Nuclear Waste Management: A Challenge to Federalism

Transcription

1 Ecology Law Quarterly Volume 7 Issue 4 Article 2 March 1979 Nuclear Waste Management: A Challenge to Federalism Patricia Lucas Follow this and additional works at: Recommended Citation Patricia Lucas, Nuclear Waste Management: A Challenge to Federalism, 7 Ecology L. Q. 917 (1979). Link to publisher version (DOI) This Article is brought to you for free and open access by the Law Journals and Related Materials at Berkeley Law Scholarship Repository. It has been accepted for inclusion in Ecology Law Quarterly by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.

2 Nuclear Waste Management: A Challenge to Federalism Patricia Lucas* For scientists and government administrators as well as for the public at large, disposal of waste materials from nuclear reactors has become a highly controversial problem. There is much dispute, for example, over whether the technology exists, or can be developed, for safe, permanent disposal of radioactive waste materials.' Uncertainty about the proper treatment of such waste and the potential risks inherent in existing disposal methods have led some to conclude that generation of additional waste, or at least construction of new nuclear power plants, should be deferred until a reasonable solution to the waste problem has been found. 2 Skepticism about the feasibility of safe dis- Copyright 1979 by the ECOLOGY LAW QUARTERLY. * B.A. 1976, Rice University; Third Year Student, School of Law, University of California, Berkeley; Comments Editor, Ecology Law Quarterly. I. This Article does not examine the arguments concerning the existence of adequate waste disposal technology. The technical sections of the paper provide a background for a more comprehensive understanding of the related legal and political problems. Significant technical authorities stand on both sides of the "adequate technology" dispute. Several have concluded that technology necessary to achieve waste management goals is presently available. See, e.g., REPORT OF THE NUCLEAR ENERGY POLICY STUDY GROUP, NUCLEAR POWER ISSUES AND CHOICES 266 (1977) [hereinafter cited as NUCLEAR POWER]; Oversight Hearings on Nuclear Waste Management before the Subcommittee on Energy and the Environment ofthe House Committee on Interior and Insular Affairs, 95th Cong., 1st Sess. 11 (1977) (statement of Dr. Charles Hebel) [hereinafter cited as 1977 Hearings]; Cohen, The Disposal of Radioactive Wastesfrom Fission Reactors, SCIENTIFIC AM., June 1977, at 21. Others maintain that there remain fundamental questions and problems with waste disposal technology and that, in any case, present technology is not adequate to achieve safe waste disposal. See, e.g., NUCLEAR FUEL CYCLE COMMITTEE OF THE CALIFORNIA ENERGY COMMISSION, STATUS OF NUCLEAR FUEL REPROCESSING, SPENT FUEL STORAGE AND HIGH-LEVEL DISPOSAL 232 (Draft Report 1978) [hereinafter cited as ENERGY COMMISSION REPORT]; [1978] 8 ENVIR. REP. (BNA) , referring to statements by George Buchananne, Chief of the United States Geological Survey, Office of Hydrology, and Dr. Terry Lash, a staff scientist at the Natural Resources Defense Council. 2. The House Government Operations Committee has recommended that Congress and the President propose a moratorium on nuclear power plant licensing until waste problems are resolved. The Committee's report states: "So long as the problem remains unresolved, the public's health and safety and the viability of nuclear power in this country are threatened." [1978] 9 ENvIR. REP. (BNA) 6-7. The Committee's recommendation represents a view shared by many. See, e.g., Speech by J. Gustave Speth, member of the Council on Environmental Quality, ALI-ABA Conference on Atomic Energy Licensing and Regulation (Sept. 29, 1977). California state law requires that no nuclear power plant may be permitted to use land until the state Energy Resources Conservation and Development

3 ECOLOGY LAW QUARTERL Y [Vol. 7:917 posal methods for radioactive waste is contributing to a decline in optimism over the use of nuclear power to meet growing energy needs. 3 Nevertheless, as related as successful nuclear waste management may be to the future of commercial nuclear power, 4 the waste problem is a separate issue itself. Even if no more radioactive waste were generated, great quantities of waste material must be managed in a manner that assures safe isolation from the biosphere for long periods of time. 5 The administrative and technical challenges of nuclear waste manage- Commission finds that "the United States through its authorized agency has approved and there exists a demonstrated technology or means for the disposal of high-level nuclear waste." CAL. PUB. RES. CODE (West 1977). This statute has been held unconstitutional in a recent federal court ruling. Pacific Legal Foundation v. State Energy Resources Conservation and Dev. Comm'n, No I-E, slip op. (S.D. Cal. Mar. 6, 1979). But see Tribe, California Declines the Nuclear Gamble.- Is Such a State Choice Preempted? 7 ECOL- OGY L.Q. 679 (1979). Maine and Wisconsin have enacted legislation similar to the California statute. See ME. REV. STAT. tit. 10, 253 (Supp. 1978). The Wisconsin legislation consists of an order by the Wisconsin Public Services Commission made August 17, [1978] 9 ENVIR. REP. (BNA) See, e.g., COMPTROLLER GENERAL OF THE UNITED STATES, NUCLEAR ENERGY'S DILEMMA: DISPOSING OF HAZARDOUS RADIOACTIVE WASTE SAFELY I (1977) [hereinafter cited as COMPTROLLER GENERAL REPORT]; Wall St. J., Feb. 12, 1979, at 1, col. 6 & at 31, cols In 1975, the Energy Research and Development Administration (ERDA) estimated that by the year 2000, nuclear power would supply as much as 1,250,000 megawatts of electric capacity (MWe). ERDA's estimate was revised downward in July, 1976 and ranges from 450,000 to 800,000 MWe. By September, 1976, the estimate was reduced to a range from 380,000 to 620,000 MWe. NUCLEAR POWER, supra note 1, at n view of the objections to nuclear power based on the inadequacy of waste disposal technology (see note 1 supra), the development of such technology may encourage the use of nuclear power by eliminating a major objection to it. However, the waste disposal issue is only one of many objections to nuclear power. Significant uneasiness about the safety of power plant operations, the risk of terrorist theft of nuclear materials, the possibility of nuclear accidents, and the dangers inherent in the transportation of nuclear materials are all factors which contribute to the growing disfavor of nuclear power. See, e.g., Critical Mass J., Aug. 1978, at 1, col. 2. The development of a safe waste disposal system would not lessen the controversy over these problems. The relationship between continued generation of nuclear waste and a resolution of the waste disposal problem, once stated strongly by the President's Interagency Review Group in a draft report on nuclear waste, has now been described by the same group as a neutral one. NUCLEONICS WEEK, Oct. 19, 1978, at The term "waste management" is used to refer to all processes related to the handling and storage of nuclear waste, including long-term disposal. "Disposal" of nuclear waste would be more accurately referred to as "isolation from the biosphere," since radioactive materials cannot be "disposed of" as other waste materials are. At the present time, military waste includes seventy-four million gallons of high-level liquid waste now in storage (defined in text accompanying note 19 infra). Commercial liquid waste now in storage amounts to approximately 600,000 gallons. COMPTROLLER GENERAL REPORT, SUpra note 3, at 4. However, this comparison may be misleading: the concentration of radioactivity is much greater in commercial waste, and the amount of commercial waste is increasing more rapidly than military waste. NUCLEAR POWER, supra note 1, at 244 n.(b). In addition, military and research activities have produced thirteen million cubic feet of transuranic-contaminated waste (defined in text accompanying notes infra). The precise amount of contaminated waste and stored spent fuel attributable to commercial activities is not known at this time. COMPTROLLER GENERAL REPORT, supra note 3, at 5.

4 1979) NUCLEAR WASTE MANAGEMENT ment must be confronted regardless of future decisions concerning the continued use of nuclear energy. One of the most troublesome legal aspects of nuclear waste management is whether control should lie with the federal government or with the states. Traditionally, the federal government has exercised extensive regulatory control over all aspects of nuclear energy, and has developed and administered the existing regulatory framework for managing radioactive waste. However, many states have actively challenged exclusive federal control over permanent waste disposal, and specifically over the siting of federally-owned permanent waste repositories. These states claim that the state should be able to decide for itself, or at least have greater influence in deciding, whether a repository will be sited within the state. Several existing state laws and others under consideration are designed to prevent the federal government from siting nuclear waste repositories within the state, or to condition such siting on approval by the state legislature. 6 While it is doubtful whether states currently have the legal authority to regulate or exclude waste repositories, there is widespread feeling that they should have such authority. Federal law requires that waste repositories be located on federally-owned land, and the limited power which states may exercise over federal property does not extend to regulation or prohibition of repositories. 7 However, the states feel that in view of the very significant regional effects of such a siting, they should not be deprived of the right to participate in the siting and planning of repositories merely because the repository itself is located on land 6. States which have passed waste disposal bans are: Colorado (SB-3) (1977); Louisiana (H-14) (1977); Minnesota (H-1215) (1977) (requires legislative approval); Montana (H- 254) (1977); Oregon (S-272) (1977, expired 1978); South Dakota (H-822) (1977) (requires legislative approval); and Vermont (H-261) (1977) (requires legislative approval). Critical Mass J., June 1978, at States which have considered such bans during 1978 include: California (A-3385) (bans until NRC and EPA establish formal criteria for siting and operating waste disposal sites); Illinois (H-2824) (bans out-of-state waste); Mississippi (H-212); Nebraska (L-759) (requires legislative approval); New Mexico (HJR-4); New York (A-10351); Ohio (S-468); and West Virginia (S-326). Id; Critical Mass J., July 1978, at 12, cols The State of Delaware, while not prohibiting waste disposal, has indicated concern over the siting of a waste disposal facility against a state's will by urging its congressional representatives to support a federal bill which would grant states veto power over federal repository-siting decisions. (Delaware House Concurrent Resolution 81) (1978). See note 8 infra. Critical Mass J., June 1978, at 9. Furthermore, Michigan, Texas, Ohio, and New York have each successfully blocked attempts by the Department of Energy to explore and test-drill on possible repository sites. NUCLEONICS WEEK, Aug. 24, 1978, at 6-7. On the other hand, the State of Nevada appears to be willing to accept a nuclear waste repository. A committee of Nevada governmental and civic leaders has endorsed a proposal to store radioactive wastes at the Nevada Test Site near Las Vegas and elsewhere in the state. S.F. Chronicle, Jan. 11, 1979, at 22, col See text accompanying notes infra.

5 ECOLOGY LAW QUARTERLY [Vol. 7:917 which the states cannot control. Furthermore, public opinion has become an important factor in this emotionally charged issue. Residents of areas under consideration as possible sites have vigorously insisted on their right to prevent a local siting, and the state statutory prohibitions express such demands. Congress has responded to the demands embodied in state waste disposal laws by considering several bills which would remove the legal obstacles to a state's authority to regulate or prohibit waste disposal facilities. A number of bills effectively shift the final decision-making authority in repository-siting questions from the federal government to the states." Another bill authorizes concurrent federal and state regulation of waste disposal facilities. 9 Since Congress clearly has the power to allocate regulatory authority between the federal government and the state, the critical questions are whether such state power is desirable, what limits, if any, the Congress should place on state authority to regulate or exclude repositories, and what benefits and problems would result from granting states veto power over siting decisions. This Article explores answers to these questions by assimilating the general legal principles of federalism and the unique factors involved in the nuclear waste problem. Part I presents a background of the technical problems of nuclear waste management. Part II describes 8. The 95th Congress considered the following bills. In view of the controversy surrounding state veto over repository siting, it is not unlikely that the 96th Congress will consider similar proposals. H.R. 2675, 95th Cong., 1st Sess., 123 CONG. REC. H646 (daily ed. Jan. 31, 1977) was introduced to the House Committee on Interior and Insular Affairs by Representatives Carr and Ruppe (Mich.). The bill calls for notice to the state legislature, and legislative approval prior to construction. H.R. 5369, 95th Cong., 1st Sess., 123 CONG. REC. H2451 (daily ed. Mar. 22, 1977) was introduced to the same committee by Representative Skubitz (Kan.). It follows H.R. 2675, except that it requires approval by statewide referendum rather than by legislative vote. S. 1008, 95th Cong., 1st Sess., 123 CONG. REC. S4137 (daily ed. Mar. 15, 1977) was introduced to the Senate Committee on Energy and Natural Resources by Senator Riegle (Mich.). Its provisions are identical to H.R S. 1105, 95th Cong., 1st Sess., 123 CONG. REc. S4676 (daily ed. Mar. 23, 1977) was introduced to the same committee by Senator Leahy (Vt.). Its provisions are nearly identical to H.R and S S. 1623, 95th Cong., 1st Sess., 123 CONG. REC. S (daily ed. June 6, 1977) was introduced to the Senate Committee on Environment and Public Works by Senator McGovern (S.D.). It contains a provision for notice similar to the other bills, and prohibits construction in the event of disapproval by either legislative vote or referendum. 9. H.R. 9190, 95th Cong., 1st Sess., 123 CONG. REC. H9657 (daily ed. Sept. 19, 1977), titled "Radioactive Waste Management Act of 1977," was introduced to the House Committees on Armed Services, Interior and Insular Affairs, and Interstate and Foreign Commerce by Representative Vento (Minn.). The bill provides for, inter alia, notice to the governor and appropriate state agencies, and for public hearings, before the Nuclear Regulatory Commission (NRC) can license a repository within the state. The bill sanctions concurrent regulation of radioactive discharges from NRC-licensed facilities, as well as construction and operation of federal repositories.

6 1979] NUCLEAR WASTE MANAGEMENT the existing federal regulatory scheme and the role which 'states currently may play in nuclear energy decision-making. Part III reviews the constitutional principles relevant to the states' authority to control nuclear waste disposal, and concludes that state waste disposal laws are not constitutionally sanctioned. Part IV discusses the options available to the federal government in response to state waste disposal regulation. This Article concludes that states should be given the final authority in the siting of waste repositories, subject to federal intervention only when necessary to preserve the goals of the national nuclear waste management program. I THE TECHNOLOGY OF NUCLEAR WASTE MANAGEMENT A. The Nature of Nuclear Wastes In the process of decaying over long periods of time, radioactive wastes release dangerous ionizing radiation.' 0 This radiation is caused by the presence of either fission products or transuranic elements, or both. Fission products are created when a uranium nucleus or another heavy element splits after capturing a neutron. " I These fission products have half-lives ranging from a few seconds up to about thirty years, and may remain hazardous for up to several hundred years.1 2 Transuranic elements (TRU) are heavier than uranium,' 3 and are formed when uranium atoms absorb neutrons without splitting. Because of their long half-lives of up to hundreds of thousands of years,' 4 these materials must be isolated from the environment for long periods.' 5 Various forms of waste are produced by different stages of the fuel cycle. The largest quantities of radioactivity, and thus the greatest potential hazards, result from the generation of wastes from the actual 10. The more intense the radiation released, the more dangerous is the radioactive material. High-intensity radiation may cause death or severe damage such as cancer or genetic diseases. Low-intensity levels are less clearly correlated with incidences of death and disease. G. EICHHoLz, ENVIRONMENTAL ASPECTS OF NUCLEAR POWER 87, (1977). 11. NUCLEAR POWER, supra note 1, at 243 n.(a) Hearings, supra note 1, at 2 (statement of Dr. Charles Hebel). A half-life is defined as the time required for half of the original radioactive mass to decay. ENERGY COMMISSION REPORT, supra note 1, at 121. While it is commonly thought that nuclear materials are particularly hazardous if they have very long half-lives, this is not precisely correct. Radiotoxicity is determined in part by a material's rate of decay, and since radionuclides with shorter half-lives decay more rapidly, those materials pose a greater radiation hazard. See id 13. These elements include, most notably, plutonium; also, neptunium, americium, and curium. NUCLEAR POWER, supra note 1, at 243 n.(a) Hearings, supra note 1, at 3 (statement of Dr. Charles Hebel). 15. Materials with longer half-lives are less radioactive than those with shorter halflives. See note 12 supra. However, because radiotoxicity decreases as a material decays, the radioactivity level of longer-lived substances decreases more slowly. See ENERGY COMMIS- SION REPORT, supra note 1, at 121; G. EICHHOLZ, supra note 10, at 539 (Table 159).

7 ECOLOGY LAW QUARTERLY [Vol. 7:917 reactor processes. 1 6 These wastes from the "back end" of the fuel cycle include low-level ("contaminated") waste, high-level waste from reprocessing activities, and spent fuel which has not been reprocessed. Low-level waste (LLW) is material not originally radioactive which has become so through exposure to either radioactive fission products or TRU. 1 7 Comprising the largest volume of waste material,' 8 LLW generally consists of clothing and equipment used in the fuel cycle. High-level waste (HLW) is the acid solution remaining after spent fuel elements have been dissolved in a reprocessing procedure.1 9 HLW is extremely radioactive, containing nearly all the fission products from the spent fuel and small amounts of TRU not recovered by reprocessing. HLW has a long radiotoxic life, and generates high levels of penetrating radiation and a great deal of heat. 20 Spent fuel, which contains fission products, TRU, and fissionable uranium and plutonium, rlust be treated as waste if it is not reprocessed. 2 ' Like HLW, it is highly radioactive, and remains hazardous for long periods of time. 22 B. Waste Management." A Survey of Problems and Proposed Solutions Any system devised to manage nuclear wastes must consider the full scope of operations from treatment at the reactor site and interim storage through final long-term disposition. The present regulatory 16. Wastes produced from fuel cycle activities other than reactor operations include: tailings from uranium mining and milling, and gaseous effluents from various fuel cycle activities Hearings, supra note 1, at 3 (statement of Dr. Charles Hebel). 17. Id 18. Id 19. Federal regulations define HLW as "those aqueous wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent, in a facility for reprocessing irradiated reactor fuels." 10 C.F.R. 50, app. F (2) (1978). The exclusion of spent fuel elements and TRU-contaminated wastes from this definition has caused some difficulties in waste management administration. See notes 31, 54, 55 infra. However, it is generally recognized that HLW, spent fuel, and TRU waste are similar in the hazards they pose. In fact, NRC does not regard the above cited definition as exclusive. See COMPTROLLER GENERAL REPORT supra note 3, at 70 (letter from Lee Gossick, NRC Executive Director for Operations, to the GAO). The California Energy Resources Conservation and Development Commission has defined "high-level nuclear wastes" to include spent fuel and TRU waste as well as liquid waste from reprocessing. See ENERGY COMMISSION REPORT, supra note 1, at COMPTROLLER GENERAL REPORT, supra note 3, at iii. HLW generates heat at a rate of 50 to 100 W/ft 3, and emits 120 MCi of radiation per year per 1000 MWe reactor served. G. EicHHoLz, supra note 10, at Spent fuel is defined as "[niuclear reactor fuel that has been irradiated (used) to the extent that it can no longer effectively sustain a chain reaction." G. EICHHOLZ, supra note 10, at 673 app. 22. COMPTROLLER GENERAL REPORT, supra note 3, at iv. See also 1977 Hearings, supra note 1, at 3 (statement of Dr. Charles Hebel).

8 19791 NUCLEAR WASTE MANAGEMENT structure is thus weakened by a subdivision of responsibility. 23 Not surprisingly, the history of waste management has been one of errors and disappointments. 24 This poor administrative record and the resulting public concern should compel the federal government to require the same extensive regulatory control of waste management activities that it has imposed on other aspects of nuclear energy use Low-level Waste Because of its lower radioactivity, LLW is presently not subject to the special regulatory requirements that control HLW. 2 6 For example, the federal government may delegate authority to regulate LLW disposal to the states, 27 and industry has responsibility for both short and long-term management procedures subject to state and federal government standards. 28 Final disposition for LLW has been shallow land burial in six commercial sites and five federal sites. 2 9 However, the Nuclear Regulatory Commission (NRC) has expressed some dissatisfaction with the existing regulatory scheme. NRC feels that although state regulation generally provided adequate protection of public health and safety, 30 state programs lack the resources and overall coordination necessary for the most efficient LLW management. 31 A comprehensive management program under federal control, with state 23. See text accompanying notes infra. 24. NUCLEAR POWER, supra note 1, at 263, 266. Among the most troublesome practices and problems are: shallow burial of solid wastes contaminated by TRU, COMPTROLLER GENERAL REPORT, supra note 3, at 5-6; neutralization of liquid HLW, id, at 40-41; leaks in tanks containing liquid HLW, see note 34 infra. While these problems have been the result, at least in part, of technological failures, many of the technical problems were aggravated or left unsolved because of institutional difficulties. See, e.g., NUCLEAR POWER, supra note 1, at 244. See generally COMPTROLLER GENERAL REPORT, supra note See COMPTROLLER GENERAL REPORT, supra note 3, at iv-v. 26. See text accompanying notes 36-39, 90 infra. 27. Atomic Energy Act 274(b)(1), 42 U.S.C. 2021(b)(1) (1976). 28. M. WILLRICH & R. LESTER, RADIOACTIVE WASTE: MANAGEMENT AND REGULA- TION 62 (1977) [hereinafter cited as WILLRICH & LESTER]. 29. COMPTROLLER GENERAL REPORT, supra note 3, at 5. The commercial sites are located at: Beatty, Nevada; Hanford, Washington; Barnwell, South Carolina; Maxey Flats, Kentucky; West Valley, New York; and Sheffield, Illinois. These sites are all located on state-owned land, except the Hanford site which is on federally-owned land leased to the State of Washington. See Nuclear Regulatory Commission, Low Level Waste Disposal, Task Force Report, 42 Fed. Reg. 13,366 (1977) [hereinafter cited as NRC Report on Low-Level Waste]. 30. NRC Report on Low-Level Waste, supra note 29, at 13, Id. One problem of state LLW management has been improvident burial of TRUcontaminated waste. Proposed federal regulations would have required that such waste be buried only on federal land. Atomic Energy Commission, Transuranic Waste Disposal, Proposed Standardsfor Protection Against Radiation, 39 Fed. Reg. 32,921 (1974). These regulations were not adopted, however. See C.F.R ,.304,.306 (1978). Five of the six commercial sites have suspended burial of TRU wastes. WILLRICH & LESTER, supra note 28, at 62.

9 ECOLOGY LAW QUARTERLY [Vol. 7:917 participation, would facilitate adequate disposal capacity and avoid site proliferation High-level Waste Commercial and military reprocessing activities have produced considerable quantities of HLW, 33 most of which is stored in liquid or partially solidified form in underground or surface tanks. 34 HLW will continue to accumulate from military and research reprocessing, but commercial reprocessing has been deferred indefinitely. 35 Federal regulations presently require that HLW be solidified within five years after reprocessing, and that the solidified waste be delivered to a federal repository within ten years after reprocessing. 3 6 Industry is responsible 32. See ARC Report on Low-Level Waste, supra note 29, at 13, Six hundred thousand gallons of commercial waste are stored at Nuclear Fuels Services, Inc., in West Valley, New York. As of January, 1977, a total of seventy-four million gallons of military waste has been stored at the Hanford Reservation near Richland, Washington, at the Savannah River plant near Aiken, South Carolina, and at the Idaho National Engineering Laboratory at Idaho Falls, Idaho. COMPTROLLER GENERAL REPORT, supra note 3, at The acidic nature of HLW requires that it be stored in stainless steel tanks. Because of the high cost and short supply of stainless steel immediately after World War II, much of the waste was neutralized and stored in carbon steel tanks. "Neutralization" as it is used here refers to the removal of the acidic quality of the waste rather than to the decay of its radioactivity. The carbon steel tanks have not lasted as expected, and leaks have been detected. The most serious leakage problem has occurred at Hanford where twenty leaks have spilled approximately 450,000 gallons of neutralized waste. Leaks have also occurred at Savannah River. While no deaths or injuries have as yet been attributed to these leaks, the radioactive hazards will remain for many years. WILLRIcH- & LESTER, supra note 28, at 18. Technology has subsequently been developed that will reduce considerably the risk of leakage. All the Hanford leaks occurred with tanks built before Id at 18. It is felt that the causes of the tank failures are generally understood and that more modern designs will eliminate the problems encountered at Hanford. G. EICHHOLZ, supra note 10, at 565. See Dau & Williams, Secure Storage of Radioactive Waste, ELECTRIC POWER RESEARCH INST. J., July/Aug. 1976, at 10. Furthermore, risk of dispersion into the ground can be minimized by building catch basins and by careful choice of underlying soils. G. EICHHOLZ, supra note 10, at 588. Nevertheless, storage of HLW is not an attractive choice for long-term disposition. First, tank storage of liquid waste requires to a considerable extent perpetual surveillance. Second, and more important, the possibility of leakage is always present. ]d at 588. However, it should be noted that solidification, the principal alternative to tank storage, produces additional waste streams. Id at See note 53 infra C.F.R. 50, app. F (2) (1978). Solidification processes differ depending principally on whether or not HLW has been neutralized. Neutralized HLW can be only partially solidified into salt cakes from which most, but not all, of the water is removed. Salt cakes cannot be converted into more stable forms such as powder or glass, except on a very small scale. NUCLEAR POWER, supra note 1, at Acidic HLW, on the other hand, can be converted to a dry powdery material through a process called calcination. See G. EICHHOLZ, supra note 10, at , for a technical discussion of various methods of calcination. Calcined waste is more easily transported and

10 19791 NUCLE R WASTE MANA GEMENT for interim storage, solidification, and transportation to the repository site. 37 At that point, the federal government will take permanent custody of the HLW, 38 and bury it in a repository located on federallyowned land. 39 Permanent disposal of HLW is the necessary culmination of waste management efforts because of the long time periods during which the wastes remain potentially harmful. Interim storage is useful during the initial period when wastes are extremely radioactive and generate large amounts of heat; such storage relieves permanent disposal systems of some design problems resulting from the dissipation of this heat. However, safety requires that the radioactive wastes be effectively isolated from the environment. A number of permanent disposal options have been suggested. One of the less feasible methods proposed is transmutation, a process which transforms radioactive elements into shorter-lived radioactive materials by bombarding them with neutrons. However, such a process is technically quite difficult, and hazardous as well. 40 Although watercooled canals and air-cooled vaults would provide good interim storage because of their heat-removal capabilities, they too are undesirable as long-term disposal methods because of the constant surveillance required and the accident and sabotage risks posed. 41 Extraterrestrial disposal would be prohibitively expensive, and carries the risk of radioactive release on an unsuccessful launch attempt. 42 Storage in the ocean is not feasible because no known container will withstand the less likely to seep out into surrounding soil from long-term storage containers than are liquid HLW or salt cakes. Id. at 567; NUCLEAR POWER, supra note 1, at 250. However, calcined waste has notable disadvantages: it is readily soluble in water, and would be easily dispersed in an accident. COMPTROLLER GENERAL REPORT, supra note 3, at 3 1. Both these difficulties can be solved by encasing the calcined waste in glass-like materials. The possibility of further immobilization through vitrification is perhaps the most important advantage of calcination over neutralized salt cakes. See NUCLEAR POWER, supra note 1, at 250. This process of vitrification produces a solidified waste with a low leachability by water and a low dispersibility, and which remains stable at reasonably high temperatures. See G. EiCHHOLz, supra note 10, at Vitrified waste also preserves the volume reduction originally achieved through solidification by calcination. The volume of resolidified HLW is eight times smaller than the spent fuel which was reprocessed. NUCLEAR POWER, supra note I, at 249. However, the volume of TRU waste produced by solidification would approximately equal that of the spent fuel. As a result, the volume requirement for ultimate storage is about the same whether or not spent fuel is reprocessed and HLW solidified. The heat generated in either situation would be the same. Id at 259. The final step in preparing vitrified waste for permanent disposal is emplacement in a stainless steel canister, designed to act as an additional barrier between the waste and the environment. Id 37. See NUCLEAR POWER, supra note 1, at C.F.R. 50, app. F (2) (1978). 39. Id at (3) Hearings, supra note I, at 5 (statement of Dr. Charles Hebel); see G. EICHHOLZ, supra note 10, at G. EICHHOLZ, supra note 10, at Id at

11 ECOLOGY LAW QUARTERLY [Vol. 7:917 corrosive effects of sea water for the necessary time period. 4 3 Furthermore, disposal in the ocean bed or in Antarctic ice would encounter legal as well as technical problems. 4 Currently, the most viable option appears to be permanent burial in deep geologic formations. Geologic burial combines the advantages of isolation from the biosphere, minimum surveillance, and minimum risk of inadvertent release. 45 For this reason, research and development of HLW permanent storage systems in the United States has begun to focus on geologic isolation. 4 6 Because the surrounding geological formations are the primary barriers preventing release of radioactive waste, the burial site must be carefully chosen to meet certain important criteria. Salt formations have a number of properties which make them leading candidates for repository sites. 47 The presence of salt indicates the absence of circulating ground water at the site, which is the principal mechanism of transporting waste to the surface. 48 Salt is abundant and easily mined, it conducts heat readily, shields well against radiation, and is structurally strong. Salt flows plastically under pressure and in time seals any cracks that form. 49 However, salt formations frequently contain pockets of brine which would tend to migrate toward the heat-generating waste canisters and corrode them. 50 On balance, freedom from ground water intrusion makes salt preferable to the other likely possibilities, granite and shale. 5 ' 43. NUCLEAR POWER, supra note 1, at Id at Hearings, supra note 1, at 5-7 (statement of Dr. Charles Hebel). In deep geologic burial, the waste containers are not exposed to corrosive elements of water or air. More importantly, however, the containers are supplemented by the geologic barrier, by far the more enduring. See note 51 infra. 46. Id. at 5 (statement of Dr. Charles Hebel). See COMPTROLLER GENERAL REPORT, supra note 3, at xi. 47. The Oak Ridge National Laboratory has done a considerable amount of research over the last fifteen years on the use of salt formations as waste repositories. This technical "head start" has encouraged ERDA's focus on salt formations. See [1976] 2 NUCLEAR REG. REP. (CCH) 20, NUCLEAR POWER, supra note 1, at Id. However, the plasticity of salt may be a disadvantage in retrievable storage of spent fuel. See note 57 infra. 50. NUCLEAR POWER, supra note 1, at However, brine will not have the effect of transporting radioactivity to the surface as does ground water. Id at It is hoped that the geologic barrier will do more than insulate buried waste from groundwater intrusion. If a repository were sited in a rock other than salt, or if water did somehow invade the salt formation, it is calculated that groundwater in a repository site would take approximately 1,000 years to reach the surface. The slow movement of groundwater and the considerable distance it would have to travel are responsible for the delay. Cohen, supra note 1, at 28. Moreover, the radioactive wastes would move much more slowly than the groundwater itself, because of ion exchange delay. An ion of waste would repeatedly exchange with ions of the surrounding rock, and eventually reenter solution and move

12 1979] NUCLEAR WASTE MANAGEMENT 3. Spent Fuel as Waste No technology has been developed for the long-term storage or permanent disposal of spent fuel because it was assumed that the fuel would be reprocessed. 5 2 However, all commercial reprocessing has now been indefinitely deferred. 3 If spent fuel is not reprocessed, it is treated as a waste material, 54 and stored to await permanent disposal. 55 on with the water. This process delays transport, depending on the particular ion, by factors from 100 to 100,000. Id; NUCLEAR POWER, supra note 1, at 258. While the small likelihood of groundwater intrusion makes salt deposits attractive for repository sites, technology may be able to improve on the natural advantages of salt. Australian scientists have developed a synthetic rock which is stable, insoluble in water, and contains a crystal structure within which radioactive waste can be contained. The rock would then be encased in metal cylinders and buried in granite, thus obviating the elasticity problem encountered with salt. See note 57 infra. This process is expected to cost twice as much as burial of vitrified waste in salt. See ENVIRONMENT, Oct. 1978, at Nuclear plants discharge one-quarter to one-third of the reactor core each year. Such spent fuel was to have been stored and cooled six months before shipment to a reprocessing facility. COMPTROLLER GENERAL REPORT, supra note 3, at 51. Reprocessing recovers the fissionable uranium and plutonium in spent fuel elements and allows these materials to be recycled for their energy value. The procedure thus increases the energy efficiency of the nuclear fuel cycle. In addition, reprocessing may serve to reduce the risks involved in permanent disposal by decreasing the amounts of TRU in wastes. However, this risk reduction may not be significant when balanced against the additional short-term risks of more complex management procedures. NUCLEAR POWER, supra note 1, at 34, EXECUTIVE OFFICE OF THE PRESIDENT, ENERGY POLICY AND PLANNING, THE NA- TIONAL ENERGY PLAN, at XX [hereinafter cited as NATIONAL ENERGY PLAN]. The main reason for the deferral was fear of the proliferation made possible by reprocessing, which separates plutonium, with its weapon-making potential, from the other materials in spent fuel. Id; [1977] 8 ENVIR. REP. (BNA) 979 (comment by Secretary of Energy James Schlesinger), The deferral of reprocessing was not proposed to discourage the nuclear industry by limiting the fuel supply. The same policy profile which presents the deferral also emphasizes the use of nuclear power as a means for "meeting the United States energy deficit." NA- TIONAL ENERGY PLAN, supra at XII. Indeed, the deferral may benefit the nuclear industry. The extra costs of reprocessing may make the procedure commercially unattractive. See WILLRICH & LESTER, supra note 28, at 103. Furthermore, the elimination of reprocessing simplifies the fuel cycle and resulting management procedures. Any reduction in the dangers of permanent disposal that reprocessing may achieve must be balanced against the risks involved in reprocessing itself and in handling HLW. NUCLEAR POWER, supra note I, at See also note 52 supra. 54. Spent fuel has not been defined as high level waste by any federal statute or regulation. COMPTROLLER GENERAL REPORT, supra note 3, at iii. For this reason, there is some uncertainty as to what legal standards govern the treatment of spent fuel as waste. Because the radioactivity of spent fuel is approximately equal to that of the liquid waste from reprocessing, it would be desirable to require the same management safeguards for spent fuel as are applied to the HLW. H.R proposes an amendment to the 1954 Atomic Energy Act which would provide that federal waste repositories receive HLW, TRU-contaminated waste, and spent fuel. H.R. 9190, 95th Cong., 1st Sess. 3(b)(a) (1977). See note 9 supra. 55. Commercial spent fuel currently is stored in water-filled basins located at the reactor sites. To date, 5200 tons of spent fuel have accumulated, and that amount is expected to rise to 37,900 tons by NEWSWEEK, Jan. 15, 1979, at 83. Such storage originally was intended as an interim measure until the elements could be shipped [or reprocessing. COMP- TROLLER GENERAL REPORT, supra note 3, at 51. There are two away-from-reactor storage

13 ECOLOGY LAW QUARTERLY [Vol. 7:917 Disposal plans for spent fuel should, however, provide for retrievable storage, because spent fuel represents a potential energy source if reprocessing again becomes a part of the commercial fuel cycle. 56 Preserving the option of retrievability places a considerable design constraint on the development of geologic repositories. 5 7 II ADMINISTERING THE TECHNOLOGY OF NUCLEAR WASTE MANAGEMENT While the adequacy of current waste management technology is a sites: Nuclear Fuel Services, Inc. at West Valley, New York, and General Electric at Morris, Illinois. Only the latter is currently accepting fuel, and pursuant only to contractual agreement. Department of Energy, Transcript of Public Meeting on Spent Fuel Policy, at 47 (Oct. 26, 1977) [hereinafter cited as Spent Fuel Policy]. The deferral of reprocessing has created a backlog at these storage sites. It may be safe to store spent fuel in this manner for a much longer period than was first planned as spent fuel appears to remain stable in aqueous environments. Some has been so stored safely for more than ten years. NUCLEAR POWER, supra note 1, at 254. However, the available storage sites are nearing capacity. The utilities must increase their storage capacities, attempt to place more fuel in these sites than they were originally designed to accommodate, or face shutdown of plant operations. For a discussion of these options, and particularly of the hazards of compacted storage, see COMPTROLLER GENERAL REPORT, supra note 3, at Pursuant to a proposed policy, the federal government intends to take custody of spent fuel, and thereby provide a solution to the backlog problem. In view of the reprocessing deferral, this policy is a necessary expansion of the federal responsibility for permanent disposal of HLW. See [1977] 1 NUCLEAR REG. REP. (CCH) 1021; WILLRICH & LESTER, supra note 28, at 104. Fuel transfers will be voluntary. Government purpose is only to remove the uncertainty caused by the reprocessing deferral. Spent Fuel Policy, supra at 11. Pursuant to the Administration's non-proliferation policy, the federal government will also offer to accept spent fuel from foreign countries. 1d at Interim storage and transport will remain the duty of the utilities. However, the federal government is willing to provide interim storage facilities if private facilities are not reasonably available. Id at 10. When the fuel arrives at the governmentally approved storage site, title will be transferred to the government. Utilities will pay a fixed one-time fee to cover the cost of storage and ultimate disposal. No credit will be given for the energy value of the plutonium and uranium contained in the spent fuel. However, should reprocessing be resumed, the utilities will have the fuel returned or will be compensated for its net energy value. Id at 6. In this way, the federal spent fuel policy preserves the retrievability option, at least as far as industry is concerned. 56. H.R. 9190, 95th Cong., 1st Sess. (1977), requires that spent fuel be retrievably stored, while HLW and TRU waste be permanently stored. Id. 3(b)(b). See notes 9, 54 supra Hearings, supra note i, at 6 (statement of Dr. Charles Hebel). Generally, the same technology that has been developed for permanent disposal of HLW by deep geologic burial can be applied if spent fuel is to be treated as waste. Spent fuel and HLW would place essentially the same volume and heat load requirements on repository design. See note 36 supra. However, the necessity of maintaining access to the waste for a certain period after emplacement presents technical problems. See WILLRICH & LESTER, supra note 28, at This is especially true if salt is selected as the repository site: the natural plasticity of salt will tend to close up the mined openings, making retrieval very difficult or impossible. See text accompanying note 49 supra.

14 1979] NUCLEAR WASTE MANAGEMENT topic of considerable controversy, 58 one of the most important obstacles to a successful waste management program is political rather than technical: state challenge to the traditional plenary federal authority over nuclear energy. In order to consider the allocation of waste management responsibility between the federal and state governments, it is first necessary to examine the existing federal statutory schemes which are supplemented by state regulations as specifically authorized. A. Federal Authority Over Nuclear Waste From its beginnings in the highly secret "Manhattan Project" of World War 11, 59 nuclear energy research in the United States has been controlled by the national government because of the international security and defense aspects of atomic weaponry technology. 60 The Atomic Energy Act of estalblished a scheme of total federal control, including federal ownership of all fissionable material and creation of the Atomic Energy Commission (AEC) to control development of nuclear energy. Because the role of private industry was limited to government contracts, the states had no apparent interest in regulating the nuclear industry. 62 In 1954, the federal government relinquished its title to all nuclear materials in order to encourage,private development of nuclear energy for commercial purposes. 63 Such private use, however, was to be conducted under a comprehensive regulatory scheme administered by AEC. 64 No provision was made for state regulation of industrial nuclear facilities, other than preservation of the traditional state authority to regulate the generation, sale, or transmission of electric power. 65 When industry began to develop nuclear energy in response to the Atomic Energy Act of 1954 (1954 Act), some states began to issue regu- 58. See note 1 supra and accompanying text. 59. See Murphy & La Pierre, Nuclear 'Moratorium" Legislation in the States and the Supremacy Clause:. A Case of Express Preemption, 76 COLUM. L. REv. 392, (1976) [hereinafter cited as Murphy & La Pierre]. 60. See Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1147, 3 ERC 1041, 1044 (8th Cir. 1971), afdmem. 405 U.S (1972). 61. The Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 (1946). 62. Murphy & La Pierre, supra note 59, at See the Atomic Energy Act of 1954, ch. 1073, 68 Stat. 919 (current version at 42 U.S.C (1976)). 64. Licenses were required for possession, transfer, or use of byproduct material, source material, or special nuclear material, and for construction or operation of production and utilization facilities Act I1 (e), (p), (s), (t), (v), 41, 57, 62, 81, 68 Stat. 923, 924, 928, 932, 935 (current version at 42 U.S.C (e), (v), (z), (aa), (cc), 2061, 2077, 2092, 2111 (1976)) Act, ch. 1073, 1, 68 Stat. 960 (1954) (current version at 42 U.S.C (1976)). See generally Murphy & La Pierre, supra note 59, at

15 ECOLOGY LAW Q UARTERL Y [Vol. 7:917 lations. 66 When states sought to invoke their police power to protect public health and safety and to regulate industry within the state, state regulation presented the possibility of conflict with AEC regulation. Congress recognized the need to permit state participation and cooperation in nuclear energy development, and to define a federal/state allocation of responsibility. In 1959, the 1954 Act was amended to allow a state to assume certain licensing and regulatory responsibilities pursuant to an agreement between the state governor and AEC. 67 The federal government, however, retains complete authority in the absence of such agreement or upon termination or expiration of the agreement. 68 Certain areas of regulation are excluded from state control under all circumstances. 69 The Energy Reorganization Act of abolished AEC, and assigned its research and development responsibilities to the Energy Research and Development Administration (ERDA), and its licensing and regulatory functions to the Nuclear Regulatory Commission (NRC). 7 1 The 1974 Act makes explicit, for the first time, federal responsibility for waste management. ERDA is specifically assigned the task of "encouraging and conducting research and development, including demonstration of commercial feasibility and practical applications of the... storage [phase]... related to the development of use of energy from... nuclear... sources." ' 72 ERDA facilities for storage of HLW are subject to the licensing requirements of NRC. 73 With passage of the Department of Energy Organization Act (DOE Act) in 1977,74 ERDA was abolished and its functions transferred to the newly-established Department of Energy (DOE). 75 The responsibilities of NRC remain unaffected. 76 Responsibility for achieving safe handling and disposal of wastes is subdivided among several federal agencies despite congressional intent to centralize waste management was outlined in DOE Act. 77 For 66. For a description of state regulatory activity during this period, see Frampton, Radiation Exposure-The Need/or a National Policy, 10 STAN. L. REV. 7, (1957). 67. Act of September 23, 1959, Pub. L. No , 1, 73 Stat. 688 (current version at 42 U.S.C (1976)). States which have entered into NRC agreements are referred to as agreement states. For a more detailed discussion of the amendment, see text accompanying notes infra. 68. Atomic Energy Act 274(b), (j), 42 U.S.C. 2021(b),(j) (1976). 69. Id 274(c), 42 U.S.C. 2021(c) U.S.C (1976). 71. ERDA 2, 104(a), (b), (c), 201(0, 42 U.S.C. 5801, 5814(a),(b),(c), 5841(f). 72. Id 103(2), 42 U.S.C. 5813(2). 73. Id 202(3), (4), 42 U.S.C. 5842(3), (4) U.S.C.A (West Supp. 1977). 75. DOE Act 301, 42 U.S.C.A (a). 76. See id 203(a)(8), 42 U.S.C.A. 7133(a)(8). 77. DOE Act provides that one of the functions of the eight Assistant Secretaries shall be responsibility for nuclear waste management, and specifically, "the establishment of tern-

16 19791 NUCLEAR WASTE MANA GEMENT example, DOE is responsible for developing and demonstrating commercially feasible waste management technologies, and specifically for establishing and managing federal waste repositories. 78 In addition to its licensing and regulatory functions, NRC determines the specific risk and performance criteria for various waste management functions. 79 The Environmental Protection Agency (EPA) establishes general environmental standards for waste management activities. 80 B. Federaly-Authorized State Regulation of Nuclear Waste When the states developed an interest in regulating nuclear energy, there was considerable doubt as to the ability of the states to assert such regulatory power. At first, AEC's response was merely to affirm a policy of cooperation. 8 ' In order to define carefully the bounds of state and federal authority, Congress amended the Atomic Energy Act in 1959 to provide that NRC would transfer some aspects of its regulatory authority to those states which entered into an agreement with AEC. 8 2 The authority of the state is limited to the time period of the agreement. When the agreement expires or is terminated by NRC, 8 3 federal authority is resumed and state authority terminates. States may not, under the NRC agreement, establish regulatory standards other than those "coordinated and compatible" with federal standards. 84 This language has been interpreted to require that state radiation protection standards be identical with those of NRC. 85 porary and permanent facilities for storage, management, and ultimate disposal of nuclear wastes." Id. 203(a)(8)(c), 42 U.S.C.A. 7133(a)(8)(C). The committee report on this legislation indicated that the purpose of this section was to ensure that these responsibilities would be "centralized and coordinated at high level in the Department," S. REP. No. 164, 95th Cong., 1st Sess. 23, reprinted in [1977] U.S. CODE CONG. & AD. NEWS 854, ERDA 202(3), (4), 42 U.S.C. 5842(3), (4) (1976). The waste management program has recently been expanded to include development of technology for long-term storage of spent fuel, and to ensure the availability of long-term storage facilities by See NATIONAL ENERGY PLAN, supra note 53, at NUCLEAR POWER, supra note I, at COMPTROLLER GENERAL REPORT, supra note 3, at See Murphy & La Pierre, supra note 59, at Atomic Energy Act 274(b), 42 U.S.C. 2021(b) (1976). There are currently twenty-five agreement states Hearings, supra note 1, at 82 (statement of Ralph Carlone). 83. NRC may terminate an agreement with a state if it determines that such action is necessary to protect public health and safety. Atomic Energy Act 274(j), 42 U.S.C. 2021(j) (1976). Notwithstanding an agreement, NRC may issue rules, regulations, or orders to protect the common defense and security, to protect restricted data, or to guard against loss or diversion of special nuclear material. Id. 274(m), 42 U.S.C. 2021(m). 84. Id 274(g), 42 U.S.C. 2021(g). 85. The Joint Committee on Atomic Energy stated that "[iun most cases, it is intended that State and local standards should be the same as Federal standards in order to avoid conflict, duplication, or gaps." S. REP. No. 870, 86th Cong., 1st Sess. 9, 11, reprinted in [1959] U.S. CODE CONG. & AD. NEWS 2872, 2882 [hereinafter cited as the 1959 REPORT]. AEC ruled that state standards must be uniform with its own standards. Atomic Energy

17 ECOLOGY LAW QUARTERL Y [Vol. 7:917 The most explicit restrictions on state authority are found in the statutory language which prevents, under all circumstances, state assumption of regulatory responsibility over certain areas. Subsection (c) of section 274 provides that NRC retains authority over (1) the construction and operation of any production or utilization facility; (2) the export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility; (3) the disposal into the ocean or sea of byproduct, source, or special nuclear waste materials as defined in regulations or orders of the Commission; (4) the disposal of such other byproduct, source, or special nuclear material as the Commission determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission. 86 The rationale for excluding these areas from state regulation, as explained by the Joint Committee on Atomic Energy, is twofold: first, these areas involve complex technical problems and significant safety hazards which can best be confronted and controlled by federal resources, 87 and second, public policy questions may be raised which should be resolved on the federal level. 88 These specific restrictions prevent NRC from delegating its authority over HLW disposal. Subsection (4) prohibits state assumption of authority over the disposal of byproduct material determined by NRC to represent a special hazard. Thus, the statute preserves the possibility of subsequently designating any other material, e.g., spent fuel, as one the disposal of which must be regulated by NRC. 8 9 In addition, NRC regulations specify that it retains regulatory authority over transfer, storage, and disposal of HLW even in agreement states. 90 Thus, while the states can exercise limited regulatory authority under the 1959 amendment to the 1954 Act and a NRC agreement, control over HLW disposal is specifically retained by the federal government. This is not altered by the statutory assurance that the states Commission, Byproduct, Source and Special Nuclear Materials in Quantities not Sufficient to Form a Critical Mass, Criteria/or Guidance of States and AEC in Discontinuance of AEC Regulatory Authority and Assumption Thereof by States Through Agreement, 26 Fed. Reg. 2536, 2537 (1961). 86. Atomic Energy Act 274(c), 42 U.S.C. 2021(c) (1976). While this provision prohibits NRC from discontinuing its authority and does not explicitly prevent the states from regulating these areas, the courts have ruled that this provision has the effect of implicitly preempting state regulation. See text accompanying notes infra REPORT, supra note 85, at 3, Id. at Certainly, the addition of spent fuel to this special category of materials excluded from state control would be consistent with the Joint Committee's reasoning about serious technical hazards and significant public policy problems. See text accompanying notes supra C.F.R (a)(4) (1978). This regulation specifically excludes LLW, and thus allows state LLW regulation.

18 19791 NUCLEAR WASTE MANA GEMENT retain their traditional police power with regard to health and safety issues not related to radiation hazards. 9 ' Under what circumstances a state law actually regulates "for purposes other than protection against radiation hazards," 92 and whether such regulation may conflict with federal radiation regulations are questions which the 1959 amendment fails to resolve. An examination of the federal preemptive power in the nuclear energy field may supply some answers to these questions as well as resolve other issues of federal/state allocation of waste management responsibility. 93 C. State Participation in Federal Waste Management. The Policy of Deference Although the states are precluded from unilaterally regulating HLW disposal under the agreement provision of the 1959 amendment to the 1954 Act, the states have long been involved with federal disposal efforts pursuant to the traditional federal policy of cooperation with the states in the field of nuclear energy. Particularly with regard to the site selection program for waste repositories, ERDA and DOE have emphasized the crucial importance of state cooperation, participation, and agreement. 94 ERDA announced to the public the general goals and specific plans of its site selection program, 95 and DOE has said it intends to work closely with state and local agencies and concerned private groups. 96 State response to the site selection program has not been favorable, primarily because the history of ERDA site explorations indicates inadequate state involvement. 1. Kansas After preliminary studies revealed the feasibility of HLW disposal in salt deposits, 97 AEC announced in June, 1970 that it would construct a federal waste repository in an abandoned salt mine near Lyons, Kan- *as. 9 8 Shortly before this announcement, on April 27, 1970, AEC informed the local congressman, Joe Skubitz, of its plan, known as 91. Atomic Energy Act 274(k), 42 U.S.C. 2021(k) (1976). 92. Id 93. See text accompanying notes infra. 94. Informational Hearings on Nuclear Fuel Reprocessing and Waste Disposal before the California Energy Resources Conservation and Development Commission (Jan. 31, 1977) (statement by Dr. George W. Cunningham, Acting Deputy Assistant Administrator for Nuclear Energy, ERDA) [hereinafter cited as Cunningham]. 95. The announcement came on December 13, The program is an ambitious one. Geologic formations of interest will be studied in thirty-six of the forty-five mainland states containing such formations. See [1976] 2 NUCLEAR REG. REP. (CCH) 20, See, e.g., Cunningham, supra note 94, at 13; COMPTROLLER GENERAL REPORT, supra note 3, at COMPTROLLER GENERAL REPORT, supra note 3, at Id

19 ECOLOGY LAW QUARTERLY [Vol. 7:917 Project Salt Vault. Skubitz questioned whether this project would differ from earlier proposals which had proved hazardous. Unsatisfied with the AEC response, Skubitz challenged Project Salt Vault in committee and on the House floor. 99 Meanwhile, local citizens indicated their strong opposition to the project." A year after the AEC announcement, new geologic evidence revealed serious technical problems with the chosen site. 10 These problems, together with the significant popular opposition, led AEC to abandon the project in Michigan The pattern of events surrounding ERDA's site selection activities in the State of Michigan is similar to the Kansas episode. In late 1975 and early 1976, ERDA and its contractor, Union Carbide, sought permits to drill in northern Michigan. It was not made clear at that time whether the proposed drilling was exploratory in nature, or whether this particular site had already been selected for waste disposal. Indeed, there are indications that ERDA itself was unsure of its plan for the area ERDA notified Congressman Philip Ruppe of Michigan about the proposed drilling on May 25, Concerned that ERDA was closer to a final decision than it publicly acknowledged, Ruppe criticized ERDA for failing to seek the informed participation of the Michigan people. Ruppe further requested congressional subcommittee hearings in Michigan to provide a forum for local opinion on waste disposal in the area. The ERDA activity became a major public controversy. 104 Governor William Milliken asked ERDA to grant to Michigan a veto power over a decision to place a nuclear waste repository in the state ERDA refused to surrender its right to site the facility despite state opposition, though it continued to express great concern for state 99. SUBCOMMITTEE ON ENERGY AND THE ENVIRONMENT OF THE COMMITTEE ON IN- TERIOR AND INSULAR AFFAIRS OF THE U.S. HOUSE OF REPRESENTATIVES, 95TH CONG., 1ST SESS., PROPOSED NUCLEAR WASTE STORAGE IN MICHIGAN 2-3 (Comm. Print 3) (1977) [hereinafter cited as 1977 REPORT] Id 101. There was a possibility of water entry into the repository and subsequent leakage of radioactivity. Past oil and gas exploration wells had left holes which probably could not be capped to prevent water from flowing in Hearings, supra note 1, at 72 (statement of Dr. Terry Lash). In addition, a nearby salt mine used large amounts of water to dissolve the salt. Some of this water had been lost within the geologic formation and could find its way to the buried waste. COMPTROLLER GENERAL REPORT, supra note 3, at The degree of influence that the public response had on the final AEC decision to withdraw is not clear. Compare 1977 REPORT, supra note 99, at 3, with COMPTROLLER GEN- ERAL REPORT, supra note 3, at REPORT, supra note 99. at Id at 4. In November, 1976, local voters overwhelmingly opposed waste repositories in their counties. COMPTROLLER GENERAL REPORT, supra note 3, at REPORT, supra note 99, at 4.

20 1979] NUCLEAR WAlSTE MANAGEMENT cooperation and approval.' 6 Finally, in September, 1976, ERDA Administrator, Dr. Robert Seamans, formally replied to Governor Milliken's request. Seamans explained plans for state participation in the development of site selection criteria, and then stated ERDA's position with respect to state veto: "[Tihe project will be terminated in Michigan if the state raises issues on the project connected with these criteria [for site selection], and their application, that are not resolved through a mutually-acceptable procedure."107 ERDA's proposal for state involvement thus fell short of granting veto power to either the governor or the state legislature. It was, however, accepted as suitable by Governor Milliken. 0 8 Subsequent to the Michigan episode, the principles underlying the policy of deference were afforded statutory protection in DOE Act. Various bureaucratic mechanisms have been designed to ensure the inclusion of state and local governments in the formulation and implementation of federal energy policies. For example, governors may establish Regional Energy Advisory Boards, which will make recommendations to the Secretary of Energy about energy issues in their region If the Secretary does not adopt recommendations offered by a Regional Board, he must publish his reasons for doing so."i 0 Second, because of the "pivotal role of the states in the implementation of many energy policy initiatives,"' DOE Act requires that the President seek the active participation of regional, state, and local agencies and officials. " 2 Mere notification is not sufficient to ensure that the states have adequate input into policy formulation. Finally, intergovernmental relations will receive special attention from an Assistant Secretary to provide for coordination of activities, communication, and responsiveness of national energy policies to the needs of state and local governments New Mexico In the Carlsbad area of New Mexico, DOE is presently developing a Waste Isolation Pilot Plant (WIPP) where it hopes to demonstrate that TRU-contaminated waste can be stored safely and permanently.' " Id at Letter from Dr. Robert Seamans to Governor William Milliken (Sept. 17, 1976), reprinted in id at 11 app REPORT, supra note 99, at DOE Act 655(a), (c), 42 U.S.C.A. 7265(a), (c) (West Supp. 1977) Id. 655(d), 42 U.S.C.A. 7265(d) S. REP. No. 164, 95th Cong., 1st Sess. 61, reprinted in [1977] U.S. CODE CONG. & AD. NEWS 854, DOE Act 801(a)(2), 42 U.S.C.A (a)(2) (West Supp. 1977) Id. 203(a)(6), 42 U.S.C.A. 7133(a)(6) See COMPTROLLER GENERAL REPORT, supra note 3, at 9, 21; Wall St. J., Aug. 29, 1978, at 1, col. 1.

21 ECOLOGY LAW QUARTEAL Y [Vol. V 7:917 At one point, some federal authorities felt that an advantage of the New Mexico site was the fundamentally positive response from state and local authorities.' 15 However, it now appears that there is at best a mixed response from officials and local residents, some of whom are strongly opposed to the project."1 6 In response to this public anxiety, New Mexico Senator Pete Domenici has secured a reassurance from DOE that the state will have an absolute veto power over the project." 17 III THE CONSTITUTIONALITY OF STATE REGULATION OF HIGH- LEVEL WASTE DISPOSAL Public dissatisfaction with the federal government's attempts to build nuclear waste repositories in Kansas, Michigan, and New Mexico remains strong. Some states feel that more significant state input into the federal waste management administration would not be enough, and have enacted statutes that attempt to exclude repositories." l 8 The asserted state control over the activities of a federal administrative program in an area traditionally under federal authority, such as nuclear energy, is subject to constitutional limitations. The doctrine of federal property restricts state authority over activities on federal land, and would preclude state regulation or prohibition of nuclear waste repositories on federal property. " 9 Even apart from the property issue, states may be without authority to regulate nuclear waste disposal because federal law regarding nuclear energy preempts any state statute or regulation which frustrates the congressional purpose of achieving safe waste disposal. 120 An examination of the doctrines of federal property and federal preemption indicates the doubtful constitutionality of the state waste disposal laws See COMPTROLLER GENERAL REPORT, supra note 3, at See Wall St. J., Aug. 29, 1978, at 29, col. 1; N.Y. Times, Jan. 22, 1978, 1, at 20, col. 2; NUCLEONICS WEEK, Oct. 12, 1978, at See Wall St. J., Aug. 29, 1978, at 29, col. 1; NUCLEONICS WEEK, Sept. 7, 1978, at 2; id, Oct. 12, 1978, at 3. However, subsequent to this informal agreement, DOE has expressed its opposition to federal grants of veto power to states over repository site selection. See 47 U.S.L.W (1979) To date, states seeking to ban nuclear waste disposal within the state have either excluded disposal outright or made the construction of a disposal facility contingent on legislative approval. It is possible that some states may attempt to regulate disposal facilities by setting safety standards for construction and operation. Such standards could effectively prohibit the facilities. This section will consider the constitutionality of state standards governing waste disposal, as well as state prohibitions See text accompanying notes infra See text accompanying notes infra.

22 19791 NUCLEAR WASTE MANA GEMENT A. State Jurisdiction over Federal Property The constitutional doctrines regarding control of federal property would invalidate state regulation of nuclear waste repositories, which by federal regulation are required to be located on federally-owned land States may regulate federal installations only when Congress has clearly and unambiguously authorized such regulation. 22 Under article I, section 8, clause 17 of the United States Constitution, 2 3 the federal government exercises exclusive jurisdiction over federal lands purchased with the consent of the state in which they are located. 24 If the state has not consented, article IV, section 3, clause 2125 governs rather than article Pursuant to article IV, the states have general jurisdiction over the property as if it were owned by a private individual.' 27 However, an exception to the article IV state jurisdiction is encountered when the federal property is used in the exercise of a power of the national government enumerated in article I, section 8. In order that state regulation should not frustrate the exercise of an enumerated power, a federal facility used pursuant to such a power will not be subject to state authority. 28 Because federal authority to site and build nuclear waste repositories is based on an enumerated power, 29 state, C.F.R. 50, app. F (3) (1978) Hancock v. Train, 426 U.S. 167, 8 ERC 2100 (1976); EPA v. State Water Resources Control Board, 426 U.S. 200, 8 ERC 2089 (1976) The Constitution provides that Congress shall have power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-yards, and other needful Buildings;... U.S. CONST. art. 1, 8, ci S.R.A., Inc. v. Minnesota, 327 U.S. 558 (1946); Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885) The Constitution provides that "[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. CONST. art. IV, 3, cl See Engdahl, State and Federal Power Over Federa/ Property, 18 ARIz. L. REV. 283, 297 (1976). The Property Clause in article I of the Constitution contains the specific requirement that land to which the clause applies be"purchased by the Consent of the Legislature of the State in which the Same shall be... " U.S. CONST. art. 1, 8, cl See Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885); United States v. Lewisburg Area School Dist., 539 F.2d 301, 307 (3rd Cir. 1976) See, e.g., Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885). This case held that federal property in Kansas used for a fort, because employed for a governmental function, "will be free from any such interference and jurisdiction of the State as would destroy or impair [its] effective use for the purposes designed." Id at 539. See also Hancock v. Train, 426 U.S. 167, 179, 8 ERC 2100, (1976); EPA v. State Water Resources Control Board, 426 U.S. 200, 211, 8 ERC 2089, 2093 (1976); Mayo v. United States, 319 U.S. 441, (1943) The constitutional bases for federal authority over nuclear waste disposal, and over nuclear energy in general, are Congress' war powers and its power to regulate interstate

23 ECOLOGY LAW QUARTERL Y [Vol. 7:917 laws attempting to regulate repositories can have no effect. The "enumerated powers" exception to article IV state jurisdiction operates independently of the federal preemption doctrine; 13 0 a state law asserting jurisdiction over federal property need not conflict with an act of Congress to be required to yield on federal property.' 3 ' Rather, the rationale of the rule is intergovernmental immunity: 32 state law must not be allowed to interfere with constitutionally authorized federal activities. 133 Thus, in the absence of explicit congressional authorization, states are precluded from regulating use of federal property for waste repositories. However, even if Congress eliminated the property doctrine obstacle by expressly subjecting repository sites to state jurisdiction, not all constitutional objections would necessarily be removed. State laws which too narrowly restrict federal activities are not controlling on federal property and federal law remains applicable Moreover, if state law is in conflict with federal law, it may be invalidated altogether under the doctrine of federal preemption. commerce. U.S. CONST. art. 1, 8, cls. 3, Congressional power to regulate United States property (id art. IV, 3, cl. 2) was also asserted as a basis for federal power when the federal government reserved title to all special nuclear materials. See text accompanying notes supra. However, the property power was eliminated as a basis for federal authority in 1964 when Congress provided for private ownership of special nuclear materials. Private Ownership of Special Nuclear Materials Act, Pub. L. No , 1, 2, 78 Stat. 602 (1964). Congress has asserted that the commerce and defense powers are'sufficient bases for federal regulation of nuclear energy. See H.R. REP. NO. 1702, 88th Cong., 2d Sess. 6-8, (1964); S. REP. No. 1325, 88th Cong., 2d Sess. 6-8, 19-20, reprinted in [1964] U.S. CODE CONG. & AD. NEWS 3105, 3111, See generaly Murphy & La Pierre, supra note 59, at Courts have concluded that there is "no doubt" as to Congress' power to regulate "the entire spectrum of atomic energy." E.g., Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1147, 3 ERC 1041, 1044 (8th Cir. 1971), affidmem., 405 U.S (1972) See Engdahl, supra note 126, at See, e.g., Johnson v. Maryland, 254 U.S. 51 (1920) (state law penalizing for driving without a license does not apply to federal employees, though it is not preempted by any federal statute) See Engdahl, supra note 126 at The doctrine of intergovernmental immunity developed in cases which held that federal facilities are not subject to state taxation. See, e.g., Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939); Van Brocklin v. Tennessee, 117 U.S. 151 (1886); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Application of the doctrine has been extended beyond the area of taxation, to prevent any state interference with governmental use of federal property. See, e.g., United States v. Georgia Pub. Servs. Comm'n, 371 U.S. 285 (1963), and Public Utils. Comm'n v. United States, 355 U.S. 534 (1958) (state agencies cannot regulate contracts between common carriers and the federal government regarding shipments of goods owned by the federal government or its employees) New Mexico State Game Comm'n v. Udall, 410 F.2d 1197 (10th Cir.), cer. denied 396 U.S. 961 (1969); see Hunt v. United States, 278 U.S. 96 (1928) (state game laws ineffective to restrict killing of animals in national park or forest for ecological purposes).

24 19791 NUCLEAR WASTE MANAGEMENT B. Federal Preemption of State Regulation Apart from the problem of jurisdiction over federal property, state regulation of nuclear waste repositories faces the constitutional difficulty of preemption by federal law governing nuclear energy matters. The preemption doctrine determines the extent to which state regulatory power must yield to federal authority. A state law is invalid if "Congress has either explicitly or implicitly declared that the States are prohibited from regulating" that subject matter. 35 When Congress explicitly asserts exclusive federal jurisdiction, the courts must then determine whether a particular state law comes within the scope of the preemption clause.' 36 Even when there is no express preemption, intent to preempt state regulation may be implied. In such cases, the courts consider: 1) the language and legislative history of the federal statute, 137 2) the pervasiveness of the federal scheme of regulation, 38 and 3) whether the subject matter regulated involves "a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws of the same subject."' 139 However, there is a strong presumption against preemption of state police powers. Federal law will supersede state "police power" regulation only when "a complete ouster of state power" was clearly intended by Congress. '0 On the other hand, even where Congress has not precluded state regulation altogether, a state law is invalid to the extent it actually conflicts with a valid federal statute.' 4 ' If a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,"' 42 it must yield to federal law under the Supremacy Clause Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 11 ERC 1273, 1274 (1978) See, e.g., Railway Employees' Dep't v. Hanson, 351 U.S. 225, 232 (1956); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) See, e.g., Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, (1963) Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Traditionally one of the factors analyzed in "implied preemption" cases, the "pervasiveness" element has been questioned as a useful indicator of Congressional intent and apparently discarded as an analytical tool. De Canas v. Bica, 424 U.S. 351, (1976); N.Y. Dep't of Social Servs. v. Dublino, 413 U.S. 405, 415 (1973). However, more recently, the Court has again endorsed the "pervasiveness" factor as evidence of congressional purpose. Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 11 ERC 1273, 1274 (1978) Ray v. Atlantic Richfield Co., 435 U.S. 151, 159, 11 ERC 1273, 1274 (1978) De Canas v. Bica, 424 U.S. 351, 357 (1976). See also, Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1977). See generally Catz and Leonard, The Demise of the Implied Preemption Doctrine, 4 HASTINGS CONST. L.Q. 295 (1977) Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 11 ERC 1273, 1275 (1978) Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also Jones v. Rath Packing Co., 430 U.S. 519, 526, (1977) U.S. CONST. art. VI, cl. 2. The analysis which follows will consider whether state waste disposal laws are invalid

25 ECOLOGY LAW Q UARTERL Y [Vol. 7:917 In applying a preemption analysis to state regulation of nuclear waste disposal, a court will examine the relationship between such state laws and relevant federal law. The federal statute most relevant to the federal/state allocation of regulatory authority in the area of nuclear energy is section 274 of the Atomic Energy Act.144 A preemption analysis should examine first whether section 274 preempts state regulation by reserving certain specific responsibilities to the federal government, and second, the scope of any preemptive intent, i.e., what types of state regulation Congress intended to prohibit. C The Case for Preemption of State Nuclear Waste Disposal Laws Express preemption requires an explicit declaration of exclusive federal authority. Section 274 contains no such provision with regard to state regulation of HLW disposal, or of radioactive hazards generbecause of a conflict with federal statute. In the absence of a relevant federal statute, a state law may be challenged on the ground that it imposes an unreasonable burden on interstate commerce, and the resolution would involve a balancing of federal and state interests similar to parts of a statutory preemption analysis. See, e.g., Bibb v. Navaho Freight Lines, Inc., 359 U.S. 520 (1959). However, where there is a conflicting federal statute, generally the argument against the state law is much stronger on preemption grounds than on Commerce Clause grounds. Cf.. e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 179 n.29, 11 ERC 1273, 1283 n.29. (The district court found that the challenged state law was preempted by federal statute and therefore never reached the Commerce Clause issue. Id. at 156, 11 ERC at 1274). For this reason, this Article will not discuss the possibility of invalidating state waste disposal laws as unreasonable burdens on interstate commerce. A recent dictum of the Supreme Court suggests that state bans of nuclear waste disposal may not be unreasonable burdens on interstate commerce. In City of Philadelphia v. New Jersey, 437 U.S. 617, 11 ERC 1770 (1978), the Court held that a state prohibition of importation of wastes from other states violates the Commerce Clause, but added that not all protectionist regulation by the states was necessarily unconstitutional. Laws which banned importation of items which by "their very movement risked contagion and other evils,... 'did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin." 1d. at , 11 ERC at The cases cited by the Court involved quarantines against diseased livestock. Asbell v. Kansas, 209 U.S. 251 (1908); Reid v. Colorado, 187 U.S. 137 (1902). While nuclear waste would correctly be described as a dangerous article the movement of which "risk[s] contagion and other evils," there is an important difference between state waste disposal bans and the state statutes upheld by the Court in the cases cited. The quarantine laws prevented the risk of danger from spreading to other states, and facilitated the confinement of the danger to its state of origin where it would eventually be eliminated. On the other hand, waste disposal bans do not prevent the spread of a temporary hazard, but constitute a state's refusal to deal with a long-term danger to national health and safety. However, it is possible that the Court would be willing to allow states to exclude nuclear waste generated outside the state without finding a violation of the Commerce Clause, especially if the state generated no nuclear waste of its own. The extent to which the,philadelphia dictum about seventy-year old livestock quarantines is applicable to the nuclear waste disposal problem remains to be seen. In any case, even if state waste disposal bans. do not unreasonably interfere with interstate commerce, they are unconstitutional if they are preempted by a federal statute Atomic Energy Act 274, 42 U.S.C (1976). See text accompanying notes supra for a detailed discussion of the provisions of this section.

26 19791 NUCLEAR WASTE MANAGEMENT ally. 45 In Northern States Power Co. v. Minnesota, 14 6 the Eighth Circuit rejected the district court's finding that section 274 expressly preempted state regulation of radioactive effluents from nuclear power plants.1 47 However, the court did determine that Congress has implic Atomic Energy Act 274(k), 42 U.S.C. 2021(k). It is arguable that section 274's declaration of exclusive NRC jurisdiction, except where such authority has been assumed by a state subject to an agreement, constitutes an express preemption clause. See Murphy & La Pierre, supra note 59, at However, the precise scope of the intended preemption remains uncertain due to the section's affirmance of state authority to regulate "for purposes other than protection against radiation hazards." Nevertheless, this uncertainty as to preemptive scope is not necessarily fatal to an express preemption argument. Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947). In Rice, the Court resorted to an analysis of legislative history to determine the scope of preemption, once it had determined that the statute expressly preempted state law. Id at See Bischoff, Nuclear Power Regulation: Defining the Scope of State Authority, 18 ARIZ. L. REV. 987, 995 n.61 (1976) F.2d 1143, 3 ERC 1041 (8th Cir. 1971), afl'dmem., 405 U.S (1972). Because the Supreme Court summarily affirmed the decision of the Eighth Circuit, there is some doubt as to its precedential value, since the precedential value of summary dispositions is less certain than that of plenary dispositions. See Edelman v. Jordan, 415 U.S. 651, 671 (1974). However, a summary disposition is a decision on the merits of the case, and does bind lower federal courts and state courts. Hicks v. Miranda, 422 U.S. 332, 344 (1975). While a summary affirmance adopts the holding of the lower court, it does not necessarily adopt that court's reasoning. Fusari v. Steinberg, 419 U.S. 379, (1974) (Burger, C.J., concurring). Whatever its status as Supreme Court law, the precise holding of the Eighth Circuit was rendered moot by Congress with passage of the Clean Air Act Amendments of 1977, Pub. L. No , 91 Stat. 685 and Pub. L. No , 91 Stat (codified at 42 U.S.C.A (West Supp. 1977)). The term "air pollutant" now includes radioactive materials, id 7602(g), which in turn means that states may regulate radioactive air pollution under the Clean Air Act, 42 U.S.C.A (West Supp. 1977). Congress allows states to establish standards more stringent than federal standards, contrary to the holding in Northern States. See H.R. REPORT No. 294, 95th Cong., 1st Sess. 43 & n.8 reprinted in [1977] U.S. CODE CONG. & AD. NEWS 1077, 1121 & n.8. While the passage of these amendments means that the holding of Northern States is no longer the law, it also suggests that Congress may have believed that in the absence of such a statute, the states were precluded from regulating radioactive hazards resulting from power plant emissions. Alternatively, it may be that Congress was just clarifying an ambiguous situation. Moreover, even a congressional overruling of Northern States does not compel the conclusion that Congress disapproves of federal preemption in other areas of nuclear regulation, e.g., waste disposal. See Pacific Legal Foundation v. State Energy Resources Conservation and Dev. Comm'n, No E, slip op. at 21 n.5 (S.D. Cal. Mar. 6, 1979). In a decision subsequent to Northern States, the Supreme Court resolved the ambiguity which a summary affirmance of the Eighth Circuit's decision may have caused. In Train v. Colorado Public Interest Research Group, 426 U.S. 1, 8 ERC 2057 (1976), the Supreme Court cited Northern States in support of its statement that "[s]tates are precluded from playing any role in several significant areas of regulation... " Id at 16 n.12, 8 ERC at 2062 n. 12. In Train, the Court determined that the Environmental Protection Agency has no jurisdiction under the Federal Water Pollution Control Act, 33 U.S.C (1976), as amended by Clean Water Act of 1977, Pub. L. No , 91 Stat. 1566, to regulate discharges of radioactive materials into navigable waterways. NRC has exclusive jurisdiction over such discharges. 426 U.S. at 11-25, 8 ERC at Thus, the discussion in Northern States that subsection (c) of section 274 of the Atomic Energy Act, 42 U.S.C. 2021(c) (1976), precludes state regulation in certain areas of nuclear energy matters has been expressly endorsed by the Supreme Court in Train F.2d at 1147, 3 ERC at 1044.

27 ECOLOGY LAW QUARTERLY [Vol. 7:917 itly preempted state regulation by providing that NRC should retain jurisdiction over radioactive power plant emissions. 48 Examining the language of section 274 itself, the court found an implicit assertion of exclusive federal authority over nuclear energy. 149 The creation of a complicated statutory scheme ceding to the states limited regulatory authority over some activities involving radiation hazards strongly implies that, absent such statutory authorization, the federal government has exclusive authority over radiation hazards.' 50 Since state authority is expressly confined in duration and scope to the terms of the NRC agreement,' 5 1 the possibility of concurrent jurisdiction over radiation 52 hazards is negated. The inclusion in subsection (k) of a guarantee that nothing in section 274 limits state authority "to regulate activities for purposes other than protection against radiation hazards"1 53 would be unnecessary if states had authority, independent of a NRC agreement, to regulate radiation hazards as well.' 54 Applying the Northern States rationale to state regulation of HLW disposal, such regulation would be preempted by section 274 and NRC regulations because that section requires that NRC retain jurisdiction over HLW disposal. 55 Furthermore, the pervasiveness of the federal regulatory scheme and the presence of a dominant federal interest would indicate preemption of state waste disposal laws, just as they were found to compel preemption of state regulation of radioactive air pollution in Northern States. The comprehensiveness of federal regulation in the area of nuclear energy, and nuclear waste management in particular, indicates congressional recognition of the importance of centralized authority in this area. 56 Responsibility for waste disposal technology has been under Id. at , 3 ERC at Subsequent to Northern States, federal courts have twice held that section 274 implicitly preempts state regulation of nuclear energy. United States v. City of New York, 12 ERC 1600 (S.D.N.Y. 1978); Pacific Legal Foundation v. State Energy Resources Conservation and Dev. Comm'n, No E, slip op. (S.D. Cal. Mar. 6, 1979) F.2d at , 3 ERC at Id. at , 3 ERC at Atomic Energy Act 274(b), (c), 42 U.S.C. 2021(b), (c) (1976); see text accompanying notes 82-83, supra F.2d at 1149, 3 ERC at Atomic Energy Act 274(k), 42 U.S.C. 2021(k) (1976) The purpose of subsection (k) is to leave no doubt that state authority to regulate non-radiation hazards, which is independent of state authority under a NRC agreement, is not impaired by the restrictions which section 274 places on the authority to regulate radiation hazards which a state can assume under an agreement. See 447 F.2d at , 3 ERC at 1046; 1959 REPORT, supra note 85, at Subsection (c) of section 274, 42 U.S.C. 2021(c) (1976), together with NRC regulations, indicate that the NRC retains exclusive authority over HLW disposal. See text accompanying notes supra See discussion at 447 F.2d at 1153, 3 ERC at 1048 for a description of the comprehensive federal regulatory scheme over nuclear energy.

28 1979] NUCLEAR WASTE MANAGEMENT taken as a federal function. 57 The federal government takes custody of HLW' 5 8 and may in the future take custody of spent fuel as well. 159 Federal regulations require that permanent waste repositories be located on federal property.1 60 Such pervasive federal control evidences congressional intent to preempt state waste disposal laws. Another factor in the preemption analysis is whether there is a dominant federal interest in the subject matter of the state regulation: i e., whether the subject matter requires "exclusive federal regulation in order to achieve uniformity vital to national interests."' 6 ' Obviously, the national interest embodied in federal regulation of nuclear waste disposal is the concern for safe and effective isolation of radioactive hazards from the biosphere.1 62 Although state standards for repository construction and operation which are less stringent than federal requirements could endanger the interest in safe waste disposal, state regulations at least as strict as federal standards do not compromise the federal interest in public safety. This argument, set forth by the State of Minnesota in Northern States in support of its radioactive air pollution standards for nuclear power plants stricter than the federal rules, was rejected. 163 The court held that the more stringent state standards would interfere with a competing national interest: the development of nuclear power.' 64 Since more burdensome state requirements would 157. ERDA 103(2), 42 U.S.C. 5813(2) (1976). See text accompanying notes supra C.F.R. 50, app. F (2) (1978) See note 55 supra C.F.R. 50, app. F (3) (1978) Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, (1963) The importance of the concern for public health and safety finds statutory support in the Energy Reorganization Act of 1972, 42 U.S.C (1976), in which DOE is given responsibility for developing nuclear waste storage facilities. ERDA 103(2), 42 U.S.C. 5813(2). See text accompanying note 72 supra. The Act also refers to NRC licensing of DOE facilities for long-term storage of HLW. Id 202(3), (4), 42 U.S.C. 5842(3), (4). See text accompanying note 73 supra. In outlining the purposes of the statutes contained in the Act, Congress included the goal of assuring public health and safety. Id 2(a), 42 U.S.C. 5801(a). This goal is clearly relevant to the DOE assignment to develop a nuclear waste storage program. Another purpose of the legislation, as expressed by Congress, is to promote national energy self-sufficiency, which may also be relevant to the nuclear waste program. Successful waste management would benefit the nuclear industry, directly by solving its long-term storage difficulties and indirectly by removing the waste problem from the range of public misgivings about nuclear power. This benefit to the nuclear industry would promote nuclear power as a source of energy and enhance the likelihood that nuclear power would fulfill its role in the national program to reach energy self-sufficiency. However, this relationship between successful waste disposal and energy self-sufficiency is more attenuated than that between waste disposal and public health and safety. Moreover, it is uncertain that such a chain of events would follow, because successful waste disposal may not significantly affect public opinion about nuclear power and so may not strengthen the nuclear industry overall. See note 4 supra, F.2d at 1153, 3 ERC at The Northern States court noted that Congress declared the development of nu-

29 ECOLOGY LAW QUARTERL Y [Vol. 7:917 tend to discourage or perhaps even preclude the construction of power plants, 165 the court viewed uniform national regulation as necessary to preserve a national interest. To the extent that the lack of an adequate waste disposal program discourages development of nuclear power, the same argument applies against more stringent state standards for repository regulation. Moreover, stricter state regulation of repositories involves a further danger not encountered in state regulation of power plants because repository regulation may endanger the very interest it appears to protect: the concern with achieving the safest and most effective waste disposal technologically possible. 166 If each state is free to enact safety standards so stringent that repository construction in that state becomes economically unfeasible, the effect is the same as if the states had prohibited repositories outright. If the states with the most geologically and demographically suitable sites have expressly or effectively excluded repositories from their territory, 67 the federal government would be compelled to site its disposal facilities in any willing state, even though less desirable geological characteristics would increase the overall risk of disposal. 68 While the individual states which have banned repositories might be spared the risks of radiation danger from repository failure, the overall risk to health and safety would be increased. For this reason, the national interest in safe waste disposal requires uniform federal regulation of repository safety standards, which indicates that congressional regulation of waste repositories should preempt concurrent regulation. clear energy to be an objective of the Atomic Energy Act, 42 U.S.C (1976). See 447 F.2d at 1153, 3 ERC at See id. at , 3 ERC at See note 4 supra. On the other hand, the development of nuclear energy, or as it applies in the 1974 Energy Reorganization Act, the promotion of national energy self-sufficiency, may not be a congressional purpose relevant to federal nuclear waste management legislation. See note 162 supra. Even assuming that it would be relevant, there is no need for an accommodation of the "nuclear development" objective with the "health and safety" objective with regard to preemption of state waste disposal laws, as there was with regard to the Minnesota law in Northern States. See 447 F.2d at , 3 ERC at Both objectives would indicate that state regulation of waste repositories should be preempted. The difference from the Northern States analysis lies in the fact that after a point, stricter state standards for repositories conflict with public health and safety as well as with nuclear development. See text accompanying notes infra This is not an unlikely scenario. Understandably, the states which have been considered most attractive geologically for repository siting have been the most interested in passing legislation regulating or prohibiting repositories. Compare [1976] 2 NUCLEAR REG. REP. (CCH) 20,046 (listing states studied by ERDA as possible repository sites) with note 6 supra See text accompanying notes supra. In the shorter term, even before state vetoes would require the siting of repositories at undesirable locations, the vetoes are likely to delay the progress of the waste management program, a result contrary to the national interest. See [1978] 8 ENVIR. REP. (BNA)

30 1979] NUCLEAR WASTE MANAGEMENT D. An Argument against Preemption of State Waste Disposal Laws and a Rebuttal An alternative interpretation of section 274 indicates that not all state waste disposal laws may necessarily be preempted. This result may be reached by focusing on subsection (k), which guarantees that "[n]othing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards."' 69 The Northern States court viewed subsection (k) as an additional indication that states are without authority to regulate radiation hazards except pursuant to a NRC agreement.' 7 0 Even if the court's analysis is accurate, that conclusion does not itself solve the preemption problem, because the term "radiation hazards" is not defined either in the statute itself or in the legislative history. Indeed, it appears that the failure to define "radiation hazards" or to insert any other clause defining the preemptive scope of the 1959 amendment to the 1954 Act, was deliberate.' 71 Congress apparently preferred to leave preemption decisions to judicial determination on a case-by-case basis. A careful definition of "radiation hazards" is necessary because subsection (k) is the Atomic Energy Act's most precise statement concerning the allocation of authority between the states and the federal government: federal law clearly does not preempt state regulation of non-radiation hazards. The narrowest definition would permit states to regulate all aspects of nuclear facilities that are unrelated to radiation hazards: e.g., thermal pollution, nonradioactive air pollution, and safety standards for non-nuclear equipment. 72 However, legislative history indicates that a broader exception was intended. A congressional committee, which significantly declined to define radiation 169. Atomic Energy Act 274(k), 42 U.S.C. 2021(k) (1976) F.2d at , 3 ERC at A congressional committee on the 1959 amendment to the 1954 Act stated: Under this bill which gives explicit reference to the interests of the Federal and State governments, we think it would be fairly apparent, as many of us now believe under the existing Atomic Energy Act, that there has been an area of preemption. We considered the desirability of writing [an express preemption clause], and we decided against it, primarily for the reason that it is practically impossible to try to define, taking into account all of the various gray areas and special circumstances that might arise, where these areas of preemption should begin or end. Hearings before the Joint Committee on Atomic Energy on Federal-State Relationships in the Atomic Energy Field 307, 86th Cong., Ist Sess. (1959) [hereinafter cited as 1959 Hearings] See Marshall v. Consumers Power Co., 65 Mich. App. 237, 237 N.W.2d 266 (1975). In an action seeking a declaration that a nuclear power plant was a nuisance, the Michigan Court of Appeals held that state courts were preempted from considering allegation concerning the plant's emergency core cooling system and the possibility of a nuclear accident, because these matters dealt with radiation hazards. 237 N.W.2d at 274. However, state courts could consider and the state could regulate nonradiological hazards, such as the creation and effects of steam, fog, and icing from the plant's cooling pond. Id at

31 ECOLOGY LAW QUARTERL Y [Vol. 7:917 hazards, offered zoning laws as the only example of state regulation authorized by subsection (k). 173 The committee may have felt that states should be allowed to consider what would normally be thought of as radiation hazards when zoning nuclear facilities. A state court upheld a zoning regulation on the basis of subsection (k), despite the fact that such regulation was arguably not strictly "for purposes other than protection against radiation hazards."' 74 On the other hand, a more recent holding by a federal court indicates that a city cannot j ustify its regulation of nuclear reactors on the ground that its ordinance is merely a "siting" regulation relating only to non-radiation hazards. 7 5 The court noted that the city's administrative proceedings clearly considered radiation hazards of the reactor's location. 76 It concluded that the ordinance could not be upheld on the ground that it regulated nonradiation hazards in addition to radiation hazards. 177 Taken together, Hearings, supra note 171, at Northern California Ass'n. to Preserve Bodega Head and Harbor, Inc. v. Public Utilities Comm'n, 61 Cal.2d 126, 390 P.2d 200, 37 Cal. Rptr. 432 (1964). The California Supreme Court held that zoning laws can prohibit siting of a nuclear power plant near an active earthquake fault. The Court commented: In view of subdivision (k) of section [274], respondent Commission unquestionably has authority to inquire into safety questions apart from radiation hazards. Accordingly, since the location of an atomic reactor at or near an active earthquake fault zone involves safety considerations in addition to radiation hazards, it is clear that the federal government has not preempted the field, at least with respect to the phase of protecting the public from hazards other than radiation hazards, and that the states' powers in determining the locations of atomic reactors are not limited to matters of zoning or similar local interests other than safety. Id at 133, 390 P.2d at 204, 37 Cal. Rptr. at 436. While the Court in a conclusory manner states that it is regulating nonradiation hazards in upholding a refusal to site the nuclear plant on a fault zone, it is not clear what types of hazards actually support this decision. Obviously, it is not desirable to locate any power plant, or any building for that matter, near an earthquake fault. In that sense, it is the earthquake hazards rather than the radiation hazards that are being considered. However, the radiation hazard is the greatest danger avoided by prohibiting the siting of a nuclear plant on a fault, and that danger is much greater than the danger of siting another type of plant there. NRC recently ordered the closing of five nuclear power plants because of the uncertainty of the plants' earthquake safety. A NRC spokesman explained that an earthquake could break the piping in the plants' cooling systems, causing the release of radioactive water or steam into the environment. N.Y. Times, Mar. 14, 1979, at Al, col. 3 & AI8, cols Indeed, zoning ordinances which discriminate between nuclear and non-nuclear facilities may be presumed to regulate radiation hazards. In cases such as Bodega Head and Harbor, it is impossible to isolate radiation and nonradiation considerations, as was done in Marshall v. Consumers Power Co., 65 Mich. App. 237, 237 N.W.2d 266 (1975). The congressional authorization of zoning regulation eliminates the necessity for insisting on the accuracy of the California Court's statement that zoning goes to regulation of nonradiation hazards. Contra In Re Consolidated Edison Company of New York, Inc., [1975] 2 NUCLEAR REG. REP. (CCH) 20,018 (N.Y. Sup. Ct. 1975) (federal law does preempt local zoning laws) United States v. City of New York, 12 ERC 1600 (S.D.N.Y. 1978) Id. at The district court implicitly rejected the California court's reasoning in Bodega Head and Harbor that regulation of location of nuclear reactors is not regulation of radiation hazards The court's holding is not necessarily inconsistent with the zoning exception sug-

32 1979] NUCLEAR WASTE MANAGEMENT these cases indicate that there is no consistent standard for distinguishing radiation from nonradiation hazards. Thus, the literal language of subsection (k) does not by itself define the limits of the legitimate authority of the states to regulate nuclear energy. An argument can be made that the purpose of subsection (k) indicates the types of state regulations which should be viewed as regulating non-radiation hazards. The legislative history of the 1959 amendment to the 1954 Act suggests that section 274 preempts only state regulation which attempts to establish standards for radiation safety. Congressional hearings on the 1959 amendment focussed primarily on the potential danger of dual federal-state radiation standards. An AEC representative stated: We think [dual regulation] leads to divided responsibility and may lead to bad safety controls because you have too many cooks in the broth, so the speak, without any one level of government having a primary responsibility for it to assure that these uses of material are appropriately regulated. 178 If Congress' primary concern in restricting state authority over radiation hazards was to avoid dual sets of safety standards, then it follows that state laws which do not set standards would not come within the preemptive scope of section 274, notwithstanding the fact that they may incidentally regulate radiation hazards. Under such a rationale, state laws which exclude nuclear waste disposal facilities altogether would not be impliedly preempted by section 274. Moreover, even state standard-setting laws preempted under this interpretation of section 274 would be valid if specifically sanctioned by Congress. 179 Even if state waste disposal laws are not preempted by the language of section 274 under this alternative interpretation, or if they are specifically authorized by Congress, such state laws will nevertheless fail to survive a preemption analysis if the indices of the preemptive intent apart from statutory language point toward preemption gested by the committee report (see text accompanying note 173 supra), which would allow state regulation of reactor location even though radiation hazards are regulated thereby. However, the decision does place a limit on the scope of the exception: i.e., when siting considerations are based entirely or primarily on radiation hazards, application of the zoning exception would clearly frustrate congressional intent to preempt state regulation of radiation hazards Hearngs, supra note 171, at H.R. 9190, 95th Cong., 1st Sess., 123 CONG. REC. S (daily ed. June 6, 1977), considered by Congress last term, would authorize concurrent regulation of repository construction and operation. See note 9 supra. Another example of congressional sanction of state standard-setting in the area of nuclear power is the Clean Air Act Amendments of 1977, 42 U.S.C.A (West Supp. 1977). Authorizing state emissions standards for radioactive air pollution, the Amendments constitute a congressional reversal of the preemption holding of Northern States Power Co. v. Minnesota, 447 F.2d 1143, 3 ERC 1041 (8th Cir. 1971), aff'dmem., 405 U.S (1972). See note 146 Supra See text accompanying notes supra.

33 ECOLOGY LAW QUARTERLY [Vol. 7:917 The "dominant federal interest" ground is independent evidence of implied preemption and may invalidate state laws which are either sanctioned or not otherwise invalidated by federal statutory language.' l8 As discussed previously,1 8 2 state laws which set repository safety standards stricter than federal requirements or which prohibit repositories altogether, conflict with the dominant federal interest in safe waste disposal and frustrate the congressional purposes set forth in federal waste management legislation.' 8 3 This clear conflict between federal and state authority indicates that such state waste disposal laws are subject to federal preemption. Another argument that can be made in support of state nuclear waste disposal regulation is that such state laws are not preempted because Congress lacks the authority to prevent state regulation of nuclear waste disposal. This argument is based on the "inherent state power" doctrine of National League of Cities v. Usery.1 84 In that case, the Supreme Court held that the tenth amendment to the United States Constitution precludes Congress from exercising its power in a manner that impairs a state's "ability to function effectively in a federal system."' ' 8 5 Under that rule, the Court struck down a federal law regulating wages and hours of state employees. The applicability of the Usery doctrine to a particular act of Congress depends on whether Congress attempts to regulate a state function essential to sovereignty, and has been limited to cases involving regulation of state governmental functions. The Usery Court describes state power to control state employees' wages and hours as an "undoubted attribute of state sovereignty." ' 86 The Court cited as another example of such an attribute a case involving an attempt by Congress to designate the site of a state capital. 8 7 Indeed, an extension of Usery beyond the area of state governmental functions would allow the tenth amendment to nullify the Supremacy Clause. As the power to exclude waste repositories is not essential to the integrity of state government, it follows that the 181. "Even if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute." Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 11 ERC 1273, 1274 (1978). "Actual conflict with a federal statute" can be viewed as a very strong case of the "dominant federal interest" argument. When Congress legislates on a matter, it elevates a "dominant federal interest" to statutory significance, clarifying the importance of that interest to the federal government. Such has been the case with the federal interest in safe and effective nuclear waste disposal, which is now a statutory goal. See text accompanying notes & note 162 supra See text accompanying notes supra See note 162 supra U.S. 833 (1976) Id at 843, quoting Fry v. United States, 421 U.S. 542, 547 n Id at Coyle v. Oklahoma, 221 U.S. 559 (1911).

34 1979] NUCLEAR WASTE MANAGEMENT exercise of such power is not protected against congressional abrogation by the tenth amendment. IV FEDERAL RESPONSE TO STATE REGULATION OF NUCLEAR WASTE DISPOSAL State laws governing waste disposal present the federal government with three options: to initiate legal challenge on property and preemption grounds, to accede to the states' requests by respecting outright exclusions and observing state safety standards, or to validate the asserted state authority through congressional legislation. The choice among these three possibilities is largely a matter of policy and politics. A. Legal Challenge There is little question that state regulation of waste repositories would be ruled invalid in a constitutional challenge. The lack of state authority to regulate federally-owned disposal facilities is clear, and preemption by federal law is likely, especially for repository bans and for safety standards stricter than federal ones. However, while invalidation of such state regulation would remove significant obstacles to the federal waste management program, the very existence of the state laws indicates a serious political problem which will not be resolved but aggravated by their invalidation. The states seek a greater influence in federal decisions about repository siting and construction, and some states insist on their right to exclude nuclear waste entirely. These demands are no less politically potent because they may be legally untenable. State waste disposal regulations are signs of a problem that the federal government cannot ignore. B. Deference Cognizant of the discontent indicated by these state laws, the federal government may understandably be reluctant to invalidate them on constitutional grounds. Federal waste management authorities are concerned with the necessity for state cooperation and involvement in waste disposal policies. 1 1 Anxious to avoid antagonizing the states by insisting on its legal suprema'cy, 189 the federal government has deferred 188. See, e.g., Spent Fuel Policy, supra note 55, at Even when Congress has ultimate legislative authority in an area, the federal government frequently must work together with the states to achieve effective execution of Congressional goals. Moreover, no action by the federal government can be immune to public opinion, the principal force behind the state waste disposal laws. Even an executive agency such as DOE, not directly responsible to the voters, must account for its actions to the public, through its Secretary and ultimately-the President.

35 ECOLOGY LAW Q UARTERLY [Vol. 7:917 to the states' formal and informal expressions of willi90 in order to accommodate state interests.' 9 ' However, deference in the name of political expedience has practical limits. The states may be allowed to exclude repositories--explicitly, or effectively through prohibitively stringent safety standards-only as long as there remains a geologically satisfactory site in a willing state. When the last geologically reasonable site becomes unavailable for a repository, the issue of repository siting is no longer wholly or even primarily political. The political disadvantages of antagonizing a state must be weighed against the health and environmental as well as the political problems that would result from a poor choice for a repository site. In view of the considerable significance of site selection in reducing the risk of repository failure and waste release, 92 deference should be abandoned not only to ensure a geologically reasonable site, but to obtain the safest repository site available. 193 C. Federal Legislation to Expand State Authority The policy of deference has proved to be unacceptable to the states to ensure them of the role they seek in waste disposal decisions. States recognize that deference cannot guarantee a real opportunity for significant involvement, because federal waste management authorities can unilaterally alter their policy at any time, without necessarily accounting to the public. Furthermore, the deference policy cannot protect the states from legal challenge by qualified parties other than the federal government A federal statute sanctioning state regulation of 190. State waste disposal legislation may be considered a formal expression of state will. Examples of informal expressions are the Michigan governor's letter to ERDA (see note 105 supra and accompanying text), and New Mexico's request to DOE for veto power (see text accompanying note 117 supra) Of course, a decision by the federal government not to challenge a state statute does not protect the statute from challenge by a private plaintiff who is able to allege harm sufficient to support a claim of standing. Utility companies may be able to allege such harm, since state prohibition or regulation of nuclear waste disposal could render economically impossible further use of nuclear reactors for power production and thereby injure the utilities by depriving them of the intended use of their property. Such alleged harm is not too remote to support a claim of standing. Cf. Pacific Legal Foundation v. State Energy Resources Conservation and Dev. Comm'n, No I-E, slip op. at 7-8 (S.D. Cal. Mar. 6, 1979) (employee of utility company has standing to challenge state law prohibiting licensing of nuclear power plants until adequate waste disposal technology is demonstrated because law prevented progress of utility project which in turn caused employee to lose his job). Notwithstanding their legal capacity to challenge state waste disposal laws, whether or not the utilities would consider such a challenge to be in their best political and economic interests remains to be seen See text accompanying notes supra See WILLRICH & LESTER, supra note 28, at 111. This argument assumes the unacceptability of continuing to handle HLW and spent fuel under the current methods of indefinite tank storage and reactor-site storage. See notes 34 & 55 supra See note 191 supra.

36 1979] NUCLEAR WASTE MANAGEMENT waste repositories would clearly obviate both these difficulties. A federal law could insulate state regulation against constitutional attacks by private parties based on the property doctrine or the preemptive intent evidenced by the language of section 274. Moreover, it would constitute a more permanent assurance of the federal government's intent to defer: while an administrative policy can be changed by a decision internal to the bureaucracy, policy embodied in a statute can be altered only by the slow and politically arduous processes of modification or repeal. Congressional authorization of state repository regulation would thus appease the states' demand for a more significant role in federal decisions, for the most part without compromising the national interest in safe waste disposal. Several of the conditions that existed in 1959 which led Congress to conclude that concurrent regulation would be inappropriate 195 have changed considerably in the past twenty years. In 1959, it appeared that the states were not willing to assume greater responsibility in regulating radiation hazards; this is clearly not the case today.' 96 Furthermore, greater numbers of trained personnel and expert consultants are available today to assist state regulatory efforts.1 97 Congress explicitly rejected the notion that concurrent regulation is inappropriate in all areas of nuclear energy, when it sanctioned state authority over radioactive air pollution in the Clear Air Act Amendments of If Congress should authorize states to set safety standards for waste repositories, such state regulation would further rather than frustrate the national interest in safe waste disposal, provided that state standards are at least as stringent as federal requirements. 99 However, a statutorily sanctioned policy of deference allowing states to regulate repositories presents the same problems as does the informal administrative policy. State standards or exclusions may eventually interfere with the congressional goal for nuclear waste dis The Northern States court discussed the evidence of congressional intent to prohibit dual regulation of radiation hazards. 447 F.2d at , 3 ERC See Bischoff, supra note 145, at Id While there is some evidence that states still lack the technical capability to participate in regulation of nuclear energy problems (see [1978] 8 ENViR. REP. (BNA) ), this argument is relevant primarily with regard to state safety standards for repositories, and not with regard to state veto power where decisions would not necessarily be based on technical knowledge U.S.C.A (West Supp. 1977). See note 146 supra H.R. 9190, 95th Cong., 1st Sess., 123 CONG. REC. H9657 (daily ed. Sept. 19, 1977), which would provide for concurrent regulation of repository construction and operation, requires that state standards be as stringent or more stringent than federal standards. However, even this requirement does not eliminate the "too many cooks" danger inherent in concurrent regulation: inadequacy of state enforcement programs. See text accompanying note 178 supra. On balance, Congress may decide that the advantages of concurrent regulation of repositories outweigh the risks of uncertain enforcement, as it has done in the areas of air and water pollution.

37 ECOLOGY L4W QUARTERLY [Vol. 7:917 posal: safe and effective isolation of waste. 20 When such interference occurs, state laws will be subject to federal preemption. Even if state regulation of repositories were specifically authorized, state laws cannot be allowed to frustrate national goals expressly announced by Congress This frustration is the essence of what the preemption doctrine is intended to eliminate. Thus, preemption confines congressionally sanctioned state authority over waste repositories, for the same reason that changes in administrative policy restrict the limits of informal federal deference to state will: federal primacy must be asserted when states' decisions endanger an important national goal. CONCLUSION Both a policy of deference and congressional authorization of state waste disposal laws are appropriate federal responses to the state dissatisfaction and public discomfort evidenced by the recent state nuclear waste legislation. Each allows states to exercise their own will with regard to repository siting within state territory up to the point where the national goal of safe waste disposal is threatened, and each provides a mechanism for reassertion of ultimate federal authority to protect federal interests in the national health and safety. The remaining option, legal challenge to the state laws on constitutional grounds, is unacceptable, because it seeks to eliminate the symptoms of the problem without attempting to deal with its cause. As between the two acceptable choices, formal statutory sanction of state laws is preferable from the states' perspective. A federal statute would be more durable and more effective than a federal administrative policy in protecting the states' power to effectuate its own choice about federal waste disposal in-state. 202 On the other hand, the federal waste management bureaucracy would likely prefer the informal deference policy because, should it become necessary to restrict state autonomy to ensure safe waste disposal, this would be more easily accomplished through a change in policy than through a long and expensive legal challenge to state laws based on preemption Regardless of the choice Congress may ultimately make between an informal deference to state will and a statutory authorization of state control over federal repositories, the controversy over state/federal authority over waste disposal has already had a significant effect. Public anxiety over the highly emotional issue of local disposal of nuclear waste, and the assertions of state control over waste disposal 200. See text accompanying notes supra See text accompanying notes supra See text accompanying note 194 supra DOE has indicated to Congress its opposition to granting states veto power over federally selected repository sites. 47 U.S.L.W (1979).