed DOE’s 1997 “Final Waste Management Programmatic Environmental Impact” (WM PEIS) for managing treatment, storage, and disposal of radioactive and hazardous waste at DOE installations throughout the United States. In addition to proposing Hanford as a regional disposal site for LLW and MLLW, the WM PEIS contemplates that HLW (High Level Waste), including HLW from Hanford, will be transported to Nevada (Yucca Mountain) for disposal, and TRU (transuranic waste), including TRU from Hanford, either generated there or generated elsewhere and temporarily stored there, will be sent to New Mexico for disposal at the Waste Isolation Pilot Plant (WIPP). The State mounted a National Environmental Policy Act (NEPA) challenge to the HSW EIS which resulted in this court preliminarily enjoining shipments of LLW and MLLW to Hanford. Subsequently, the State and DOE reached a settlement agreement in CV-03-5018AAM which calls for the preparation of a new environmental impact statement with new Records of Decision (RODs) to be issued pursuant thereto. In the meantime, shipments of LLW and MLLW to Hanford have been suspended.
In 1980, Washington voters passed Initiative 383 which prohibited transportation and storage within Washington of radioactive waste produced outside the state. In Washington State Building And Construction Trades Council, AFL-CIO v. Spell-man, 518 F.Supp. 928 (E.D.Wash.1981), this court found 1-383 violated both the Supremacy Clause and the Commerce Clause. The Ninth Circuit Court of Appeals affirmed that decision on appeal, 684 F.2d 627 (9th Cir.1982). It is true, as defendants concede, that 1-383 was a “blunt” instrument to close Washington’s borders to low-level radioactive waste. I-383 did not ban the transportation for storage or the storage of waste generated in Washington, and did not ban the transportation of radioactive material through Washington for use or storage elsewhere. 1-383 overtly blocked the flow of interstate commerce at Washington’s borders and on its face, discriminated against interstate commerce on the basis of origin. 518 F.Supp. at 934. While the CPA does not overtly block the flow of interstate commerce at Washington’s borders, nor facially discriminate against interstate commerce on the basis of origin, it serves that purpose and has that effect. Like 1-383, the CPA effectively closes Washington’s border to low-level radioactive waste, albeit in a more subtle manner and by a different mechanism, that being purported RCRA/HWMA authority regarding mixed waste.
The plain, unambiguous language of the CPA, considered in conjunction with the historical background recited above, establishes the CPA has a discriminatory purpose. Because Section 4(2) is discriminatory in purpose, it follows that it is discriminatory in effect, the effect being that Washington, by not accepting out-of-state waste at Hanford until the cleanup of existing contamination there is complete, benefits itself while burdening “unrepresented” out-of-state interests. The burden falls disproportionately on out-of-state entities because nearly all of the mixed waste DOE plans to send to Hanford under its national program is generated from these out-of-state entities. Southr-Central Timber Dev. Inc. v. Wunnicke, 467 U.S. 82, 92,104 S.Ct. 2237, 81 L.Ed.2d 71 (1984) (dormant Commerce Clause restrictions apply where state laws impose a burden “principally upon those without the state”). And while the CPA allows Washington to refuse this waste, Washington, at least hypothetically, still gets to ship its HLW and TRU out-of-state.
The State asserts the CPA is not discriminatory in effect because Section 4 is modeled on CERCLA’s prohibition of shipment of CERCLA wastes to non-compliant TSD facilities. 42 U.S.C. § 9621(d)(3). CERCLA, however, is a federal law and the Congress has power to regulate interstate commerce. The CPA is a state law subject to Commerce Clause restrictions. CERCLA is not subject to those restrictions. While Congress can authorize State regulation of interstate commerce in certain circumstances, there is nothing in 42 U.S.C. § 9621(d) which “unmistakably” and “clearly” authorizes anything like CPA Section 4(2). Maine v. Taylor, 477 U.S. 131, 139, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986) (“[T]his Court has exempted state statutes from the implied limitations of the [Commerce] Clause only when the congressional direction to do so has been ‘unmistakably clear’ ”). Indeed, other than pointing out the fact that § 9621(d)(3) exists, the State does not cite to any federal law “unmistakably” and “clearly” authorizing anything akin to Section 4(2) of the CPA. Furthermore, the EPA, in consultation with the State, has already determined under CERCLA that relevant units at Hanford may receive waste from other sites (including out-of-state sites). (See Ex. 7 attached to reply brief of United States, Ct. Ree. 210).
The effect of a challenged state statute is evaluated “not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of the other States and what effect would arise if not one, but many or every [state] adopted similar legislation.” Healy v. Beer Institute, 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989). The State of Washington says that if other states pass laws similar to the CPA, it would mean only that other states have elected to use their regulatory authority over mixed waste and cleanup to embody cleanup policy contained in CERCLA’s offsite prohibition. The CPA, however, goes much further than CERCLA in the scope of its offsite prohibition. If other states start passing legisla