University of California v. New Mexico*

This is a civil action for declaratory and injunctive relief brought by The
Regents of the University of California...challenging the exercise of regulatory
jurisdiction by the...New Mexico Environment Department...over the Los Alamos National
Laboratory...which is preempted by federal law, exceeds the applicable sovereign immunity waiver
and is otherwise in violation of federal and state law. This lawsuit arises from the Secretary's unlawful
attempt to exercise regulatory jurisdiction over LANL through a series of related regulatory actions
purportedly taken pursuant to the New Mexico Hazardous Waste Act....

First Amended Complaint for Declaratory and Injunctive Relief and Review of Administrative Action
filed on September 30, 2002 in the United States District Court for the District of New Mexico

Ruth Timberlake-Prokop
January 10, 2003

With this opening salvo, the Regents of the University of California (UC), arrogantly proclaimed that the State of New Mexico has no authority to demand the cleanup of nuclear waste materials that UC has been dumping in the state for over sixty years. UC and the Department of Energy (DOE) want the Federal court to explain to New Mexico that no state will be permitted to interfere with their national security missions by diverting attention from weapons production and homeland security to the mundane task of cleaning up wastes. After all, they reason that UC and DOE have expended over $700 million in New Mexico to design their own remediation programs. The unwillingness of New Mexico to embrace their noblesse oblige environmental restoration program seems to befuddle UC and DOE.

While the gravamen of UC's action centers around the "cleanup" of mixed wastes, the challenge cuts a much wider swath across New Mexico's regulatory landscape. The lawsuit implicates the state's ability to enforce a wide range of activities (such as treatment, storage and disposal) at the Los Alamos National Laboratory (the Lab) and other DOE facilities that are regulated under the Resource Conservation and Recovery Act (RCRA) ⁽¹⁾ and the New Mexico Hazardous Waste Act (HWA). ⁽²⁾

This unfolding legal confrontation in New Mexico was described recently as a reenactment of the Biblical battle of David and Goliath, pitting a "historically weak state" against a powerful "nuclear weapons lab accustomed to having its own way." ⁽³⁾ Indeed, when comparing the resources available to each party in the lawsuit, it is not difficult to conjure up the vision of David choosing his five smooth stones out of the brook to put in his shepherd's bag, and with sling in hand setting out to confront the arrogant Goliath armed in a coat of mail weighing five thousand shekels of brass. But, unlike the known outcome of the Biblical event, we must await the vagaries of judicial events to learn the winner of this battle.

The stimulus for this controversy arose on May 2, 2002 when the New Mexico Environment Department (NMED) issued a Determination of Imminent and Substantial Endangerment to Health and the Environment (Endangerment Determination) and a 254 page Draft Corrective Action Order (Draft Order). ⁽⁴⁾

The Endangerment Determination found that radioactive, hazardous and solid wastes had been released into the environment at the Los Alamos National Laboratory (the Lab) and "may present an imminent and substantial endangerment to health and the environment." The Draft Order imposed certain investigatory and monitoring requirements and set forth an implementation schedule. The public was given 60 days (later extended to 90 days) to comment on the Draft Order.

However, before the public had time to comment on the Draft Order, UC filed its lawsuit in the U.S. District Court for the District of New Mexico against Peter Maggiore, then Secretary of the NMED. The Regents of the University of California v. Peter Maggiore, Cabinet Secretary of the NMED (Civil No. 02 -637 WWD DJS). The action was framed as a Complaint for Declaratory and Injunctive Relief and for Review of Administrative Action and requested that the court declare invalid the Endangerment Determination. ⁽⁵⁾

The Complaint was amended on September 30, 2002 to include a challenge to NMED's 2002 IWP Work Schedule. The Regents of the University of California v. John R. D'Antonio, Jr., Cabinet Secretary of the NMED, (Civil No. 02-637 MV/DJS). The case has been assigned to U.S. District Judge Martha Vasquez.

In the lawsuit, UC asserted that the Atomic Energy Act of 1954 (AEA). ⁽⁶⁾ established a comprehensive (cradle-to-grave) regulatory scheme to govern all radioactive waste and the radioactive portion of any waste mixtures and placed exclusive jurisdiction in the DOE. Relying on the doctrine of federal preemption under the Supremacy Clause of the United States Constitution [U.S. Const., Art. IV, Cl. 2] UC claimed that NMED did not have the legal authority to require it to investigate and cleanup the radioactive components of its mixed wastes.

Specifically, in UC's view, NMED grounded its Endangerment Determination on the state's concern about potential dangers of radioactive materials, thus bringing the Determination within the ambit of nuclear safety concerns. UC alleged that the entire field of nuclear safety concerns has been preempted by the federal government under the AEA. With respect to the revised 2002 IWP Work Schedule, ⁽⁷⁾ UC claimed that eight of the ten sites for which tasks are specified for calendar year 2002 are wholly or partially beyond NMED's jurisdiction because they are subject to other federal statutes ⁽⁸⁾ or constitute exempt military-munitions related contamination ⁽⁹⁾.

Although other claims were included in UC's Complaint, ⁽¹⁰⁾ the centerpiece of the New Mexico litigation is a dispute over who has authority to control the cleanup (and by implication, the treatment, storage and disposal) of mixed waste (waste that is both radioactive and hazardous) at the Lab. Does the DOE, acting under the Atomic Energy Act, have exclusive authority to control the cleanup? Or does authority reside in the New Mexico Environment Department (NMED) to order cleanup of the waste dumps under the New Mexico Hazardous Waste Act ⁽¹¹⁾?

With respect to the federal preemption claims, UC argues that only the DOE can regulate materials that have a radioactive component, meaning most of the waste currently stored in the Los Alamos landfills. It relies on the provision of the AEA that grants DOE exclusive responsibility to regulate "source, special nuclear, and byproduct" materials. ⁽¹²⁾ In UC's view, this provision gives DOE exclusive authority to manage all radioactive waste and the radioactive portion of any waste mixtures, including characterization, treatment, disposal and monitoring of such waste.

UC reasons that when the U.S. Congress enacted the AEA, it preempted the entire field of nuclear safety and once preempted by federal law, states have no jurisdiction to regulate matters that fall within the field of nuclear safety. It claims that New Mexico's cleanup measures are premised on the state's concern for its citizens' health and safety and thus fall squarely within the preempted zone of nuclear safety. Generally, a state or local law can be preempted by a federal law in one of two ways:

[I]f Congress evidences an intent to occupy a given field, any state law falling
within that field is preempted. If Congress has not entirely displaced state regulation
over the matter in question, state law is still preempted to the extent it actually
conflicts with federal law, that is, when it is impossible to comply with both
state and federal law, or where the state law stands as an obstacle to the
accomplishment of the full purposes and objectives of Congress.
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615 (1984)

It is interesting to note that UC relies not only on the concept of "field" preemptions in its complaint, but also claims that NMED's regulatory efforts are in conflict with federal law.

Notwithstanding this litigation, NMED issued a final Corrective Action Order (Order) on November 26, 2002. ⁽¹³⁾ While the First Amended Complaint preceded issuance of the final Order, it is possible that UC will file another amended Complaint to include it. Also, it is possible that DOE will decide to enter the fray as a party to the lawsuit.

In the final Order, NMED tiptoed cautiously, yet adroitly, around the federal preemption doctrine. First, it disclaimed any intent to regulate the "sources, special nuclear, or byproduct material" component of mixed waste (as defined in the AEA). Second, NMED stated that "[t]he Order only contains requirements for monitoring and reporting of radionuclides as incidental to regulation of solid and hazardous waste." ⁽¹⁴⁾ [emphasis added]

With these few words "as incidental to", NMED began molding its legal arguments to fit within the confines of legal doctrines adopted previously by the Tenth Circuit Court of Appeals ⁽¹⁵⁾ and by the U.S. District Court for the District of Colorado. ⁽¹⁶⁾ In NMED's view, "[t]hese courts concluded that such requirements [monitoring and reporting on radionuclides] were not substantive regulation of radionuclides, but were regulation of hazardous waste." ⁽¹⁷⁾

NMED made no promises to limit its future activities solely to "monitoring and reporting" and instead noted that the Department may eventually require cleanup of mixed waste at the Lab. "Such cleanup requirements may indirectly result in the cleanup of the source, special nuclear, or byproduct material components of mixed waste if such components cannot be separated from the mixed waste." ⁽¹⁸⁾ [emphasis added]

In contrast, UC casts its legal lot with the judicial views of the Sixth Circuit Court of Appeals, as recently enunciated in United States v. Kentucky, 252 F.3d 816 (6^th Cir. 2001). In that case, the court determined that the AEA grants DOE and the Nuclear Regulatory Commission exclusive responsibility for regulating source, special nuclear and byproduct materials.

Of greater significance, the court found that the entire field of nuclear safety was preempted by the AEA, relying on the Supreme Court's statement that "the federal government has occupied the entire field of nuclear safety concerns....", citing Pacific Gas & Electric, 461 U.S. at 212. Accordingly, the court held that the "AEA preempts any state attempt to regulate materials covered by the Act for safety purposes." (at 823)

Relying on the Kentucky decision, UC argues that since the AEA occupies the entire field of nuclear safety, the principles of federal preemption prohibit New Mexico from attempting to regulate radionuclides. It claims that NMED had attempted to regulate radionuclides for health and safety reasons when it issued the Endangerment Determination and when it proposed that UC undertake certain monitoring and reporting activities pertaining to radionuclides.

With UC and NMED having carefully crafted their respective legal positions, the critical areas of legal inquiry seem clear. Will NMED's requirements for the monitoring of and reporting on radionuclides be considered as "incidental" to its statutory duty to regulate solid and hazardous waste? Alternatively, will such requirements be rejected by the court as an unwarranted invasion of DOE's exclusive jurisdiction in the field of nuclear safety at its own facilities, as claimed by UC?

These legal issues are neither new nor novel and, in fact, enjoy a rich history in the annals of federal legislation, judicial decisions and federal regulatory actions. To understand the current dispute, it is important to provide some contextual background.

DOE has a well-deserved reputation as a scofflaw when it comes to enforcement of environmental laws and regulations. In large part, this derives from DOE's singular focus on building weapons for the national defense and the importance it assigned to that mission. DOE rationalizes that its mission to produce nuclear weapons is critical to the country's survival and should not be impaired by domestic issues, such as the programs designed to improve the environment.

For years, DOE (as well as other defense-related agencies) used the terms, "national defense or national security" as code words to avoid compliance with domestic legislation. In some events, Congress and the Executive branch obliged this attitude by treating defense-related activities as deserving of special consideration when enacting environmental laws. For example,

most environmental statutes contain provisions that authorize the President to exempt an activity from compliance if it is in the "paramount interest" of the United States. ⁽¹⁹⁾ Another example is the promulgation by the Environmental Protection Agency (EPA) of the Military Munitions Rule in response to a Congressional directive in the Federal Facilities Compliance Act. Congress expressly recognized the debilitating effect that EPA regulation of military munitions might have on combat readiness and the Department of Defense's fundamental national defense mission.

Thus, in the 1970s when Congress enacted a host of environmental laws, ⁽²⁰⁾ it was not surprising that DOE tried to avoid compliance by claiming that it had a right to self-regulate and self-enforce under the AEA. In several cases, DOE asserted that its national security mission shielded it from compliance with these new environmental laws. ⁽²¹⁾ Mostly, DOE's efforts were eventually rebuffed by the courts.

Despite its lack of success in using its national security mission as a shield, DOE turned to a dazzling array of legal arguments and theories to avoid coverage under these environmental laws. ⁽²²⁾ It relied on the traditional immunity of the sovereign from suits against it by the states ⁽²³⁾; and it dodged enforcement actions by the Environmental Protection Agency (EPA), relying on the policy that one agency was not permitted to sue another agency under the Department of Justice's Unitary Executive theory. DOE even used the Anti-Deficiency Act ⁽²⁴⁾

as an excuse for noncompliance with court orders and the lack of appropriated funds to honor cleanup compliance agreements with the states.

While DOE's noncompliance efforts were diffuse and spirited, its most resilient efforts were reserved for opposition to the Resource Conservation and Recovery Act of 1976 (RCRA). A partial explanation for its zealous opposition to RCRA came in 1995 when DOE released the first systematic assessment of the cost of remediating its nuclear weapons facilities. In its own Baseline Environmental Management Report, DOE's base case was $230 billion and its likely case was $340 billion for decontaminating and decommissioning its facilities. ⁽²⁵⁾ In some cases, DOE admitted that there was no current possibility of cleanup due to certain unique situations, resulting mostly from the mixtures of hazardous with radioactive materials.

But an even larger picture emerges when you take into account the full range of activities regulated under RCRA. This article is addressed solely to "cleanup" activities since these activities are the sine qua non for the UC-New Mexico dispute. However, UC's objections to "cleanup" activities are the proverbial tip of the iceberg in comparison to its concerns about state enforcement of a host of RCRA activities. RCRA provides for the "cradle-to-grave" management of hazardous wastes. The Act regulates entities that generate hazardous wastes; it regulates the transportation of the hazardous wastes from the generator; and it regulates the treatment, storage and disposal of hazardous wastes.

If New Mexico is permitted to enforce RCRA mandates in the "cleanup" area, then arguably its regulatory responsibilities will cover the entire range of RCRA enforcement activities. By the same token, if UC can use the AEA to prevent RCRA from applying to NMED's "cleanup" directives, then these same arguments can be used to avoid compliance with RCRA's full range of mandates pertaining to generators, transportation and treatment, storage or disposal of hazardous wastes.

After the enactment of RCRA in 1976, DOE's first level of defense against enforcement was to simply ignore the statute. For several years after the passage of RCRA, DOE asserted that its facilities, including the Lab, were exempt from regulation under that statute because of issues of national security and the doctrine of sovereign immunity. It was not until 1984, that a federal court rejected DOE's claim to a blanket exemption from RCRA.

In Legal Environmental Assistance Foundation [LEAF] v. Hodel , 586 F. Supp. 1163 (E.D. Tenn.1984), LEAF and NRDC filed an action against DOE, alleging, among other things, that DOE was violating RCRA in connection with its operation of the Y-12 Plant in Oak Ridge, Tennessee. The plant was engaged primarily in the fabrication and assembly of nuclear weapons and produced a large amount of hazardous wastes containing chromium, mercury, PCBs, cadmium and other pollutants.

LEAF claimed that DOE did not have an EPA permit or a state permit for the treatment, storage or disposal of hazardous wastes as required by RCRA. DOE responded that RCRA was not applicable to the Y-12 Plant since the application of RCRA was inconsistent with the AEA which placed authority in DOE to set standards for the regulation of nuclear waste.

The court found that RCRA's regulation of DOE's hazardous waste was not inconsistent with the AEA, but did not address the question of whether RCRA applied to mixed waste (hazardous waste mixed with radioactive waste).

After the LEAF decision, DOE next balked at allowing states to regulate mixed

waste. At DOE's Rocky Flats facility, its contract managers made a unilateral determination that RCRA should not apply if hazardous wastes were mixed with the fissile radioactive materials used to make weapon components. The managers reasoned that DOE was entitled to self-regulate under the terms of the AEA, thus they did not need to comply with state regulations over hazardous materials so long as such materials were mixed with radioactive materials.

Although obligated to apply for a RCRA permit since 1980 for its hazardous waste operations at Rocky Flats, DOE had refused to do so, claiming that it was exempt from the RCRA permit requirements or that RCRA did not apply to mixed radioactive and hazardous waste. The issue at Rocky Flats was not resolved until the Sierra Club filed a citizen's suit claiming that the materials were subject to RCRA regulations.

In that case certain dry combustible waste, paper towels, laboratory waste, oil rags, etc. were burned in an incinerator and stored pending resumption of plutonium recovery operations. The Sierra Club asserted that these materials mixed with plutonium (once burned and stored) were subject to RCRA regulations as hazardous waste. The United States District Court judge agreed and granted judgment to the Sierra Club. Sierra Club v. U.S. Dep't of Energy, 734 F. Supp. 946 (D. Colo. 1990)

For reasons not clear on the record, DOE appeared to back away from its usual claim that the AEA shielded it from RCRA regulation. In fact, the court's opinion suggests that DOE agreed with the Sierra Club that the "hazardous" component of mixed waste must be managed as hazardous waste whether or not the radioactive component was subject to regulation by the state of Colorado. (at 949) The court noted that once the plutonium was separated from the hazardous waste, the plutonium itself was no longer subject to RCRA.

However, the court concluded that "...plutonium mixed with this [hazardous] waste is itself hazardous waste." (at 949) In deciding that Congress intended RCRA to regulate the types of wastes at issue in that case, the court relied on two decisions from the D.C. Circuit Court of Appeals. [ See, American Mining Congress v. EPA, 824 F.2d 1177, 1187, n. 14 (D.C. Cir. 1987), "materials containing valuable constituents that ultimately may be recovered can nonetheless be hazardous waste; and Chemical Waste Management, Inc. v. EPA, 869 F,2d 1526, 1539 (D.C. Cir. 1989), "a hazardous waste remains subject to RCRA regulation even if it is combined with other substances."]

The next attack on a state's attempt to regulate DOE's handling of mixed wastes was launched in New Mexico in the early 1990s. At that time, the New Mexico Environmental Improvement Board (the Board) issued UC a hazardous waste facility permit to incinerate hazardous waste at an on-sit controlled air incinerator. The incinerator was used to burn both hazardous and radioactive waste which, in the court's view, presented the possibility of radioactive waste being accidentally incinerated during a hazardous waste burn. Also, the court noted the possibility of radioactive emissions from leftover radioactive materials being emitted during a hazardous waste burn.

The Board imposed certain conditions on UC's permit to address the presence of such radionuclides in the incineration process. The permit conditions required that UC survey the waste to determine its radioactive content; monitor the emissions from a burn for unauthorized radioactivity; and discontinue any burn if radioactive emissions were detected and reached a certain level.

In that case DOE switched legal theories and contended that the permit conditions did not fall within the scope of RCRA's waiver of federal sovereign immunity. ⁽²⁶⁾ DOE claimed that the permit conditions were not "requirements" under this waiver of sovereign immunity provision since RCRA waived federal sovereign immunity from certain state imposed permit conditions only if a state had implemented objective, preexisting state standards capable of uniform application that could be considered a "requirement" under the federal act.

DOE argued that New Mexico had not established standards for radionuclide emissions and therefore, without such standards, the permit conditions were not "requirements" under RCRA.

The Tenth Circuit acknowledged that absent an express waiver of sovereign immunity, the activities of the Federal government are free from regulation by any state. However, the court rejected DOE's arguments, reasoning that since RCRA did not define what constituted a "requirement,"the meaning of "requirement" could not be limited to substantive environmental standards but must also include the procedural means by which those standards are implemented, including permit requirements, reporting and monitoring duties and submission to state inspection.

In its opinion, the court noted that the regulations were "merely another tool for New Mexico to implement its statutory and regulatory hazardous waste provisions." (at 498) It commented that "the language [in the permit] requiring measurement [of radionuclides] from time-to-time emphasizes New Mexico's position that it is not engaging in substantive regulation of radionuclides, but simply attempting to ensure compliance with New Mexico's statutory requirements." (at 499).[emphasis added]

Accordingly, the court determined that the permit conditions imposed by New Mexico on the UC's hazardous waste incinerator were "requirements" under state law and thus applicable to its facilities under RCRA. Further it found that the permit conditions were within the scope of RCRA's waiver of sovereign immunity. United States v. New Mexico, 32 F3d 494 (10^th Cir. 1994)

After the favorable rulings in the Leaf, Sierra Club, and New Mexico cases, environmental activists directed their attention to the implementation of these decisions, believing that the battle with DOE over the management of mixed wastes had been won. At that point, the federal courts seemed united in the view that mixed waste was covered under RCRA and thus subject to regulation by EPA and by various state environmental departments under delegations of authority from EPA.

Such views, however reasonable under the then-existing case law, failed to take into account DOE's entrenched beliefs that it was entitled to self-regulation and self-enforcement under the AEA at its nuclear facilities. In retrospect, DOE's tenacity on the issue of self regulation resembled the behavioral traits of an Energizer Bunny - it kept going and going and going in the belief that its opponents would eventually run out of energy before reaching the finish line. Also, with hindsight, it is clear that DOE never abandoned its efforts to gain exclusive jurisdiction over mixed waste that contained radionuclides. When it lost a case, DOE merely reshuffled its legal arguments and searched for a more favorable judicial forum.

The next opportunity arose a few years later at one of DOE's most troubled facilities, a uranium enrichment plant in Paducah, Kentucky. DOE had submitted a permit application application to construct and operate a solid waste landfill at that plant. After the landfill was constructed, Kentucky issued a permit to DOE to operate the landfill, but included in the operating permit certain conditions relating to the disposal of radioactive materials in the landfill. Specifically, one condition prohibited the placement of "[s]olid waste that exhibits radioactivity above the de minimis levels." Another condition prohibited DOE from placing in the landfill "solid waste that contains radionuclides...until a Waste Characterization Plan for radionuclides" was submitted and approved by the state. (at 820).

DOE challenged the permit conditions in state court and simultaneously filed an action in Federal court seeking declaratory and injunctive relief. In the federal court action, DOE challenged the permit on the grounds, among others, (i) that the Atomic Energy Act (AEA) preempts state regulation relating to the disposal of radioactive materials and (ii) that the permit

conditions violate the federal government's sovereign immunity. ⁽²⁷⁾

The U.S. District Court for the Western District of Kentucky agreed with DOE and held that federal law preempted Kentucky's efforts to regulate DOE's disposal of radioactive waste in the landfill and thus entered judgment for DOE.

Kentucky appealed the decision to the U.S. Court of Appeals, 6^th Circuit, arguing on appeal that it had a right under state law to ensure that only solid waste was placed in the landfill. It claimed that the challenged permit conditions were merely an aide to enforcement of Kentucky's law to regulate the solid waste and did not represent any effort to substantively regulate radionuclides. In support of its position, Kentucky relied on the U.S. v. New Mexico decision. [32 F3d 494 (10^th Cir. 1994)].

Kentucky reasoned that since the Atomic Energy Act did not expressly address the disposal of solid waste contaminated with radionuclides (mixed waste), that Congress had not evidenced an intent to occupy the entire field of disposal of radioactive materials. The state also contended that Kentucky's permit conditions could be preempted only to the extent that such conditions conflicted with the Atomic Energy Act. Thus, it urged that the lower court erred when it failed to make specific factual findings as to how the permit conditions conflict with the requirements of the AEA.

In U.S. v. Commonwealth of Kentucky, 252 F.3d 816 (6^th Cir. 2001), the court rejected Kentucky's argument. It disregarded the state's assertion that it was not attempting to regulate radionuclides, but instead was asserting its "right under state law" to prohibit any radioactive materials from being placed in the landfill. Characterizing that argument as "irrelevant" to the court's "preemption analysis"(at 823), the court found that the permit conditions constituted an attempt to regulate materials covered by the AEA. It relied on the Supreme Court's opinion in Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 103 S.Ct. 1713 (1983):

Respondents...argue...that although safety regulation of nuclear plants
by states is forbidden, a state may completely prohibit new construction
until its safety concerns are satisfied by the federal government. We
reject this line of reasoning. State safety regulation is not preempted
only when it conflicts with federal law. Rather, the federal government
has occupied the entire field of nuclear safety concerns..." (at 212)
[Emphasis added]

The court observed that the permit conditions (limiting the amount of radionuclides that DOE could put in the landfill) were imposed by Kentucky for the purpose of protecting human health and the environment and that the source of such radionuclides were materials covered by the AEA. Having premised its permit conditions on safety concerns, the court determined that

Kentucky had entered a prohibited regulatory area since the federal government occupied the entire field of nuclear safety concerns. Thus the court concluded that when Kentucky imposed the permit conditions on DOE's permit, it had attempted "to regulate" materials covered by the AEA.

The court commented that Kentucky's attempt to rely on United States v. New Mexico, supra, was misplaced since the 10^th Circuit had not addressed the issue of whether state regulation of the radioactive component of solid waste was preempted by the AEA. (at 824).

It further rejected Kentucky's second argument that the court was required to make specific findings as to how the permit conditions conflicted with the AEA. In rejecting this argument, the court reiterated its view that the AEA preempts the field of state regulation of radioactive materials, citing Pac. Gas & Electric, supra.

When the federal government completely occupies a given field or an
identifiable portion of it, as it has done here, the test of preemption is
whether "the matter on which the state asserts the right to act is in any
way regulated by the federal government." [emphasis added]
Id. at 213 (quoting Rice v. Santa Fe Elevator Corp , 331 U.S. 218, 236,
67 S. Ct. 1146 (1947)).

Once the federal preemption issue was decided in DOE's favor, it was unnecessary for

the court to address DOE's claim that the permit conditions were invalid since the U.S. had not waived its federal sovereign immunity to state regulation of radioactive materials at federal facilities. Nonetheless, the court observed that "...DOE could have prevailed on this alternative theory [federal sovereign immunity] as well" since Kentucky's permit conditions constituted state regulation of "source, special nuclear, or byproduct materials"and since federal immunity was not waived under the AEA. (at 825).

In sum, DOE had a big win when the Sixth Circuit ruled that Congress, in its passage of the AEA, had occupied the entire field of nuclear safety concerns, thus preempting attempts by any state to regulate radioactive materials for safety purposes. ⁽²⁸⁾

Kentucky filed a Petition for Certiorari with the United States Supreme Court, but its petition was denied. ⁽²⁹⁾

Thus, this is the legal landscape on which New Mexico will be forced to defend UC's challenge to its regulatory authority. It is a legal battle that might well determine the state's fundamental capacity to regulate Los Alamos and other DOE facilities in New Mexico.

A win for UC would mean that it could pursue its self-designed remediation program with little resistance from a tamed state regulator.

The stakes are very high for DOE in this litigation. A win could establish its right to self-regulate under the AEA not only at Los Alamos, but in the entire state of New Mexico. ⁽³⁰⁾ Added to its victory in Kentucky, DOE could export its claims of federal preemption to other states where its nuclear facilities are located.

For NMED, the stakes are equally high. It must repair the state's dismal record of allowing UC to avoid any meaningful cleanup of the nuclear and hazardous wastes it has dumped in New Mexico. If NMED allows UC to walk from the obligations mandated by RCRA and HWA under the guise of DOE's right to self-regulate, then it will become a partner in the bankruptcy of the state's environmental mandates.

While the stakes involved in this lawsuit are high for the two government entities and for a California educational institution, the real "blow-back" will be on ordinary citizens. It is the people of New Mexico who have the most to win or the most to lose in this battle. It is their environment, their air and water, and their health that will bear the brunt of any failures or compromises to cleanup UC's waste dumps. We must awaken the sleeping giant of public opinion and send messages to both UC and NMED.

The message to UC should be unequivocal. Put aside your arrogance, dismiss your lawsuit and let DOE take its jurisdictional carpetbags elsewhere. Prove that your claims of good citizenship are more than empty promises by working with NMED and interested citizens on meaningful cleanup efforts at Los Alamos.

The message to NMED should be equally as clear. If you are forced to defend UC's lawsuit, demand adequate support and resources from the Richardson Administration. Reject any suggestions that you follow the Department's past practice of settling cheap with a plaintiff, such as UC, in order to avoid a costly court battle.

Indeed, it is ironic that the future of New Mexico's ability to demand that UC cleanup its sixty plus years of nuclear and hazardous wastes might well hinge on the obscure legal doctrine of federal preemption (obscure at least to non-lawyers). Perhaps a fertile legal mind in the activist community can suggest an equally obscure legal strategy that might allow a jury to rule on these issues. Better yet, maybe NMED has some ideas on how such issues could be presented to a jury of New Mexico citizens.

*Addendum:  Since this article was written, the U.S. Department of Energy filed and served an Amended Complaint challenging NMED's final 2002 IWP Work Schedule and the final Corrective Action Order [Civ No. 02-1273 LH WWD].  Also, the Regents of the University of California filed and served a new Complaint for Declaratory and Injunctive Relief and For Review of Administrative Action [Civ No. 02-1631 LFG WWD].  It is our understanding that the parties are currently engaged in negotiations pertaining to these lawsuits.

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1. RCRA amended the Solid Waste Disposal Act of 1965, 42 U.S.C. §§6901 - 6992k.

2. NMSA 1978, §§74-4-1, et seq.

3. Barbara Ferry, Will New Mexico Prevail Against Los Alamos National Laboratory?, SANTA FE REPORTER, at 13-17 (December 4 - 10, 2002).

4. While the draft Corrective Action Order has been widely perceived as mandating "cleanup" activities, the fact is that the draft Order required no actual "cleanup" but instead required certain investigatory, monitoring, and reporting activities. Similarly, the final Corrective Action Order, discussed infra, does not require any actual "cleanup" measures.

5. On that same date, the U.S. Department of Energy, National Nuclear Security Administration filed a Notice of Appeal in the Court of Appeals of the State of New Mexico challenging the Endangerment Determination as a final administrative action under the New Mexico Hazardous Waste Act, NMSA 1978, §74-4-14 (A) (1992). U.S. Department of Energy, National Nuclear Security Administration v. Peter Maggiore, Cabinet Secretary of the NMED, and the New Mexico Environment Department.

6. 42 U.S.C. §§ 2014, et seq.

7. On or about March, 2000, UC submitted a proposed (Revision 8) Installation Work Plan (IWP) to NMED for approval, as required by its RCRA permit to provide a framework of procedures for implementation of RCRA corrective action. Thereafter, UC submitted an annual update to the IWP Work Schedule. On December 21, 2001, NMED issued a draft IWP which significantly revised UC's submission. UC submitted lengthy comments on the draft IWP, disagreeing with NMED. Then on September 9, 2002, NMED issued a new IWP Work Schedule (2002 IWP Work Schedule). In its Response, NMED stated that any failure to comply with the NMED-revised schedule in the 2002 IWP Work Schedule would subject the Lab to "enforcement, permit termination, permit revocation, or denial of a permit renewal application". On September 30, UC amended its Complaint to include the 2002 Installation Work Plan.

8. Reflect "units and/or activities" under the Atomic Energy Act, 42 U.S.C. §§ 2014,et seq.; "point source discharges" subject to the Federal Water Pollution Control Act, 33 U.S.C.§§ 1251-1387; and "PCBs" regulated under the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692.

9. Military Munitions Rule, 40 C.F.R. §§ 260.10, 261.2 (a) (2) (iv), 266.200, et seq.

10. In addition to contending that the Endangerment Determination exceeded the state's authority to regulate materials subject to the AEA, UC claims that the Endangerment Determination purported to regulate discharges covered by the Federal Water Pollution Control Act; chemicals regulated by the Toxic Substance Control Act; and military explosive and munition-related compounds subject to the Military Munitions Rule. See, supra, notes 8 and 9.

Further, UC's complaint asserts that NMED violated its rights to fundamental fairness, arguing that both the Endangerment Determination and the 2002 IWP Work Schedule were tantamount to a major modification of its HWA permit. It argues that such a major modification entitled UC to a public hearing and certain other procedural protections afforded by federal and state law.

The legal arguments associated with these claims are not discussed in this article.

11. NMSA 1978, §§ 74-4-1, et seq.

12. 42 U.S.C. §2201 (b), (i) (3)

13. The Final Corrective Action Order imposed certain investigatory and monitoring requirements including: investigation of environmental contamination (Facility-wide, separate water shed, individual technical areas, and other units); completion of investigations at several waste management units; identification of cleanup alternatives; establishment of screening and clean up levels for contaminants; methods and procedures for investigation, sampling and analysis; requirements for ground water monitoring and well construction; establishment of reporting requirements and a schedule for implementation of the Order.

14. State of New Mexico's Environment Department, Response to Comments on Draft Order, Vol. I at 24 (November 26, 2002).

15. United States v. New Mexico, 32 F.2d 494 (10^th Cir. 1994).

16. Sierra Club v. U.S. Dept. of Energy, 734 F. Supp. 946 (D. Colo. 1990)

17. See supra note 13 at 24.

18. Id., at 24.

19. RCRA provides: "The President may exempt any solid waste management facility of any department, agency, or instrumentality in the executive branch from compliance with ...[any RCRA] requirement if he determines it to be in the paramount interest of the United States to do so...." 42 U.S.C. § 6961(a).

20. See, e g., National Environmental Policy Act, Clean Air Act, Safe Drinking Water Act, Solid Waste Disposal Act.

21. See, e.g., National Resources Defense Council, Inc. v. Watkins, 954 F.2d 974, 982 (4^th Cir. 1992). DOE argued that even if the Clean Air Act was violated, it should be allowed to restart a nuclear reactor to produce tritium because increasing the tritium stockpile was a "critical element of national security policy."

22. See generally, Adam Babich, Does the Sovereign Have a License to Pollute? 6 NAT. RESOURCES & ENV'T 28 (1991). Melinda R. Kassen, The Inadequacies of Congressional Attempts to Legislate Federal Facility Compliance With Environmental Requirements, 54 MD. L.REV. 1475 (1995).

23. Under the doctrine of federal sovereign immunity, the activities of the federal government are immune from state regulation except to the extent that Congress has unequivocally waived federal immunity. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95 (1990), U.S. v. Mitchell, 445 U.S. 535, 538 (1980).

24. The Act provides that "No Executive Department or other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law." 34 Stat. 27, 49 (1906)

25. See, Office of Envtl. Mgmt., U.S. Dept. of Energy, DOE / EM-0232, Estimating the Cold War Mortgage: The 1995 Baseline Environmental Management Report ix (1995).

26. The waiver provision of RCRA states that federal agencies "engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements.... The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any substantive or procedural requirements...." 42 U.S.C. § 6961(a).

27. DOE's procedural posture in the Kentucky case should have a familiar ring to those following the legal moves by UC and DOE in the current litigation. In New Mexico, as in Kentucky, DOE filed a "protective appeal" with the state appellate court (New Mexico State Court of Appeals) while UC simultaneously challenged NMED's Endangerment Determination in the United States District Court.

28. Also, in the Kentucky case, the state argued that the doctrine of abstention was appropriate in the case. That argument was rejected by the court and has not been addressed in this article.

29. U.S. cert, den, 122 S.Ct. 396 (2002)

30. With current expenditures of over $3.6 billion annually in New Mexico, a reduction in its regulatory compliance expenditures here could translate into substantial savings for DOE.