Petitioners Brief — New York v. United States

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Nos. 91-543; 91-558; 91-563 | Sunreme Front U8,

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IN THE 1939

Supreme Court of the United States." wi

a ee

October Term, 1991

THE STATE OF NEW YORK; THE COUNTY OF ALLEGANY;: and THE

COUNTY OF CORTLAND,

Petitioners,

against

THE UNITED STATES OF AMERICA; JAMES D. WATKINS. as Secretary of

Energy; IVAN SELJN, as Chairman of the United States Nuclear Regulatory

Commission, THE UNITED STATES NUCLEAR REGULATORY COMMIS-

SION, ADMIRAL JAMES B. BUSEY, IV, as Acting Secretary of Transporta-

tion, and WILLIAM P. BARR, as United States Attorney General,

Respondents,

THE STATE OF WASHINGTON, THE STATE OF NEVADA: and THE

STATE OF SOUTH CAROLINA,

Intervenors-Respondents

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR PETITIONER STATE OF NEW YORK

ROBERT ABRAMS

Attorney General of the State of New York

Attorney for Petitioner

The Capitol

Albany, NY 12224

(518) 473-0230

JERRY BOONE

Solicttor General

PETER H. SCHIFF

Deputy Solicitor General

and Counsel of Record

JOHN MCCONNELL

Assistant Attorney General

Of Counsel

Dated: February 13, 1992

Tot Reporter Company, Inc — Walton. NY 13856—800-252-7/ 8)

Syracuse Office. University Building. Syracuse. NY 13202—315-426- 1235

NYC Office—30 Vesey St. New York. NY 10007—212-732-6978—800-800-4264

(1779.---LC5-S588— 1992)

Question Presented

Whether Congress, consistent with the limits imposed by

the Constitution and especially the Tenth Amendment, may

compel a State to “be responsible for” and develop a plan for

the disposal of low-level radioactive waste produced by pri-

vate, state, and some federal generators within the State’s

borders, and may require the State to take title to, assume

possession of, and be legally liable for such waste if it fails to

develop such a plan.

il.

List of Parties in Proceeding Below

With the exception of Ivan Selin, James B. Busey, and

William P. Barr, the parties listed on the caption are identical

to those in the proceeding below. Mr. Selin has been substi-

tuted for Kenneth M. Carr as Chairman of the United States

Nuclear Regulatory Commissioner. Mr. Busey has been substi-

tuted for Samuel K. Skinner as (Acting) Secretary of Transpor-

tation. Mr. Barr as been substituted for Richard Thornburgh as

United States Attorney General.

ill.

Table of Contents.

ne nw cede votdeos

List of Parties in Proceeding Below ..............

CN te bee

Citation of Opinions and Judgments Below ..........

Statement of Grounds tor Jurisdiction. ..............

Consututional and Statutory Provisions Involved ..... .

Brief for Petitioner State of New York ..............

re ee

Summary of Argument .......................

ARGUMENT:

PoINT I. This Court should subject the 1985 Act to

substantive review under the Tenth Amend-

POINT II. The 1985 Act nail be declared uncon-

F i GEER rine eae oN Se ear

CONCLUSION. The 1985 Act should be declared uncon-

Stitutional in its entirety ......0.00.000.00.....

Appendix. Low-Level Radioactive Waste Policy Amend-

ments Act of 1985 (Pub. L. 99-240, Title I, Jan. 15,

PE TE, EN ign a's vc taba cube eens

Page

Xx!

1V.

TABLE OF AUTHORITIES.

Page

CASES:

Brown v EPA, 521 F2d 827 (9th Cir 1975), vacated and

remanded for consideration of mootness sub nom.

EPA v Brown, 431 US 99 (1977) ............ 16

Champlin Refining Co. v Corporation Commission of

Oklahoma, 286 US 210 (1932)............... 3]

Coyle v Oklahoma, 221 US 559 (1911)......... 7, 12, 13

District of Columbia v Train, 521 F2d 971 (DC Cir

1975), vacated and remanded for consideration of

mootness sub nom. EPA v Brown, 431 US 99

oo re errr rT ee yer errr 17, 24

Equal Employment Opportunity Commission (EEOC) v

Wyoming, 460 US 226 (1983)............... 14

Federal Energy Regulatory Commission (FERC) v Mis-

sissippi, 456 US 742 (1982).............. passim

Fry v United States, 421 US 542 (1975)............. 13

Garcia v San Antonio Metropolitan Transit Authority,

Se Nc eer as passim

Gregory v Ashcroft, ___. US ____, 111 S$ Ct 2395, 11S L

Ed 2d 410 (1991)........ 0.00.0... passim

Hodel v Virginia Surface Mining & Rec. Assn., 452 US

IES Sori soi 00 Gro bs ob wich eakas passim

Illinois v City of Milwaukee, 406 US 91 (1972) ...... 30

INS v Chadha, 462 US 919 (1983) .................

Lane County v Oregon, 74 US 71 (1868)............

Loretto v Teleprompter Manhattan CATV Corp., 458 US

TE te Neate ee eee ne te ios ae kay we

Marbury v Madison, 5 US (1 Cranch) 137 (1803)..... 20

Maryland v EPA, 530 F2d 215 (4th Cir 1975), vacated

and remanded for consideration of mootness sub

nom. EPA v Brown, 431 US 99 (1977)........ 16

Maryland v Wirtz, 392 US 183 (1968) .............. 25

National League of Cities v Usery, 426 US 833

coe oop cee e es tune heeneecabeus 11, 14

Pennsylvania v EPA, 500 F2d 246 (3d Cir 1974)...... 17

South Carolina v Baker, 485 US 505 (1988). .... 7, 18, 19

y Be’ Ses Bi. BFE yy Rrra eare 30

Texas v White, 74 US 700 (1868).................. 13

Wyoming v Colorado, 259 US 419 (1922) ........... 30

UNITED STATES CONSTITUTION:

IIIS PE OPE OP eT ree 26

Rs oo a 5 0-5 sb 0 00s OObb oe 6566 KES passim

ns ek te eke te eae

Vi.

Page

FEDERAL STATUTES:

Fair Labor Standards Act (FLSA).............. 8, 10, 25

Low-Level Radioactive Waste Policy Act, Pub. L. No.

a AG Sane gh renal act gm ee te Rea passim

Low-Level Radioactive Waste Policy Amendments,

Act of 1985, Pub. L. No. 99-240, Title I, 99

SI ire i tae ren passim

Omnibus Low-Level Radioactive Waste Interstate Com-

pact Consent Act, Pub. L. No. 99-240, Title II, 99

bE ere eee

Public Utility Regulatory Policies Act of 1978........ 17

Tax Equity and Fiscal Responsibility Act of 1982,

I Hi vis dN 7 cu cea cea cee eiees aes 18

EE RE 0 gece Seas i cee eet 26

Pe We Ws bas cw oaks wears bh ove cue venienucs 26

Oe Wy Oe I ies vc i vicbnvevvescawacens cin 3

§ 20210-2021j............ waseewsn pans passim

NE id on aca su we ic biases et ae 26

SS aa cn -a'y bend wR en 25

aioe oy ca Suis eee Uee ke Oks cee 30

IG ny oa hae eee hae blew e ce bes 3

EY, Bis si xs 4's G0 ¥544a 6.0 43 008 are oe 3

Vil.

Page

NEW YORK STATUTES:

8. ea ee ee ey, 5,29 n 18

a ene ORC ENTS 5,29 n 18

I pie oe ore 5

1vy90 McKinney's Session Laws of New York, Vol II,

p 2430 (State Executive Department Memoran-

SE ED U's on i Sawada ckeuueeuescas 29

MISCELLANEOUS:

131 Cong Rec H38115-38118 (Dec. 19, 1985)...... 32, 34

131 Cong Rec $38403-38410 (Dec. 19, 1985): ..... 32, 34

131 Cong Rec $38414 (Dec. 19, 1985)... 00.22... 33

131 Cong Rec $38420 (Dec. 19, 1985)... ........... 34

1985 U.S. Code Cong. & Admin. News, pp 3005-3006 2

Diamond, The Federalist on Federalism: “Neither a

National nor a Federal Constitution, but a Compo-

sition of Both”, 86 Yale LJ 1273 (1977)....... 15

The Federalist, Nos. 1, 2, 9, 14, 37, 39, 40, 43,45 and46 14

Friendly, Federalism: A Foreword, 86 Yale LJ 1019

DE at aaa psa ae wae we ee ee 15

Hart, The Relations Between State and Federal Law, 54

ee EOL ee 15

Jetferson, Letter to Gideon Granger, August 13, 1800.. 14

LaPierre, Political Accountability in the National Politi-

cal Process—The Alternative to Judicial Review

of Federalism Issues, 830 Nw U L Rev 577 (1985) 15

Vill. ix.

aS Citation of Opinions and Judgments Below

Lippman, The Essential Lippman, 220-221 (1963)... .. 14

The opinion of the court of appeals (Pet. App. la-17a)! is

reported at 942 F.2d 114. The opinion of the district court (Pet.

App. 18a-26a) is reported at 757 F.Supp. 10.

Memorandum from the Congressional Research Service

to the Subcommittee on Energy Conservation and

Power, House Committee on Energy and Com-

merce, “Constitutional Issues Raised by the

Imposition of Liabilities on the State Under a

Proposed Amendment to the Low-Level Radioac-

tive Waste Policy Act of 1980", December 16.

EES Cia ue ek scare use cites 22

Merritt, The Guarantee Clause and State Autonomy: Fed-

eralism for a Third Century, ‘88 Colum L Rev |

NEG Wik ok Xa te co rate a ie aire ae ne dln 15

Nagel, Federalism as a Fundamental Value: National

League of Cities in Perspective, 1981S CtRev&8I 15

Tocqueville, Democracy in America, 158-163 (Anchor

DG Fa cas oes hee aen cs ieee oe l4

Van Alstyne, The Second Death of Federalism, 83 Mich

De ee ccc enn sore 15

_- —-—-—

Pet. App.” refers to the appendix to the petition tor writ of cer-

tiorart tiled in this matter by the State of New York (No. 91-543)

Statement of Grounds for Jurisdiction

peti tederal jurisdiction under 28 USC §§ 1331, 1337,

1346, 2201 and 2202. petitioner State of New York and other

petitioners brought this suit in the United State District Court

for the Northern District of New York. On December 7. 1990,

the District Court granted defendants’ motion to dismiss the

complaint.

On plainutfs’ appeals, the Court of Appeals for the Second

Circuit on August 8, 1991 entered a judgment and opinion

attirming the District Court’s order

Invoking this Court's jurisdiction under 28 USC § 1254(1),

pettoner State of New York filed its petition for a writ of

certiorari on September 30, 1991. Certiorari was granted by

the Court on January 10, 1992

XI.

Constitutional and Statutory Provisions Involved

United States Constitution, Tenth Amendment:

The powers not delegated to the United States by the

Constituulon, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

United States Constitution, Article IV, § 4:

The United States shall guarantee to every State in this

Union a Republican Form of Government, and shall

protect each of them against Invasion; and on Applica-

tion of the Legislature, or of the Executive (wen the

Legislature cannot be convened) against domestic vio-

lence.

The Low-Level Radioactive Waste Policy Amendments Act

of 1985 (42 USC §§ 2021b-2021)):

See Appendix.

Nos. 91-543: 91-558: 91-563

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 199]

THE STATE OF NEW YORK: THE COUNTY OF ALLEGANY:

and THE COUNTY OF CORTLAND.

Petitioners,

GULainst

THE UNITED STATES OF AMERICA; JAMES D. WATKINS, as

Secretary of Energy: IVAN SELIN, as Chairman of the United

States Nuclear Regulatory Commission; THE UNITED

STATES NUCLEAR REGULATORY COMMISSION; ADMIRAL

JAMES B. Busey, IV. as Acting Secretary of Transportation;

and WILLIAM P. BARR, as United States Attorney General,

Respondents,

THE STATE OF WASHINGTON: THE STATE OF NEVADA: and

THE STATE OF SOUTH CAROLINA,

Intervenors-Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR PETITIONER STATE OF NEW YORK

Statement of the Case

This appeal addresses the constitutionality of the Low-Level

madioactive Waste Policy Amendments Act of 1985, Pub. L.

een (the hisses Act, LLRWPAA), incorporated in 42 USC

§ 2021b et seg. The statute was a congressional effort to deal

comprehensively with one of the most difficult problems of

nuclear technology: the secure disposal of low-level radio-

active waste. In this brief, the State of New York will argue

that this Statute, though enacted by a well-intentioned Con-

SFess, Is constitutionally deficie

intrusive affirmative oblig

ernments.

Nin its imposition of uniquely

auons UPON sovereign state gov-

| Since 1978, only three commercial sites have been available

for low-level radioactive waste disposal in the United States:

Beatty, Nevada; Barnwell, South Carolina; and Hanford,

Washington. 1985 U.S. Code Cong. & Admin. News. pp

3005-3006, Safety concerns and plans to limit and ultimateiy

discontinue waste disposal at these facilities prompted Con

BFess lo pass the Low-Level Radioactive Waste Policy Act of

1980, Pub. L. 96-573 (the 1980) Act).

| That legislation set forth a federal policy that each State, in

Its Capacity as sovereign State, be responsible for providing Sor

the disposal of low-level] radioactive waste generated within Its

borders by private, state. and certain federal producers.? It did

not, however, require a State to accept such responsibility The

1980 Act also encouraged States to form interstate compacts lo

meet these duties and specifically provide

States might bar use of compact facilities for the disposal of

waste generated outside the compact region after January |

1986. Pub. L. 96-573, §84(ay( 1). 4(a)(2)(B). |

d that compact

2Low-lev — , r

si exe ng ee waste was defined in the 1980 Act as “radio

> Waste not classified as high-level ri , |

a : radioactive waste. tz é

esi sass . ransuranic

voy 3 oy nuclear fuel, or byproduct material as defined Im section

f<) OF the Atomic Energy Act of 1954" Pyb 1. 96-573, § 2(2)

While a majority of States joined or proposed to join com-

pacts in the years following the passage of the 1980 Act, no

new state or regional disposal facilities were projected to

become operational until the early 1990s. Consequently, the

exclusion provision of the 1980 Act posed a problem: congres-

sional ratification of proposed compacts whose members oper-

aied existing disposal sites (Washington, Nevada, and South

Carolina) would have denied access to the only possible dis-

posal sites to all waste from States which were not in those

compacts. Accordingly, Congress enacted the Low-Level

Radioactive Waste Policy Amendments Act of 1985 (42 USC

§$§ 2021b-2021)) to permit ratification of proposed compacts,

spur further compact forimation, and grant all States continued

limited access to existing disposal sites.*

The 1985 Act differed from its predecessor in several sig-

nificant respects. It directly assigned to the States in their

sovereign capacity responsibility? for the disposal of low-level

radioactive waste.> It conditionally guaranteed access to dis-

‘Tite IT of Public Law 99-240, 99 Stat 1842, constituting the

LILRWPAA, was incorporated in 42 USC §§ 2021b-2021). Public Law

99-240, Title I, 91 Stat 1859, constututing the Omnibus Low-Level Radio-

active Waste Interstate Compact Consent Act, granted Congress's consent

to seven proposed regional compacts.

4Sectuion 3(a) of the 1985 Act (42 USC § 2021cla}[1]) provides that

“lejach State shall be responsible for providing, either by itself or in

cooperation with other States, for the disposal of .. . low-level radioactive

waste generated within the State

*The 1985 Act defines low-level radioactive waste (LLRW) as radio-

active material that: (a) 1s not “high-level” radioactive waste, spent

nuclear fuel, or by-product material as defined at 42 USC § 2014(e)(2); and

(b) 1s classified as LLRW by the Nuclear Regulatory Commission. Nation-

wide, about 90% of the volume and 97% of the total radioactivity of LLRW

tor which the 1985 Act assigns disposal responsibility to the States comes

from nuclear power plants and other industrial sources; the remainder is

venerated by research laboratories, hospitals, and medical centers.

The Act requires the States to be responsible for disposal of Class A

and Class B waste (containing radioactivity which will diminish to a level

acceptable for inadvertent exposure within 100° years [10 CFR §

61. 7(b)4)]), and Class C waste (requiring protection against inadvertent

exposure tor SOO years (10 CFR § 61.7(b)(5)}). Class C Waste comprises

less than 1% of volume but constitutes over 65% ot the radioactivity of all

LIELRW

posal sites in’ Washington, Nevada, and South Carolina tor

low level radioactive waste trom all States between January 1,

1986 and December 31, 1992, and set forth a detailed transi

tion scheme, with incentives and penalties, designed to

encourage compact formation and force disposal site develop

ment. 42 USC § 2021e. By specific dates within that period,

States and compacts were directed to comply with a number of

regulatory requirements, including ratification of compact leg

islation or indication of an individual State's intent to develop

a separate low level waste disposal facility for waste generated

in-state, development of a siting plan, and application for a

facility license to the Nuclear Regulatory Commission. or

appropriate agency of an agreement State (202 1efe][1]). Fail-

ure to meet this schedule nught result in added surcharges

upon waste generators by disposal site operators, demal of

access to the Washington, Nevada, and South Carolina sites,

and loss of certain surcharge rebates to the States (202 1eld],

le]).

The most novel and intrusive of the attirmative directives mn

the LOSS Act, however, was set forth in 42 USC § 202 1e(d) (2)

(C):

It a State (or, Where applicable, a compact region) in

Which low-level radioactive waste is generated 1s

unable to provide for the disposal of all such waste

generated within such State or compact region by Janu-

ary 1, 1996, each State in which such waste 1s gener-

ated, upon the request of the generator or owner of the

waste, shall take utle to the waste, be obligated to take

possession of the waste, and shail be liable for all

damages directly or indirectly incurred by such genera-

tor or oWner as a consequence of the failure of the State

to take possession of the waste as soon after January |,

1996, as the generator or owner noufies the State that

the waste 1s available tor shipment

With this so-called “take ttle’ provision, Congress

decisively altered the method and impact of prior legislation

regulating low level radioactive waste disposal through

encouragement and voluntary incentives. The new Act cou

pled “responsibility > tor such waste with a mandate that each

State develop and carry out a program tor the disposal of

waste generated within its borders by private and other genera

tors, meluding some federal generators. [t strengthened this

mandate through the commiand that States assume ownership

and possession of, as well as legal liability for, such waste if

they fail to comply with the federal scheme and timetable of

regulation,

New York State's congressional delegation participated in

the enactment of both the 1980 and the 19%5 Acts. In addition,

various national lobbying vroups, including the National Gov

ernors’ Association, contributed proposals and advice to Con-

gressional Committees in the early stages of each enactment.

To comply with the deadlines and other constraints of the

1985 Act, New York State enacted Chapter 673 of the Laws of

1986. Among its many provisions, this legislation called for

(1) the promulgation of standards of site selection and disposal

of low-level waste by the New York State Department of

Environmental Conservation, (2) the creation of a Siting Com-

mission to select a disposal site and methodology, and (3)

construction Of a disposal facility by the New York State

Energy Research and Development Authority.© To date, the

Siting Commission created under Chapter 673 has identified

five potential disposal sites within the State. Three of these

sites are located in Allegany County: the remaining two sites

are in Cortland County

“Laws of New York 1986. Chap 673 was subsequently amended by

Laws of New York 1990, chap 468 (providing that utle to low-level

radioactive Waste shall at all times remain in the generator of such waste—

even after such time as the waste has been accepted at the disposal facility

and Laws of New York 1900. Chap 913 (expanding membership and tasks

of the Siting Commisston

In February, 1990, the State of New York, together with the

Counties of Allegany and Cortland, commenced an action in

the United States District Court for the Northern District of

New York against various federal defendants, seeking a decla

ration that the LLRWPAA’s imposition of broad new affirm

ative duties upon the States violated the Tenth and Eleventh

Amendments, as well as the Due Process and Guarantee

Clauses of the United States Constitution. The States of Wash-

ington, Nevada, and South Carolina subsequently joined the

action as intervenors in support of defendants.

The District Court (Cholakis, J.) granted defendants’

motion for summary judgment and dismissal of the complaint

in a bench decision issued in December, 1990. Reciting this

Court's statement in Garcia v San Antonio Metropolitan Tran-

sit Authority, 469 US 528 (1985), that “judicial review of

Congressional enactments founded on Commerce Clause

powers should be limited primarily to inquiry of whether the

political process has failed,” the district court held that Tenth

Amendment review was proper only to discern “problems

which may have had an untoward effect on a particular law’s

enactment or its subsequent political review” (Pet. App. 25a).

Finding that the 1985 Act imposed no restriction on New

York's “ability to operate in the political arena and to chal-

lenge the law,” the court found judicial review unwarranted

on grounds of a failure of the political process (Pet. App. 25a).

While recognizing that Garcia left open the possibility of

judicial review of the substantive impact of federal action

under the Commerce Clause in exceptional cases, the court

ruled that such exceptions arose only “when constitutional

equality among the states has been jeopardized” by the federal

act (Pet. App. 23a). Finding no such jeopardy, nor other

grounds for constitutional attack, in the 1985 Act, the court

dismissed the State’s and counties’ complaint (Pet. App. 26a).

On appeal, the Court of Appeals for the Second Circuit

affirmed. In its decision, the court observed that, in light of

Congress's traditional role in nuclear egulation, “appellants

undertake an unusually burdensome task” in challenging the

1985S Act (Pet. App. 10a). The court held that “both the 1980

Act and its 1985 Amendments are paragons of legislative

success’ (Pet. App. 13a), and rejected any claim that the Act

or its take ttle provision was the product of a failure in the

political process.

The court found unpersuasive appellants’ argument that

Garcia permitted review of congressional mandates, such as

the take tide provision, which significantly limited the States’

role in the federal system and thereby altered the federal

constituuonal structure. While the court neither confirmed nor

denied that such review is permissible, it endorsed the district

court's holding that such review, if permissible, should con-

sider only whether the federal act upset the “equality in

dignity and power™ among the several States (Pet. App. 15a;

citing Coyle vy Oklahoma, 221 US 559 [1911]). The 1985 Act,

it held, had no such effect. “In sum,” the court noted (Pet.

App. 16a),

we are satisfied that the take utle provision does not

undermine the constitutional structure. Neither does it

violate principles of federalism as recently explained

in Garcia; and *[w|here, as here, the national political

process did not operate in a defective manner, the

Tenth Amendment is not implicated.” [South Carolina

/ Baker, 485 U.S. [SOS (1988)] at 513 (emphasis in

original).

The court also dismissed challenges to the Act based upon

the Eleventh Amendment and the Guarantee Clause (Pet. App.

loa-1 7a), and affirmed the grant of summary judgment to

defendants

New York, Allegany and Cortland filed separate petitions

for writs of certiorari to this Court on September 27, October

2, and October 3, 1991. The petitions were consolidated and

certiorari was granted on January 10, 1992.

SUMMARY OF THE ARGUMENT

This Court in Garcia, while stating that in most instances it

would not entertain Tenth Amendment challenges to federal

acts, recognized that statutes impairing the constitutional

structure might require review but declined to identify when

such review was appropriate. We argue in the first point that

this case, where the challenged Act imposes unconditional

affirmative obligations on States and only on States, presents

the quintessential situation where judicial review is needed

under the Tenth Amendinent and the principles of federalism

inherent in the federal constitutional structure. Unlike the

LLRWPAA, the Fair Labor Standards Act at issue in Garcia

applied alike to private entities and States and imposed duties

where the States had voluntarily undertaken the activity

addressed by the federal regulatory scheme. Neither Garcia

nor cases reviewed by the Court there involved laws enacted

under the Commerce Clause to compel state governments to

engage in a particular activity without their consent. While

this Court has never squarely addressed this type of law, it has

on a number of occasions expressed serious reservations about

the constituuonal authority for Congress to take such an

action. The opportunity for the State to act through its legisla-

ture in deciding whether to participate in a federal program is

an essential element of the structure of the federal system.

Since the sovereignty of States, which is critical to the pres-

ervation of the federal system, 1s severely compromised absent

such an opportunity, 1t would appear that this Court in Garcia

must have contemplated review of this type of act by the

courts.

We also argue that if this Court’s holding in Garcia cannot

be interpreted to permit such review, that holding should be

clarified or modified to authorize unequivocally substantive

Tenth Amendment review of federal acts which, like the

LLRWPAA, impose significantly intrusive and unavoidable

demands solely upon the sovereign States in the furtherance of

a federal regulatory scheme.

In Point Il we argue that. upon such substantive review, the

imposition by Congress of unconditional affirmative duties

upon States, and solely on the States, for the decentralized

disposal of low-level radioactive waste under the LLRWPAA

violates the Tenth Amendment and the Guarantee Clause of

the Constitution.

The present Act differs materially from all federal actions

previously reviewed by the Court under the Tenth Amend-

ment. In the past Congress has either applied legislative stand-

ards under the Commerce Clause alike to the Siates and to

non-governmental entities or has induced States to undertake

desired activities through threat of preemption or the commit-

ment of federal funds. The present Act is in sharp contrast. It

simply declares that the States are responsible for the perma-

nent disposal of most specified low-level radioactive waste

generated within their borders in accordance with various

federal requirements and that if all requirements are not met by

January 1, 1996, the States will be required to take title to all

such waste proffered them and be liable for any damages

incurred by private generators where the State has failed to

take possession. In this way, the Congress has commandeered

the States’ sovereign authority to deal with a national concern

and deprived the States of any independent opportunity to

decide whether to participate in such a federally mandated

program. This means of dealing with a problem of admitted

national concern ts unacceptable because it totally undermines

the existence of States as independent sovereign entities.

Acceptance of such an approach would relegate States to a

Status of mere departments of the federal government.

Finally, we argue that, contrary to the position of the federal

government below, the take title provision cannot properly be

severed from the rest of the Act. The proponents of the 1985

Act viewed the threat of the take title provision as essential to

assure States’ compliance with the other provisions of the Act.

Thus, it is unrealistic to assume Congress would have enacted

the LLRWPAA without that provision. Accordingly, the entire

1985 Act must be declared unconstitutional.

ARGUMENT

POINT I

This Court should subject the 1985 act to substantive

review under the Tenth Amendment.

Although this Court determined in 1985 that the primary

protection of state sovereign interests in the federal system lay

with the federal political process, Garcia v San Antonio Metro-

politan Transit Authority, 469 US 528 (1985), it stated then

that iis holding did not preclude all substantive review of

Congressional action against Tenth Amendment challenges.

At that time, the Court chose not to delineate what particular

issues might remain open to such review. The LLRWPAA

presents such an issue.

In Garcia, the Court was asked to determine whether the

Fair Labor Standards Act (FLSA), with its overtime.

recordkeeping, and other requirements, was applicable to puly-

licly owned mass transit systems, just as it was to other

employers in the private sector. The San Antonio Metropolitan

Transit Authority argued that its status as a public authority

performing a “traditional government function” vested it with

1 |

constituional immunity from the Act's provisions under

National League of Cities » Usery, 426 US 833 (1977).7 This

Court did not agree. Though it recognized the enduring quality

of state sovereign authority in the federal system (469 US at

549), the Court specifically rejected the notion that “free-

Standing conceptions of state sovereignty” could be employed

to differentiate among various state affirmative acts for pur-

poses of Commerce Clause analysis. Such conceptions, the

Court observed, had proved analytically inadequate and had

too often provided past courts with the opportunity to intrude

into States’ affairs (469 US at 546, emphasis added):

[he essence of our tederal system is that within the

realm of authority left open to them under the Consti-

tution, the States must be equally free to engage in any

activity that their citizens choose for the common weal,

no matter how unorthodox or unnecessary anyone

else—including the judiciary—deems state involve-

ment to be. Any rule of state immunity that looks to the

“traditional,” “integral.” or “necessary” nature of

governmental functions inevitably invites an unelected

federal judiciary to make decisions about which state

policies it favors and which ones it dislikes. “The

science of government . . . is the science of experi-

ment.” Anderson v Dunn, 6 Wheat. 204, 226 (1821),

and the States cannot serve as laboratories for social

and economic experiment, see New State Ice Co. v

Liebmann, 285 US 262, 311 (1932) (Brandeis, J., dis-

senting), if they must pay an added price when they

meet the changing needs of their citizenry by taking up

functions that an earlier day and a different society had

left in private hands

‘Under Nanonal League, a tederal act violated the Tenth Amendment

iit (1) regulated “states as states”; (2) addressed indisputable attributes of

“tate sovereignty, (3) directly impaired States’ operations in traditional

government tunctions, and (4) did not reflect a federal interest which

justified State submission to the tederal action. Hodel i Vireima Surface

Vinine & Rec Assn. 482 US 264. 87-788 n 294 TOR])

The Garcia holding, therefore, expressed this Court's dis-

satisfaction with the prospect of ongoing judicial assessment

of whether a State’s activity in the modern economy was a

sovereign one. Once a State has chosen to act in a sphere

subject to federal regulation, the State’s susceptibility to such

regulation was a matter to be left, in a majority of cases, to the

federal legislative and political process.

While this majority view in Garcia induced vigorous and

well-reasoned dissents,® both the context and the express

terms of the holding make it clear that even the majority was

unwilling to permit unconstrained federal regulation of States

through the Commerce Clause. Neither Garcia nor the cases

reviewed there addressed the propriety of federal laws which,

under the powers of the Commerce Clause, compelled state

governments to engage in a particular activity against their

will; which limited the States’ right to withdraw from activity

in a particular field; or which required States to participate as

regulatory agents in a scheme of federal regulation. Moreover,

this Court in Garcia expressly recognized that additional

Tenth Amendment protection might be available to the States

in cases where federal action, though not the product of a

defective political process, was more intrusive than that

reviewed in Garcia or its antecedents, stating (469 US at 556):

These cases do noi require us to identify or define what

affirmative limits the constitutional structure might

impose on federal action affecting the States under the

Commerce Clause. See Coyle v Oklahoma, 221 US.

559 (1911).

“See, 469 US at 557 (Powell, J. dissenting), 469 US at 579 (Rehn

quist, J. , dissenting), and 469 US at 580 (O'Connor, J, dissenting)

The benefits and importance of the constitutional structure

referred to in Garcia have been set forth by this Court in

numerous opinions.” Most recently, in Gregory v Ashcroft,

US ___, 111 S Ct 2395, 2399-2400, 115 L Ed 2d 410,

422-423 (1991), the Court stated:

This federalist structure of joint sovereigns pre-

serves to the people numerous advantages. It assures a

decentralized government that will be more sensitive

to the diverse needs of a heterogeneous society; it

*See, e.g., Lane County v Oregon, 74 US 71, 76 (1868) (“*[I}n many

articles of the Constitution the necessary existence of the States, and,

within their proper spheres, the independent authority of the States, is

distinctly recognized. To them nearly the whole charge of interior regula-

tion is committed or left, to them and to the people all powers not expressly

delegated to the national government are reserved.” ); Texas v White, 74 US

700, 725 (1868) (“Not only, therefore, can there be no loss of separate and

independent autonomy to the States, through their union under the Consti-

tuuion, but it may be not unreasonably said that the preservation of the

States, and the maintenance of their governments, are as much within the

design and care of the Constitution as the preservation of the Union and the

maintenance of the National government. The Constitution, in all its

provision, looks to an indestructible union, composed of indestructible

States.” ); Coyle v Oklahoma, 221 US 559, 567 (1911) (* ‘This Union’

was and is a union of States, equal in power, dignity and authority, each

competent to exert that residuum of sovereignty not delegated to the United

States by the Constitution itself.” ); Fry v United States, 421 US 542, 557

(1975) (Rehnquist, J., dissenting) (“Both [the Tenth and the Eleventh]

Amendments are simply examples of the understanding of those who

dratted and ratified the Constitution that the States were sovereign in many

respects, and that although their legislative authority could be superseded

by Congress in many areas where Congress was competent to act, Con-

gress was nonetheless not free to dea’ with a State as if it were just another

individual or business enterprise subject to regulation.”’ ); Federal Energy

Regulatory Commission (FERC) v Mississippi, 456 US 742, 777 (O'Con-

nor, J., dissenting in part) (“State legislative and administrative bodies are

not tield offices of the national bureaucracy. Nor are they think tanks tc

which Congress may assign problems for extended study. Instead, each

State 1s sovereign within its own domain, governing its citizens and

providing for their general welfare. While the Constitution and federal

statutes define the boundaries of that domain, they do not harness state

power for national purposes.” )

increases opportunity for citizen involvement in demo-

cratic processes; it allows for more innovation and

experimentation in government; and it makes govern-

ment more responsive by putting the States in competi-

tion for a mobile citizenry. . . .

Perhaps the principal benefit of the federalist system

is a check on abuses of government power... . Just as

the separation and independence of the coordinate

Branches of the Federal Government serves to prevent

the accumulation of excessive power in any one

Branch, a healthy balance of power between the States

and the Federal Government will reduce the risk of

tyranny and abuse from either front. . . .

In the tension between federal and state power lies

the promise of liberty.

These advantages inherent within the constitutional struc-

ture of the federal system are of fundamental importance to

our nation and its citizens. They reflect the clear intent of the

Constitutional Framers; !° they have been a focal point of high

regard for the American constitutional system for two

centuries.!!

‘See, the historical precis contained in Justice O'Connor's partial

dissent from the majority opinion in Federal Energy Regulatory Commis-

ston (FERC) v. Mississippi, 456 US 742, 795-796 (198?) See also, Garcia

v. San Antonio Metropolitan Transit Authority, 469 US at 568-579 (1985)

(Powell, J. dissenting); EEOC \: Woming, 460 US 226, 265 (1983)

(Powell, 5., dissenting); National League of Cities v. Usery, 426 US 833.

842-845 (1976) (Rehnquist, J). In light of these thorough discussions of

the subject, we shall not essay in this briet an historical treatment of the

Framers’ or this Court's views of these federalist principles.

''See, e.g., The Federalist, Nos. 1, 2, 9, 14, 37. 39, 40, 43, 45, 46.

Jefferson, Letter to Gideon Granger, August 13, 1800; Tocqueville,

Democracy in America |58-163 (Anchor Books. 1969); Lippman, The

Essential Lippman 220-221 (1963) Scholarly literature addressing the

importance of some or all aspects of the federal System Is vast; significant

(Footnote continued on next page.)

While the precise extent of the Court’s concern for the

constitutional structure has never been fully articulated, at

least two features of that structure have repeatedly been the

focus of review of federal action under the Commerce Clause

by the Court: (1) the ability of state governments to make

independent policy choices about whether to engage in state

government activities, and (2) the power of state governments

(0 enact or decline to enact legislation. Several significant

Tenth Amendment cases decided by this Court in recent years

clearly reflect these concerns. In Hodel y Virginia Surface

Mining & Recl. Assn., 452 US 264 (198] ), this Court consid-

ered a Tenth Amendment challenge to the Surface Mining

Control and Reclamation Act of 1977. which established a

(Wo-stage program for the nationwide regulation of surface

coal mining. The Act empowered the Department of the Inte-

rior to promulgate and enforce regulations; States were

afforded the opportunity to operate their own regulatory pro-

grams so long as such programs complied with federal regula-

tory standards. 452 US at 268-272. Reversing a lower court

determination that the Act violated the Tenth Amendment

under National League, this Court held unobjectionable the

Congress's power to displace state regulation of private activi-

lies affecting interstate commerce in a way which “‘curtails or

prohibits” the States’ prerogatives to make legislative choices.

452 US at 290. It noted (452 US at 280) that the Surface

Mining Act merely established

(Footnote continued.)

recent statements include Hart, The Relations Between State and Federal

Law, 54 Colum. L. Rev. 489 (1954): Nagel, Federalism as a Fundamental

Value: National League ot Cities in Perspective, 1981 S.Ct. Rev. 81:

Merritt, The Guarantee Clause and State Autonomy: Federalism for a

Third Century, 88 Colum. L. Rev. | (1988); Friendly, Federalism: A

Foreword, 86 Yale LJ. 1019. 1034 1977); Van Alstyne, The Second Death

ot Federalism, 83 Mich. L. Rev. 1709 ( 1985); Diamond, The Federalist on

Federalism: “Neither a National nora Federal Constitution, but a Compo-

sition of Both’, 86 Yale [.J. 1273 (1977). La Pierre, Political Accoun

tability in the National Political Process—the Alternative to Judicial

Review of Federalism Iscu ». SO Nw. ULL. Rev. 557, 635 ff (1985).

a program of cooperative federalism that allows the

States, within limits established by federal minimum

standards, to enact and administer their own regulatory

programs, structured to meet their own particular

needs.

This Court in Hodel distinguished the Surface Mining Act's

establishment of federal minimum regulatory standards upon

private activity in the States from the imposition of regulatory

obligations upon state governments, which would raise more

difficult constitutional questions (452 US at 288):

{T]he States are not compelled to enforce the steep-

slope standards, to expend any state funds, or to partic-

ipate in the federal regulatory program in any manner

whatsoever. If a State does not wish to submit a pro-

posed permanent program that complies with the Act

and implementing regulations, the full regulatory bur-

den will be borne by the Federal Government. Thus,

there can be no suggestion that the Act commandeers

the legislative process of the States by directly compel-

ling them to enact and enforce a federal regulatory

program.

While the Commerce Clause permitted limitations on States

which chose to regulate a field concurrently regulated by the

federal government, Congressional acts compelling States to

regulate remained constitutionally suspect.!

'2In Hodel, the Court specifically distinguished three prior cases

where a federal regulation appeared to commandeer the legislative proc-

esses of the States by directly compelling them to enact and enforce a

federal regulatory program. 452 US at 288-289. See, e.g, Maryland v. EPA,

530 F2d 215 (4th Cir 1975), vacated and remanded for consideration of

mootness sub nom. EPA v. Brown, 431 US 99 (1977) (per curiam) (EPA

regulations compelling states to establish and fund automobile inspection

programs under penalty of criminal and civil sanctions upon non-com-

plying States violate Tenth Amendment); Brown v. EPA, 52! F2d 827 (9th

(Footnote continued on next page.)

This holding in Hodel was reaffirmed in FERC vy. Missis-

sippt, 456 US 742 (i982), in which the Court addressed a

Tenth Amendment challenge to certain sections of the Public

Utility Regulatory Policies Act of 1978 (PURPA). Among that

Acts many provisions were requirements that state utility

regulatory authorities (1) consider implementation of certain

specific regulatory standards regarding electricity and gas

services; (2) hold public hearings on such standards; and (3)

implement rules promulgated by FERC for encouraging

development of cogeneration facilities. The Act also provided

that private parties could compel consideration of the federal

standards through a state court action.

Noting at one point that the case appeared to present an

issue of first impression—-the review of legislation in which

“the Federal Government attempts to use state regulatory

machinery to advance federal goals,’ 456 US at 759-——this

Court in FERC upheld each of these provisions against Tenth

Amendment attack. While deeming the requirements that

States hold public hearings and consider implementation of

certain regulatory practices to be merely a minor infringement

upon state sovereignty, the Court held that even this infringe-

ment could be avoided by States which chose to decline to

regulate the field. 456 US at 764. It further stated (456 US at

765-766):

(Footnote continued. }

Cir 1975), vacated and remanded for consideration of mootness sub nom.

EPA v. Brown, 431 US 99 (1977) (per curtam) (same), District of Columbia

\. Train, 521 F2d 971 (D.C. Cir 1975), vacated and remanded for consid-

eration of mootness sub nom. EPA v. Brown, 431 US 99 (1977) (per

curtam) (same). Contra, Pennsylvania v. EPA, 500 F2d 246 (3rd Cir 1974).

After the Supreme Court had granted certiorari in three EPA cases in 1976,

the EPA rescinded some of the regulations and conceded that others were

invalid unless modified. The Court consequently vacated and remanded

these cases without ruling on the constituvionality of the regulations. 431

US at 103-04

While the condition here is affirmative in nature—that

is, it directs the States to entertain proposals—nothing

in this Court’s cases suggests that the nature of the

condition makes it a constitutionally improper one.

There is nothing in PURPA “directly compelling” the

States to enact a legislative program. In short, because

the two challenged Titles simply condition continued

State involvement in a pre-empuble area on the consid-

eration of federal proposals, they do not threaten the

States’ “separate and independent existence’’ [cita-

tions omitted], and do not impair the ability of the

States “‘to function effectively in a federal system.”

{citations omitted. ]

Thus FERC, like Hodel, clearly suggested that federal com-

puision of a state action under the Commerce Clause remained

constitutionally suspect insofar as it was unrelated to an activ-

ity which the State chose to undertake or continue.

While the majority in South Carolina v Baker, 485 US 505

(1988), left open the possibility that the teachings of FERC on

this issue might to some degree have been modified by Garcia

(485 US at 513), this Court did not address the issue as such

because it was unnecessary to do so. The federal act chal-

lenged in Baker—section 310(b) (1) of the Tax Equity and

Fiscal Responsibility Act of 1982 (TEFRA)—removed federal

income tax exemptions for interest earned on new bonds

issued by state and local governments unless the bonds were

issued in registered form. Designed to provide a strong incen-

tive to encourage governments to issue registered bonds, this

portion of the Act merely provided that bondholders of States

which did not comply with the federal regulatory scheme

would forfeit the tax benefits previously extended to them by

the federal government. As this Court noted in rejecting a

claim that the effect of TEFRA was to commandeer South

Carol'na’s legislative process (485 US at 514-15, emphasis

added):

Such “commandeering™ is .. . an inevitable conse-

quence of regulating a state activity. Any federal regu-

lation demands compliance. That a State wishing to

engage in certain activity must take administrative and

sometimes legislative action to comply with federal

standards regulating that activity is a commonplace

that presents no constitutional defect.

Once again, the Court recognized that permissible federal

mandates to States as sovereigns were always linked to a

State’s willing participation in the particular activity involved.

It is clear from this briet review of Baker, FERC and Hodel,

as well as an examination of the EPA cases, that federal

regulation of voluntary state activities based upon the Com-

merce Clause or federal inducements to States to take action

have engendered a lesser degree of constitutional concern than

the imposition of affirmative duties on the States which, by

requiring States to initiate new programs or continue to be

involved in programs that they had already undertaken, curtail

their ability to make independent policy or legislative choices.

In this respect, the differences between the LLRWPAA and

each of the federal Acts examined by this Court in Hodel,

FERC, Garcia, and Baker are significant. Unlike the FLSA

and TEFRA, which extended to state and local governments

various “generally applicable regulations” (Baker, 485 US at

515), the 1985 Act imposed various requirements solely upon

the States as sovereigns. Unlike the regulatory activities urged

upon the States under the Surface Mining Act or PURPA,

which could be avoided by a State’s decision to withdraw from

the regulatory field, the 1985 Act imposes upon the States an

unconditional affirmative obligation to participate in the fed-

eral regulatory scheme. That type of obligation seriously

impinges on the basic constituuonal structure by divesting the

States of the decision-making authority inherent in our federal

system. Accordingly, legislation such as the LLRWPAA must

be subject to review to protect the States’ essential role in the

federal system. We believe that review comes within the scope

ot Garcia.

The opportunity for the State to act through its legislature in

determining whether or not to participate in a federal program

is an essential aspect of the structure of the federal system.

Without such opportunity that structure is severely compro-

mised. Absent the ability to abstain trom administering federal

regulatory schemes which invoke the States’ sovereign

powers, state governments may be forced to become unwilling

subordinate agents to Congressional dictates. Without the

power to choose alternative actions, States are sharply con-

Strained in their function, noted in Garcia and repeated in

Ashcroft, to serve as laboratories tor social and economic

experiment, or “to engage in any activity that their citizens

choose for the common weal.”’ 469 US at 546. Without such

choices, not only may States be compelled to participate in

federal regulatory schemes by inescapable congressional fiat,

but they may also be obliged to assume responsibility for the

full financial and administrative burden of such schemes.

Consequently, if this Court were to find that the language of

its Garcia ruling did not contemplate Tenth Amendment

review of laws such as the 1985 Act, we urge the Court to

clarify or modify Garcia to establish the propriety of such

review. As we have set forth supra, the federal framework

incorporated within the Constitution provides the fundamental

structure for balanced and effective representative government

both in the States and at the federal level. This Court’s power

to review federal action affecting this structure, acknowledged

since Marbury v Madison, (1 Cranch) 137 (1803), is as vital a

safeguard to national liberty as the text of the Constitution

itself. Unless that power is exercised by this Court in the

present context, the opportunity of the Congress to compe!

involuntary state activity and to commandeer state govern

ment resources and operations through the Commerce Clause

would appear to be unlimited.

POINT II

The i985 Act should be declared unconstitutional.

Upon substantive review, this Court should find that the

1985 Act impermissibly alters the balance of federal-state

relations by its imposition of affirmative obligations for the

cisposal of low-level radioactive waste upon the States and

should declare the Act unconstitutional in its entirety.

The 1985 Act differs fundamentally from all federal actions

previously reviewed by this Court under the Tenth Amend-

ment. While it is not the first congressional act which seeks to

have the States exercise their sovereign powers for federal

purposes, it appears to be the first to impose upon each State

an affirmative duty to exercise sovereign powers of legislation

and other action within the State, in accordance with a federal

regulatory scheme, without the State’s consent, and with no

option for the State’s withdrawal from the role of regulator or

actor in the field. The imposition is threefold: the broad

assignment to the States of “responsibility” for a federal

regulatory concern; the establishment of parameters and a

timetable for compliance with that assignment of action; and

the attachment of draconian, affirmative obligations on the

States for a refusal or failure to meet that regulatory respon-

sibility or timetable.'* By congressioual fiat and without

The constituuonal implications of these obligations were not lost

upon commentators at the ume of the Act's passage. As one reviewer

noted:

Certainly, the Congress, as is each State, is free to exercise its

powers to designate sites and to construct and operate low-level

waste disposal facilities. But for the Congress to mandate that the

states must undertake the burden of providing waste facilities

without any provision tor federal funding or tact obligations

(Footnote continued on next page )

regard for current or past state desire or practice, the Act

declares individual state governments to be responsible for a

problem which Congress has determined to be of national

concern.

Moreover, the duties imposed upon the States under the Act

are neither minimal nor short-lived. Instead, they require the

States to undertake a commitment to provide for permanent

disposal of hazardous materials—a commitment which by its

terms will endure for five centuries. The Act provides States

with no opportunity to decline or withdraw from this

obligation.

Furthermore, the Act attributes to the States responsibility

for waste problems which are principally caused by private

generators regulated by the federal government. Although

State power plants, hospitals, and research facilities generate

low-level radioactive vaste, and although agreement States

may voluntarily impose some regulations upon certain radio-

active materials and wastes within their borders, the federal

government nonetheless retains firm control over health and

safety regulation of nuclear power and by-products which are

responsible for the overwhelming majority of low-level radio-

acuve wastes. The ability of the States to limit the creation of

radioactive wastes for which the Act makes them responsible,

therefore, 1s sharply constrained.

(Footnote continued. )

lhabilities, Or any other sanctions imposed under federal law may

raise 10th Amendment problems. There does not appear to be

pertinent judicial precedent that has upheld in the face of 10th

Amendment objections a federal mandate as intrusive on state

sovereignty as the one at issue here.

Memorandum from the Congressional Research Service to the Sub-

committee on Energy Conservation and Power, House Committee on

Energy and Commerce, “Constitutional Issues Raised By the Imposition of

Liabilites on the State Under a Proposed Amendment to the Low-Level

Radioactive Waste Policy Act of 1980." December 16, 1985

Most significantly, under the 1985 Act, after January 1,

1996, States which do not provide for disposal of low-level

radioactive waste generated within their borders are made

responsible by the Federal government for all such waste

generated by private producers and some federal producers

throughout the State. In a manner to our knowledge unprece-

dented, the take title provision transfers by congressional edict

the ownership obligations of federal and private parties to the

State. States are compelled by this provision to exercise their

sovereign powers as agents of federal regulation, not as a

consequence of reflection and decision by state legislative and

executive bodies, but by fiat of the Federal government. These

duties and obligations are not imposed upon the State in its

Capacity as a generator of low-level waste like any other

economic actor.'* Rather, they are imposed solely in light of

the State’s sovereign capacity.

These features of the Act pose a sharp challenge to the

constitutional structure of the federalist system and deprive

States and their citizens of the various advantages assured by

that structure. States and state citizens are denied the oppor-

tunity to decide, through their state governmental process,

whether state fiscal and legislative resources should be

devoted to the problem of low-level waste disposal. Faced

with the imminent burden of the take title provision, States are

limited in their ability to experiment with alternative systems

of waste disposal; pressed by the deadline of that provision,

'SThe New York State Power Authority currently operates two

nuclear power plants within the State, and waste materials are produced at

various state hospitals and research facilities. Moreover, with federal

encouragement the State voluntarily participated in an experimental pro-

gram for nuclear waste management at West Valley, New York between

1963 and 1975; ultimately the program was terminated because of health

and safety concerns. However, ai no time prior to the 1980 and 1985 Acts

was the State's role as a generator or manager of low-level waste an

obligatory burden imposed by the federal government. That role was

determined by the State Legislature and Executive, in the exercise of their

sovereign authority

they are forced to adopt current techno'ogies at a pace set by

the federal Congress. Though States are left with some appear-

ance of flexibility in choosing the details of compliance with

federal demands—e.g., whether or not to join a compact; how

such a compact might be organized; whether or not a compact

should exclude wastes from non-member States; etc.—they

are driven to these decisions not by the independent exercise

of spirited legislative investigation and debate, but by the

irresistible dictates of the national government.

If the Commerce Clause may be employed to authorize such

mandates, then the “healthy balance of power between the

States and the Federal Government” described in Ashcroft

(111 S Ct at 2400; 410 L Ed 2d at 422) cannot prevail. Nor can

there continue that “tension between federal and state power

[in which] lies the promise of liberty.”’ /d. In their stead stands

a constitutional structure which, by permitting the States to

become mere departments!> of the federal government and

'°As the District of Columbia Circuit noted in its instructive opinion

in District of Columbia v Train, 52\ F2d 97|, 992 (D.C. Cir 1975), vacated

and remanded for consideration of mootness sub nom. EPA vy Brown. 431

US 99 (1977) (per curiam) (reviewing regulations promulgated by ihe EPA

under the Clean Air Act imposing affirmative obligations upon several

States to adopt a vehicle inspection and maintenance program and to

require the retrofit of certain classes of vehicles with pollution control

devices):

(The [EPA] Administrator, in the exercise of federal power based

solely on the commerce clause, cannot against a state’s wishes

compel it to become involved in administering the details of the

regulatory scheme promulgated by the Administrator. For exam-

ple, the attempt to require the state to “establish” [retrofit pro-

grams} is an impermissible cncroachment on state sovereignty and

goes beyond “regulation” by the Congress. it seeks, under the

guise of the commerce power, to substitute compelled state regu-

lation for pennissible federal regulation. If the federal government

wants to impose a program under federal authority, it is limited by

the restrictions applicable thereto

(Footnote contnued on next page )

agents of the federal will, lacks all benefits of the American

federalist system described by this Court in Garcia, Ashcroft,

and elsewhere. In this respect, the 1985 Act is a dangerous

precedent and should be declared unconstitutional.

While the take title provision contained in the 1985 Act may

be avoided by compliance with other regulatory requirements,

this fact renders it neither acceptable nor comparable to prior

federal acts approved by this Court. Whether States adopt a

program regulating the disposal of all in-state generated low-

level radioactive waste in accordance with fe“zral require-

ments or assume complete ownership responsibility for such

wastes, including the liability that would otherwise rest with

the non-state government generators under state law, the 1985

Act directly compels the States to take some type of extensive

sovereign action to manage private and federal low-level

(Footnote continued.)

In essence, the Administrator is here attempting to comman-

deer the regulatory powers of the states, along with their person-

nel and resources, tor use in administering and enforcing a federal

regulatory program against the owners of motor vehicles. . . .

Under the regulations here, the states are to function merely as

departments of the EPA, following EPA guidelines and subject to

federal penalues if they refuse to comply or if their regulation of

vehicles is ineffective. We are aware of no decisions of the

Supreme Court which hold that the federal government may

validly exercise its commerce power by directing unconsenting

States to regulate activities affecting interstate commerce, and we

doubt that any exist

We bring this opinion to this Court's attention because we believe that

it is an insightful examination by a lower court of federal action which

closely approaches the affirmative duties imposed upon States by the

LLRWPAA. Since Train was decided before both Garcia and National

League, it reflects judicial considerations at a time when the scope of the

Tenth Amendment was viewed quite narrowly, under this Court's holding

in Maryland » Wirtz, 392 US 183 (1968) (Pair Labor Standards Act

applicable to public hospitals, nursing homes, and educational institutions).

See also, the several other EPA cases set forth inn 12, supra.

radioactive waste. This is an unprecedented and unconstitu-

tional exercise of federal power. !6

While Congress has in the past used the Commerce Clause

as a basis for strongly encouraging state participation in fed-

eral regulatory schemes, such schemes have provided for vol-

untary state action in lieu of federal regulation (e.g., Clean Air

Act, 42 USC §§ 7401 [a][3], 7407[a]; Clean Water Act. 33

USC § 1251[b]}), or have made receipt of federal funds contin-

gent upon voluntary compliance (e.¢., 23 USC § 154 [regula-

tion of travel speed on public highways]). In cases where

Congress directs that federal funding be contingent upon State

participation in a federal regulatory scheme, States are left

with the choice of whether the state interests advanced by such

funding outweigh the burden upon the state governmental

structure in fulfilling the federal regulatory functions imposed

upon it. A similar choice is available to state sovereigns in

cases where a federal regulatory scheme offers States the

opportunity to participate in lieu of federal regulators. In all

such cases, although the choice may be difficult, and the

realistic probability that the State will elect not to participate

in the federal regulatory scheme may be smail, the choice

exists nonetheless.

None of the arguments raised below in support of the 1985

Act 1s sufficient to justify its broad infringement upon state

government powers. The claim that the LLRWPAA merely

| ‘Llronically, if this federal mandate had been imposed on a private

entity, it would constitute a taking which. under the Fifth pret. -wten

would entitle the entity to just compensation. See, Loretto v Teleprom ler

Manhattan CATV Corp., 458 US 419 (1982). While the federal pnt

ment might be free to “take” from the States authority to regulate in a

_ given area by exercise of its power under the Supremacy Clause, its

Imposition On States of responsibility to enter or remain in an area a ainst

their will effectively commandeers the States’ governmental silat in

service of the federal government. Absent the protection of the Tenth

Amendment, sovereign States would be left with fewer protections against

federal intrusions than would private entities under the Fifth Amendment

‘was intended to salvage |the] approach” of the 1980 Act,

which had been “unanimously endorsed by the States them-

selves” (US Br in Opp, p 16)!” is both overstated and irrele-

vant. The 1985 Act differed substantially from its predecessor.

Although New York does not concede that either Act was

“endorsed” by the States, that question is of little interest

here: New York’s challenge to the later Act rests in the belief

that even a federal act which has been supported by States’

congressional delegations and promoted by various state inter-

est groups such as the NGA may be defective insofar as it

infringes upon the constitutional structure of the federal sys-

tem. We submit that an essential premise of the federal system

is the indispensability of State government policymaking. The

federal legislative process, far removed from local problems

and subject to the vagaries of sophisticated lobbying practices

and other institutional pressures, simply cannot supply ade-

quate long-term protection to that system of self-government.

As Justice Powell noted in his dissent in Garcia (469 US at

$76):

One must compare realistically the operation of the

state and local governments with that of the Federal

Government. Federal legislation is drafted primarily

by the staffs of the congressional committees. In view

of the hundreds of bills introduced at each session of

Congress and the complexity of many of them, it is

virtually impossible for even the most conscientious

legislators to be truly familiar with many of the statutes

enacted.

The participation of a State’s congressional delegation can-

not sanction federal action which by its terms undermines the

federal structure. That structure is mutable only by constitu-

tional amendment pursuant to Article V, in cooperation with

the States.

'? References to “US Br in Opp” are to the United States respond-

ents’ Brief in Opposition to the Petitions for Writs of Certiorart.

Equally unavailing is the argument that the federal interest

advanced under the Act justifies its terms (US Br in Opp, pp

17-18). The federal government has argued (US Br in Opp, p

18):

[T]he subject matter involved—furnishing a safe

method for long-term disposal of radioactive wastes—

is one that, by its nature, is impressed with a public

interest that makes participation by state governments

especially appropriate, since the States will have to

respond to any long-term problems the waste may

produce.

This argument addressed several distinct issues. There is no

question that waste disposal is a significant public problem.

As such, it is a matter that many States might choose to

address. Inasmuch as the disposal issue affects interstate com-

merce, certain federal action in the field is also appropriate,

and state action may be subject to constraint by principles of

preemption. In this respect, the “nature” of waste disposal is

comparable to the problems of water or air pollution,

addressed by federal statutes. Yet the importance of the issue

to the States, or the preemptability of the field by Congress,

‘Woes not justify the impressment of all States, even those that

would not voluntarily participate, into the service of a federal

program. Cf. FERC v Mississippi, 456 US at 785-786 (O’Con-

nor, dissenting) (the fact that Congress “‘could have reached

the same destination by a different route’’ is irrelevant to the

Supreme Court’s Tenth Amendment examination of a federal

act). Participation in a federal scheme by willing States is

entirely appropriate, as respondents suggest; but the

LLRWPAA does not call for such willing participation.

The claim that New York’s legislative decision to provide

for the siting of a low-level waste facility within its borders

sanctions the 1985 Act (US Br in Opp, p 19) is baseless. In

= |

fact, that legislation was enacted only in response to the

requirements of the LLRWPAA.'®

Moreover, New York's past actions, either as a regulator of

certain nuclear wastes or as a generator of wastes through New

York State Power Authority nuclear power plants and state

hospitals and research facilities, cannot justify the new

encroachments on state sovereignty contained in the 1985 Act,

in spite of the federal government's contrary suggestion (US

Br in Opp, p 19). While New York has been involved in the

field of radioactive materials regulation in the past as an

‘agreement State’’ under § 274 of the Atomic Energy Act (42

USC § 2021), the Agreement States Program applies a federal

health and safety regulatory scheme that is altogether distinct

from the LLRWPAA. It involves the willing participation of

States, requires that voluntary state participants enact regula-

tions consistent with federal standards, permits state partici-

pants to withdraw from the program, and provides a federal

regulatory mechanism for those States which choose not to

participate (42 USC § 2021{d]). At no time has the option of

voluntary state participation in the Agreement States Program

included the requirement that States enter into or remain in the

business of disposing of low-level radioactive waste. Further-

more, as we have noted elsewhere, status as an agreement

State offers New York only limited opportunity to regulate the

generation of waste for which the 1985 Act makes it respon-

sible, and to which the take title provision seeks to compel it to

one day hold title. While New York could reduce its own share

of the generation of low-level waste, it may limit generation of

'SSee, Rappleyea Affidavit, JA 80a-81a. See also, Laws of New York

1986, chap. 673, § 2. Indeed, the New York Legislature has indicated its

disagreement with the provisions of the Act through the passage of Laws of

New York 1990, chap. 368, which, by providing that title to low-level

waste shal! at all times remain in the generator of such waste, directly

contravenes certain sections of the take title provision. See, 1990 McKin-

ney’s Sessions Laws of New York, vol. Il, p 2430 (State Executive

Department Memorandum to chap. 368)

waste from other sources only insofar as the federal govern-

ment permits under 42 USC § 2021. The majority of low-level

waste stems from nuclear reactor facilities over which the

NRC maintains exclusive health and safety regulatory author-

ity. 1O CFR 50.2.

Contrary to the federal government’s suggestion (US Br in

Opp, pp 20-21), the provisions of the 1985 Act are not analo-

gous to those involved in prior decisions of this Court uphold-

ing impositions of affirmative obligations upon State govern-

ments. Neither the duty of state trial courts of general

jurisdiction to hear certain federal law claims (Testa v Katt,

330 US 386 [1947]), nor the susceptibility of state govern-

ments or agencies to federal judicial decree in particular cases

(Illinois v City of Milwaukee, 406 US 91 [1972]; Woming v

Colorado, 259 US 419 [1922]) imply a federal power to draft

state governments into the service of federal regulatory

schemes. See, FERC, 456 US at 784-785, 784 n 13 (O'Connor,

J., dissenting in part).

Finally, the federal government provides no foundation for

its claim that the responsibilities that devolve upon States

under the 1985 Act are “less burdensome” than those imposed

by the FLSA or the sections of TEFRA addressed by this

Court in Baker (US Br in Opp, pp 21-22). To our knowledge,

the relative economic impact of these various Acts is

unknown. More importantly, this claim ignores the principal

point of New York’s argument: it is the nature and quality of

the federal intrusion under the LLRWPAA which is constitu-

tionally offensive, rather than the ultimate material cost of

compliance with the Act. Unlike the FLSA, TEFRA, or any

other federal action under the Commerce Clause previously

scruunized by this Court in light of the Tenth Amendment, the

burden under the 1985 Act is uniquely imposed upon state

governments and mandates the exercise of state sovereign

power in accordance with a federal regulatory scheme. As this

Court noted in FERC (456 US at 770, n 33):

{I]n a Tenth Amendment challenge to congressional

activity, “the determinative factor. . . [is] the nature of

the federal action, not the ultimate economic impact on

the States.” Hodel v Virginia Surface Mining & Recl.,

Ass., Inc., 452 U.S., at 292, n. 33.

For reasons described above, we submit that the nature of

the federal action exemplified in the take title provision and

section 3(a) of the Act exceeds the scope of congressional

power delegated in the Constitution. Consequently, that action

should be annulled and the 1985 Act stricken as unconsti-

tutional.

Moreover, the Act should be declared unconsiitutional in its

entirety. Courts have long recognized a presumption of sever-

ability of unconstitutional from constitutional sections of leg-

islative acts, “‘[u]nless it is evident that the legislature would

not have enacted those provisions which are within its power,

independently of that which is not. . .”. Champlin Refining

Co. v Corporation Commission of Oklahoma, 286 US 210,

234 (1932). See also, INS v Chadha, 462 US 919, 931-32

(1983). In our view, it seems clear that Congress would not

have enacted the remaining portions of the 1985 Act without

the take title provision. Accordingly, a finding that this provi-

sion violates the Tenth Amendment renders the entire Act null

and void.

As its legislative history makes clear, the 1985 Act was an

intricate legislative compromise in which Congress sought to

balance a multitude of disparate interests. During final debates

on bill HR 1083, which upon enactment became the

LLRWPAA, the measure was described by legislators as “‘a

tenuous settlement” (Udall), “a delicately crafted compro-

mise’’ (Bonker), “a reasonable compromise” (Markey), and

‘a fundamental compromise” (Dingell). 131 Cong Ree

H38115-38118 (Dec. 19, 1985). Similar remarks attesting to

the lengthiness of negotiation over the measure, and the deli-

cate nature of the balance of interests represented by the

compromise bill, abounded in Senate tloor debate on the

measure. 131 Cong Rec $384('3-38410 (December 19, 1985).

Both Senator Thurmond and Senator Hollings of South Caro-

lina recommended adopiion of the bill, stressing the impor-

tance of the strict tumetable for disposal site development as

incentive to South Carolina, Washington and Nevada to con-

tinue to operate their sites. 131 Cong Rec $38407-38410

(December 19, 1985). As Senator Hollings observed (131

Cong Rec $38409):

Last January, our Governor announced that he would

shut our facility, if necessary, unless this issue were

resolved in a form acceptable to South Carolina. | and

every other member of the South Carolina congres-

sional delegation supported him. But Governor Riley

also went the extra mile, and said that he would hold

good-faith discussions with those of the country that

iack disposal capacity

The bill now before the Senate is the result of those

discussions. It does not give the three sited States

everything we would like. In fact, it is only barely

acceptable. But it protects South Curolina’s most

important interests, and we will support it. The legisla-

tion gives the regions without sites conunued access to

our three waste facilities, in return for surcharges and,

most importantly, a strict schedule by which other

States must build their own facilites. The last point is

crucial. We don’t want this whole issue to resurface

again in another few years

The indispensable role of the take title provision in this

compromise as a means of assuring States’ compliance with

the statutory timetable for development of regional or state

disposal facilities was clearly attested by various members of

the Senate. Senator Johnston, who together with several other

senators proposed amendments to the bill which included the

take title provision, expressed the importance of the concept in

his description of the proposal (131 Cong Rec $38414 [Dec.

19, 1985]:)

The substitute before us today is a compromise

between the approach taken by the Committee on

Energy and Natural Resources, which involves tough,

enforceable milestones for State action over the next 7

years to deal with low-level radioactive waste disposal,

and the approach of the Environment and Public

Works Committee, which involves considerable more

flexibility in the near term and a potentially very tough

requirement at the end of the 7-year period that any

State has failed to provide for the disposal of its low-

level radioactive waste must take title to, and assume

possession of, that waste.

At my suggestion, all the Senators involved agreed that

this sanction would be considerably strengthened if we

also made such a State liable for the consequential

damages resulting from the failure of the State to

comply with these two requirements. . . .

In my opinion, this language is essential to provide the

teeth to the more flexible Environment and Public

Works approach. We need this language to ensure that

we are not faced in the 1990's with the same situation

we face today—inaction by a few generating States

and no available leverage to force action.

Senator McClure, also among the sponsors of the amended

bill, stressed the importance of the stiffer milestones and

penalties in the compromise proposal; he also took great care

to assure that the take ttle provision applied to each of the

regional compacts approved in Title II of the Act. 131 Cong

Rec $38420 (Dec. 19, 1985). Bur see, Cong Rec H38117

(remarks of Representative Markey).

In light of these strong statements in support of the strict

timetable and heavy burden of noncompliance with the Act,

together with the difficult and tenuous nature of the compro-

mise which the Act represented, it is evident that the Congress

would not have passed the 1985 Act without the take title

provision. Various legislators clearly expressed the dissatisfac-

tion of South Carolina, Washington, and Nevada with milder

forms of compulsion directed at waste generators, and their

insistence that the States themselves be bound by statute to

comply with the Act or suffer severe consequences. This

legislative history strongly suggests that the principal incen-

tives to compliance in addition to the take utle provision—

higher surcharges upon generators, and the power to exclude

waste from non-complying States—would have been insuffi-

cient to meet these concerns.

Moreover, any presumption of severability of the take title

provision is cast into doubt by the Congress’s decision to

approve individual regional compacts with express sever-

ability clauses under Title II of the Act. 131 Cong Rec $38410

(Dec. 19, 1985). The decision to approve severability clauses

in seven separate sections of Title I] while excluding such a

clause in Title I strongly suggests that the provisions of Title |

must stand or fall together.

CONCLUSION

The 1985 Act should be declared unconstitutional in its

entirety.

Dated: Albany, New York

February 13, 1992

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the State of New York

Attorney for Petitioner State of New York

JERRY BOONE

Solicitor General

PETER H. SCHIFF

Deputy Solicitor General

JOHN MCCONNELL

Assistant Attorney General

of Counsel

Appendix. Low-Level Radioactive Waste Policy

Amendments Act of 1985.

(Pub. L. 99-240, Title I, Jan. 15, 1986, 99 Stat. 1842)

§ 2021b. Definitions respecting low-level radioactive waste

policy.

For purposes of sections 2021b to 2021; of this ttle:

(1) Agreement State

The term “agreement State’ means a State that—

(A) has entered into an agreement with the Nuclear Regula-

tory Commission under section 2021 of this tittle, and

(B) has authority to regulate the disposal of low-level

radioactive waste under such agreement.

(2) Allocation

Tue term “allocation” means the assignment of a specific

amount of low-level radioactive waste disposal capacity to a

commercial nuclear power reactor for which access is required

to be provided by sited States subject to the conditions spec-

ified under sections 2021b to 2021) of this ttle.

(3) Commercial nuclear power reactor

The term “commercial nuclear power reactor’’ means any

unit of a civilian light-water moderated utilization facility

required to be licensed under section 2133 or 2134(b) of this

title.

(4) Compact

The term “compact” means a compact entered into by two

or more States pursuant to sections 2021b to 2021) of this ttle.

(5) Compact commission

The term “compact region” means the area consisting of all

States that are members of a compact.

(6) Compact region

The term “compact commission” means the regional com-

mission, committee, or board established in a compact to

administer such compact.

(7) Disposal

The term “disposal” means the permanent isolation of low-

level radioactive waste pursuant to the requirements estab-

lished by the Nuclear Regulatory Commission under applica-

ble laws, or by an agreement State if such isoijation occurs in

such agreement State.

(8) Generate

The term “generate”. when used in relation to low-level

radioactive waste, means to produce low-level radioactive

waste.

(9) Low-level radioactive waste

The term “low-level radioactive waste’’ means radioactive

material that-—

(A) is not high-level radioactive waste, spent nuclear fuel,

or byproduct material (as defined in section 2014(e)(2) of this

title); and

(B) the Nuclear Regulatory Commission, consistent with

existing law and in accordance with paragraph (A), classifies

as low-level radioactive waste.

(10) Non-sited compact region

The term “‘non-sited compact region’ means any compact

region that is not a sited compact region.

(11) Regional disposal facility

The term “regional disposal facility’ means a non-Federal

low-level radioactive waste disposal facility in operation on

January 1, 1985, or subsequently established and operated

under a compact.

(12) Secretary

The term “Secretary” means the Secretary of Energy.

(13) Sited compact region

The term “sited compact region”’ means a compact region

in which there is located one of the regional disposal tacilities

at Barnwell, in the State of South Carolina; Richland, in the

State of Washington: or Beatty, in the State of Nevada.

(14) State

The term ‘State’ means any State of the United States, the

District of Columbia, and the Commonwealth of Puerto Rico.

§ 2021c. Responsibilities for disposal of low-level radioac-

tive waste

(a)(1) Each State shall be responsible for providing, either

by itself or in cooperation with other States, for the disposal

of—

(A) low-level radioactive waste generated within the State

(other than by the Federal Government) that consists of or

contains class A, B, or C radioactive waste as defined by

section 61.55 of title 10, Code of Federal Regulations, as in

effect on January 26, 1983;

(B) low-level radioactive waste described in subparagraph

(A) that is generated by the Federal Government except such

waste that is—

(i) owned or generated by the Department of Energy,

(ii) owned or generated by the United States Navy as a

result of the decommissioning of vessels of the United

States Navy, or

(iii) Owned. or generated as a result of any research,

development, testing. or production of any atomic

weapon, and

(A) and (B) that is generated outside of the State and accepted

for disposal in accordance with sections 2021e or 2021f of this

title

(2) No regional disposal facility may be required to accept

tor disposal any material—

(A) that is not low-level radioactive waste as defined by

section 61.55 of title 10, Code of Federal Regulations, as in

effect on January 26, 1983, or

(B) identified under the Formerly Uulized Sites Remedial

Action Program.

Nothing in this paragraph shall be deemed to prohibit a

State, subject to the provisions of its Compact, or a Compact

region from accepting for disposal any material identified in

subparagraph (A) or (B).

(b)(1) The Federal Government shal! be responsible for the

disposal of—

(A) low-level radioactive waste owned or generated by the

Department of Energy;

(B) low-level radioactive waste owned or generated by the

United States Navy as a result of the decommissioning of

vessels of the United States Navy;

Federal Government as a result of any research, development,

testing, or production of any atomic weapon, and

(D) any other low-level radioactive waste with concentra-

tions of radionuclides that exceed the limits established by the

Commission for class C ratioactive waste, as defined by

section 61.55 of title 10, Code of Federal Regulations, as in

effect on January 26, 1983.

(2) All radioactive waste designated a Federal respon-

sibility pursuant to subparagraph (b)(1)(D) that results from

activities licensed by the Nuclear Regulatory Commission

under the Atomic Energy Act of 1954, as amended, [42

U.S.C.A § 2011 et seq.], shall be disposed of in a facility

licensed by the Nuclear Regulatory Commission that the Com-

mission determines is adequate to protect the public health and

safety.

(3) Not later than 12 months after January 15, 1986, the

Secretary shall submit to the Congress a comprehensive report

setting forth the recommendations of the Secretary for ensur-

ing the safe disposal of all radioactive waste designated a

Federal responsibility pursuant to subparagraph (b)(1)(D).

Such report shall include—

(A) an identification of the radioactive waste involved,

including the source of such waste, and the volume, concentra-

tion, and other relevant characteristics of such waste;

(B) an identification of the Federal and non-Federal options

for disposal of such radioactive waste:

disposal of such radioactive waste;

(D) a description of the projected costs of undertaking such

actions:

(E) an identification of the options for ensuring that the

beneficiaries of the activities resulting in the generation of

such radioactive wastes bear all reasonable costs of disposing

of such wastes; and

(F) an identification of any statutory authority required for

disposal of such waste.

(4) The Secretary may not dispose of any radioactive waste

designated a Federal responsibility pursuant to paragraph

(b)(1)(D) that becomes a Federal responsibility for the first

lime pursuant to such paragraph until ninety days after the

report prepared pursuant to paragraph (3) has been submitted

to the Congress.

§ 2021d. Regional compacts for disposal of low-level

radioactive waste

(a) In general

(1) Federal policy

It is the policy of the Federal Government that the respon-

sibilities of the States under section 2021c of this title for the

disposal of low-level radioactive waste can be most safely and

effectively managed on a regional basis.

(2) Interstate compacts

To carry out the policy set forth in paragraph (1), the States

may enter into such compacts as may be necessary to provide

for the establishment and operation of regional disposal facili-

ties for low-level radioactive waste.

(b) Applicability to Federal activities

(1) In general

(A) Activities of the Secretary

Except as provided in subparagraph (B), no compact or

acuion taken under a compact shall be applicable to the trans-

portation, management, or disposal of any low-level radioac-

tive waste designated in section 2021 c¢(a)(1)(B)(i)-(iil) of this

title,

(B) Federal low-level radioactive waste disposed of at

non-Federal facilities

Low-level radioactive waste owned or generated by the

Federal Government that is disposed of at a regional disposal!

facility or non-Federal disposal facility within a State that is

not a member of a compact shall be subject to the same

conditions, regulations, requirements, fees, taxes, and sur-

charges imposed by the compact commission, and by the State

in which such facility is located, in the same manner and to the

same extent as any low-level radioactive waste not generated

by the Federal Government.

(2) Federal low-level radioactive waste disposal facilities

Any low-level radioactive waste disposal facility estab-

lished or operated exclusively for the disposal of low-level

radioactive waste owned or generated by the Federal Govern-

ment shall not be subject to any compact or any action taken

under a compact.

(3) Effect of compacts on Federal law

Nothing contained in sections 2021b to 2021) of this title or

any compact may be construed to confer any new authority on

any compact commission or State—

(A) to regulate the packaging, generation, treatment, stor-

age, disposal, or transportation of low-level radioactive waste

in a manner incompatible with the regulations of the Nuclear

Regulatory Commission or inconsistent with the regulations of

the Department of Transportation,

(B) to regulate health, safety, or environmental hazards

from source material, byproduct material, or special nuclear

material;

Regulatory Commission;

(D) to inspect security areas or operations at the site of the

generation of any low-level radioactive waste by the Federal

Government, or to inspect classified information related to

such areas or operations, or

(E) to require indemnification pursuant to the provisions of

chapter 171 of Tithe 28, (commonly referred to as the Federal

Tort Claims Act) [28 U.S C.A § 2671 et seq.], or section 170

of the Atomic Energy Act of 1954 (42 U.S.C. 2210) (com-

monly referred to as the Price-Anderson Act), whichever 1s

applicable.

(4) Federal authority

Except as expressly provided in sections 2021b to 2021) of

this utle, nothing contained in sections 2021b to 2021) of this

title or any compact may be construed to limit the applicability

of any Federal law or to diminish or otherwise impair the

jurisdiction of any Federal agency, or to alter, amend, or

otherwise affect any Federal law governing the judicial review

of any action taken pursuant to any Compact.

(5) State authority preserved

Except as expressly provided in sections 2021b to 2021) of

this utle, nothing contained in sections 2021b to 2021) of this

tile expands, diminishes, or otherwise affects State law.

Any authority in a compact to restrict the use of the regional

disposal facilities under the compact to the disposal of low-

level radioactive waste generated within the compact region

shall not take effect before each of the following occurs:

(1) January 1, 1986; and

(2) the Congress by law consents to the compact.

(d) Congressional review

Each compact shall provide that every 5 years after the

compact has taken effect the Congress may by law withdraw

Its consent.

§ 202le. Limited availability of certain regional disposal

facilities during transition and licensing periods

(a) Availability of disposal capacity

(1) Pressurized-water and boiling water reactors

During the seven-year period beginning January 1, 1986

and ending December 31, 1992, subject to the provisions of

subsections (b) through (g) of this section, each State in which

there is located a regional disposal facility referred to in

paragraphs (1) through (3) of subsection (b) of this section,

shall make disposal capacity available for low-level radioac-

tive waste generated by pressurized water and boiling water

commercial nuclear power reactors in accordance with the

allocations established in subsection (c) of this section.

(2) Other sources of low-level radioactive waste

During the seven-year period beginning January 1, 1986

and ending December 31, 1992, subject to the provisions of

subsections (b) through (g) of this section, each State in which

there is located a regional disposal facility referred to in

paragraphs (1) through (3) of subsection (b) of this section

shall make disposal capacity available for low-leve! radioac-

tive waste generated by any source not referred to in paragraph

(1).

(3) Allocation of disposal capacity

(A) During the seven-year period beginning January |,

1986 and ending December 31, 1992, low-level radioactive

waste generated within a sited compact region shall be

accorded priority under this section in the allocation of avail-

able disposal capacity at a regional disposal facility referred to

in paragraphs (1) through (3) of subsection (b) of this section

and located in the sited compact region in which such waste 1s

generated.

(B) Any State in which a regional disposal facility referred

to in paragraphs (1) through (3) of subsection (b) of this

section 1s located may, subject to the provisions of its compact,

prohibit the disposal at such facility of low-level radioactive

waste generated outside of the compact region if the disposal

of such waste in any given calendar year, together with all

other low-level radioactive waste disposed of at such facility

within that same calendar year, would result in that facility

disposing of a total annual volume of low-level radioactive

waste in excess of 100 per centum of the average annual

volume for such facility designated in subsection (b) of this

section: Provided, however, That in the event that all three

States in which regional disposal facilities referred to in para-

graphs (1) through (3) of subsection (b) of this section act to

prohibit the disposal of low-level radioactive waste pursuant to

this subparagraph, each such State shall, in accordance with

any applicable procedures of its compact, permit, as necessary,

the disposal of additional quantities of such waste in incre-

ments of 10 per centum of the average annual volume for each

such facility designated in subsection (b) of this section.

facility or State referred to in paragraphs (1) through (3) of

subsection (b) of this section to accept for disposal low-level

radioactive waste in excess of the total amounts designated in

subsection (b) of this section,

(4) Cessation of operation of low-level radioactive waste

disposal facility

No provision of this section shall be construed to obligate

any State referred to in paragraphs (1) through (3) of subsec-

tion (b) of this section to accept low-level radioactive waste

from any source in the event that the regional disposal facility

located in such State ceases operations.

(b) Limitations

The availability of disposal capacity for low-level radioac-

tive waste from any source shall be subject to the following

limitations:

(1) Barnwell, South Carolina

The State of South Carolina, in accordance with the provi-

sions of its compact, may limit the volume of low-level radio-

ucuve waste accepted for disposal at the regional disposal

tucility located at Barnwell, South Carolina to a total of

1Oa

8 400,000 cubic feet of low-level radioactive waste during the

7-year period beginning January |, 1986, and ending Decem

ber 31, 1992 (as based on an average annual volume of

1.200.000 cubic feet of low-level radioactive waste).

(2) Richland, Washington

The State of Washington, in accordance with the provisions

of its compact, may limit the volume of low-level radioactive

waste accepted for disposal at the regional disposal facility

located at Richland, Washington to a total of 9,800,000 cubic

feet of low-level radioactive waste during the 7-year period

beginning January 1, 1986, and ending December 31, 1992 (as

based on an average annual volume of 1,400,000 cubic feet of

low-level radioactive waste)

(3) Beatty, Nevada

The State of Nevada, in accordance with the provisions of

its compact, may limit the volume of low-level radioactive

waste accepted for disposal at the regional disposal facility

located at Beatty, Nevada to o total of 1,400,000 cubic feet of

low-level radioactive waste during the 7-year period begin-

ning January 1, 1986, and ending December 31, 1992 (as

based on an average annual volume of 200,000 cubic feet of

low-level radioactive Waste)

(1) Amount

Subject to the provisions of subsections (a) through (g) of

this section each commercial nuclear power reactor shall upon

request receive all allocation of low-level radioactive waste

disposal capacity (in cubic teet) at the facilities referred to in

subsection (b) of this section during the 4-year transition

period beginning January 1, 1986, and ending December 31,

1989, and during the 3-year licensing period beginning Janu

ary 1, 1990, and ending December 31, 1992, in an amount

calculated by multiplying the appropriate number from the

following table by the number of months remaining in the

applicable period as determined under paragraph (2)

lla

4-year Transition 3-year Licensing

Period Period

Reactor In Sited All Other’ In Sited = All Other

Type Region Locations Region Locations

PWR 1027 87] 934 685

BWR 2300 19S] 2091 1533

(2) Method of calculation

For purposes of calculating the aggregate amount of dis-

posal capacity available to a commercial nuclear power reactor

under this subsection, the number of months shall be com-

puted beginning’ with the first month of the applicable period,

or the sixteenth month after receipt of a full power operating

license, whichever occurs later.

(3) Unused allocations

Any unused allocation under paragraph (1) received by a

reactor during the transition period or the licensing period may

be used at any time after such reactor receives its full power

license or after the beginning of the pertinent period, which-

ever is later, but not in any event after December 31, 1992, or

after commencement of operation of a regional disposal facil-

ity in the compact region or State in which such reactor 1s

located, whichever occurs first.

(4) Transferability

Any commercial nuclear power reactor in a State or com-

pact region that is in compliance with the requirements of

subsection (e) of this section may assign any disposal capacity

allocated to it under this subsection to any other person in each

State or compact region. Such assignment may be for valuable

consideration and shall be in writing, copies of which shall be

filed at the affected compact commissions and States, along

with the assignor’s unconditional written waiver of the dis-

posal capacity being assigned.

(5) Unusual volumes

(A) The Secretary may, upon petition by the owner or

operator of any commercial nuclear power reactor, allocate to

such reactor disposal capacity in excess of the amount calcu-

l2a

lated under paragraph (1) if the Secretary finds and states in

writing his reasons for so finding that making additional

capacity available for such reactor through this paragraph is

required to permit unusual or unexpected operating, mainte-

nance, repair or safety activities.

(B) The Secretary may not make allocations pursuant to

subparagraph (A) that would result in the acceptance for

disposal of more than 800,000 cubic feet of low-level radioac-

tive waste or would result in the total of the allocations made

pursuant to this subsection exceeding 11,900,000 cubic feet

over the entire seven-year interim access period.

(6) Limitation

During the seven-year interim access period referred to in

subsection (a) of this section, the disposal facilities referred to

in subsection (b) of this section shall not be required to accept

more than 11,900,000 cubic feet of low-level radioactive

waste generated by commercial nuclear power reactors.

(d)(1) Surcharges

The disposal of any low-level radioactive waste under this

section (other than low-level radioactive waste generated in a

sited compact region) may be charged a surcharge by the State

in which the applicable regional disposal facility is located, in

addition to the fees and surcharges generally applicable for

disposal of low-level radioactive waste in the regional disposal

facility involved. Except as provided in subsection (e)(2) of

this section, such surcharges shall not exceed—

(A) in 1986 and 1987, $10 per cubic foot of low-level

radioactive waste;

(B) in 1988 and 1989, $20 per cubic foot of low-level

radioactive waste; and

level radioactive waste.

(2) Milestone incentives

(A) Escrow account

Twenty-five per centum of all surcharge fees received by a

State pursuant to paragraph (1) during the seven-year period

l3a

referred to in subsection (a) of this section shall be transferred

on a monthly basis to an escrow account held by the Secretary.

The Secretary shall deposit all funds received in a special

escrow account. The funds so deposited shall not be the

property of the United States. The Secretary shall act as trustee

for such funds and shall invest them in interest-bearing United

States Government Securities with the highest available yield.

Such funds shall be held by the Secretary untul—

(i) paid or repaid in accordance with subparagraph

(B) or (C); or

(ii) paid to the State collecting such fees in accord-

ance with subparagraph (F).

(B) Payments

(i) July 1, 1986

The twenty-five per centum of any amount collected by a

State under paragraph (1) for low-level radioactive waste

disposed of under this section during the period beginning on

January 15, 1986, and ending June 30, 1986, and transferred to

the Secretary under subparagraph (A), shall be paid by the

Secretary in accordance with subparagraph (D) if the mile-

stone described in subsection (e)(1)(A) of this section is met

by the State in which such waste originated.

(ii) January 1, 1988

The twenty-five per centum of any amount collected by a

State under paragraph (1) for low-level radioactive waste

disposed of under this section during the period beginning

July 1, 1986 and ending December 31, 1987, and transferred

to the Secretary under subparagraph (A), shall be paid by the

Secretary in accordance with subparagraph (D) if the mile-

Stone described in subsection (e)(1)(B) of this section is met

by the State in which such waste originated (or its compact

region, where applicable).

(iii) January 1, 1990

The twenty-five per centum of any amount collected by a

State under paragraph (1) tor low-level radioactive waste

disposed of under this section during the period beginning

l4a

January |, 1988 and ending December 31, 1989, and trans-

ferred to the Secretary under subparagraph (A), shall be paid

by the Secretary in accordance with subparagraph (D) if the

milestone described in subsection (e)(1)(C) of this section is

met by the State in which such waste originated (or its com-

pact region, where applicable).

(iv) The twenty-five per centum of any amount collected by

a State under paragraph (1) for low-level radioactive waste

disposed of under this section during the period beginning

January 1, 1990 and ending December 31, 1992, and trans-

ferred to the Secretary under subparagraph | (A), shall be paid

by the Secretary in accordance with subparagraph (D) if, by

January 1, 1993, the State in which such waste originated (or

its compact region, where applicable) is able to provide for the

disposal of all low-level radioactive waste generated within

such State or compact region.

If, by January 1, 1993, a State (or, where applicable, a

compact region) in which low-level radioactive waste is gener-

ated is unable to provide for the disposal of all such waste

generated within such State or compact region—

(i) each State in which such waste is generated, upon

the request of the generator or owner of the waste, shall

take title to the waste, shall be obligated to take posses-

sion of the waste, and shall be liable for all damages

directly or indirectly incurred by such generator or owner

as a consequence of the failure of the State to take

possession of the waste as soon after January 1, 1993 as

the generator or owner notifies the State that the waste 1s

available for shipment; or

(ii) if such State elects not to take title to, take posses-

sion of, and assume liability for such waste, pursuant to

clause (i), twenty -five per centum of any amount col-

lected by a State under paragraph (1) for low-level

radioactive waste disposed of under this section during

the period beginning January |, 1990 and ending Decem-

ber 31, 1992 shall be repaid, with interest, to each genera-

lSa

tor from whom such surcharge was collected. Repay-

ments made pursuant to this clause shall be made on a

monthly basis, with the first such repayment beginning

on February 1, 1993, in an amount equal to one thirty-

sixth of the tal amount required to be repaid pursuant to

this clause, and shall continue until the State (or, where

applicable, compact region) in which such low-level

radioactive waste 1s generated is able to provide for the

disposal of all such waste generated within such State or

compact region or until January 1, 1996, whichever is

earlier.

If a State in which low-level radioactive waste 1s generated

elects to take title to, take possession of, and assume liability

for such waste pursuant to clause (1), such State shall be paid

such amounts. as are designated in subparagraph (B)(iv). If a

State (or, where applicable, a compact region) in which low-

level radioactive waste 1s generated provides for the disposal

of such waste at any time after January 1, 1993 and prior to

January 1, 1996, such State (or, where applicable, compact

region) shall be paid in accordance with subparagraph (D) a

lump sum amount equal to twenty-five per centum of any

amount collected by a State under paragraph (1): Provided,

however, That such payment shall be adjusted to reflect the

remaining number of months between January |, 1993 and

January 1, 1996 for which such State (or, where applicable,

compact region) provides for the disposal of such waste. If a

State (or, where applicable, a compact region) in which low-

level radioactive waste 1s generated 1s unable to provide for the

disposal of all such waste generated within such State or

compact region by January |, 1996, each State in which such

waste 1s generated, upon the request of the generator or owner

of the waste, shall take utle to the waste, be obligated to take

possession of the waste, and shall be liable for all damages

directly or indirectly incurred by such generator or Owner as a

consequence of the tailure of the State to take posession of the

l6a

waste as soon after January |, 1996, as the generator or owner

notifies the State that the waste is available for shipment.

(D) Recipients of payments

The payments described in subparagraphs (B) and (C) shall

be paid within thirty days after the applicable date—

(i) if the State in which such waste originated is not a

member of a compact region, to such State;

(ii) if the State in which such waste originated is a

member of the compact region, to the compact commis-

sion serving such State.

(E) Uses of payments

(i) Limitations

Any amount paid under subparagraphs (B) or (C) may

only be used to—

(I) establish low-level radioactive waste disposal

facilities;

(II) mitigate the impact of low-level radioactive

waste disposal facilities on the host State;

(III) regulate low-level radioactive waste disposal

facilities; or

(IV) ensure the decommissioning, closure, and care

during the period of institutional control of low-level

radioactive waste disposal facilities.

(ii) Reports

(I) Recipient

Any State or compact commission receiving a pay-

ment under subparagraphs (B) or (C) shall, on Decem-

ber 3! of each year in which any such funds are

expended, submit a report to the Department of Energy

itemizing any such expenditures.

l7a

(Il) Department of Energy

Not later than six months after receiving the reports

under subclause (1), the Secretary shall submit to the

Congress a summary of all such reports that shall

include an assessment of the compliance of each such

State or compact commission with the requirements of

clause (1).

(F) Payment to States

Any amount collected by a State under paragraph (1) that is

placed in escrow under subparagraph (A) and not paid to a

State or compact commission under subparagraphs (B) and (C)

or not repaid to a generator under subparagraph (C) shall be

paid from such escrow account to such State collecting such

payment under paragraph (1). Such payment shall be made not

later than 30 days after a detemination of ineligibility for a

refund is made.

(G) Penalty surcharges

No rebate shall be made under this subsection of any sur-

charge or penalty surcharge paid during a period of noncom-

pliance with subsection (e)(1) of this section.

(e) Requirements for access to regional disposal! facilities

(1) Requirements for non-sited compact regions and

non-member States

Each non-sited compact region, or State that is not a mem-

ber of a compact region that does not have an operating

disposal facility, shall comply with the — following

requirements:

(A) By July 1, 1986, each such non-member State shall

ratify compact legislation or, by the enactment of legislation or

the certification of the Governor, indicate its intent to develop

a site for the location of a low-level radioactive waste disposal

facility within such State

lSa

(B) By January 1, 1988.—

(i) each non-sited compact region shall identify the

State in which its low-level radioactive waste disposal

facility is to be located, or shall have selected the devel-

oper for such facility and the site to be developed, and

each compact region or the State in which its low-level

radioactive waste disposal facility is to be located shall

develop a siting plan for such facility providing detailed

procedures and a schedule for establishing a facility loca-

tion and preparing a facility license application and shall

delegate authority to implement such plan;

(ii) each non-member State shall develop a siting plan

providing detailed procedures and a schedule for estab-

lishing a facility location and preparing a facility license

application for a low-level radioactive waste disposal

facility and shall delegate authority to implement such

plan; and

(iii) The siting plan required pursuant to this para-

graph shall include a description of the optimum way to

attain operation of the low-level radioactive waste dis-

posal facility involved, within the time period specified

in sections 2021b to 2021) of this title. Such plan shal!

include a description of the objectives and a sequence of

deadlines for all entities required to take action to imple-

ment such plan, including, to the extent practicable, an

identification of the activities in which a delay in the

start, or completion, of such activities will cause a delay

in beginning facility operation. Such plan shall also iden-

tify, to the extent practicable, the process for (1) screen-

ing for broad siting areas; (2) identifying and evaluating

specific candidate sites; and (3) characterizing the prefer-

red site(s), completing all necessary environmental

assessments, and preparing a license application for sub-

mission to the Nuclear Regulatory Commission or an

Agreement State.

1Va

(i) a complete application (as determined by the

Nuclear Regulatory Commission or the appropriate

agency of an agreement State) shall be filed for a license

to operate a low-level radioactive waste disposal facility

within each non-sited compact region or within each non-

member State; or

(ii) the Governor (or, for any State without a Gover-

nor, the chief executive officer) of any State that is not a

meraber of a compact region in compliance with clause

(1), or has not complied with such clause by its own

acuions, shall provide a written certification to the

Nuclear Regulatory Commission, that such State will be

capable of providing for, and will provide for, the storage,

disposal, or management of any low-level radioactive

waste generated within such State and requiring disposal

after December 31, 1992, and include a description of the

actions that will be taken to ensure that such capacity

CXISIS.

(D) By January 1, 1992, a complete application (as deter-

mined by the Nuclear Regulatory Commission or the appropri-

ate agency of an agreement State) shall be filed for a license to

operate a low-level radioactive waste disposal facility within

each non-sited compact region or within each non-member

State.

(E) The Nuclear Regulatory Commission shall transmit any

certification received under subparagraph (C) to the Congress

and publish any such certification in the Federal Register.

(F) Any State may, subject to all applicable provisions, if

any, Of any applicable compact, enter into an agreement with

the compact commission of a region in which a regional

disposal facility is located to provide for the disposal of all

low-level radioactive waste generated within such State, and,

by virtue of such agreement, may, with the approval of the

State in which the regional disposal facility is located, be

20a

deemed to be in compliance with subparagraphs (A), (B), (C),

and (D).

(2) Penalties for failure to comply

(A) By July 1, 1986

If any State fails to comply with subparagraph (1)(A)—

(i) any generator of low-level radioactive waste within

such region or non-member State shall, for the period

beginning July 1, 1986, and ending December 31, 1986,

be charged 2 times the surcharge otherwise applicable

under subsection (d) of this section; and

(ii) on or after January 1, 1987, any low-level radioac-

live waste generated within such region or non-member

State may be denied access to the regional disposal facili-

ties referred to in paragraphs (1) through (3) of subsec-

tion (b) of this section.

(B) By January 1, 1988 7

If any non-sited compact region or non-member State fails

to comply with paragraph (1)(B)—

(i) any generator of low-level radioaciive waste within

such region or non-member State shall—

(I) for the period beginning January |, 1988, and

ending June 30, 1988, be charged 2 times the surcharge

otherwise applicable under subsection (d) of this sec-

tion; and

(II) for the period beginning July |, 1988, and end-

ing December 31, 1988, be charged 4 times the sur-

charge otherwise applicable under subsection (d) of

this section, and

(ii) on or after January |, 1989, any low-level radioac-

tive waste generated within such region or non-member

State may be denied access to the regional disposal facili-

2la

ties referred to in paragraphs (1) through (3) of subsec-

tion (b) of this section.

If any non-sited compact region or non-member State fails

to comply with paragraph (i)(C), any low-level radioactive

waste generated within such region or non-member State may

be denied access to the regional disposal facilities referred to

in paragraphs (1) through (3) of subsection (b) of this section.

(D) By January 1, 1992

If any non-sited compact region or non-member State fails-

to comply with paragraph (1)(D), any generator of low-level

radioactive waste within such region or non-member State

shall, for the period beginning January 1, 1992 and ending

upon the filing of the application described in paragraph

(1)(D), be charged 3 times the surcharge otherwise applicable

under subsection (d) of this section.

(3) Denial of access

No denial or suspension of access to a regional disposal

facility under paragraph (2) may be based on the source, class,

or type of low-level radioactive waste.

(4) Restoration of suspended access; penalties for fail-

ure to comply

Any access to a regional disposal facility that is suspended

under paragraph (2) shall be restored after the non-sited com-

pact region or non-member State involved complies with such

requirement. Any payment of surcharge penalties pursuant to

paragraph (2) for failure to comply with the requirements of

subsection (e) of this section shall be terminated after the non-

sited Compact region or non-member State involved complies

with such requirements.

(f)\(1) Administration

Each State and compact commission in which a regional

disposal facility referred to in paragraphs (1) through (3) of

Subsection (b) of this section ts lecated shall have authority—

22a

(A) to monitor compliance with the limitations, allocations,

and requirements established in this section; and

(B) to deny access to any non-Federal low-level radioactive

waste disposal facilities within its borders to any low-level

radioactive waste that—

(i) is in excess of the limitations or allocations estab-

lished in this section, or

(ii) is not required to be accepted due to the failure of a

compact region or State to comply with the requirements

of subsection (e)(1) of this section.

(2) Availability of information during interim access

period

(A) The States of South Carolina, Washington, and Nevada

may require information from disposal facility operators, gen-

erators, intermediate handlers, and the Department of Energy

that is reasonably necessary to monitor the availability of

disposal capacity, the use and assignment of allocations and

the applicability of surcharges.

(B) The States of South Carolina, Washington, and Nevada

may, after written notice followed by a period of at least 30

days, deny access to disposal capacity to any generator or

intermediate handler who fails to provide information under

subparagraph (A).

(i) Trade secrets, proprietary and other confidential

information shall be made available to a State under this

subsection upon request only if such State-—

(1) consents in writing to restrict the dissemination

of the information to those who are directly involved in

monitoring under subparagraph (A) and who have a

need to know;

(II) accepts lability for wrongful disclosure; and

23a

(IIT) demonstrates that such information is essential to

such monitoring.

(ii) The United States shall not be liable for the wrong-

ful disclosure by any individual or State of any informa-

tion provided to such individual or State under this sub-

secuon.

(iii) Whenever any individual or State has obtained

possession of information under this subsection, the indi-

vidual shall be subject to the same provisions of law with

respect to the disclosure of such information as would

apply to an officer or employee of the United States or of

any department or agency thereof and the State shall be

subject to the same provisions of law with respect to the

disclosure of such information as would apply to the

United States or any department or agency thereof. No

State or State officer or employee who receives trade

secrets, proprietary information, or other confidential

information under sections 2021b to 2021; of this title

may be required to disclose such information under State

law.

(g) Nondiscrimination

Except as provided in subsections (b) through (e) of this

section, low-level radioactive waste disposed of under this

section shall be subject without discrimination to all applica-

ble legal requirements of the compact region and State in

which the disposal facility is located as if such low-level!

radioactive waste were generated within such compact region.

§ 2021f. Emergency access

(a) In general

The Nuclear Regulatory Commission may grant emergency

access to any regional disposal facility or non-Federal disposal

facility within a State that is not a member of a compact for

24a

specific low-level radioactive waste, if necessary to eliminate

an immediate and serious threat to the public health and safety

or the common defense and security. The procedure for grant-

ing emergency access shall be as provided in this section.

(b) Request for emergency access

Any generator of low-level radioactive waste, or any Gover-

nor (or, for any State without a Governor, the chief executive

officer of the State) on behalf of any generator or generators

located in his or her State, may request that the Nuclear

Regulatory Commission grant emergency access to a regional

disposal facility or a non-Federal disposal facility within a

State that is not a member of a compact for specific low-level

radioactive waste. Any such request shall contain any informa-

tion and certifications the Nuclear Regulatory Commission

may require.

(1) Required determination

Not later than 45 days after receiving a request under

subsection (b) of this section, the Nuclear Regulatory Com-

mission shall determine whether—

(A) emergency access is necessary because of an immedi-

ate and serious threat to the public health and safety or the

common defense and security; and

(B) the threat cannot be mitigated by any alternative con-

sistent with the public health and safety, including storage of

low-level radioactive waste at the site of generation or in a

storage facility obtaining access to a disposal facility by volun-

tary agreement, purchasing disposal capacity available for

assignment pursuant to section 2021e(c) of this title or ceasing

activities that generate low-level radioactive waste.

(2) Required notification

If the Nuclear Regulatory Commission makes the deter-

minations required in paragraph (1) in the affirmative, it shall

designate an appropriate non-Federal disposal facility or facil-

ities, and notify the Governor (or chief executive officer) of

the State in which such facility 1s located and the appropriate

25a

compact commission that emergency access is required. Such

notification shall specifically describe the low-level radioac-

live waste as to source, physical and radiological characteris-

tics, and the minimum volume and duration, not exceeding

180 days, necessary to alleviate the immediate threat to public

health and safety or the common defense and security. The

Nuclear Regulatory Commission shall also notify the Gover-

nor (or chief executive officer) of the State in which the low-

level radioactive waste requiring emergency access was gener-

ated that emergency access has been granted and that, pursuant

to subsection (e) of this section, no extension of emergency

access may be granted absent diligent State action during the

period of the initial grant.

(d) Temporary emergency access

Upon determining that emergency access is necessary

because of an immediate and serious threat to the public health

and safety or the common defense and security, the Nuclear

Regulatory Commission may at its discretion grant temporary

emergency access, pending its determination whether the

threat could be mitigated by any alternative consistent with the

public health and safety. In granting access under this subsec-

tion, the Nuclear Regulatory Commission shall provide the

same notification and information required under subsection

consistent with the public health and safety would mitigate the

threat, access granted under this subsection shall expire 45

days after the granting of temporary emergency access under

this subsection.

(e) Extension of emergency access

The Nuclear Regulatory Commission may grant one exten-

sion of emergency access beyond the period provided in sub-

section (c) of this section, if it determines that emergency

access continues to be necessary because of an immediate and

serious threat to the public health and safety or the common

detense and security that cannot be mitigated by any alterna-

live consistent with the public health and safety, and that the

26a

generator of low-level radioactive waste granted emergency

access and the State in which such low-level radioactive waste

was generated have diligently though unsuccessfully acted

during the period of the initial grant to eliminate the need for

emergency access. Any extension granted under this subsec-

tion shall be for the minimum volume and duration of the

Nuclear Regulatory Commission finds necessary to eliminate

the immediate threat to public health and safety or the com-

mon defense and security, and shall not in any event exceed

180 days.

(f) Reciprocal access

Any compact region or State not a member of a compact

that provides emergency access to non-Federal disposal facili-

ties within its borders shall be entitled to reciprocal access to

any subsequently operating non-Federal disposal facility that

serves the State or compact region in which low-level radioac-

tive waste granted emergency access was generated. The com-

pact commission or State having authority to approve importa-

tion of low-level! radioactive waste to the disposal facility to

which emergency access was granted shall designate for recip-

rocal access an equal volume of low-level radioactive waste

having similar characteristics to that provided emergency

access.

(g) Approval by compact commission

Any grant of access under this section shall be submitted to

the compact commission for the region in which the desig-

nated disposal facility is located for such approval as may be

required under the terms of its compact. Any such compact

commission shall act to approve emergency access not later

than 15 days after receiving notification from the Nuclear

Regulatory Commission, or reciprocal access not later than 15

days after receiving notification from the appropriate authority

under subsection (f) of this section.

(h) Limitations

No State shall be required to provide emergency or recipro-

cal access to any regional disposal facility within its borders

27a

for low-level radioactive waste not meeting criteria estab-

lished by the license or license agreement of such facility, or in

excess of the approved capacity of such facility, or to delay the

closing of any such facility pursuant to plans established

before receiving a request for emergency or reciprocal access.

No State shall, during any 12-month period, be required to

provide emergency or reciprocal access to any regional dis-

posal facility within its borders for more than 20 percent of the

total volume of low-level radioactive waste accepted for dis-

posal at such facility during the previous calendar year.

(i) Volume reduction and surcharges

Any low-levei radioactive waste delivered for disposal

under this section shall be reduced in volume to the maximum

extent practicable and shall be subject to surcharges estab-

lished in sections 2021b to 2021} of this tite.

(j) Deduction from allocation

Any volume of low-level radioactive waste granted emer-

gency or reciprocal access under this section, if generated by

any commercial nuclear power reactor, shall be deducted from

the low-level radioactive waste volume allocable under section

202le(c) of this title.

(k) Agreement States

Any agreement under section 2021 of this title shall not be

applicable to the determinations of the Nuclear Regulatory

Commission under this section.

§ 2021g. Responsibilities of Department of Energy

(a) Financial and technical assistance

The Secretary shall, to the extent provided in appropriations

Act, provide to those compact regions, host States, and non-

member States determined by the Secretary to require assist-

ance for purposes of carrying out sections 2021b to 2021) of

this title. —

(1) continuing technical assistance to assist them in fulfill-

ing their responsibilities under sections 2021b to 2021) of this

title. Such technical assistance shall include, but not be limited

28a

to, technical guidelines for site selection, alternative technolo-

gies for low-level radioactive waste disposal, volume reduc-

tion options, management techniques to reduce low-level

waste generation, transportation practices for shipment of low-

level wastes, health and safety considerations in the storage,

shipment and disposal of low-level radioactive wastes, and

establishment of a computerized database to monitor the man-

agement of Low-level radioactive wastes; and

(2) through the end of fiscal year 1993, financial assistance

to assist them in fulfilling their responsibilities under sections

2021b to 202]j of this title.

(b) Reports

The Secretary shall prepare and submit to the Congress on

an annual basis a report which (1) summarizes the progress of

low-level waste disposal siting and licensing activities within

each compact region, (2) reviews the available volume reduc-

tion technologies, their applications, effectiveness, and costs

on a per unit volume basis, (3) reviews interim storage facility

requirements, costs, and usage, (4) summarizes transportation

requirements for such wasies on an inter- and intra-regional

basis, (5) summarizes the data on the total amount of low-level

waste shipped for disposal on a yearly basis, the proportion of

such wastes subjected to volume reduction, the average vol-

ume reduction attained, and the proportion of wastes stored on

an interim basis, and (6) projects the interim storage and final

disposal volume requirements anticipated for the following

year, on a regional basis.

§ 2021h. Alternative disposal methods

(a) Not later than 12 months after January 15, 1986, the

Nuclear Regulatory Commission shall, in consultation with

the States and other interested persons, identify methods for

the disposal of Low-level radioactive waste other than shallow

land burial, and establish and publish technical guidance

regarding licensing of facilities that use such methods.

29a

(b) Not later than 24 months after January 15, 1986, the

Commission shall, in consultation with the States and other

interested persons, identify and publish all relevant technical

information regarding the methods identified pursuant to sub-

section (a) of this section that a State or compact must provide

to the Commission in order to pursue such methods, together

with the technical requirements that such facilities must meet,

in the judgment of the Commission, if pursued as an alterna-

tive to shallow land burial. Such technical information and

requirements shall include, but need not be limited to, site

suitability, site design, facility operation, disposal site closure,

and environmental monitoring, as necessary to meet the per-

formance objectives established by the Commission for a

licensed low-level radioactive waste disposal facility. The

Commission shall specify and publish such requirements in a

manner and form deemed appropriate by the Commission.

§ 2021i. Licensing review and approval

In order to ensure the timely developmeni of new low-level

radioactive waste disposal facilities, the Nuclear Regulatory

Commission or, as appropriate, agreement States, shall con-

sider an application for a disposal facility license in accord-

ance with the laws applicable to such application, except that

the Commission and the agreement state! shall—

(1) not later than 12 months after January 15, 1986, estab-

lish procedures and develop the technical capability for proc-

essing applications for such licenses;

(2) to the extent practicable, complete all activities associ-

ated with the review and processing of any application for

such a license (except for public hearings) no later than 15

months after the date of receipt of such application, and

(3) to the extent practicable, consolidate all required techni-

cal and environmental reviews and public hearings.

30a

§ 2021j. Radioactive waste below regulatory concern

(a) Not later than 6 months after January 15, 1986, the

Commission shall establish standards and procedures, pur-

suant to existing authority, and develop the technical capa-

bility for considering and acting upon petitions to exempt

specific radioactive waste streams from regulation by the

Commission due to the presence of radionuclides in such

waste streams in sufficiently low concentrations or quantities

as to be below regulatory concern.

(b) The standards and procedures established by the Com-

mission pursuant to subsection (a) of this section shall set forth

all information required to be submitted to the Commission by

licensees in support of such petitions, including, but not lim-

ited to—

(1) a detailed description of the waste materials, including

their origin, chemical composition, physical state, volume, and

mass; and

(2) the concentration or contamination levels, half-lives,

and identities of the radionuclides present.

Such standards and procedures shall provide that, upon receipt

of a petition to exempt a specific radioactive waste stream

from regulation by the Commission, the Commission shall

determine in an expeditious manner whether the concentration

or quantity of radionuclides present in such waste stream

requires regulation by the Commission in order to protect the

pubiic health and safety. Where Commission determines that

regulation of a radioactive waste stream is not necessary to

protect the public health and safety, the Commission shall take

such steps as may be necessary, iii an expeditious manner, to

exempt the disposal of such radioactive waste from regulation

by the Commission.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.