b'Application of the Resource Conservation and Recovery Act\nto the Department of Energy\xe2\x80\x99s Atomic Energy Act Facilities\nThe nuclear production and weapons facilities that are operated by the Department o f Energy\n(D O E) pursuant to the Atomic E nergy Act (AEA) are generally subject to the requirements o f\nthe Resource Conservation and Recovery Act (RCRA) governing the disposal o f solid wastes,\nincluding applicable standards, regulations, permit requirem ents, and enforcement mecha\xc2\xad\nnism s. 42 U .S.C. \xc2\xa769 6 1 .\nParticular R CRA regulations or requirem ents may not apply to DOE facilities when the applica\xc2\xad\ntion o f such regulation or requirement would be inconsistent with specific requirements o f the\nAEA that flow directly from DO E\xe2\x80\x99s statutory m andate to develop and use atomic energy. 42\nU.S.C. \xc2\xa7 6905(a).\nW hether a particular RCRA regulation or requirem ent is inconsistent with the requirements o f\nthe AEA m ust be analyzed by DO E and the Environm ental Protection Agency on a case-bycase basis. How ever, \xc2\xa7 1006(a) o f RCRA, 42 U.S.C. \xc2\xa7 6905(a), should relieve DOE from\ncom pliance with RCRA regulations or requirem ents (1) if they conflict with prescriptive\ndirectives contained in the AEA itself, such as the AEA restrictions on public disclosure of\nrestricted data; (2) if compliance would prevent DOE from carrying out authorized AEA\nactivities; or (3) if compliance w ould be inconsistent with specific operational needs o f a\nfacility that are unique to the production o f nuclear material or components. In addition, a\nstate may not exercise veto power o ver the establishm ent or operation of a DOE facility, either\nby denying necessary permits, or by seeking injunctive relief, because o f noncompliance with\na RCRA regulation that is inconsistent with the AEA.\n\nFebruary 9, 1984\nM\n\nem orandum\n\nO\n\nLand\n\np in io n f o r t h e\nand\n\nA s s is t a n t A t t o r n e y G e n e r a l ,\n\nN a t u r a l R e s o u r c e s D iv is io n\n\nThis responds to your request for our analysis regarding whether, or to what\nextent, the Resource Conservation and Recovery Act, 42 U.S.C. \xc2\xa7\xc2\xa7 6901 et\nseq. (RCRA) applies to chemical wastes generated by nuclear production and\nweapons facilities owned by the Department of Energy (DOE) and operated\nunder authority provided by the Atomic Energy Act of 1954, as amended, 42\nU.S.C. \xc2\xa7\xc2\xa7 2011 e t seq. (AEA). The context for your request is a difference of\nopinion between DOE and the Environmental Protection Agency (EPA) over\nwhether waste treatment and disposal facilities and methods used at DOE\xe2\x80\x99s\nAtomic Energy Act plants are subject to RCRA standards, permit require\xc2\xad\nments, and enforcement mechanisms. DOE has taken the position that \xc2\xa7 1006(a)\nof RCRA, 42 U.S.C. \xc2\xa7 6905(a), which provides that RCRA does not apply to\n\xe2\x80\x9cactivit[ies] . . . subject t o . . . the Atomic Energy Act of 1954 . . . except to the\n6\n\n\x0cextent such application (or regulation) is not inconsistent with the requirements\nof such Act[],\xe2\x80\x9d exempts its AEA facilities from all RCRA regulation. EPA\ncontends that DOE\xe2\x80\x99s AEA facilities are subject to RCRA, as are all other\nfederal facilities, but that specific RCRA regulations may not apply to some\naspects of DOE\xe2\x80\x99s operations, if application of those regulations would be\ninconsistent with particular requirements flowing directly from the language or\npurpose of the AEA.1\nWe have received submissions from DOE and EPA on the applicability of\nRCRA, including copies of previous correspondence between those agencies\non the issue. Based on our review of those materials, discussions with your\nDivision and personnel at DOE and EPA, and our own research, we have\nconcluded that EPA\xe2\x80\x99s interpretation of \xc2\xa7 1006(a) represents the sounder view\nof the law. For the reasons set forth below, we conclude that DOE\xe2\x80\x99s Atomic\nEnergy Act facilities are generally subject to the requirements of RCRA,\nincluding compliance with applicable standards, regulations, and permitting\nrequirements, and are generally subject to the enforcement mechanisms estab\xc2\xad\nlished by RCRA. Section 1006(a) leaves open the possibility, however, that\nparticular RCRA regulations or requirements are not applicable to DOE\xe2\x80\x99s\nfacilities, or to a particular facility, because such regulations or requirements\nwould be \xe2\x80\x9cinconsistent with the requirements of [the AEA].\xe2\x80\x9d We do not\ninterpret \xe2\x80\x9crequirements of [the AEA],\xe2\x80\x9d as used in \xc2\xa7 1006(a), as broadly as DOE\nurges, i.e., to encompass all DOE regulations, orders, and directives that apply\nto, or may affect, health and safety aspects of its Atomic Energy Act facilities.\nRather, in order to give reasonable content to \xc2\xa7 1006(a), we must interpret the\nterm \xe2\x80\x9crequirements\xe2\x80\x9d more narrowly, as EPA urges, in light of the somewhat\ndifferent purposes of the AEA and RCRA.\nThus, we believe that \xc2\xa7 1006(a) would relieve DOE from compliance with\nRCRA only in particular circumstances where DOE can demonstrate that\napplication of a regulation or requirement would be inconsistent with specific\nrequirements of the AEA that flow directly from DOE\xe2\x80\x99s statutory mandate to\ndevelop and use atomic energy. Although it is difficult in the absence of\nparticular facts to give precise content to the term \xe2\x80\x9crequirements,\xe2\x80\x9d we believe\nDOE could demonstrate that particular aspects of RCRA should not apply to\noperation of its facilities (or particular facilities), for example: if the RCRA\nregulation would conflict with prescriptive directives contained in the AEA\nitself, including principally the restrictions on public disclosure of \xe2\x80\x9crestricted\ndata;\xe2\x80\x9d2 if compliance would prevent DOE from carrying out authorized Atomic\nEnergy Act activities; or if compliance with a particular regulation or require1D OE\xe2\x80\x99s position has been challenged in recently filed litigation involving D O E\xe2\x80\x99s Y-12 Plant in O ak Ridge,\nTennessee, at which nuclear w eapons com ponents are fabncated and assem bled. Legal Envt\'l Assistance\nFound, v. Hodel, C.A. No. 3 -8 3 -5 2 (E.D. Tenn filed Sept. 2 0 ,1 9 8 3 ). In addition, we understand that D OE is\ncurrently negotiating with officials in South C arolina w ith respect to regulation o f waste handling at Atomic\nEnergy A ct facilities in that state, and that those officials have taken the position that operation o f those\nfacilities should be conditioned on receipt o f state waste handling perm its under the RCRA scheme.\n2 See 42 U.S.C. \xc2\xa7\xc2\xa7 2161-2168.\n\n7\n\n\x0cment would be inconsistent with specific operational needs of a facility that are\nunique to the production of nuclear material or components.\nObviously, this interpretation does not provide an exact or necessarily com\xc2\xad\nprehensive standard. We attempt below to provide as much guidance as pos\xc2\xad\nsible to you and to EPA for implementation of our conclusions. In the abstract,\nhowever, we cannot determine which particular aspects of RCRA, or particular\nregulations, would be \xe2\x80\x9cinconsistent with the requirements of [the AEA].\xe2\x80\x9d That\ndetermination must be made by your agency and EPA based on an analysis,\nfrom both a general and a facility specific perspective, of how implementation\nof RCRA will affect the operation of DOE\xe2\x80\x99s Atomic Energy Act facilities.\n\nI. Background\nRCRA, passed in 1976, established a broad regulatory scheme governing the\ngeneration, transportation, storage, and disposal of solid wastes. Under that\nAct, the practice of \xe2\x80\x9copen dumping\xe2\x80\x9d is prohibited, see 42 U.S.C. \xc2\xa7 6945, and\nthe states are encouraged by federal financial and technical assistance to\nprepare and submit to EPA for approval overall plans for regulation of solid\nwaste. See id. \xc2\xa7\xc2\xa7 6931, 6948. The treatment, storage, and disposal of solid\nwastes considered by EPA to be \xe2\x80\x9chazardous wastes\xe2\x80\x9d3 are subject to a permit\nrequirement, see id. \xc2\xa7 6925. and generators, transporters, and owners or opera\xc2\xad\ntors of facilities for the treatment, storage, and disposal of solid wastes must\nmeet such minimum standards promulgated by EPA \xe2\x80\x9cas may be necessary to\nprotect human health and environment.\xe2\x80\x9d See id. \xc2\xa7\xc2\xa7 6922,6923,6924. As under\nthe regulatory schemes established by the Clean Air Act, 42 U.S.C. \xc2\xa7\xc2\xa7 7401 et\nseq., and the Federal Water Pollution Control Act, 33 U.S.C. \xc2\xa7\xc2\xa7 1251 et seq.\n(FWPCA), RCRA authorizes the states to administer the regulatory scheme,\nincluding issuance of permits and enforcement of sanctions for violations, if\nthe Administrator of EPA finds that a state\xe2\x80\x99s regulatory scheme is \xe2\x80\x9cequivalent\xe2\x80\x9d\nto the federal scheme.4 No state may impose any requirements for the manage\xc2\xad\nment of hazardous wastes that are less stringent than the standards promulgated\nby EPA, but states are expressly authorized to impose requirements that are\nmore stringent than federal standards. See 42 U.S.C. \xc2\xa7 6929. RCRA also\nprovides for private \xe2\x80\x9ccitizens suits\xe2\x80\x9d against persons, including the United\nStates, for violation of any permit, standard, regulation, condition, require\xc2\xad\nment, or order that has become effective pursuant to RCRA. See id. \xc2\xa7 6972.\n3 \xe2\x80\x9cH azardous w aste\xe2\x80\x9d is defined by R C R A to mean \xe2\x80\x9ca solid w aste, o r com bination of solid wastes, which\nbecause o f its quantity, concentration, o r physical, chem ical, o r infectious characteristics may \xe2\x80\x94\n(A ) cause, o r significantly co n trib u te to an increase in m ortality or an increase in serious\nirreversible, o r incapacitating reversible, illness; or\n(B ) pose a substantial present o r potential hazard to human health or the environm ent when\nim properly treated, stored, transported, or disposed of, o r otherw ise managed.\xe2\x80\x9d\n42 U .S.C . \xc2\xa7 6903(5). EPA is responsible fo r identifying the characteristics o f hazardous wastes and listing\np articu lar hazardous w astes that are su b ject to the hazardous waste m anagem ent provisions o f RCRA. Id.\n\xc2\xa76921.\n4 Compare 42 U .S.C . \xc2\xa7 6926 (RCRA) with 42 U .S.C. \xc2\xa7 7410 (C lean A ir Act) and 33 U.S.C. \xc2\xa7 1342\n(FW PC A )\n\n8\n\n\x0cThe question before us is whether the regulatory scheme imposed by RCRA,\nincluding both federal and state regulation of hazardous wastes, applies to\nchemical wastes produced by DOE\xe2\x80\x99s production and weapons facilities oper\xc2\xad\nated pursuant to authority provided in the AEA.5 These facilities, which are\ngenerally owned by DOE and operated by private contractors, produce special\nnuclear material and components used in research, development, testing, and\nproduction of nuclear weapons.6 Operation of the facilities generates various\nwaste streams, including chemical wastes that are considered to be \xe2\x80\x9chazardous\nwastes\xe2\x80\x9d under EPA criteria and regulations. These wastes are generated by a\nvariety of industrial processes, including metal working, electroplating, chemi\xc2\xad\ncal extraction, machining, fabrication, and assembly and cleaning of solvent\nparts.\nOur analysis here turns on the two sections of RCRA that deal with regula\xc2\xad\ntion of federal facilities and activities: \xc2\xa7 6001,42 U.S.C. \xc2\xa7 6961, which explic\xc2\xad\nitly subjects all federal facilities and activities to state and federal regulation\nunder RCRA; and \xc2\xa7 1006(a), 42 U.S.C \xc2\xa7 6905(a), which precludes regulation\nunder RCRA of any \xe2\x80\x9cactivity or substance\xe2\x80\x9d subject, inter alia, to the AEA\n\xe2\x80\x9cexcept to the extent such application [of RCRA] (or regulation) is not inconsis\xc2\xad\ntent with the requirements of such Acts.\xe2\x80\x9d Section 6001 provides in pertinent part:\nEach department, agency, and instrumentality of the execu\xc2\xad\ntive, legislative, and judicial branches of the Federal Govern\xc2\xad\nment (1) having jurisdiction over any solid waste management\n5 The questioo we address here is applicability o f RCRA to nonnuclear wastes generated by D O E\xe2\x80\x99s\nfacilities. The only m aterials that can be regulated under RCRA are \xe2\x80\x9csolid w astes\xe2\x80\x9d and \xe2\x80\x9chazardous w astes\xe2\x80\x9d\n(which are a subset o f \xe2\x80\x9csolid wastes\xe2\x80\x9d ). Section 1004(27) o f RCRA, 42 U.S.C. \xc2\xa7 6903(27), expressly exem pts\nfrom the definition o f \xe2\x80\x9csolid w aste\xe2\x80\x9d : \xe2\x80\x9c source, special nuclear, o r byproduct m aterial as defined by the Atomic\nEnergy A ct o f 19S4, as am ended.\xe2\x80\x9d Thus, RCRA leaves undisturbed DOE\xe2\x80\x99s authority to regulate the disposal\no f source, special nuclear, and byproduct wastes, which we understand are for the m ost part handled\nseparately from nonnuclear wastes. DOE has not indicated that its waste stream s include other nuclear\nm aterial that does not fall within the categories o f source, special nuclear, and byproduct wastes.\n6 DOE, as successor to the Atomic Energy C om m ission\xe2\x80\x99s research and developm ent responsibilities, see 42\nU.S.C. \xc2\xa7\xc2\xa7 5814(c), 5817 (1976) (transfer o f functions to Energy Research and Developm ent A dm inistration);\n42 U .S.C. \xc2\xa7 7151 (Supp. V 1981) (transfer o f functions from Energy Research and D evelopm ent A dm inistra\xc2\xad\ntion to DOE), is authorized by \xc2\xa7 31(a) o f the AEA, 42 U.S.C. \xc2\xa7 2051(a), to make arrangem ents for the\nconduct o f research and developm ent activities relating to\n(1) nuclear processes;\n(2) the theory and production o f atomic energy, including processes, materials, and devices\nrelated to such production;\n(3) utilization o f special nuclear m aterial and radioactive material for m edical, biological,\nagricultural, health, or m ilitary purposes;\n(4) utilization o f special nuclear m aterial, atomic energy, and radioactive m aterial and pro\xc2\xad\ncesses entailed in the utilization o r production o f atom ic energy o r such material for all other\npurposes, including industrial or com m ercial uses, the generation o f usable energy, and the\ndem onstration o f advances in the com m ercial o r industrial application o f atomic energy;\n(5) the protection o f health and the promotion o f safety during research and production\nactivities; and\n(6) the preservation and enhancem ent o f a viable environm ent by developing more efficient\nmethods to m eet the N ation\xe2\x80\x99s energy needs.\nId. D OE is further authorized to \xe2\x80\x9cproduce or to provide for production o f special nuclear m aterial in its own\nproduction facilities,\xe2\x80\x9d id. \xc2\xa7 2061(b), to perform research and developm ent w ork in the m ilitary application of\natom ic energy, id. \xc2\xa7 2121(a), and to engage in the production o f atomic weapons, id.\n\n9\n\n\x0cfacility or disposal site, or (2) engaged in any activity resulting,\nor which may result, in the disposal of solid waste or hazardous\nwaste shall be subject to, and comply with, all Federal, State,\ninterstate, and local requirements, both substantive and proce\xc2\xad\ndural (including any requirement for permits or reporting or any\nprovisions for injunctive relief and such sanctions as may be\nimposed by a court to enforce such relief), respecting control\nand abatement of solid waste or hazardous waste disposal in the\nsame manner, and to the same extent, as any person is subject to\nsuch requirements, including the payment of reasonable service\ncharges. Neither the United States, nor any agent, employee, or\nofficer thereof, shall be immune or exempt from any process or\nsanction of any State or Federal Court with respect to the en\xc2\xad\nforcement of any such injunctive relief.\nThis section further provides that the President may exempt any \xe2\x80\x9csolid waste\nmanagement facility\xe2\x80\x9d7 of any Executive Branch department, agency, or instru\xc2\xad\nmentality from compliance with RCRA requirements \xe2\x80\x9cif he determines it to be\nin the paramount interest of the United States to do so.\xe2\x80\x9d Id. Section 6001 was\nmodeled on parallel provisions in the Clean Air Act and the FWPCA, both of\nwhich subject federal facilities to the regulatory schemes imposed by those\nActs and provide for Presidential exemptions.8\nIf \xc2\xa7 6001 were the only provision dealing with the applicability of RCRA to\nfederal facilities or activities, our analysis would end here. The operation of\nDOE\xe2\x80\x99s Atomic Energy Act facilities is plainly an \xe2\x80\x9cactivity resulting . . . in the\ndisposal of hazardous wastes,\xe2\x80\x9d and therefore within the explicit waiver of\nsovereign immunity for federal facilities provided by \xc2\xa76001.9 Indeed, we\nunderstand that DOE does not contest the applicability to those facilities of the\nFWPCA.10 Specific problems that have arisen because of the application of the\nFWPCA to DOE\xe2\x80\x99s Atomic Energy Act facilities have been dealt with through\nnegotiations between EPA and DOE, resulting in most cases in agreements that\ngovern DOE\xe2\x80\x99s compliance with the FWPCA.\n7 R C R A \xe2\x80\x99s definition o f this term includes system s for collection, separation, recycling, and recovery of\nsolid w astes, system s fo r resource conservation, and facilities fo r the treatm ent o f solid w astes. See 42 U.S.C.\n\xc2\xa7 6903(29).\n8 See 42 U .S.C . \xc2\xa7 7418 (C lean Air Act); 33 U.S.C. \xc2\xa7 1323 (FW PCA), discussed m S. Rep. No. 988, 94th\nC ong., 2d Sess. 2 4 (1 9 7 6 ).\n9 G iven the broad definition o f \xe2\x80\x9csolid w a ste m anagem ent facility," D O E\xe2\x80\x99s Atomic Energy Act facilities\nw ould in m ost cases also be considered \xe2\x80\x9cso lid waste m anagem ent facilities;\xe2\x80\x9d if wastes w ere disposed on site,\nD O E w ould be considered to have ju risd ictio n over \xe2\x80\x9cdisposal sites.\xe2\x80\x9d Therefore those facilities would\nprobably also fall w ithin the first category o f federal facilities described in \xc2\xa7 6001.\n10 The FW PC A does not include a provision com parable to \xc2\xa7 1006(a) o f RCRA making the FW PCA\nsubordinate, at least in som e circumstances, to the AEA o r o th er statutes. Rather, the effect o f \xc2\xa7 511 (a) o f the\nFW PC A , 33 U .S.C . \xc2\xa7 1371 (a), is to make the FW PCA prevail in the event o f inconsistencies between that Act\nand o th er law s o r regulations. Section 511(a) provides, in pertinent part, that \xe2\x80\x9c [tjhis chapter [FWPCA] shall\nnot be co n stru ed as . . . lim iting the authority o r functions o f any officer or agency of the U nited States under\nany law o r regulation not inconsistent with th is chapter.\xe2\x80\x9d\nB ecause the C lean A ir A ct is not generally enforced through a perm it system , DOE has not had relevant\nexperien ce w ith potential inconsistencies b etw een the AEA and that Act.\n\n10\n\n\x0cHowever, unlike the FWPCA, RCRA explicitly addresses, in \xc2\xa7 1006(a), its\nrelationship to certain other statutes, including the AEA. Section 1006(a)\nprovides in full text that:\nNothing in this chapter shall be construed to apply to (o r to\nauthorize any State, interstate, or local authority to regulate)\nany activity o r substance which is subject to the Federal Water\nPollution Control Act [33 U.S.C. \xc2\xa7\xc2\xa7 1251 et seq.], the Safe\nDrinking Water Act [42 U.S.C. \xc2\xa7\xc2\xa7 300f et seq.], the Marine\n\nProtection, Research and Sanctuaries Act of 1972 [33 U.S.C.\n\xc2\xa7\xc2\xa7 1401 et seq.], or the Atom ic Energy A ct o f 1954 [42 U.S.C.\n\xc2\xa7\xc2\xa7 2011 et seq .] except to the extent that such application (or\nregulation) is not inconsistent with the requirements o f such\nActs.\n\n42 U.S.C. \xc2\xa7 6905(a) (emphasis added).\nIf operation of DOE\xe2\x80\x99s Atomic Energy Act facilities is an \xe2\x80\x9cactivity . . . subject\nto . . . the Atomic Energy Act\xe2\x80\x9d within the meaning of this section, which we\nbelieve it is,11 \xc2\xa7 1006(a) by its terms would preclude application of RCRA\nregulations or requirements \xe2\x80\x9cexcept to the extent. . . not inconsistent with the\nrequirements of [the AEA].\xe2\x80\x9d The crux of the question before us is the meaning\nof that proviso in \xc2\xa7 1006(a).\nDOE contends that this proviso proscribes any application of RCRA regula\xc2\xad\ntions and requirements to its Atomic Energy Act facilities, and therefore also\nproscribes any regulatory authority by EPA or the states over those facilities.\nThe comparison required by the language of the proviso and its context within\n\xc2\xa7 1006(a), according to DOE, is between overlapping regulatory schemes, not\nbetween individual regulations or requirements imposed by those schemes.\nDOE argues that \xc2\xa7 1006(a) is intended to make it clear that RCRA\xe2\x80\x99s regulatory\nscheme would be subordinate to those of other enumerated statutes so as to\navoid subjecting the same activity or substance to varying sources of regulation\nhaving the potential for conflict. DOE asserts that comparison of the regula\xc2\xad\ntory schemes established by the AEA and RCRA reveals three major inconsis\xc2\xad\ntencies in the treatment of federal facilities under those Acts:\n(1) the AEA does not provide for any state role in permitting\nof federal facilities, while RCRA provides for state permitting\nprograms and enforcement, and allows state requirements to be\nmore stringent than those imposed by federal regulation;\n11 It could be argued that the term \xe2\x80\x9cactivity" as used in \xc2\xa7 1006(a) is intended only to include the activity o f\nhandling o r treating solid wastes, w hich arguably is not \xe2\x80\x9c subject to\xe2\x80\x9d the AEA. However, we construe\n\xe2\x80\x9cactivity\xe2\x80\x9d in \xc2\xa7 1006(a) consistently w ith the use o f the same term in \xc2\xa7 6001, w hich provides that any federal\n\xe2\x80\x9cactivity resulting . . . in the disposal o f solid w aste or hazardous waste\xe2\x80\x9d is subject to R CRA . (E m phasis\nadded.) As w e note above, w e believe that term clearly includes the operation o f D O E\xe2\x80\x99s A tom ic Energy A ct\nfacilities.\n\n11\n\n\x0c(2) the AEA places authority in DOE to determine appropri\xc2\xad\nate standards for waste handling for public health and safety,\nwhile RCRA places that authority in EPA and the states;12\n(3) the AEA restricts access to and dissemination of restricted\ndata pertinent to the design or construction of nuclear weapons\nand production and use o f special nuclear material, while RCRA\nrequires that EPA and state officials have access to information\non the generation and handling of hazardous wastes and to waste\nsites, and generally provides for public availability of information.\nDOE contends that the cumulative effect of these inconsistencies is to exempt\nfrom RCRA\xe2\x80\x99s scheme of regulation the operation of DOE\xe2\x80\x99s Atomic Energy\nAct facilities.\nEPA accepts the premise that national security and other considerations may\nrequire some adjustments in the application of hazardous waste regulations to\nDOE\xe2\x80\x99s Atomic Energy Act facilities and agrees with DOE\xe2\x80\x99s assertion that\ncontinued operation of certain facilities cannot be dependent on permission\ngranted by state officials. EPA disagrees, however, with DOE\xe2\x80\x99s argument that\nthe effect of the \xe2\x80\x9cexcept to the extent. . . not inconsistent\xe2\x80\x9d proviso in \xc2\xa7 1006(a)\nis to exempt entirely DOE\xe2\x80\x99s Atomic Energy Act facilities from RCRA. Rather,\nEPA interprets that proviso to require a case-by-case comparison of RCRA\nregulations with specific requirements of the AEA. In that regard, EPA argues\nthat regulations or directives governing hazardous waste treatment and dis\xc2\xad\nposal that DOE issues under the authority of \xc2\xa7 161 (i)(3) would not generally be\n\xe2\x80\x9crequirements o f \xe2\x80\x99 the AEA, but rather should, for the most part, be considered\nas incidental to DOE\xe2\x80\x99s statutory mandate to promote the development, use, and\ncontrol of atomic energy.13EPA interprets \xe2\x80\x9crequirements,\xe2\x80\x9d as used in \xc2\xa7 1006(a),\nto mean prescriptive directives contained in the statute itself, such as the\nAEA\xe2\x80\x99s provisions governing restricted data, or particular regulations and or\xc2\xad\nders shown to be necessary to implement DOE\xe2\x80\x99s particular statutory mandate.\n12 D O E cites \xc2\xa7 161(i)(3) o f the AEA, 4 2 U.S.C. \xc2\xa7 2201 (i)(3), as the basis for its authority to prescribe\nregulations and directives governing the treatm en t and disposal of solid wastes at its facilities. That section,\nenacted as part o f several general powers granted to the A tom ic Energy C om m ission under the AEA, grants\nD O E authority to:\nprescribe such regulations or o rd ers as it may deem necessary . . . (3) to govern any activity\nauthorized pursuant to this chapter, including standards and restrictions governing the design,\nlocation, and o p eration o f facilities u sed in the conduct o f such activity, in o rder to protect health\nand to m inim ize danger to life or p roperty.\nP ursuant to this authority D O E has issued a n internal order governing chem ical waste disposal practices at its\nA tom ic E nergy A ct facilities. DOE O rd e r 5480.2 (D ec. 13, 1982). The hazardous waste management\nprocedures established by that order fo llo w , \xe2\x80\x9cto the extent practicable," regulations issued by EPA under\nR CR A , but the o rder states that facilities adm inistered un d er the authority of the AEA are not bound by\nRCRA requirem ents.\n19 EPA p oints out that the primary c o n cern o f C ongress w hen it passed the AEA in 1954 was to develop a\nschem e for th e prom otion o f atomic energy and protection o f the public from radioactive hazards. The general\ngrant o f au th o rity to regulate health and safety aspects o f atom ic energy facilities should be interpreted in\nlight o f the leg islativ e history o f the A EA , w hich EPA asserts does not suggest that DO E is authorized, much\nless required, to establish a regime for th e control o f non-radioactive w astes.\n\n12\n\n\x0cEPA recognizes that some specific applications of hazardous waste regulations\nwould probably have to yield to regulation by DOE, but believes this conclu\xc2\xad\nsion cannot be made on a general, abstract basis, but only with reference to\nspecific AEA activities, and specific aspects of hazardous waste regulation.\nThat review, EPA asserts, should be sufficient to protect DOE\xe2\x80\x99s particular\nconcerns about protection of restricted data and the effect of state regulation\nand permit requirements.\nII. Analysis\nNeither the language nor the legislative history of \xc2\xa7 1006(a) necessarily\nprovides a dispositive answer to the question before us. However, reading the\nlanguage of that provision in light of the structure and purpose of both RCRA\nand the AEA, we conclude that Congress did not intend that section to provide\na categorical exemption from RCRA for DOE\xe2\x80\x99s Atomic Energy Act facilities.\nRather, that section is most reasonably read to establish a priority among those\nstatutes in cases in which a particular conflict exists between RCRA and\naccomplishment by DOE of the congressionally mandated purposes of the\nAEA.\nWe start with the language of \xc2\xa7 1006(a). Although that language might be\nsaid to be somewhat ambiguous, the inclusion of the \xe2\x80\x9cexcept to the extent. . .\nnot inconsistent\xe2\x80\x9d proviso suggests that Congress contemplated that some as\xc2\xad\npects of RCRA would apply to activities and substances subject to the enumer\xc2\xad\nated statutes.14 DOE interprets that proviso, however, to apply only to privately\nowned nuclear power facilities licensed by the Nuclear Regulatory Commis\xc2\xad\nsion (NRC) under the AEA. DOE argues that, absent that proviso, the exemp\xc2\xad\ntion from RCRA for all \xe2\x80\x9cactivities]... subject to [the AEA]\xe2\x80\x9d would encompass the\noperation of such private nuclear power facilities, and thereby exempt those\nfacilities from state or federal regulation under RCRA \xe2\x80\x94 a result DOE argues\nwas clearly not intended by Congress. Thus, DOE contends that inclusion of\nthe proviso was necessary to preserve EPA\xe2\x80\x99s jurisdiction under RCRA over the\ndisposal of nonnuclear chemical wastes by privately owned nuclear power\nfacilities, but Congress did not also intend to provide for implementation and\nenforcement of RCRA with respect to federal activities \xe2\x80\x9csubject to the [AEA].\xe2\x80\x9d\n14 This reading is logically intended w ith respect to the three statutes listed in that section in addition to the\nAEA: the FW PC A , the Safe Drinking W ater Act, and the M arine Protection, Research and Sanctuaries Act of\n1972. T hose statutes each regulate some aspect o f the dumping o f m aterials, including w aste products, into\nbodies o f w ater \xe2\x80\x94 an area also subject to regulation under RCRA and therefore potentially involving\noverlapping and inconsistent regulations. It is m ost logical to read the \xe2\x80\x9cexcept to the extent . . . not\ninconsistent\xe2\x80\x9d proviso to m ean, with respect to those statutes, that in the event o f an actual inconsistency\nbetw een the regulations and obligations required by those statutes and by RCRA, the requirem ents o f the\nenum erated statutes prevail. This reading is also suggested by \xc2\xa7 1006(b), 42 U .S.C. \xc2\xa7 6905(b), w hich directs\nthe A dm inistrator o f EPA to \xe2\x80\x9c integrate all provisions o f RCRA fo r purposes o f adm inistration and enforce\xc2\xad\nm ent and to avoid duplication, to the m aximum extent practicable, w ith the appropriate provisions o f \xe2\x80\x99 several\nstatutes adm inistered by the EPA, including the FW PCA, the Safe Drinking W ater Act, and the M arine\nProtection, Research and Sanctuaries Act o f 1972. This section indicates clearly that C ongress contem plated\nthat RCRA w ould apply in some respects to activities and substances subject to those three acts.\n\n13\n\n\x0cDOE\xe2\x80\x99s argument would require us to draw a distinction, for the purpose of\n\xc2\xa7 1006(a), between activities of fed era l agencies \xe2\x80\x9csubject to\xe2\x80\x9d the AEA and\nactivities of p riva te individuals \xe2\x80\x9csubject to\xe2\x80\x9d the AEA. However, the language\nof \xc2\xa7 1006(a) does not make any such distinction, and no such distinction is\nsuggested in the legislative history of that section. Indeed, DOE\xe2\x80\x99s argument\ncould render the proviso completely superfluous, because nothing in the lan\xc2\xad\nguage or legislative history of RCRA would prevent the NRC from making\nvirtually the same argument that DOE makes for categorical exemption from\nRCRA.15 Thus, although DOE\xe2\x80\x99s interpretation is not entirely implausible, we\nare not persuaded that it is the correct one, at least in the absence of relevant\nand clear supporting legislative history.\nUnfortunately, the legislative history of RCRA is silent with respect to\nexactly what Congress did intend \xc2\xa7 1006(a) to mean. The language that became\n\xc2\xa7 1006(a) was originally included in the House bill, without explanation. See\nH.R. Rep. No. 1491, 94th Cong., 2d Sess. 53 (1976) (House Report). The\nHouse bill did not include a waiver of sovereign immunity for federal facilities\ncomparable to \xc2\xa7 6001, but rather included a provision that would have sub\xc2\xad\njected federal agencies to a separate scheme of regulation administered by\nEPA. See House Report at 24\xe2\x80\x9425,45. The Senate bill, by contrast, adopted the\napproach used in the FWPCA and the Clean Air Act with respect to federal\nfacilities. Section 4 of the Senate bill added to the existing Solid Waste\nDisposal Act a new section that would require \xe2\x80\x9c[a]ll federal agencies . . . to\ncomply with State and local controls on solid waste and hazardous waste\ndisposal as if they were private citizens. This includes compliance with all\nsubstantive and procedural requirements, and specifically any requirements to\nobtain permits.\xe2\x80\x9d S. Rep. No. 988, 94th Cong., 2d Sess. 24 (1976) (Senate\nReport). The Senate bill also included a definition of hazardous waste, not in\nthe House bill, that specifically exempted \xe2\x80\x9csource, special nuclear, and byproduct\nmaterials,\xe2\x80\x9d and materials subject to permits under \xc2\xa7 402 of FWPCA. See\nSenate Report at 25, 26. The Senate Report notes, with respect to that defini\xc2\xad\ntion, that \xe2\x80\x9c[r]adioactive material is included in the definition of hazardous\nwaste, except to the extent actually regulated under the [AEA].\xe2\x80\x9d Id. at 26.\nDifferences between the House and Senate bills were reconciled without a\nformal conference, and therefore no conference report or statement of manag\xc2\xad\ners exists to explain the compromise reached. This compromise substituted the\nSenate provision that subjected federal facilities to regulation under RCRA,\nincluding state regulation, and a definition of solid waste that included the\nSenate\xe2\x80\x99s language excluding source, special nuclear, and byproduct materials.\n13 T he N R C , as successor to the licen sin g functions o f the Atomic Energy C om m ission, see 42 U.S.C.\n\xc2\xa7 5 8 4 1 (0 , is g enerally subject to the sam e restrictions, and has m any o f the sam e general pow ers, as DOE,\nunder the term s o f the AEA . F o r example, th e NRC and its licensees are fully subject to the \xe2\x80\x9crestricted data\xe2\x80\x9d\nprovisio n s o f th e AEA . M oreover, the N R C could conceivably argue that \xc2\xa7 161 (t)(3) gives it authority to\nim pose licen se conditions on private n u c le ar plants to address hazardous waste disposal problem s, and that\nthose co n d itio n s are \xe2\x80\x9crequirem ents of* th e AEA that w ould be inconsistent with RCRA, much as DOE has\nargued. A lthough w e th in k it highly unlikely that the N R C w ould m ake th at argum ent, it would considerably\nundercu t the in terp retatio n o f \xc2\xa7 1006(a) u rg e d by DOE.\n\n14\n\n\x0cThe compromise also included the House\xe2\x80\x99s language, which became \xc2\xa7 1006(a),\nwith respect to the effect of the AEA and other enumerated statutes. The\ndebates on the conference bill do not discuss the for inclusion of that provision,\nor its intended effect. See, e.g., 122 Cong. Rec. 33817 (Sept. 30, 1976) (re\xc2\xad\nmarks of Sen. Randolph); id. at 32599 (Sept. 27, 1976) (remarks of Rep.\nSkubitz).\nAlthough he legislative history does not provide specific guidance on the\nintended effect of \xc2\xa7 1006(a), it contains no indication Congress contemplated\nthat some activities of federal agencies would be wholly exempt from federal\nand state regulation under RCRA. To the contrary, the language used by both\nthe House and Senate consistently is that \xe2\x80\x9call federal agencies\xe2\x80\x9d would be\nsubject to regulation of their solid waste disposal practices, either under the\nseparate regulatory scheme set up by the House bill, or under the waiver of\nsovereign immunity in the Senate bill. See, e.g., House Report at 5, 48-49;\nSenate Report at 23.\nMoreover, the legislative history of RCRA contains some indication that\nCongress intended that the solid waste disposal practices of federal agencies be\ntreated comparably to disposal of pollutants under the FWPCA and the Clean\nAir Act. See, e.g., Senate Report at 24 (noting that \xc2\xa7 223 \xe2\x80\x9cparallels section 118\nof the Clean Air Act and section 313 of the Federal Water Pollution Control\nAct\xe2\x80\x9d); House Report at 45-47 (discussion of Administrative Conference\xe2\x80\x99s\nrecommendations). We must assume that Congress was fully aware of the\nscope of those Acts. We note that the Supreme Court\xe2\x80\x99s decision in Train v.\nColorado Public Interest Research Group, Inc., 426 U.S. 1 (1976), was issued\non June 1, 1976, shortly before completion of the Committee reports on the\nHouse and Senate bills, and well before adoption of the conference bill in\nSeptember 1976. That case presented the issue of EPA\xe2\x80\x99s jurisdiction under the\nFWPCA to regulate the discharge of source, byproduct, and special nuclear\nmaterial into the environment. Respondents included a private nuclear power\ngenerating station licensed by the Atomic Energy Commission, and federal\nfacility operated for the Energy Research and Development Administration\n(the immediate predecessor to DOE\xe2\x80\x99s authority) to fabricate plutonium into\nnuclear weapons parts. See 426 U.S. at 4, 5 & n.5. In concluding that the\nFWPCA did not authorize EPA to regulate discharges of source, byproduct,\nand special nuclear materials, the Court placed great weight on the legislative\nhistory of the FWPCA indicating that Congress understood the AEA\xe2\x80\x99s exclu\xc2\xad\nsive jurisdiction to extend only to regulation of those radioactive materials. See\n426 U.S. at 17 & n. 14,21-23. If Congress believed that the Court had misinter\xc2\xad\npreted the scope of the AEA, or that a different result should obtain with\nrespect to solid waste disposal practices of federal agencies, it could have\naddressed the issue in the legislative history of RCRA.16\n16 In RCRA, Congress did set up a schem e slightly different from that o f the FW PCA in one respect. As\nnoted above, in the event o f an inconsistency the FW PCA by its term s prevails over other federal statutes and\nregulations. By contrast, \xc2\xa7 1006(a) o f RCRA provides that RCRA will yield to the AEA in the event o f an\nContinued\n\n15\n\n\x0cIn addition, Congress provided in \xc2\xa7 6001 for categorical exemptions from\nfederal and state regulation, if the President determines that such exemption\nwould be \xe2\x80\x9cin the paramount interest of the United States.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 6961.\nThe inclusion of such authority suggests that Congress intended categorical\nexemptions from RCRA, such as that urged by DOE, to be obtained through a\nPresidential waiver, rather than through application of \xc2\xa7 1006(a).17\nNonetheless, while we cannot construe the language of \xc2\xa7 1006(a) to exempt\nall of DOE\xe2\x80\x99s activities under the AEA from RCRA regulation, that section\nmust be interpreted to exempt some aspects of \xe2\x80\x9cactivities] . . . subject to\xe2\x80\x9d the\nAEA from regulation under RCRA, i.e., if application of RCRA would be\ninconsistent with particular \xe2\x80\x9crequirements\xe2\x80\x9d of the AEA. The scope of the term\n\xe2\x80\x9crequirements,\xe2\x80\x9d as used in \xc2\xa7 1006(a), is not illuminated by the language or\nlegislative history of RCRA. The commonly understood meaning of the term\nimplies some prescriptive content, i.e., specific directives that require an agency\nor a person to take or refrain from taking certain actions, to follow certain\nprocedures, or to meet certain standards and regulations. See generally M issis\xc2\xad\nsip p i R iver Fuel Corp. v. Slayton, 359 F.2d 106, 119 (8th Cir. 1966). For the\nmost part, the AEA does not impose specific prescriptive requirements in that\nsense, at least with respect to aspects of activities that might overlap with, or be\ninconsistent with, regulations, standards, and procedures established pursuant\nto RCRA. Rather, insofar as we consider it here, the AEA generally provides\nunderlying authority for certain types of activities intended to carry out the\npurposes of the Act.18 Those purposes focus specifically on the development\nand use of atomic power for military and civilian applications:\nIt is . . . declared to be the policy of the United States that \xe2\x80\x94\n(a) the development, use and control of atomic energy shall be\ndirected so as to make the maximum contribution to the general\nwelfare, subject at all times to the paramount objective of mak\xc2\xad\ning the maximum contribution to the common defense and\nsecurity; and\n(b) the development, use, and control of atomic energy shall\nbe directed so as to promote world peace, improve the general\n16 ( . . . continued)\ninconsistency. W e do not believe that d istin ctio n is m aterial to o ur analysis here. Those provisions do reflect\nsom ew hat d ifferen t congressional priorities for the tw o statutes when an inconsistency exists; the difference,\nhow ever, does not lend any particular su p p o rt to D O E\xe2\x80\x99s central legal argum ent that the relevant com parison\nunder \xc2\xa7 1006(a), for the purpose of determ ining when an inconsistency exists, is betw een entire regulatory\nschem es, rath er than betw een particular applications o f those schemes.\n17 W e note th at \xc2\xa7 1006(c) o f RCRA, 42 U .S .C . \xc2\xa7 6905(c), w hich was added m 1980 by Pub. L. No. 96-^82,\n94 Stat. 2334, specifically vests in the Secretary o f the Interior the exclusive responsibility for im plem enting\nhazardous w aste regulations w ith respect to coal m ining w astes. Although this section w as added to RCRA by\na later-enacted statute, and therefore is o f lim ited value in determ ining the legislative intent of the drafters o f\n\xc2\xa7 1006(a), it dem onstrates that when C ongress intends to carve out a categorical exem ption from RCRA for\ncertain types o f activities, it can do so in c le a r and explicit term s.\nl i See S. Rep. No. 1699, 83rd Cong , 2d Sess. 1 4 -1 5 ,1 9 , 2 6 (1 9 5 4 ).\n\n16\n\n\x0cwelfare, increase the standard of living, and strengthen free\ncompetition in private enterprise.\n42 U.S.C. \xc2\xa72011.\nOne exception to this general lack of prescriptive \xe2\x80\x9crequirements\xe2\x80\x9d in the AEA\nis afforded by those provisions of the AEA that establish standards and proce\xc2\xad\ndures for identification and handling of \xe2\x80\x9crestricted data,\xe2\x80\x9d which is defined to\ninclude \xe2\x80\x9call data concerning (1) design, manufacture, or utilization of atomic\nweapons; (2) the production of special nuclear material; or (3) the use of\nspecial nuclear material in the production of energy.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2014(y).\nSubchapter II of the AEA requires that such data be handled pursuant to\ndetailed provisions governing its protection and disclosure. 42 U.S.C. \xc2\xa7\xc2\xa7 2161\xe2\x80\x94\n2168.19 We believe that these provisions fall within the commonly understood\nmeaning of the term \xe2\x80\x9crequirements,\xe2\x80\x9d and therefore that particular RCRA\nprovisions or regulations governing access to information concerning the dis\xc2\xad\nposal of hazardous wastes or access to wastes sites must yield if they are\ninconsistent with particular requirements imposed by the AEA with respect to\nthe handling of restricted data.20\nWe also believe that \xc2\xa7 1006(a) would preclude a state from exercising veto\npower over the establishment or operation of a DOE facility, either by denying\nthe necessary permits or by seeking an injunction in court against continued\noperation of the facility because of noncompliance with RCRA. Clearly, a state\ncould not refuse to issue a RCRA permit, or request injunctive relief, based on\nDOE\xe2\x80\x99s noncompliance with an aspect of state or federal RCRA regulation that\n19 Pursuant to these provisions, access to restricted data is limited to individuals who have undergone\nbackground investigations, and is contingent on a determ ination that perm itting such persons to have access\nwill not endanger the common defense and safety. 42 U.S C. \xc2\xa7 \xc2\xa7 2 163, 2165 We note that sensitive\ninform ation that does not fall w ithin the category o f \xe2\x80\x9crestricted data" may nonetheless be classified as\n\xe2\x80\x9cnational security inform ation\'\xe2\x80\x99 under Executive O rder 12356, and therefore required to be handled pursuant\nto the provisions o f that Executive O rder In addition, the Secretary o f Energy has authority under the AEA to\nprescribe regulations o r issue orders to prohibit the unauthorized dissem ination of certain unclassified\ninform ation if such dissem ination \xe2\x80\x9ccould reasonably be expected to have a significant adverse effect on the\nhealth o r safety o f the public o r the common defense and security by significantly increasing the likelihood o f\n(A) illegal production o f nuclear weapons, o r (B) theft, diversion, or sabotage o f nuclear m aterials, equip\xc2\xad\nment, or facilities.\xe2\x80\x99\' 42 U.S.C \xc2\xa7 2168. It is possible that particular access and disclosure provisions of RCRA\nmay conflict with such restrictions in some instances, in which case we believe the restrictions authorized by\nthe AEA w ould prevail.\n20 As EPA points out, however, the possibility o f conflict betw een the restricted data provisions o f the A EA\nand the access and disclosure provisions o f RCRA does not necessarily mean that DOE can refuse categori\xc2\xad\ncally to grant access to its facilities o r to deny inform ation to EPA and state officials responsible for enforcing\nRCRA. It may well be that not all inform ation about hazardous waste disposal at DOE\xe2\x80\x99s facilities w ould\nrequire special protection, or w ould fall within the definition o f restricted data, or w ithin the scope o f\n\xe2\x80\x9cnational security inform ation\xe2\x80\x9d required to be classified by Executive O rder 12356. In addition, it w ould\nprobably be feasible in many cases to require those officials to obtain appropriate security clearances in order\nto gain access to d ata necessary to determ ine com pliance with RCRA regulations.\nWe also do not rule out entirely the possibility that some information about the production of nuclear\nw eapons and m aterials at D OE\xe2\x80\x99s facilities is so sensitive that access must be restricted to D O E personnel, or\nto DOE and EPA personnel. This level o f detail should be identified and worked out by D OE in cooperation\nwith EPA. W e note that EPA is w orking with o th er federal agencies, including the D epartm ent o f Defense, to\nensure that im plem entation o f the RCRA program does not com prom ise sensitive information or the national\nsecurity, and has w orked w ith DOE to accom m odate national security concerns under the FW PCA.\n\n17\n\n\x0cis inconsistent with the requirements of the AEA, within the meaning of\n\xc2\xa7 1006(a). For example, we do not believe a state could refuse to issue a permit\nbased on DOE\xe2\x80\x99s proper refusal under the \xe2\x80\x9crestricted data\xe2\x80\x9d provisions of the\nAEA to grant the state access to particular restricted data or to make such data\npublicly available.\nIn addition, even if a state could establish that DOE had not fully complied\nwith RCRA regulations and standards not superseded by virtue of \xc2\xa7 1006(a),\ni.e., those that are consistent with the AEA, we have serious reservations\nwhether a state could effectively shut down DOE\xe2\x80\x99s operation by denying a\npermit or by obtaining an injunction to enforce compliance, particularly where\nalternative, less drastic means of enforcement exist. While the AEA does not in\nso many words require DOE to operate its Atomic Energy Act facilities, the\nclear purpose of the statute is to authorize and encourage operation of such\nfacilities, and the authority provided represents a congressional judgment that\nsuch activities should be carried out at a federal level. We believe therefore that\nit may well be \xe2\x80\x9cinconsistent with\xe2\x80\x9d the AEA itself to permit a state to veto\noperation of a federal facility authorized under the Act.21 See generally\nW einberger v. Romero-Barcelo, 456 U.S. 305, 315 n.9 (1982); California v.\nU nited States, 438 U.S. 645, 668 n.21, 679 (1978); First Iowa Hydro Electric\nC ooperative v. F ederal P ow er Com m \xe2\x80\x99n, 328 U.S. 152, 181-82 (1946); Okla\xc2\xad\nhoma v. G uy F. Atkinson Co., 313 U.S. 508, 534-35 (1941). A state could,\nnonetheless, include in a permit certain compliance schedules or other condi\xc2\xad\ntions intended to bring DOE\xe2\x80\x99s facilities into compliance with RCRA standards\nor requirements that lie within the scope of \xc2\xa7 1006(a), and could seek judicial\nenforcement of those conditions through means short of an injunction against\ncontinued operation. See, e.g., W einberger v. Romero-Barcelo, 456 U.S. 305,\n315 n.9 (1982).22 DOE would of course have the opportunity to seek review of\n21 W e do not believe, however, that any state regulation under R CR A of D O E\xe2\x80\x99s Atomic Energy Act\nfacilities w ould necessarily be precluded a s \xe2\x80\x9cinconsistent.\xe2\x80\x9d RCRA clearly provides for a significant state role\nin the prom ulgation and enforcement o f standards for the treatm ent and disposal o f solid waste, even with\nrespect to federal facilities. See 42 U.S.C. \xc2\xa7 6961. A lthough w e believe that serious questions would be raised\nif a state attem pted to close a DOE facility for failure to comply w ith state perm itting or substantive\nrequirem ents, m uch state regulation co u ld probably be accom m odated consistent w ith D O E\xe2\x80\x99s statutory\nm andate. W e understand th at DOE and EPA have w orked together and with the states to im plem ent the\nstandards and perm itting requirements set forth in the FW PC A , and w e know o f no persuasive reason why\ncooperation w ith state authorities with resp ect to hazardous waste disposal under RCRA would not also be\npossible.\n22 Even though the state m ight not be ab le to enforce th e permit (or denial of a perm it) by an injunction\nagainst continued operation o f a facility , the permit itself, and the perm itting process, would not be\nm eaningless. A state (o r private citizen) co u ld , for exam ple, seek declaratory relief that DOE should comply\nw ith p articu lar R CR A requirem ents or stan d ard s em bodied in a state perm it or required as a prerequisite for\no btain in g the perm it. In addition, under Executive O rder 12088, there w ould be an opportunity for internal\nExecutive B ranch resolution of particular disputes. E xecutive O rder 12088 requires the head o f each\nExecutive agency to insure that the ag en cy com plies w ith the \xe2\x80\x9csame substantive, procedural, and other\nrequirem ents th at w ould apply to a p riv ate person\xe2\x80\x9d under a number o f environm ental statutes, including\nR CR A , and to cooperate w ith EPA and state, interstate, an d local agencies in the prevention, control, and\nabatem ent o f environm ental pollution. T h e order directs th at conflicts betw een the EPA and an Executive\nB ranch agency, o r betw een an Executive Branch agency an d a state, interstate, or local agency, regarding\nviolatio n s o f those environm ental statutes be resolved by the Office o f M anagem ent and Budget, if such\nco n flicts can n o t be resolved through effo rts o f the EPA.\n\n18\n\n\x0csuch conditions to determine that they are reasonably related to bona fide\nhealth and safety objectives and not designed to force closure of the facility.\nDOE argues that the AEA does not provide for any state role in regulation of\nfederal facilities, citing in particular the 1965 amendments to \xc2\xa7 271 of the Act,\n42 U.S.C. \xc2\xa7 2018, that clarified Congress\xe2\x80\x99 intent that the states could not\nregulate \xe2\x80\x9cany activities of the [Atomic Energy] Commission.\xe2\x80\x9d We agree with\nDOE that, prior to enactment of RCRA, federal facilities operated pursuant to\nthe AEA were immune from state regulation of waste disposal practices,\nbecause of the lack of any clear waiver of sovereign immunity in the AEA or\nany other statute that would allow such regulation. The effect of the 1965\namendments to \xc2\xa7 271 of the AEA, however, is largely irrelevant to our analysis\nhere. Those amendments were intended explicitly to clarify an ambiguity in the\nextent to which the AEA waived sovereign immunity over regulation of the\ntransmission and generation of electricity by federal facilities. The legislative\nhistory recited by DOE in support of its argument reflects that this was\nCongress\xe2\x80\x99 particular concern; that history reflects further that Congress in\xc2\xad\ntended to make clear that the federal facilities at issue stood on the same\nfooting as all other federal agencies. See, e.g., I l l Cong. Rec. 18702 (1965)\n(remarks of Rep. Hosmer); id. at 19821 (remarks of Sen. Pastore).\nAt that time, however, no federal facilities were subject to state regulation of\nhazardous waste disposal practices. Therefore, our analysis here must focus on\nthe effect of the subsequent waiver of sovereign immunity in \xc2\xa7 6001 of RCRA\nand the exception to that waiver carved out by \xc2\xa7 1006(a) of that statute. In that\nregard, we believe that the waiver of sovereign immunity in \xc2\xa7 6001 is suffi\xc2\xad\nciently \xe2\x80\x9cclear and unambiguous,\xe2\x80\x9d see Hancock v. Train, 426 U.S. 167, 179\n(1976), to overcome the general principle that federal facilities and activities\nare immune from regulation by the states. Although \xc2\xa7 1006(a) creates some\nambiguity with respect to application of that waiver to \xe2\x80\x9cactivit[ies]. . . subject\nto . . . the [AEA],\xe2\x80\x9d we do not believe that ambiguity undercuts the clarity or\neffectiveness of the waiver contained in \xc2\xa7 6001.23\nThus, we concur with EPA\xe2\x80\x99s conclusion that the thrust of \xc2\xa7 1006(a) of\nRCRA is not to exempt completely DOE\xe2\x80\x99s Atomic Energy Act facilities from\n23 W e Dote that the issue w hether states could regulate w aste disposal practices o f federal facilities under\nthe AEA prior to RCRA is different from the issue w hether states could then regulate w aste disposal by\nprivately owned facilities licensed under the AEA. The first issue is one o f sovereign im m unity \xe2\x80\x94 w hether\nC ongress has clearly and explicitly authorized the states to regulate the federal governm ent in a particular\naspect o f its activities. The second issue is one o f preem ption \xe2\x80\x94 w hether Congress has, in the exercise o f its\nconstitutional authority, preem pted state regulation o f private activities. Thus, even prior to RCRA, the states\ncould regulate disposal o f nonnuclear w astes by private licensees, because the AEA did not preem pt such\nregulation. See, e.g., Pacific Gas and Electric Co. v. State Energy Resources Conservation & Development\nComm \xe2\x80\x99n, 461 U.S. 190 (1983); Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 1 6 -1 7 &\nn.14 (1976); Illinois v. Kerr-McGee Corp., 677 F.2d 571, 580 (7th C ir. 1982); Northern States Power Co. v.\nState o f Minnesota, 447 F.2d 1143, 1149-50 (8th Cir. 1971), a ffd , 405 U.S. 1035 (1972); 42 U.S.C.\n| 202 l(k ) (\xe2\x80\x9c (n]othing in this section authorizing lim ited state agreem ents for regulation o f n uclear m aterial\nshall be construed to affect the authority o f any State o r local agency to regulate activities for purposes other\nthan protection against radiation hazards\xe2\x80\x9d). B ecause neither the AEA nor any other statute prior to R CR A\nclearly w aived sovereign im m unity, how ever, states could not then sim ilarly regulate hazardous w aste\ndisposal practices o f federal facilities.\n\n19\n\n\x0cstate and federal regulation of hazardous waste disposal, but rather to avoid\ninconsistencies between RCRA and the unique national security and health\nproblems created by operation of nuclear facilities under the AEA. To the\nextent that operation of those facilities is comparable to operation of other\nmanufacturing and industrial facilities, Congress intended that they be subject\nto the standards and requirements imposed by RCRA on all other federal\ngovernment facilities, and enforced by EPA and the states. To the extent there\nare actual inconsistencies, however, the AEA would control; this feature of the\nstatutory scheme should be responsive to DOE\xe2\x80\x99s particular and clearly legiti\xc2\xad\nmate concerns about the protection of sensitive information and the possibility\nof state vetoes over operation of its facilities, while also meeting EPA\xe2\x80\x99s\nconcern that RCRA regulations apply, to the extent possible, uniformly through\xc2\xad\nout the federal government.24\nDOE argues in addition, however, that its regulations and directives under\n\xc2\xa7 161(i)(3) of the AEA governing the disposal of nonnuclear wastes also\nconstitute \xe2\x80\x9crequirements\xe2\x80\x9d of the AEA, considered in the context of the purpose\nand scope of DOE\xe2\x80\x99s authority under the AEA. DOE contends that this authority\n\xe2\x80\x9cnecessarily and essentially pertains\xe2\x80\x9d to accomplishment by DOE of the pur\xc2\xad\nposes of the AEA, and is \xe2\x80\x9can essential ingredient of the scheme of the [AEA].\xe2\x80\x9d\nUnder this analysis, DOE\xe2\x80\x99s regulations or directives governing disposal of\nnonnuclear wastes would control, at least to the extent they are inconsistent\nwith state or federal regulations and requirements under RCRA. The logical\nresult of this argument is that DOE could totally exempt its Atomic Energy Act\nfacilities from RCRA regulation by prescribing regulations or directives that\ndiffer somewhat from otherwise applicable RCRA regulations and standards.\nWe believe that this argument stretches the language and purpose of \xc2\xa7 161(i)(3)\nbeyond that intended by Congress when it enacted the AEA.25 It is highly\n24 I f D O E \xe2\x80\x99s specific concern cannot b e m et adequately under this scheme, it may obtain a Presidential\nw aiver for p articu lar facilities, or for all its Atomic Energy Act facilities, pursuant to \xc2\xa7 6 0 0 1 , 42 U.S.C.\n\xc2\xa76961.\n25 W e do not suggest that, in the absence o f RCRA, D O E could not use the authority provided by \xc2\xa7 161(i)(3)\nto regulate the disposal o f nonnuclear w astes at its A tom ic Energy Act facilities. C ertainly the language of\nthat p rovision, giving D OE the authority \xe2\x80\x9c to prescribe . . standards and restrictions governing the design,\nlocation, and operation o f facilities used in the conduct o f such activity, in order to protect health and to\nm inim ize dan g er to life o r property,\xe2\x80\x9d 42 U .S.C . \xc2\xa7 2201 (i)(3), is broad enough to encom pass such regulation.\nT he g ran t o f discretionary authority u n d e r that section to prescribe such regulations, how ever, does not\ncom pel the conclusion that such regulations would be requirem ents o f the AEA.\nSection 161(i)(3) w as given a very narro w interpretation in Reynolds v. United States, 286 F.2d 433, 438\n(9th C ir. 1960), a case involving criminal prosecution o f an individual for trespass in a 390,000 square mile\narea surrounding the Eniw etok Proving G rounds (used for nuclear bom b testing), which had been designated\nas a clo sed area by the A tom ic Energy C om m ission on the basis o f authority provided in \xc2\xa7 161 (i)(3). Based on\nits reading o f the legislative history o f \xc2\xa7 161(i)(3), the court concluded that the authority provided by that\nsection applies o nly to activities of private industry licensed by the A EC, and not \xe2\x80\x9cto the Com m ission\xe2\x80\x99s own\nactiv ities.\xe2\x80\x9d 286 F.2d at 43 8 -3 9 . We b eliev e the co u rt\xe2\x80\x99s reading o f that legislative history was strained in\nreaching the result that an individual c o u ld not be subject to serious crim inal penalties for violating a\nregulation th at arguably exceeded the C om m ission\xe2\x80\x99s authority. The logic o f the court\xe2\x80\x99s reading o f \xc2\xa7 161 (i)(3)\nis that th e A tom ic E nergy Commission \xe2\x80\x94 and now DOE \xe2\x80\x94 would have no authority w hatsoever to take\nactions to protect the health and safety o f its workers o r o f the public from nonnuclear hazards created by its\now n activ ities. W e do not believe Congress intended that result.\n\n20\n\n\x0cunlikely that Congress even considered possible problems caused by the dis\xc2\xad\nposal of nonnuclear wastes when it enacted the AEA in 1954. Indeed, the\ndimensions of the nation\xe2\x80\x99s hazardous waste problem were not generally ac\xc2\xad\nknowledged until more than a decade after enactment of the AEA. See gener\xc2\xad\nally Senate Report, supra, at 6; H.R. Rep. No. 899, 89th Cong., 1st Sess. 7-9\n(1965) (discussing Solid Waste Disposal Act of 1965, Pub. L. No. 89-272, 79\nStat. 992). Rather, the focus of the AEA, inasmuch as it deals with disposal\nproblems, is with regulation of nuclear wastes generated by atomic facilities.\nSee Pacific G as and E lectric Co. v. State Energy Resources Conservation &\nD evelopm ent Com m \xe2\x80\x99n, 461 U.S. 190 (1983); Train v. Colorado Public Interest\nResearch Group, Inc., 426 U.S. 1, 16-17 & n.14 (1976); Northern States\nP ow er Co. v. Minnesota, 447 F.2d 1143, 1149-50 (8th Cir. 1971), a f f d, 405\nU.S. 1035 (1972). There is no suggestion in the AEA or its legislative history\nthat \xc2\xa7 161(i)(3) was intended to require DOE to establish a comprehensive\nregime for the control of nonnuclear wastes, or that Congress considered such\nauthority to be necessary to accomplishment of the purposes of the AEA. That\nsection is, rather, most reasonably interpreted as a general grant of discretion\xc2\xad\nary authority to DOE to make whatever incidental regulations it deems neces\xc2\xad\nsary to insure that its facilities are operated safely and with minimal risk to\nhealth, life, and property. See generally Bram er v. United States, 412 F. Supp.\n569,575, 577 (C.D. Cal.), a ffd , 595 F.2d 1141 (9th Cir. 1976) (interpreting 42\nU.S.C. \xc2\xa7 2051); Blaber v. United States, 332 F.2d 629, 631 (2d Cir. 1964)\n(interpreting 42 U.S.C. \xc2\xa7 2051).\nBy contrast, RCRA is clearly and explicitly intended to provide a compre\xc2\xad\nhensive scheme for regulation of the disposal of nonnuclear wastes by private\nentities and by the federal government. See Senate Report, supra, at 2-7;\nHouse Report, supra, at 2-5. In light of the clear intent and the comprehensive\xc2\xad\nness of RCRA, we are unwilling to interpret \xc2\xa7 1006(a) to mean that, merely by\nexercising its discretionary authority under the AEA with respect to nonnuclear\nwastes, DOE can exempt itself from RCRA\xe2\x80\x99s regulatory scheme.\nWe recognize nonetheless that there may be particular operational needs or\nproblems generated by the unique requirements of DOE\xe2\x80\x99s nuclear operations\nthat in some cases will require some modification in, or exemption from,\nparticular substantive standards imposed by the EPA or the states pursuant to\nRCRA. For example, it may be that inclusion of small amounts of nuclear\nwastes in a chemical waste stream would require some modification in other\xc2\xad\nwise applicable RCRA standards or regulations,26 or that certain aspects of\nindustrial processes that are unique to the fabrication of nuclear weapons\nmaterials and components require different handling of solid wastes generated\n26 The inclusion o f sm all amounts o f nuclear m aterials in such stream s w ould not necessarily prohibit EPA\nfrom regulating those streams m erely because RCRA does not apply to certain types o f nuclear m aterials.\nThat such wastes are commingled with nonnuclear wastes suggests that in many cases the am ount of nuclear\nwaste would not be large enough to require special handling, and therefore there would be no reason for\nexclusive D OE control over its handling. We believe these types o f problems could be addressed by EPA and\nDOE in their discussions to im plem ent this opinion.\n\n21\n\n\x0cby those processes.27 Those situations will have to be identified and handled by\nDOE and EPA on a cooperative basis, in accordance with the interpretation of\n\xc2\xa7 1006(a) we have outlined here.\nConclusion\nImplementation of this opinion will require DOE and EPA to discuss in\ndetail the impact of RCRA regulations on operation of DOE\xe2\x80\x99s Atomic Energy\nAct facilities, and to determine how best to accommodate the purposes of the\nAEA with the specific requirements of RCRA. We recognize that the advice\ngiven here is general, and may not resolve many of the particular questions that\nwill arise in the course of those discussions. We note, however, that EPA has\nconducted similar discussions with DOE in order to implement provisions of\nthe FWPCA, and has engaged in such discussions with other federal agencies,\nincluding the Department of Defense, to implement the requirements of RCRA\nand the FWPCA. We suggest that those discussions might provide a framework\nfor addressing the applicability of RCRA to DOE\xe2\x80\x99s Atomic Energy Act facili\xc2\xad\nties. We will, of course, be available to provide additional legal analysis,\nshould that prove necessary.\nTheodore\n\nB.\n\nO lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n27 T he internal D O E o rd er prescribing hazardous waste m anagem ent practices, see DO E O rder 5480.2 (Dec.\n13 ,1 9 8 2 ), appears to contem plate this ty p e o f problem. U n d er that o rder, full com pliance w ith the prescribed\nprocedures (m ost o f w hich are consistent w ith RCRA) m ay be excused \xe2\x80\x9cdue to unique characteristics o f the\nsites an d /o r facilities . . . o r due to unrealistically high costs com pared to the risks involved.\xe2\x80\x9d If full\ncom pliance cannot be achieved because o f high costs, \xe2\x80\x9calternative methods o f handling waste that will\nprovide com parable levels o f safety and environm ental protection at reduced costs\xe2\x80\x9d m ust be taken.\nA lthough w e d o not suggest that ev ery situation that m ight w arrant relaxation o f D O E\xe2\x80\x99s internal order\nw ould co n stitu te an inconsistency for purposes o f \xc2\xa7 1006(a), those types o f situations could possibly provide\na basis for noncom pliance with particular RCRA requirem ents, if the particular characteristics or high costs\ninvolved arise because o f the unique nature o f the nuclear processing operations.\n\n22\n\n\x0c'