Application of the Resource Conservation and Recovery Act

to the Department of Energy’s Atomic Energy Act Facilities

The nuclear production and weapons facilities that are operated by the Department of Energy 

(DOE) pursuant to the Atomic Energy Act (AEA) are generally subject to the requirements of 

the Resource Conservation and Recovery Act (RCRA) governing the disposal of solid wastes, 

including applicable standards, regulations, permit requirements, and enforcement mechanisms. 42 U.S.C. §6961.

Particular RCRA regulations or requirements may not apply to DOE facilities when the application o f such regulation or requirement would be inconsistent with specific requirements of the 

AEA that flow directly from DOE’s statutory mandate to develop and use atomic energy. 42 

U.S.C. § 6905(a).

W hether a particular RCRA regulation or requirement is inconsistent with the requirements of 

the AEA must be analyzed by DOE and the Environmental Protection Agency on a case-bycase basis. However, § 1006(a) o f RCRA, 42 U.S.C. § 6905(a), should relieve DOE from 

compliance with RCRA regulations or requirements (1) if they conflict with prescriptive 

directives contained in the AEA itself, such as the AEA restrictions on public disclosure of 

restricted data; (2) if compliance would prevent DOE from carrying out authorized AEA 

activities; or (3) if compliance would be inconsistent with specific operational needs of a 

facility that are unique to the production of nuclear material or components. In addition, a 

state may not exercise veto power over the establishment or operation of a DOE facility, either 

by denying necessary permits, or by seeking injunctive relief, because of noncompliance with 

a RCRA regulation that is inconsistent with the AEA.

February 9, 1984

M e m o r a n d u m O p in io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l ,

L a n d a n d N a t u r a l R e s o u r c e s D i v is io n

This responds to your request for our analysis regarding whether, or to what 

extent, the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et

seq. (RCRA) applies to chemical wastes generated by nuclear production and 

weapons facilities owned by the Department of Energy (DOE) and operated 

under authority provided by the Atomic Energy Act of 1954, as amended, 42 

U.S.C. §§ 2011 et seq. (AEA). The context for your request is a difference of 

opinion between DOE and the Environmental Protection Agency (EPA) over 

whether waste treatment and disposal facilities and methods used at DOE’s 

Atomic Energy Act plants are subject to RCRA standards, permit requirements, and enforcement mechanisms. DOE has taken the position that § 1006(a) 

of RCRA, 42 U.S.C. § 6905(a), which provides that RCRA does not apply to 

“activit[ies] . . . subject to ... the Atomic Energy Act of 1954 . . . except to the

6
extent such application (or regulation) is not inconsistent with the requirements 

of such Act[],” exempts its AEA facilities from all RCRA regulation. EPA 

contends that DOE’s AEA facilities are subject to RCRA, as are all other 

federal facilities, but that specific RCRA regulations may not apply to some 

aspects of DOE’s operations, if application of those regulations would be 

inconsistent with particular requirements flowing directly from the language or 

purpose of the AEA.1

We have received submissions from DOE and EPA on the applicability of 

RCRA, including copies of previous correspondence between those agencies 

on the issue. Based on our review of those materials, discussions with your 

Division and personnel at DOE and EPA, and our own research, we have 

concluded that EPA’s interpretation of § 1006(a) represents the sounder view 

of the law. For the reasons set forth below, we conclude that DOE’s Atomic 

Energy Act facilities are generally subject to the requirements of RCRA, 

including compliance with applicable standards, regulations, and permitting 

requirements, and are generally subject to the enforcement mechanisms established by RCRA. Section 1006(a) leaves open the possibility, however, that 

particular RCRA regulations or requirements are not applicable to DOE’s 

facilities, or to a particular facility, because such regulations or requirements 

would be “inconsistent with the requirements of [the AEA].” We do not 

interpret “requirements of [the AEA],” as used in § 1006(a), as broadly as DOE 

urges, i.e., to encompass all DOE regulations, orders, and directives that apply 

to, or may affect, health and safety aspects of its Atomic Energy Act facilities. 

Rather, in order to give reasonable content to § 1006(a), we must interpret the 

term “requirements” more narrowly, as EPA urges, in light of the somewhat 

different purposes of the AEA and RCRA.

Thus, we believe that § 1006(a) would relieve DOE from compliance with 

RCRA only in particular circumstances where DOE can demonstrate that 

application of a regulation or requirement would be inconsistent with specific 

requirements of the AEA that flow directly from DOE’s statutory mandate to 

develop and use atomic energy. Although it is difficult in the absence of 

particular facts to give precise content to the term “requirements,” we believe 

DOE could demonstrate that particular aspects of RCRA should not apply to 

operation of its facilities (or particular facilities), for example: if the RCRA 

regulation would conflict with prescriptive directives contained in the AEA 

itself, including principally the restrictions on public disclosure of “restricted 

data;”2 if compliance would prevent DOE from carrying out authorized Atomic 

Energy Act activities; or if compliance with a particular regulation or require1 DOE’s position has been challenged in recently filed litigation involving DOE’s Y-12 Plant in Oak Ridge, 

Tennessee, at which nuclear weapons components are fabncated and assembled. Legal Envt'l Assistance

Found, v. Hodel, C.A. No. 3-83-52 (E.D. Tenn filed Sept. 20,1983). In addition, we understand that DOE is 

currently negotiating with officials in South Carolina with respect to regulation o f waste handling at Atomic 

Energy Act facilities in that state, and that those officials have taken the position that operation of those 

facilities should be conditioned on receipt of state waste handling permits under the RCRA scheme.

2 See 42 U.S.C. §§ 2161-2168.

7
ment would be inconsistent with specific operational needs of a facility that are 

unique to the production of nuclear material or components.

Obviously, this interpretation does not provide an exact or necessarily comprehensive standard. We attempt below to provide as much guidance as possible to you and to EPA for implementation of our conclusions. In the abstract, 

however, we cannot determine which particular aspects of RCRA, or particular 

regulations, would be “inconsistent with the requirements of [the AEA].” That 

determination must be made by your agency and EPA based on an analysis, 

from both a general and a facility specific perspective, of how implementation 

of RCRA will affect the operation of DOE’s Atomic Energy Act facilities.

I. Background

RCRA, passed in 1976, established a broad regulatory scheme governing the 

generation, transportation, storage, and disposal of solid wastes. Under that 

Act, the practice of “open dumping” is prohibited, see 42 U.S.C. § 6945, and 

the states are encouraged by federal financial and technical assistance to 

prepare and submit to EPA for approval overall plans for regulation of solid 

waste. See id. §§ 6931, 6948. The treatment, storage, and disposal of solid 

wastes considered by EPA to be “hazardous wastes”3 are subject to a permit 

requirement, see id. § 6925. and generators, transporters, and owners or operators of facilities for the treatment, storage, and disposal of solid wastes must 

meet such minimum standards promulgated by EPA “as may be necessary to 

protect human health and environment.” See id. §§ 6922,6923,6924. As under 

the regulatory schemes established by the Clean Air Act, 42 U.S.C. §§ 7401 et

seq., and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.

(FWPCA), RCRA authorizes the states to administer the regulatory scheme, 

including issuance of permits and enforcement of sanctions for violations, if 

the Administrator of EPA finds that a state’s regulatory scheme is “equivalent” 

to the federal scheme.4 No state may impose any requirements for the management of hazardous wastes that are less stringent than the standards promulgated 

by EPA, but states are expressly authorized to impose requirements that are 

more stringent than federal standards. See 42 U.S.C. § 6929. RCRA also 

provides for private “citizens suits” against persons, including the United 

States, for violation of any permit, standard, regulation, condition, requirement, or order that has become effective pursuant to RCRA. See id. § 6972.

3 “Hazardous waste” is defined by RCRA to mean “a solid waste, or combination of solid wastes, which 

because of its quantity, concentration, or physical, chem ical, or infectious characteristics may —

(A) cause, or significantly contribute to an increase in m ortality 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 

im properly treated, stored, transported, or disposed of, or otherwise managed.”

42 U.S.C. § 6903(5). EPA is responsible for identifying the characteristics o f hazardous wastes and listing 

particular hazardous w astes that are subject to the hazardous waste management provisions of RCRA. Id.

§ 6921.

4 Compare 42 U.S.C. § 6926 (RCRA) with 42 U.S.C. § 7410 (Clean Air Act) and 33 U.S.C. § 1342 

(FW PCA)

8
The question before us is whether the regulatory scheme imposed by RCRA, 

including both federal and state regulation of hazardous wastes, applies to 

chemical wastes produced by DOE’s production and weapons facilities operated pursuant to authority provided in the AEA.5 These facilities, which are 

generally owned by DOE and operated by private contractors, produce special 

nuclear material and components used in research, development, testing, and 

production of nuclear weapons.6 Operation of the facilities generates various 

waste streams, including chemical wastes that are considered to be “hazardous 

wastes” under EPA criteria and regulations. These wastes are generated by a 

variety of industrial processes, including metal working, electroplating, chemical extraction, machining, fabrication, and assembly and cleaning of solvent 

parts.

Our analysis here turns on the two sections of RCRA that deal with regulation of federal facilities and activities: § 6001,42 U.S.C. § 6961, which explicitly subjects all federal facilities and activities to state and federal regulation 

under RCRA; and § 1006(a), 42 U.S.C § 6905(a), which precludes regulation 

under RCRA of any “activity or substance” subject, inter alia, to the AEA 

“except to the extent such application [of RCRA] (or regulation) is not inconsistent with the requirements of such Acts.” Section 6001 provides in pertinent part:

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any solid waste management

5 The questioo we address here is applicability o f RCRA to nonnuclear wastes generated by DO E’s 

facilities. The only materials that can be regulated under RCRA are “solid wastes” and “hazardous wastes” 

(which are a subset o f “solid wastes”). Section 1004(27) of RCRA, 42 U.S.C. § 6903(27), expressly exempts 

from the definition o f “solid waste”: “source, special nuclear, or byproduct m aterial as defined by the Atomic 

Energy Act of 19S4, as amended.” Thus, RCRA leaves undisturbed DOE’s authority to regulate the disposal 

of source, special nuclear, and byproduct wastes, which we understand are for the most part handled 

separately from nonnuclear wastes. DOE has not indicated that its waste streams include other nuclear 

material that does not fall within the categories of source, special nuclear, and byproduct wastes.

6 DOE, as successor to the Atomic Energy Commission’s research and development responsibilities, see 42 

U.S.C. §§ 5814(c), 5817 (1976) (transfer of functions to Energy Research and Development Administration); 

42 U.S.C. § 7151 (Supp. V 1981) (transfer of functions from Energy Research and Development Administration to DOE), is authorized by § 31(a) of the AEA, 42 U.S.C. § 2051(a), to make arrangements for the 

conduct o f research and development activities relating to

(1) nuclear processes;

(2) the theory and production of atomic energy, including processes, materials, and devices 

related to such production;

(3) utilization of special nuclear material and radioactive material for medical, biological, 

agricultural, health, or military purposes;

(4) utilization of special nuclear material, atomic energy, and radioactive material and processes entailed in the utilization or production of atomic energy or such material for all other 

purposes, including industrial or commercial uses, the generation o f usable energy, and the 

demonstration o f advances in the commercial or industrial application of atomic energy;

(5) the protection of health and the promotion of safety during research and production 

activities; and

(6) the preservation and enhancement of a viable environment by developing more efficient 

methods to meet the Nation’s energy needs.

Id. DOE is further authorized to “produce or to provide for production of special nuclear material in its own 

production facilities,” id. § 2061(b), to perform research and development work in the military application of 

atomic energy, id. § 2121(a), and to engage in the production of atomic weapons, id.

9
facility or disposal site, or (2) engaged in any activity resulting, 

or which may result, in the disposal of solid waste or hazardous 

waste shall be subject to, and comply with, all Federal, State, 

interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any 

provisions for injunctive relief and such sanctions as may be 

imposed by a court to enforce such relief), respecting control 

and abatement of solid waste or hazardous waste disposal in the 

same manner, and to the same extent, as any person is subject to 

such requirements, including the payment of reasonable service 

charges. Neither the United States, nor any agent, employee, or 

officer thereof, shall be immune or exempt from any process or 

sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief.

This section further provides that the President may exempt any “solid waste 

management facility”7 of any Executive Branch department, agency, or instrumentality from compliance with RCRA requirements “if he determines it to be 

in the paramount interest of the United States to do so.” Id. Section 6001 was 

modeled on parallel provisions in the Clean Air Act and the FWPCA, both of 

which subject federal facilities to the regulatory schemes imposed by those 

Acts and provide for Presidential exemptions.8

If § 6001 were the only provision dealing with the applicability of RCRA to 

federal facilities or activities, our analysis would end here. The operation of 

DOE’s Atomic Energy Act facilities is plainly an “activity resulting . . . in the 

disposal of hazardous wastes,” and therefore within the explicit waiver of 

sovereign immunity for federal facilities provided by §6001.9 Indeed, we 

understand that DOE does not contest the applicability to those facilities of the 

FWPCA.10 Specific problems that have arisen because of the application of the 

FWPCA to DOE’s Atomic Energy Act facilities have been dealt with through 

negotiations between EPA and DOE, resulting in most cases in agreements that 

govern DOE’s compliance with the FWPCA.

7 RCRA’s definition o f this term includes systems for collection, separation, recycling, and recovery of 

solid wastes, system s for resource conservation, and facilities for the treatm ent of solid wastes. See 42 U.S.C. 

§ 6903(29).

8 See 42 U.S.C. § 7418 (Clean Air Act); 33 U.S.C. § 1323 (FWPCA), discussed m S. Rep. No. 988, 94th 

C ong., 2d Sess. 24(1976).

9 Given the broad definition o f “solid w aste management facility," DOE’s Atomic Energy Act facilities 

would in m ost cases also be considered “solid waste management facilities;” if wastes were disposed on site, 

DOE would be considered to have jurisdiction over “disposal sites.” Therefore those facilities would 

probably also fall w ithin the first category o f federal facilities described in § 6001.

10 The FW PCA does not include a provision comparable to § 1006(a) of RCRA making the FWPCA 

subordinate, at least in som e circumstances, to the AEA or other statutes. Rather, the effect o f § 511 (a) o f the 

FW PCA, 33 U.S.C. § 1371 (a), is to make the FW PCA prevail in the event o f inconsistencies between that Act 

and other laws or regulations. Section 511(a) provides, in pertinent part, that “ [tjhis chapter [FWPCA] shall 

not be construed as . . . lim iting the authority o r functions of any officer or agency of the United States under 

any law or regulation not inconsistent with this chapter.”

B ecause the C lean Air Act is not generally enforced through a permit system, DOE has not had relevant 

experience with potential inconsistencies betw een the AEA and that Act.

10
However, unlike the FWPCA, RCRA explicitly addresses, in § 1006(a), its 

relationship to certain other statutes, including the AEA. Section 1006(a) 

provides in full text that:

Nothing in this chapter shall be construed to apply to (or to

authorize any State, interstate, or local authority to regulate)

any activity or substance which is subject to the Federal Water 

Pollution Control Act [33 U.S.C. §§ 1251 et seq.], the Safe 

Drinking Water Act [42 U.S.C. §§ 300f et seq.], the Marine 

Protection, Research and Sanctuaries Act of 1972 [33 U.S.C.

§§ 1401 et seq.], or the Atomic Energy Act o f 1954 [42 U.S.C.

§§ 2011 et seq.] except to the extent that such application (or

regulation) is not inconsistent with the requirements o f such

Acts.

42 U.S.C. § 6905(a) (emphasis added).

If operation of DOE’s Atomic Energy Act facilities is an “activity ... subject 

to . . . the Atomic Energy Act” within the meaning of this section, which we 

believe it is,11 § 1006(a) by its terms would preclude application of RCRA 

regulations or requirements “except to the extent. . . not inconsistent with the 

requirements of [the AEA].” The crux of the question before us is the meaning 

of that proviso in § 1006(a).

DOE contends that this proviso proscribes any application of RCRA regulations and requirements to its Atomic Energy Act facilities, and therefore also 

proscribes any regulatory authority by EPA or the states over those facilities. 

The comparison required by the language of the proviso and its context within 

§ 1006(a), according to DOE, is between overlapping regulatory schemes, not 

between individual regulations or requirements imposed by those schemes. 

DOE argues that § 1006(a) is intended to make it clear that RCRA’s regulatory 

scheme would be subordinate to those of other enumerated statutes so as to 

avoid subjecting the same activity or substance to varying sources of regulation 

having the potential for conflict. DOE asserts that comparison of the regulatory schemes established by the AEA and RCRA reveals three major inconsistencies in the treatment of federal facilities under those Acts:

(1) the AEA does not provide for any state role in permitting 

of federal facilities, while RCRA provides for state permitting 

programs and enforcement, and allows state requirements to be 

more stringent than those imposed by federal regulation;

11 It could be argued that the term “activity" as used in § 1006(a) is intended only to include the activity o f 

handling or treating solid wastes, which arguably is not “subject to” the AEA. However, we construe 

“activity” in § 1006(a) consistently with the use o f the same term in § 6001, which provides that any federal 

“activity resulting . . . in the disposal o f solid waste or hazardous waste” is subject to RCRA. (Emphasis 

added.) As we note above, we believe that term clearly includes the operation of DOE’s Atomic Energy A ct 

facilities.

11
(2) the AEA places authority in DOE to determine appropriate standards for waste handling for public health and safety, 

while RCRA places that authority in EPA and the states;12

(3) the AEA restricts access to and dissemination of restricted 

data pertinent to the design or construction of nuclear weapons 

and production and use of special nuclear material, while RCRA 

requires that EPA and state officials have access to information 

on the generation and handling of hazardous wastes and to waste 

sites, and generally provides for public availability of information.

DOE contends that the cumulative effect of these inconsistencies is to exempt 

from RCRA’s scheme of regulation the operation of DOE’s Atomic Energy 

Act facilities.

EPA accepts the premise that national security and other considerations may 

require some adjustments in the application of hazardous waste regulations to 

DOE’s Atomic Energy Act facilities and agrees with DOE’s assertion that 

continued operation of certain facilities cannot be dependent on permission 

granted by state officials. EPA disagrees, however, with DOE’s argument that 

the effect of the “except to the extent. . . not inconsistent” proviso in § 1006(a) 

is to exempt entirely DOE’s Atomic Energy Act facilities from RCRA. Rather, 

EPA interprets that proviso to require a case-by-case comparison of RCRA 

regulations with specific requirements of the AEA. In that regard, EPA argues 

that regulations or directives governing hazardous waste treatment and disposal that DOE issues under the authority of § 161 (i)(3) would not generally be 

“requirements o f’ the AEA, but rather should, for the most part, be considered 

as incidental to DOE’s statutory mandate to promote the development, use, and 

control of atomic energy.13 EPA interprets “requirements,” as used in § 1006(a), 

to mean prescriptive directives contained in the statute itself, such as the 

AEA’s provisions governing restricted data, or particular regulations and orders shown to be necessary to implement DOE’s particular statutory mandate.

12 DOE cites § 161(i)(3) o f the AEA, 42 U.S.C. § 2201 (i)(3), as the basis for its authority to prescribe 

regulations and directives governing the treatm ent and disposal of solid wastes at its facilities. That section, 

enacted as part o f several general powers granted to the Atomic Energy Commission under the AEA, grants

DOE authority to:

prescribe such regulations or orders as it may deem necessary . . . (3) to govern any activity 

authorized pursuant to this chapter, including standards and restrictions governing the design, 

location, and operation o f facilities used in the conduct o f such activity, in order to protect health 

and to m inim ize danger to life or property.

Pursuant to this authority DOE has issued an internal order governing chem ical waste disposal practices at its

Atom ic Energy A ct facilities. DOE O rd er 5480.2 (Dec. 13, 1982). The hazardous waste management 

procedures established by that order follow , “to the extent practicable," regulations issued by EPA under

RCRA, but the order states that facilities administered under the authority of the AEA are not bound by

RCRA requirements.

19 EPA points out that the primary concern o f Congress w hen it passed the AEA in 1954 was to develop a 

schem e for the prom otion o f atomic energy and protection o f the public from radioactive hazards. The general 

grant o f authority to regulate health and safety aspects o f atomic energy facilities should be interpreted in 

light o f the legislative history o f the AEA, which EPA asserts does not suggest that DOE is authorized, much 

less required, to establish a regime for th e control of non-radioactive wastes.

12
EPA recognizes that some specific applications of hazardous waste regulations 

would probably have to yield to regulation by DOE, but believes this conclusion cannot be made on a general, abstract basis, but only with reference to 

specific AEA activities, and specific aspects of hazardous waste regulation. 

That review, EPA asserts, should be sufficient to protect DOE’s particular 

concerns about protection of restricted data and the effect of state regulation 

and permit requirements.

II. Analysis

Neither the language nor the legislative history of § 1006(a) necessarily 

provides a dispositive answer to the question before us. However, reading the 

language of that provision in light of the structure and purpose of both RCRA 

and the AEA, we conclude that Congress did not intend that section to provide 

a categorical exemption from RCRA for DOE’s Atomic Energy Act facilities. 

Rather, that section is most reasonably read to establish a priority among those 

statutes in cases in which a particular conflict exists between RCRA and 

accomplishment by DOE of the congressionally mandated purposes of the 

AEA.

We start with the language of § 1006(a). Although that language might be 

said to be somewhat ambiguous, the inclusion of the “except to the extent. . . 

not inconsistent” proviso suggests that Congress contemplated that some aspects of RCRA would apply to activities and substances subject to the enumerated statutes.14 DOE interprets that proviso, however, to apply only to privately 

owned nuclear power facilities licensed by the Nuclear Regulatory Commission (NRC) under the AEA. DOE argues that, absent that proviso, the exemption from RCRA for all “activities]... subject to [the AEA]” would encompass the 

operation of such private nuclear power facilities, and thereby exempt those 

facilities from state or federal regulation under RCRA — a result DOE argues 

was clearly not intended by Congress. Thus, DOE contends that inclusion of 

the proviso was necessary to preserve EPA’s jurisdiction under RCRA over the 

disposal of nonnuclear chemical wastes by privately owned nuclear power 

facilities, but Congress did not also intend to provide for implementation and 

enforcement of RCRA with respect to federal activities “subject to the [AEA].”

14 This reading is logically intended with respect to the three statutes listed in that section in addition to the 

AEA: the FW PCA, the Safe Drinking W ater Act, and the Marine Protection, Research and Sanctuaries Act of 

1972. Those statutes each regulate some aspect of the dumping of materials, including waste products, into 

bodies of w ater — an area also subject to regulation under RCRA and therefore potentially involving 

overlapping and inconsistent regulations. It is most logical to read the “except to the extent . . . not 

inconsistent” proviso to mean, with respect to those statutes, that in the event o f an actual inconsistency 

between the regulations and obligations required by those statutes and by RCRA, the requirements o f the 

enumerated statutes prevail. This reading is also suggested by § 1006(b), 42 U.S.C. § 6905(b), which directs 

the Adm inistrator of EPA to “integrate all provisions of RCRA for purposes o f administration and enforcement and to avoid duplication, to the maximum extent practicable, with the appropriate provisions o f ’ several 

statutes administered by the EPA, including the FW PCA, the Safe Drinking W ater Act, and the Marine 

Protection, Research and Sanctuaries Act o f 1972. This section indicates clearly that Congress contemplated 

that RCRA would apply in some respects to activities and substances subject to those three acts.

13
DOE’s argument would require us to draw a distinction, for the purpose of 

§ 1006(a), between activities of federal agencies “subject to” the AEA and 

activities of private individuals “subject to” the AEA. However, the language 

of § 1006(a) does not make any such distinction, and no such distinction is 

suggested in the legislative history of that section. Indeed, DOE’s argument 

could render the proviso completely superfluous, because nothing in the language or legislative history of RCRA would prevent the NRC from making 

virtually the same argument that DOE makes for categorical exemption from 

RCRA.15 Thus, although DOE’s interpretation is not entirely implausible, we 

are not persuaded that it is the correct one, at least in the absence of relevant 

and clear supporting legislative history.

Unfortunately, the legislative history of RCRA is silent with respect to 

exactly what Congress did intend § 1006(a) to mean. The language that became 

§ 1006(a) was originally included in the House bill, without explanation. See

H.R. Rep. No. 1491, 94th Cong., 2d Sess. 53 (1976) (House Report). The 

House bill did not include a waiver of sovereign immunity for federal facilities 

comparable to § 6001, but rather included a provision that would have subjected federal agencies to a separate scheme of regulation administered by 

EPA. See House Report at 24—25,45. The Senate bill, by contrast, adopted the 

approach used in the FWPCA and the Clean Air Act with respect to federal 

facilities. Section 4 of the Senate bill added to the existing Solid Waste 

Disposal Act a new section that would require “[a]ll federal agencies . . . to 

comply with State and local controls on solid waste and hazardous waste 

disposal as if they were private citizens. This includes compliance with all 

substantive and procedural requirements, and specifically any requirements to 

obtain permits.” S. Rep. No. 988, 94th Cong., 2d Sess. 24 (1976) (Senate 

Report). The Senate bill also included a definition of hazardous waste, not in 

the House bill, that specifically exempted “source, special nuclear, and byproduct 

materials,” and materials subject to permits under § 402 of FWPCA. See

Senate Report at 25, 26. The Senate Report notes, with respect to that definition, that “[r]adioactive material is included in the definition of hazardous 

waste, except to the extent actually regulated under the [AEA].” Id. at 26.

Differences between the House and Senate bills were reconciled without a 

formal conference, and therefore no conference report or statement of managers exists to explain the compromise reached. This compromise substituted the 

Senate provision that subjected federal facilities to regulation under RCRA, 

including state regulation, and a definition of solid waste that included the 

Senate’s language excluding source, special nuclear, and byproduct materials.

13 The NRC, as successor to the licensing functions o f the Atomic Energy Commission, see 42 U.S.C. 

§ 5841(0, is generally subject to the sam e restrictions, and has many o f the same general powers, as DOE, 

under the term s o f the AEA. For example, the NRC and its licensees are fully subject to the “restricted data” 

provisions o f the AEA. Moreover, the N R C could conceivably argue that § 161 (t)(3) gives it authority to 

im pose license conditions on private nuclear plants to address hazardous waste disposal problems, and that 

those conditions are “requirements of* th e AEA that would be inconsistent with RCRA, much as DOE has 

argued. Although we think it highly unlikely that the NRC would make that argument, it would considerably 

undercut the interpretation o f § 1006(a) urged by DOE.

14
The compromise also included the House’s language, which became § 1006(a), 

with respect to the effect of the AEA and other enumerated statutes. The 

debates on the conference bill do not discuss the for inclusion of that provision, 

or its intended effect. See, e.g., 122 Cong. Rec. 33817 (Sept. 30, 1976) (remarks of Sen. Randolph); id. at 32599 (Sept. 27, 1976) (remarks of Rep. 

Skubitz).

Although he legislative history does not provide specific guidance on the 

intended effect of § 1006(a), it contains no indication Congress contemplated 

that some activities of federal agencies would be wholly exempt from federal 

and state regulation under RCRA. To the contrary, the language used by both 

the House and Senate consistently is that “all federal agencies” would be 

subject to regulation of their solid waste disposal practices, either under the 

separate regulatory scheme set up by the House bill, or under the waiver of 

sovereign immunity in the Senate bill. See, e.g., House Report at 5, 48-49; 

Senate Report at 23.

Moreover, the legislative history of RCRA contains some indication that 

Congress intended that the solid waste disposal practices of federal agencies be 

treated comparably to disposal of pollutants under the FWPCA and the Clean 

Air Act. See, e.g., Senate Report at 24 (noting that § 223 “parallels section 118 

of the Clean Air Act and section 313 of the Federal Water Pollution Control 

Act”); House Report at 45-47 (discussion of Administrative Conference’s 

recommendations). We must assume that Congress was fully aware of the 

scope of those Acts. We note that the Supreme Court’s decision in Train v. 

Colorado Public Interest Research Group, Inc., 426 U.S. 1 (1976), was issued 

on June 1, 1976, shortly before completion of the Committee reports on the 

House and Senate bills, and well before adoption of the conference bill in 

September 1976. That case presented the issue of EPA’s jurisdiction under the 

FWPCA to regulate the discharge of source, byproduct, and special nuclear 

material into the environment. Respondents included a private nuclear power 

generating station licensed by the Atomic Energy Commission, and federal 

facility operated for the Energy Research and Development Administration 

(the immediate predecessor to DOE’s authority) to fabricate plutonium into 

nuclear weapons parts. See 426 U.S. at 4, 5 & n.5. In concluding that the 

FWPCA did not authorize EPA to regulate discharges of source, byproduct, 

and special nuclear materials, the Court placed great weight on the legislative 

history of the FWPCA indicating that Congress understood the AEA’s exclusive jurisdiction to extend only to regulation of those radioactive materials. See

426 U.S. at 17 & n. 14,21-23. If Congress believed that the Court had misinterpreted the scope of the AEA, or that a different result should obtain with 

respect to solid waste disposal practices of federal agencies, it could have 

addressed the issue in the legislative history of RCRA.16

16 In RCRA, Congress did set up a scheme slightly different from that o f the FWPCA in one respect. As 

noted above, in the event o f an inconsistency the FWPCA by its terms prevails over other federal statutes and 

regulations. By contrast, § 1006(a) of RCRA provides that RCRA will yield to the AEA in the event o f an

Continued

15
In addition, Congress provided in § 6001 for categorical exemptions from 

federal and state regulation, if the President determines that such exemption 

would be “in the paramount interest of the United States.” 42 U.S.C. § 6961. 

The inclusion of such authority suggests that Congress intended categorical 

exemptions from RCRA, such as that urged by DOE, to be obtained through a 

Presidential waiver, rather than through application of § 1006(a).17

Nonetheless, while we cannot construe the language of § 1006(a) to exempt 

all of DOE’s activities under the AEA from RCRA regulation, that section 

must be interpreted to exempt some aspects of “activities] . . . subject to” the 

AEA from regulation under RCRA, i.e., if application of RCRA would be 

inconsistent with particular “requirements” of the AEA. The scope of the term 

“requirements,” as used in § 1006(a), is not illuminated by the language or 

legislative history of RCRA. The commonly understood meaning of the term 

implies some prescriptive content, i.e., specific directives that require an agency 

or a person to take or refrain from taking certain actions, to follow certain 

procedures, or to meet certain standards and regulations. See generally M ississippi R iver Fuel Corp. v. Slayton, 359 F.2d 106, 119 (8th Cir. 1966). For the 

most part, the AEA does not impose specific prescriptive requirements in that 

sense, at least with respect to aspects of activities that might overlap with, or be 

inconsistent with, regulations, standards, and procedures established pursuant 

to RCRA. Rather, insofar as we consider it here, the AEA generally provides 

underlying authority for certain types of activities intended to carry out the 

purposes of the Act.18 Those purposes focus specifically on the development 

and use of atomic power for military and civilian applications:

It is . . . declared to be the policy of the United States that —

(a) the development, use and control of atomic energy shall be 

directed so as to make the maximum contribution to the general 

welfare, subject at all times to the paramount objective of making the maximum contribution to the common defense and 

security; and

(b) the development, use, and control of atomic energy shall 

be directed so as to promote world peace, improve the general

16 ( .. . continued)

inconsistency. W e do not believe that distinction is material to our analysis here. Those provisions do reflect 

som ew hat different congressional priorities for the two statutes when an inconsistency exists; the difference, 

how ever, does not lend any particular support to DOE’s central legal argument that the relevant comparison 

under § 1006(a), for the purpose of determ ining when an inconsistency exists, is between entire regulatory 

schem es, rather than between particular applications o f those schemes.

17 W e note that § 1006(c) of RCRA, 42 U.S.C. § 6905(c), w hich was added m 1980 by Pub. L. No. 96-^82, 

94 Stat. 2334, specifically vests in the Secretary of the Interior the exclusive responsibility for implementing 

hazardous w aste regulations with respect to coal mining wastes. Although this section w as added to RCRA by 

a later-enacted statute, and therefore is o f lim ited value in determ ining the legislative intent of the drafters of 

§ 1006(a), it dem onstrates that when Congress intends to carve out a categorical exemption from RCRA for 

certain types o f activities, it can do so in c le ar and explicit terms.

l i See S. Rep. No. 1699, 83rd Cong , 2d Sess. 14-15,19, 26(1954).

16
welfare, increase the standard of living, and strengthen free 

competition in private enterprise.

42 U.S.C. §2011.

One exception to this general lack of prescriptive “requirements” in the AEA 

is afforded by those provisions of the AEA that establish standards and procedures for identification and handling of “restricted data,” which is defined to 

include “all data concerning (1) design, manufacture, or utilization of atomic 

weapons; (2) the production of special nuclear material; or (3) the use of 

special nuclear material in the production of energy.” 42 U.S.C. § 2014(y). 

Subchapter II of the AEA requires that such data be handled pursuant to 

detailed provisions governing its protection and disclosure. 42 U.S.C. §§ 2161— 

2168.19 We believe that these provisions fall within the commonly understood 

meaning of the term “requirements,” and therefore that particular RCRA 

provisions or regulations governing access to information concerning the disposal of hazardous wastes or access to wastes sites must yield if they are 

inconsistent with particular requirements imposed by the AEA with respect to 

the handling of restricted data.20

We also believe that § 1006(a) would preclude a state from exercising veto 

power over the establishment or operation of a DOE facility, either by denying 

the necessary permits or by seeking an injunction in court against continued 

operation of the facility because of noncompliance with RCRA. Clearly, a state 

could not refuse to issue a RCRA permit, or request injunctive relief, based on 

DOE’s noncompliance with an aspect of state or federal RCRA regulation that

19 Pursuant to these provisions, access to restricted data is limited to individuals who have undergone 

background investigations, and is contingent on a determination that permitting such persons to have access 

will not endanger the common defense and safety. 42 U.S C. §§2163, 2165 We note that sensitive 

information that does not fall within the category o f “restricted data" may nonetheless be classified as 

“national security inform ation'’ under Executive O rder 12356, and therefore required to be handled pursuant 

to the provisions o f that Executive Order In addition, the Secretary of Energy has authority under the AEA to 

prescribe regulations or issue orders to prohibit the unauthorized dissemination of certain unclassified 

information if such dissemination “could reasonably be expected to have a significant adverse effect on the 

health or safety of the public or the common defense and security by significantly increasing the likelihood of 

(A) illegal production of nuclear weapons, or (B) theft, diversion, or sabotage of nuclear materials, equipment, or facilities.’' 42 U.S.C § 2168. It is possible that particular access and disclosure provisions of RCRA 

may conflict with such restrictions in some instances, in which case we believe the restrictions authorized by 

the AEA would prevail.

20 As EPA points out, however, the possibility o f conflict between the restricted data provisions of the AEA 

and the access and disclosure provisions of RCRA does not necessarily mean that DOE can refuse categorically to grant access to its facilities or to deny information to EPA and state officials responsible for enforcing 

RCRA. It may well be that not all information about hazardous waste disposal at DOE’s facilities would 

require special protection, or would fall within the definition of restricted data, or w ithin the scope of 

“national security information” required to be classified by Executive Order 12356. In addition, it would 

probably be feasible in many cases to require those officials to obtain appropriate security clearances in order 

to gain access to data necessary to determine compliance with RCRA regulations.

We also do not rule out entirely the possibility that some information about the production of nuclear 

weapons and materials at DOE’s facilities is so sensitive that access must be restricted to DOE personnel, or 

to DOE and EPA personnel. This level of detail should be identified and worked out by DOE in cooperation 

with EPA. W e note that EPA is working with other federal agencies, including the Department of Defense, to 

ensure that implementation of the RCRA program does not compromise sensitive information or the national 

security, and has worked with DOE to accommodate national security concerns under the FWPCA.

17
is inconsistent with the requirements of the AEA, within the meaning of 

§ 1006(a). For example, we do not believe a state could refuse to issue a permit 

based on DOE’s proper refusal under the “restricted data” provisions of the 

AEA to grant the state access to particular restricted data or to make such data 

publicly available.

In addition, even if a state could establish that DOE had not fully complied 

with RCRA regulations and standards not superseded by virtue of § 1006(a), 

i.e., those that are consistent with the AEA, we have serious reservations 

whether a state could effectively shut down DOE’s operation by denying a 

permit or by obtaining an injunction to enforce compliance, particularly where 

alternative, less drastic means of enforcement exist. While the AEA does not in 

so many words require DOE to operate its Atomic Energy Act facilities, the 

clear purpose of the statute is to authorize and encourage operation of such 

facilities, and the authority provided represents a congressional judgment that 

such activities should be carried out at a federal level. We believe therefore that 

it may well be “inconsistent with” the AEA itself to permit a state to veto 

operation of a federal facility authorized under the Act.21 See generally

W einberger v. Romero-Barcelo, 456 U.S. 305, 315 n.9 (1982); California v. 

United States, 438 U.S. 645, 668 n.21, 679 (1978); First Iowa Hydro Electric

Cooperative v. Federal Power Comm’n, 328 U.S. 152, 181-82 (1946); Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 534-35 (1941). A state could, 

nonetheless, include in a permit certain compliance schedules or other conditions intended to bring DOE’s facilities into compliance with RCRA standards 

or requirements that lie within the scope of § 1006(a), and could seek judicial 

enforcement of those conditions through means short of an injunction against 

continued operation. See, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 

315 n.9 (1982).22 DOE would of course have the opportunity to seek review of

21 W e do not believe, however, that any state regulation under RCRA of DOE’s Atomic Energy Act 

facilities would necessarily be precluded as “inconsistent.” RCRA clearly provides for a significant state role 

in the prom ulgation and enforcement o f standards for the treatment and disposal of solid waste, even with 

respect to federal facilities. See 42 U.S.C. § 6961. Although we believe that serious questions would be raised 

if a state attem pted to close a DOE facility for failure to comply with state permitting or substantive 

requirem ents, much state regulation could probably be accommodated consistent with DOE’s statutory 

mandate. W e understand that DOE and EPA have worked together and with the states to implement the 

standards and perm itting requirements set forth in the FW PCA, and we know of no persuasive reason why 

cooperation with state authorities with respect to hazardous waste disposal under RCRA would not also be 

possible.

22 Even though the state might not be able to enforce the permit (or denial of a permit) by an injunction 

against continued operation of a facility, the permit itself, and the permitting process, would not be 

m eaningless. A state (or private citizen) could, for exam ple, seek declaratory relief that DOE should comply 

with particular RCRA requirements or standards embodied in a state perm it or required as a prerequisite for 

obtaining the permit. In addition, under Executive Order 12088, there would be an opportunity for internal 

Executive Branch resolution of particular disputes. Executive O rder 12088 requires the head o f each 

Executive agency to insure that the agency complies with the “same substantive, procedural, and other 

requirem ents that would apply to a private person” under a number o f environmental statutes, including 

RCRA, and to cooperate w ith EPA and state, interstate, and local agencies in the prevention, control, and 

abatem ent o f environm ental pollution. T he order directs that conflicts between the EPA and an Executive 

Branch agency, or betw een an Executive Branch agency and a state, interstate, or local agency, regarding 

violations o f those environmental statutes be resolved by the Office o f Management and Budget, if such 

conflicts cannot be resolved through efforts o f the EPA.

18
such conditions to determine that they are reasonably related to bona fide 

health and safety objectives and not designed to force closure of the facility.

DOE argues that the AEA does not provide for any state role in regulation of 

federal facilities, citing in particular the 1965 amendments to § 271 of the Act, 

42 U.S.C. § 2018, that clarified Congress’ intent that the states could not 

regulate “any activities of the [Atomic Energy] Commission.” We agree with 

DOE that, prior to enactment of RCRA, federal facilities operated pursuant to 

the AEA were immune from state regulation of waste disposal practices, 

because of the lack of any clear waiver of sovereign immunity in the AEA or 

any other statute that would allow such regulation. The effect of the 1965 

amendments to § 271 of the AEA, however, is largely irrelevant to our analysis 

here. Those amendments were intended explicitly to clarify an ambiguity in the 

extent to which the AEA waived sovereign immunity over regulation of the 

transmission and generation of electricity by federal facilities. The legislative 

history recited by DOE in support of its argument reflects that this was 

Congress’ particular concern; that history reflects further that Congress intended to make clear that the federal facilities at issue stood on the same 

footing as all other federal agencies. See, e.g., I l l Cong. Rec. 18702 (1965) 

(remarks of Rep. Hosmer); id. at 19821 (remarks of Sen. Pastore).

At that time, however, no federal facilities were subject to state regulation of 

hazardous waste disposal practices. Therefore, our analysis here must focus on 

the effect of the subsequent waiver of sovereign immunity in § 6001 of RCRA 

and the exception to that waiver carved out by § 1006(a) of that statute. In that 

regard, we believe that the waiver of sovereign immunity in § 6001 is sufficiently “clear and unambiguous,” see Hancock v. Train, 426 U.S. 167, 179 

(1976), to overcome the general principle that federal facilities and activities 

are immune from regulation by the states. Although § 1006(a) creates some 

ambiguity with respect to application of that waiver to “activit[ies]. . . subject 

to . . . the [AEA],” we do not believe that ambiguity undercuts the clarity or 

effectiveness of the waiver contained in § 6001.23

Thus, we concur with EPA’s conclusion that the thrust of § 1006(a) of 

RCRA is not to exempt completely DOE’s Atomic Energy Act facilities from

23 We Dote that the issue w hether states could regulate waste disposal practices of federal facilities under 

the AEA prior to RCRA is different from the issue whether states could then regulate waste disposal by 

privately owned facilities licensed under the AEA. The first issue is one of sovereign immunity — whether 

Congress has clearly and explicitly authorized the states to regulate the federal government in a particular 

aspect o f its activities. The second issue is one of preemption — w hether Congress has, in the exercise o f its 

constitutional authority, preempted state regulation o f private activities. Thus, even prior to RCRA, the states 

could regulate disposal o f nonnuclear wastes by private licensees, because the AEA did not preempt such 

regulation. See, e.g., Pacific Gas and Electric Co. v. State Energy Resources Conservation & Development

Comm ’n, 461 U.S. 190 (1983); Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 16-17& 

n.14 (1976); Illinois v. Kerr-McGee Corp., 677 F.2d 571, 580 (7th Cir. 1982); Northern States Power Co. v. 

State o f Minnesota, 447 F.2d 1143, 1149-50 (8th Cir. 1971), affd , 405 U.S. 1035 (1972); 42 U.S.C. 

| 202 l(k ) (“(n]othing in this section authorizing limited state agreem ents for regulation of nuclear material 

shall be construed to affect the authority of any State or local agency to regulate activities for purposes other 

than protection against radiation hazards”). Because neither the AEA nor any other statute prior to RCRA 

clearly waived sovereign immunity, however, states could not then similarly regulate hazardous waste 

disposal practices o f federal facilities.

19
state and federal regulation of hazardous waste disposal, but rather to avoid 

inconsistencies between RCRA and the unique national security and health 

problems created by operation of nuclear facilities under the AEA. To the 

extent that operation of those facilities is comparable to operation of other 

manufacturing and industrial facilities, Congress intended that they be subject 

to the standards and requirements imposed by RCRA on all other federal 

government facilities, and enforced by EPA and the states. To the extent there 

are actual inconsistencies, however, the AEA would control; this feature of the 

statutory scheme should be responsive to DOE’s particular and clearly legitimate concerns about the protection of sensitive information and the possibility 

of state vetoes over operation of its facilities, while also meeting EPA’s 

concern that RCRA regulations apply, to the extent possible, uniformly throughout the federal government.24

DOE argues in addition, however, that its regulations and directives under 

§ 161(i)(3) of the AEA governing the disposal of nonnuclear wastes also 

constitute “requirements” of the AEA, considered in the context of the purpose 

and scope of DOE’s authority under the AEA. DOE contends that this authority 

“necessarily and essentially pertains” to accomplishment by DOE of the purposes of the AEA, and is “an essential ingredient of the scheme of the [AEA].” 

Under this analysis, DOE’s regulations or directives governing disposal of 

nonnuclear wastes would control, at least to the extent they are inconsistent 

with state or federal regulations and requirements under RCRA. The logical 

result of this argument is that DOE could totally exempt its Atomic Energy Act 

facilities from RCRA regulation by prescribing regulations or directives that 

differ somewhat from otherwise applicable RCRA regulations and standards.

We believe that this argument stretches the language and purpose of § 161(i)(3) 

beyond that intended by Congress when it enacted the AEA.25 It is highly

24 If D O E’s specific concern cannot be met adequately under this scheme, it may obtain a Presidential 

w aiver for particular facilities, or for all its Atomic Energy Act facilities, pursuant to §6001, 42 U.S.C. 

§ 6961.

25 W e do not suggest that, in the absence of RCRA, DOE could not use the authority provided by § 161(i)(3) 

to regulate the disposal o f nonnuclear w astes at its Atomic Energy Act facilities. Certainly the language of 

that provision, giving DOE the authority “to prescribe . . standards and restrictions governing the design, 

location, and operation o f facilities used in the conduct of such activity, in order to protect health and to 

m inim ize danger to life or property,” 42 U.S.C. § 2201 (i)(3), is broad enough to encompass such regulation. 

The grant o f discretionary authority under that section to prescribe such regulations, however, does not 

com pel the conclusion that such regulations would be requirements o f the AEA.

Section 161(i)(3) was given a very narrow interpretation in Reynolds v. United States, 286 F.2d 433, 438 

(9th C ir. 1960), a case involving criminal prosecution o f an individual for trespass in a 390,000 square mile 

area surrounding the Eniwetok Proving G rounds (used for nuclear bomb testing), which had been designated 

as a closed area by the Atomic Energy C om m ission on the basis o f authority provided in § 161 (i)(3). Based on 

its reading o f the legislative history of § 161(i)(3), the court concluded that the authority provided by that 

section applies only to activities of private industry licensed by the AEC, and not “to the Commission’s own 

activities.” 286 F.2d at 438-39. We believe the court’s reading of that legislative history was strained in 

reaching the result that an individual could not be subject to serious criminal penalties for violating a 

regulation that arguably exceeded the C om m ission’s authority. The logic o f the court’s reading o f § 161 (i)(3) 

is that the Atom ic Energy Commission — and now DOE — would have no authority whatsoever to take 

actions to protect the health and safety o f its workers or of the public from nonnuclear hazards created by its 

own activities. W e do not believe Congress intended that result.

20
unlikely that Congress even considered possible problems caused by the disposal of nonnuclear wastes when it enacted the AEA in 1954. Indeed, the 

dimensions of the nation’s hazardous waste problem were not generally acknowledged until more than a decade after enactment of the AEA. See generally Senate Report, supra, at 6; H.R. Rep. No. 899, 89th Cong., 1st Sess. 7-9 

(1965) (discussing Solid Waste Disposal Act of 1965, Pub. L. No. 89-272, 79 

Stat. 992). Rather, the focus of the AEA, inasmuch as it deals with disposal 

problems, is with regulation of nuclear wastes generated by atomic facilities. 

See Pacific Gas and Electric Co. v. State Energy Resources Conservation &

Development Comm’n, 461 U.S. 190 (1983); Train v. Colorado Public Interest

Research Group, Inc., 426 U.S. 1, 16-17 & n.14 (1976); Northern States

Power Co. v. Minnesota, 447 F.2d 1143, 1149-50 (8th Cir. 1971), a f f d, 405 

U.S. 1035 (1972). There is no suggestion in the AEA or its legislative history 

that § 161(i)(3) was intended to require DOE to establish a comprehensive 

regime for the control of nonnuclear wastes, or that Congress considered such 

authority to be necessary to accomplishment of the purposes of the AEA. That 

section is, rather, most reasonably interpreted as a general grant of discretionary authority to DOE to make whatever incidental regulations it deems necessary to insure that its facilities are operated safely and with minimal risk to 

health, life, and property. See generally Bramer v. United States, 412 F. Supp. 

569,575, 577 (C.D. Cal.), affd, 595 F.2d 1141 (9th Cir. 1976) (interpreting 42 

U.S.C. § 2051); Blaber v. United States, 332 F.2d 629, 631 (2d Cir. 1964) 

(interpreting 42 U.S.C. § 2051).

By contrast, RCRA is clearly and explicitly intended to provide a comprehensive scheme for regulation of the disposal of nonnuclear wastes by private 

entities and by the federal government. See Senate Report, supra, at 2-7; 

House Report, supra, at 2-5. In light of the clear intent and the comprehensiveness of RCRA, we are unwilling to interpret § 1006(a) to mean that, merely by 

exercising its discretionary authority under the AEA with respect to nonnuclear 

wastes, DOE can exempt itself from RCRA’s regulatory scheme.

We recognize nonetheless that there may be particular operational needs or 

problems generated by the unique requirements of DOE’s nuclear operations 

that in some cases will require some modification in, or exemption from, 

particular substantive standards imposed by the EPA or the states pursuant to 

RCRA. For example, it may be that inclusion of small amounts of nuclear 

wastes in a chemical waste stream would require some modification in otherwise applicable RCRA standards or regulations,26 or that certain aspects of 

industrial processes that are unique to the fabrication of nuclear weapons 

materials and components require different handling of solid wastes generated

26 The inclusion of small amounts of nuclear materials in such streams would not necessarily prohibit EPA 

from regulating those streams merely because RCRA does not apply to certain types of nuclear materials. 

That such wastes are commingled with nonnuclear wastes suggests that in many cases the amount of nuclear 

waste would not be large enough to require special handling, and therefore there would be no reason for 

exclusive DOE control over its handling. We believe these types o f problems could be addressed by EPA and 

DOE in their discussions to implement this opinion.

21
by those processes.27 Those situations will have to be identified and handled by 

DOE and EPA on a cooperative basis, in accordance with the interpretation of 

§ 1006(a) we have outlined here.

Conclusion

Implementation of this opinion will require DOE and EPA to discuss in 

detail the impact of RCRA regulations on operation of DOE’s Atomic Energy 

Act facilities, and to determine how best to accommodate the purposes of the 

AEA with the specific requirements of RCRA. We recognize that the advice 

given here is general, and may not resolve many of the particular questions that 

will arise in the course of those discussions. We note, however, that EPA has 

conducted similar discussions with DOE in order to implement provisions of 

the FWPCA, and has engaged in such discussions with other federal agencies, 

including the Department of Defense, to implement the requirements of RCRA 

and the FWPCA. We suggest that those discussions might provide a framework 

for addressing the applicability of RCRA to DOE’s Atomic Energy Act facilities. We will, of course, be available to provide additional legal analysis, 

should that prove necessary.

T h e o d o r e B. O l s o n

Assistant Attorney General

Office o f Legal Counsel

27 The internal DOE order prescribing hazardous waste m anagement practices, see DOE Order 5480.2 (Dec. 

13,1982), appears to contemplate this type o f problem. U nder that order, full compliance with the prescribed 

procedures (m ost o f w hich are consistent with RCRA) may be excused “due to unique characteristics of the 

sites and/or facilities . . . or due to unrealistically high costs compared to the risks involved.” If full 

com pliance cannot be achieved because of high costs, “alternative methods of handling waste that will 

provide com parable levels o f safety and environmental protection at reduced costs” must be taken.

Although we do not suggest that every situation that m ight warrant relaxation of DOE’s internal order 

would constitute an inconsistency for purposes o f § 1006(a), those types of situations could possibly provide 

a basis for noncom pliance with particular RCRA requirements, if the particular characteristics or high costs 

involved arise because o f the unique nature o f the nuclear processing operations.

22