Request By:
Senator Ed Ford, Chairperson
Subcommittee on Waste Management
Interim Joint Committee on Agriculture
and Natural Resources
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: David K. Martin, Assistant Attorney General
In your letter dated February 2, 1983, you requested the Attorney General's legal advice concerning possible methods of managing commercial low-level nuclear waste generated within the Commonwealth of Kentucky. Almost all of this waste is generated in medical and academic research facilities. Wastes generated by the United States Department of Energy for defense or research purposes are not viewed as commercial wastes and are not addressed in this opinion. 1 Your questions concern the impact of Public Law 96-573, the Low Level Radioactive Waste Policy Act, on possible management alternatives for low-level waste available to the Commonwealth.
That law declares that despite the history of complete federal control of the creation, possession and use of most useful radioactive material pursuant to the Atomic Energy Act of 1954, as amended, it is nevertheless the responsibility of the states to provide for the disposal of commercial low-level radioactive waste. That law also declares that low-level radioactive waste can be most safely handled on a regional basis. In order to encourage regional management, the Act permits states to enter into compacts with each other for regional waste disposal if the compacts are approved by Congress. Such regional compacts are permitted to restrict the use of regional facilities to wastes generated within the region.
Two of the questions you have propounded in response to the Act are as follows:
"If Kentucky chooses not to join a regional compact for low level nuclear waste and instead decides to build a disposal facility for Kentucky generated wastes, can Kentucky exclude out-of-state generated wastes? A related question is whether Kentucky can create a compact, with Kentucky the only member, and thereby gain the benefit of the Low Level Waste Policy Act allowing compact members to exclude waste generated by non-compact states?"
The answer to both of the questions in the above quoted paragraph is no. The Subcommittee is no doubt familiar with the State of Washington's attempt by initiative legislation to ban out-of-state low-level nuclear waste from the commercial land burial site at Richland on the Hanford Reservation. The voters in the State of Washington passed Initiative 383 in 1980, thereby prohibiting the transportation and storage within Washington of radioactive waste produced outside the state. The United States Court of Appeals for the Ninth Circuit held in the case of
Washington State Building and Construction Trades Council v. Spellman, 684 F.2d 627 (1982), that the initiative was unconstitutional due to violations of the Commerce Clause and the Supremacy Clause of the United States Constitution. A petition for certiorari was denied by the United States Supreme Court in that case. 51 L.W. 3789. However, the case of
Philadelphia v. New Jersey, 437 U.S. 617, 98 S. Ct. 2531, 57 L. Ed. 2d 475 (1978), indicates that the United States Supreme Court would reach the same result, at least with respect to the Commerce Clause, if it had decided the question. In that case, it was held that a New Jersey statute banning importation of ordinary solid waste from outside the state for the purpose of disposal was an unconstitutional violation of the Commerce Clause. Since solid waste until recently has been viewed as a matter of purely local responsibility and concern, it appears likely that local restrictions applying to a matter of national import such as radioactive waste would meet the same fate under the Commerce Clause. Accordingly, there is no reason to believe that an attempt of Kentucky to unilaterally exclude out-of-state low-level nuclear waste from a disposal facility that accepts such wastes generated in Kentucky would be upheld by the courts. See also,
People of the State of Illinois v. General Electric Co., 683 F.2d 206 (7th Cir. 1982), cert. den., 51 L.W. 3789, which struck down a state ban on importation of spent fuel.
This result is not changed by the existence of the Low-Level Radioactive Waste Policy Act, P.L. 96-573, 94 Stat. 3347, enacted in the waning days of the 96th Congress in 1980. The Ninth Circuit was aware of P.L. 96-573 when it decided the Building Trades Council case, supra. Moreover, that Act only permits import restrictions on nuclear waste pursuant to ". . . such compacts as may be necessary to provide for the establishment and operation of regional disposal facilities for low-level radioactive waste. " P.L. 96-573, Section 4(a)(2)(A). It has been said that it takes two to tango. It is far more clear that it takes at least two states to form a compact. "Compact" is defined in Black's Law Dictionary, 5th Ed., as:
"Compact, n. An agreement or contract between persons, nations or states. Commonly applied to working agreements between and among states concerning matters of mutual concern. A contract between parties, which creates obligations and rights capable of being enforced, and contemplated as such between the parties, in their distinct and independent characters. A mutual consent of parties concerned respecting some property or right that is the object of the stipulation, or something that is to be done or forborne."
It is clear from the legislative history that the Act used the word "compact" not due to some fondness for archaic speech, but because Congress viewed such interstate agreements as subject to the Compact Clause of the United States Constitution. See Article I, Section 10, Clause 3. Senator Thurmond, in proposing amendment 1453 to S.2189, which amendment contained the major provisions of the Low Level Radioactive Waste Policy Act, stated as follows:
"For the benefit of those who are not familiar with the interstate compact concept, I would point out that Article 1, Section 10, Clause 3 of the U.S. Constitution requires that compacts among the states be approved by Congress."
126 Cong.Rec. S.10058 (July 29, 1980). The Compact Clause only applies to agreements with another state or with a foreign power, as opposed to an action taken by a single state alone. Hence, the grant of authority to the states to exclude low-level radioactive waste generated outside a region from a regional disposal facility is not available to a state that sets up a disposal facility outside the structure of an interstate agreement approved by Congress pursuant to P.L. 96-573. This conclusion is in accord not only with the plain language of P.L. 96-573, but with the purposes of the law as well. The original purposes of the Act, in accord with the recommendations of the State Planning Council on Radioactive Waste Management, were as follows:
"Our amendment builds on the existing title VI of S.2189 dealing with low-level waste, making three additions to this title of the bill. The first addition is a provision stating that it is the policy of the Federal Government that each State is responsible for the disposal of the low-level radioactive waste generated by non-defense related activities within its boundaries and that such waste can be most safety and efficiently managed on a regional basis. A second addition would authorize the States, subject to congressional ratification, to enter into interstate compacts or agreements for the purpose of carrying out their responsibilities regarding management and disposal of low-level waste. This compacting authority would include the authority to restrict the use of a regional disposal site to waste generated within the region. Because of this express congressional authorization of exclusionary authority, such restrictions would not be construed as an improper burden on interstate commerce. The third modification to this section of the bill would authorize the Secretary of Energy to provide financial and technical assistance to the States in carrying out plans for the proper disposal of low-level nuclear waste consistent with the policy."
126 Cong.Rec. S.10057 (July 29, 1980). The policy of federal financial assistance is the only goal that did not find its way into the final version of the bill. The catalyst for the legislation was the threat, intermittently carried out, that the three remaining operating commercial low-level waste sites in Washington, Nevada, and South Carolina would be closed or restricted as to the origin or type of waste accepted. Id., at S.10058.
For a single state to be able under the Act to exclude out-of-state waste from a waste disposal facility would be to return to the situation that the Act was intended to change. The policy behind P.L. 96-573 is identical to the policy of the Atomic Energy Commission in the early 1960's under which the Maxey Flats site was created, namely, that six to eight regional dumps would be an adequate method for handling the disposal of low-level radioactive waste. Id. The exclusionary authority given to regional compacts was viewed by Congress as necessary and perhaps sufficient to encourage states to open such regional facilities. Id.
Another variation on this single state strategy not contained in your letter is apparently of interest to the Subcommittee. That is the possibility that Kentucky may be able to construct a facility for long-term storage or disposal of its low-level radioactive waste and join in a compact with another state or states that desire to manage their own low-level radioactive waste. Such a compact, in order to comply with and obtain the benefits of P.L. 96-573, could not expressly preclude the use of any disposal facility created pursuant to the compact for the disposal of wastes generated in member states, as the purpose of the federal law is the disposal of waste on a regional basis. Such a compact, in order to exclude waste generated outside the region, of course would require approval by Congress. While such a compact might technically comply with P.L. 96-573, Congress still would have the authority to refuse to approve such a compact. In that event, waste disposal facilities would be subject to use by waste generators outside the "region. "
In your opinion request, you also requested review of three draft interstate compacts in order to determine what Kentucky statutes would be affected if Kentucky joined one of these interstate compacts. Such a review is of particular interest to the Subcommittee because the proposed compacts discourage or prohibit laws of party states inconsistent with the compacts. The Midwest Interstate Compact On Low-level Radioactive Waste, a document dated September 1, 1982, contains the strongest pre-emptive language. Section VII(b) of the Midwest Compact states:
"For purposes of this compact, all state laws or parts of laws in conflict with this compact are hereby superceded to the extent of the conflict."
Two other potential compacts, the Southeast and the Mid Atlantic, merely say that a party state that enacts any law or regulation inconsistent with the compact jeopardizes its status as a party state. See Article 11, Southeast Compact, as enacted by South Carolina June 9, 1982; Mid-Atlantic Compact, Article VIII(b), as enacted by Virginia April 11, 1982.
While all three of these proposed compacts are rather similar, the version of the Mid-Atlantic Compact noted above is distinguished by the power of the governing body of the compact to actually develop and operate waste disposal facilities. Mid-Atlantic Compact, Article IV(g)(7). Article VII(a) of that document claims for the Commission the power to go ahead on its own with development and operation of a regional disposal facility if a designated host state fails in its duty to develop and operate a regional facility in a timely manner. This power claimed by the governing body of the Mid-Atlantic Compact is diametrically opposed to the policy of the Commonwealth expressed in KRS 211.894(2), which states:
"It shall be the policy of the Commonwealth to retain final authority for approving or disapproving the locating, opening, closing or reopening of a nuclear waste disposal site or facility within its borders."
See, also, KRS 211.852, requiring approval of both houses of the legislature and the governor in order to locate a nuclear waste disposal facility in Kentucky. Such conflicting policies would appear to make analysis of other provisions of the above-referenced draft of the Mid-Atlantic Compact superfluous. As discussed infra, the terms of the compact, if ratified, would appear to take precedence over prior state law.
Section III(h)(4) of the Midwest Compact also appears on its face to conflict with KRS 211.894(2). Section III(h)(4) claims for the governing body of the commission the power to review and determine the appropriateness of any emergency closure of a regional facility, and to take whatever action is necessary in such circumstances to protect the interests of the region. Thus, if there were a regional facility sited within the Commonwealth, the Midwest Compact appears to claim for its governing commission the final say over emergency closure of such a facility. It should be recalled that, by entering into an interstate compact, a state surrenders a portion of its sovereignty, making the compact superior to prior and subsequent law.
C.T. Hellmuth & Associates, Inc., v. Washington Metropolitan Area Transit Authority, 414 F.Supp. 408 (D.C. Md., 1976). The compact amounts to not only law but a contract, which cannot be altered without consent of the parties. The compact amounts to federal law, and a decision of the compact commission could be presumably enforced by a federal court.
Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (9th Cir. 1977); Midwest Compact, Article III(h)(3). Article III(h)(4) of the Midwest Compact would also appear to violate KRS 211,896, "conditions for reopening of closed facility."
Article IV(e) of the Midwest Compact also poses conflicts with present state law. That provision places a duty on a state designated by the commission as a host state for a facility to cause the timely site selection, development, and operation of such a facility. State laws concerning site selection that are inconsistent with the compact are superceded. Article VI(c). KRS 211.852(1) and perhaps KRS 211.894(2) would appear to be superceded by this provision. The only legitimate basis made under the compact for failing to perform this duty is a showing that no feasible site exists within the host state. Article VI(d). This duty to come up with a site and facility if designated as a host state would conflict at least with the spirit if not the letter of KRS 211.852, 211.892, and 211.894. However, if a state is designated a host under the Midwest Compact, the state has ninety days under Article VIII to withdraw from the compact without liability except for the costs incurred by the compact as a result of the withdrawal.
Article IX(a) of the Midwest Compact requires party states to enact penalties applicable to persons violating the provisions of the compact. This would presumably require new legislation if the Commonwealth desired to join the Midwest Compact. Section IX(d) also authorizes party states to sue each other for violations of the compact by party states.
With respect to the tax imposed by KRS 138.820 on the receipt of radioactive waste, neither the Midwest nor the Southeast Compact would prohibit the imposition of that excise tax. Midwest Compact, Article VII(a)(7); Southeast Compact, Article 11.
In conclusion, very few Kentucky statutes directly address the disposal of radioactive waste. If Kentucky joined one of the proposed interstate compacts for nuclear waste management, most if not all of the provisions in KRS Chapter 211 pertaining to opening and closing nuclear waste disposal facilities would be superceded by the terms of such a compact to the extent the existing statutes conflict with the compact, as set out above. If Kentucky does not join a compact, it may not ban importation of waste for disposal at disposal facilities operating in Kentucky.
Footnotes
Footnotes
1 See Hart and Glaser, A Failure to Enact, 32 S. Ca. L. Rev. pp. 783-4, concerning disposal of DOE waste at commercial disposal sites.