* Managing Editor, Boston College Environmental Affairs Law Review, 2002–03. The author would like to thank his family for their tremendous support.
1 Energy and Water Development Appropriations Act, 1998, Pub. L. No. 105–62, tit. 1, 111 Stat. 1320, 1326 (1997).
2 H.R. Conf. Rep. No. 105–271, at 36–37 (1997), reprinted in 1997 U.S.C.C.A.N. 1811, 1846–47; see Energy and Water Development Appropriations Act, 1998, Pub. L. No. 105–62, tit. 1, 111 Stat. 1320, 1326.
3 S. Rep. No. 105–206, at 77 (1998); U.S. Army Corps of Eng’rs, Formerly Utilized Sites Remedial Action Program (FUSRAP): Report to Congress 1 (1998) [hereinafter FUSRAP Report].
4 FUSRAP Report, supra note 3, at 1; Charles H. Montange, Federal Nuclear Waste Disposal, 27 Nat. Resources J. 309, 357 n.323 (1987).
5 FUSRAP Report, supra note 3, at 1.
6 Michael Grunwald, Nuclear Cleanup’s Fallout: Role of Army Corps Engineers in N.Y. Spurs Criticism, Wash. Post, Apr. 10, 2000, at A1.
7 Id.
8 H.R. Conf. Rep. No. 105–271, at 36–37 (1997), reprinted in 1997 U.S.C.C.A.N. 1811, 1846–47 (“The Corps currently manages and executes a similar program, the Formerly Used Defense Sites program, for the Department of Defense, and the conferees believe there are significant cost and schedule benefits to be gained by having the Corps manage FUSRAP as well.”); Grunwald, supra note 6, at A1.
9 H.R. Conf. Rep. 105–271, at 36–37.
10 FUSRAP Report, supra note 3, at 36. “DOE proposed plan for completing FUSRAP by the year 2002, at a remaining FY98–02 cost of $910 is questionable.” Id.
11 Id. “Under this [unconstrained baseline] scenario, the program would be complete by the year 2006 at a remaining cost of $1.56 billion. With constrained budgets . . . , at an annual funding level of $140 million, the program would cost $1.88 billion and not be complete until 2011.” Id.
12 See id.; see also Grunwald, supra note 6, at A1. Local residents at the Ashland 2 FUSRAP site in North Tonawanda, New York have been angered by the Corps’ announcement that the “maximum cleanup standard for uranium would be 600 picocuries per gram—six times higher than any previous radiation cleanup plan, and 10 times higher than the original maximum set by the [DOE].” Id.
13 See Envirocare of Utah, Inc. v. United States, 44 Fed. Cl. 474, 477–78 (1999); In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 302 (1999).
14 Receipt of Petition for U.S. Nuclear Regulatory Commission Action, 63 Fed. Reg. 67,494, 67,494–02 (Dec. 7, 1998).
15 Issuance of Director’s Decision Under 10 C.F.R. 2.206, 65 Fed. Reg. 79,909 (Dec. 20, 2000); see NRC Punts on Regulation; Waits for NAS Findings, Nuclear Waste News, Dec. 21, 2000, available in Westlaw, 2000 WL 29762569.
16 Envirocare, 44 Fed. Cl. at 476.
17 See Corps of Eng’rs, 49 N.R.C. at 302; see also Envirocare, 44 Fed. Cl. at 483. Envirocare claimed that the rules of both the House and the Senate “prohibit ‘legislating’ in appropriation acts.” Envirocare, 44 Fed. Cl. at 483 (citation omitted).
18 Corps of Eng’rs, 49 N.R.C. at 302. Under 42 U.S.C. § 2014(s), DOE is exempted from the licensing provisions of the Atomic Energy Act because it is exempt from the following definition of person(s) required to obtain an NRC license: “The term ‘person’ means (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency other than the Commission . . ., and (2) any legal successor . . . of the foregoing.” Id. (emphasis added); Atomic Energy Act, 42 U.S.C. §§ 2014–2023 (2001). DOE is the legal successor of the AEC. FUSRAP Report, supra note 3, at 1.
19 42 U.S.C. §§ 9601–9675 (2000).
20 Id. § 9621(e)(1). This section states that “[n]o Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section.” Id.
21 Corps of Eng’rs, 49 N.R.C. at 309.
22 Id.
23 Id. at 307–08.
24 See FUSRAP Report, supra note 3, at 1; see also Peter Eisler, Contaminated Communities Remain, USA Today, Sept. 8, 2000, at A4 (noting that properties identified for decontamination by DOE and subsequently turned over to Corps jurisdiction have been found to have had “obvious evidence of contamination”).
25 See Atomic Energy Act of 1946, 42 U.S.C. §§ 2011–2297 (2000); Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801–5891 (2000); Department of Energy Organization Act, 42 U.S.C. §§ 7101–7352 (2000).
26 FUSRAP Report, supra note 3, at 16.
27 Id. at 17.
28 Navajo Tribe v. United States, 9 Cl. Ct. 227, 249 (1985); see Eisler, supra note 24, at A4.
29 FUSRAP Report, supra note 3, at 5.
30 Eisler, supra note 24, at A4.
31 Id.
32 FUSRAP Report, supra note 3, at 1, 5.
33 Id. at 14.
34 Atomic Energy Act of 1946, 42 U.S.C. §§ 2011–2297 (2000); S. Rep. No. 1211, § 2 (1946), reprinted in 1946 U.S.C.C.A.N. 1327, 1328. “The Atomic Energy Commission is the principle administrative body established in the bill. As such, it is responsible for administering domestic controls over atomic energy, for carrying on production, research and development programs, and for stimulating and supporting private research and development.” Id.
35 Natural Res. Def. Council, Inc. v. Abraham, 244 F.3d 742, 744 nn.5, 6 (9th Cir. 2001), citing 42 U.S.C. §§ 2201(b), 2201(i)(3).
36 S. Rep. No 1211, § 12 (1946), reprinted in 1946 U.S.C.C.A.N. 1327, 1335. The Atomic Energy Act of 1946 granted the AEC the authority to “establish safety and health regulations for the possession and use of fissionable and byproduct materials to minimize the danger from explosion, radioactivity, and other harmful or toxic effects incident to the presence of such materials.” Id. (emphasis added).
37 Eisler, supra note 24, at A4; see FUSRAP Report, supra note 3, at 5.
38 See S. Rep. No. 83–1699, ch. 14 (1954), reprinted in 1954 U.S.C.C.A.N. 3456, 3481–82. Much of the Senate report accompanying the Atomic Energy Act of 1954 is laced with references to “Red military power” and the “Soviet dictators that [may] attempt to occupy free Europe.” Id., reprinted in 1954 U.S.C.C.A.N. 3456, 3458.
39 See id. ch. 6, reprinted in 1954 U.S.C.C.A.N. 3456, 3471.
40 Id.
41 See id.; Atomic Energy Act of 1954 § 52e(5), 42 U.S.C. § 2076 (2000).
42 See FUSRAP Report, supra note 3, at 5.
43 See id.
44 Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801–5891 (2000).
45 S. Rep. No. 93–980, § 5 (1974), reprinted in 1974 U.S.C.C.A.N. 5470, 5479.
46 Id., reprinted in 1974 U.S.C.C.A.N. 5470, 5480. Despite this concern, Congress used AEC personnel as the backbone for its new creation, the Energy Research and Development Administration. Id.
47 42 U.S.C. §§ 5812, 5814.
48 Natural Res. Def. Council, Inc. v. Abraham, 244 F.3d 742, 744–45 (9th Cir. 2001); see 42 U.S.C. §§ 5814, 5841.
49 42 U.S.C. §§ 5841–5849; S. Rep. No. 93–980, § 6, reprinted in 1974 U.S.C.C.A.N. 5470, 5483.
50 See 42 U.S.C. § 2014(s); see also supra note 17 and accompanying text. ERDA (and subsequently, DOE) facilities that are “authorized for ‘subsequent long-term storage of high-level radioactive waste by the Administration’” were notably excepted from this exemption. Natural Res. Def. Council, 244 F.3d at 745, citing 42 U.S.C. § 5842 (2000). No such exception was made for low-level waste facilities. See S. Rep. No. 93–980, § 6 (1974), reprinted in 1974 U.S.C.C.A.N. 5470, 5485.
51 Department of Energy Organization Act, 42 U.S.C. §§ 7101–7352 (2001).
52 S. Rep. No. 95–164, at 2 (1977), reprinted in 1977 U.S.C.C.A.N. 854, 856–57. At the time of the passage of the Department of Energy Organization Act, “[t]here were over 100 energy programs in 4 agencies.” Id.
53 Department of Energy Organization Act § 301(a), 42 U.S.C. § 7151.
54 FUSRAP Report, supra note 3, at 5.
55 Id. at 16.
56 Id.
57 Id.
58 Id.
59 See S. Rep. No. 105–206, at 77 (1998); FUSRAP Report, supra note 3, at 16.
60 FUSRAP Report, supra note 3, at 16.
61 Id.
62 S. Rep. No. 105–206, at 77 (1998).
63 FUSRAP Report, supra note 3, at 5.
64 Id. Congress also directed DOE to include five additional sites in FUSRAP “because of their similarity with or proximity to sites in the program, even though they did not meet the programmatic standards for inclusion in FUSRAP.” Id.
65 Id.
66 Id. at 17.
67 Id.
68 See generally In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 302 (1999) (noting that DOE was exempted from licensing requirements of the AEA).
69 Atomic Energy Act of 1954, 42 U.S.C. § 2014(s) (2000). The Atomic Energy Act of 1954 provided an exemption from the AEC’s licensing requirements for activities conducted by the AEC. Id. As a legal successor to the AEC, DOE retained the exemption. Id.
70See Corps of Eng’rs, 49 N.R.C. at 302. Congress implied in the Atomic Energy Act of 1954 that this exemption applied to Commission activities only. “Government agencies are on equal footing with all others before the [AEC] with respect to obtaining licenses from the Commission, since the definition of ‘persons’ specifically includes Government agencies (other than the Commission).” H.R. Conf. Rep. No. 83–2639 (1954), reprinted in 1954 U.S.C.C.A.N. 3529, 3530.
71 See Corps of Eng’rs, 49 N.R.C. at 302. One of the primary contentions offered by the NRDC in its petition for NRC licensing of the Corps’ FUSRAP activities was that the licensing exception enjoyed by DOE as legal successor to AEC was not transferable to the Corps. Id.
72 Grunwald, supra note 6, at A1. This was the pejorative nickname given to the Corps’ remediation methods. It refers to the Corps’ technique of aggressively removing supposed contaminants without paying sufficient attention to the overall effect of its activities. See id.
73 Id.
74 Id. In 1996, Senator Rod Grams (R-Minn.) introduced legislation that would have eliminated the Department of Energy. S. 236, 105th Cong. (1996). This movement has not died down; Congressman Ed Royce (R-Cal.) introduced similar legislation in 1999. H.R. 2411, 106th Cong. (1999).
75 Grunwald, supra note 6, at A1.
76 Id.
77 Id. Bechtel, a well-connected environmental remediation conglomerate, had been the primary FUSRAP contractor since 1980. Id.
78 Id. McDade is quoted as stating, “So I asked the Corps if they thought they could take it on instead [of DOE]. They said, ‘Hell, yeah.’” Id.
79 Energy and Water Development Appropriations Act, 1998, Pub. L. No. 105–62, tit. 1, 111 Stat. 1320, 1326 (1997); Grunwald, supra note 6, at A1. Senate Democrats and Republicans opposed the transfer of the program, voting against the transfer at a subcommittee mark-up. After some horse-trading, the Democrats backed down. Grunwald, supra note 6, at A1.
80 See Energy and Water Development Appropriations Act, 1998, Pub. L. No. 105–62, tit. 1, 111 Stat. 1320, 1326. The text of the provision reads:
For the expenses necessary to administer and execute the Formerly Utilized Sites Remedial Action Program to clean up contaminated sites throughout the U.S. where work was performed as part of the nation’s early atomic energy program, $140,000,000, to remain available until expended: Provided, that the unexpected balances of prior appropriations provided for these activities in this Act or any previous Energy and Water Development Appropriations Act may be transferred to and merged with this appropriation account, and thereafter, may be accounted for as one fund for the same time period as originally enacted.
Id. There is no mention of the Corps or DOE. See id.
81 See H.R. Conf. Rep. No. 105–271, at 36–37 (1997), reprinted at 1997 U.S.C.C.A.N. 1811, 1846–47.
82 Id.
83 See In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 301 (1999).
84 See FUSRAP Report, supra note 3, at 17.
85 Id. “Sites will be remediated in accordance with the CERCLA and National Contingency Plan (NCP) process, as has been successfully applied at Superfund sites with similar radioactive contamination.” Id. at 2.
86 Id. at 7.
87 See Corps of Eng’rs, 49 N.R.C. at 301; H.R. Rep. No. 106–253, at 75–76 (1999).
88 Corps of Eng’rs, 49 N.R.C. at 301.
89 Id.
90 Id.
91 S. Rep. No. 105–206, at 77 (1998).
92 Id.
93 On H.R. 910, The San Gabriel Basin Water Quality Initiative, and the Role of the Corps of Engineers in the Formerly Utilized Sites Remedial Action Program (FUSRAP) Before the House Subcomm. on Water Resources and the Environment, 106th Cong., (1999) [hereinafter San Gabriel Hearings] (statement of Brigadier General Hans A. Van Winkle), available in Westlaw, 1999 WL 27594995.
94 Id.
95 Id.
96 Id.; Energy and Water Development Appropriations Act, 1998, tit. 1, Pub. L. No. 105–62, 111 Stat. 1320, 1326 (1997).
97 See Energy and Water Development Appropriations Act, 1999, tit. 1, Pub L. No.105–245, 112 Stat. 1838, 1843 (1998); H.R. Rep. No. 106–253, at 75 (1999); H.R. Conf. Rep. No. 105–749, at 11(1998), reprinted in 1998 U.S.C.C.A.N. 444, 445.
98 Energy and Water Development Appropriations Act, 1999, tit. 1, Pub. L. No. 105–245, 112 Stat. 1838, 1843 (1998) (citations omitted).
99 H.R. Rep. No. 106–253, at 76.
100 See Envirocare of Utah, Inc. v. United States, 44 Fed. Cl. 474, 477 (1999); Receipt of Petition for U.S. Nuclear Regulatory Commission Action, 63 Fed. Reg. 67,494, 67,494–02 (Dec. 7, 1998).
101 63 Fed. Reg. 67,494–02.
102 Envirocare, 44 Fed. Cl. at 476; Issuance of Director’s Decision Under 10 CFR 2.206, 65 Fed. Reg. 79,909 (Dec. 20, 2000). The Snake River Alliance joined Envirocare in this administrative challenge. Envirocare, 44 Fed. Cl. at 476; Issuance of Director’s Decision Under 10 CFR 2.206, 65 Fed. Reg. 79,909.
103See The Nuclear Regulatory Comm’n Authorization Act For the Fiscal Year 2000, Hearing Before the House Subcomm. on Energy and Power of the Comm. on Commerce on H.R. 2531, 106th Cong. 45–46 (1999) (statement of David E. Adelman, Project Attorney, Natural Resources Defense Council, Inc.) [hereinafter NRC Hearings].
104 Under 10 C.F.R. § 2.202(a), the NRC can “institute a proceeding to modify, suspend, or revoke a license or to take such other action as may be proper.” Like many administrative agencies, the NRC can hold hearings to determine any issue that is subject to the jurisdiction of NRC. See id. Moreover, “any person may file a request to institute a proceeding pursuant to § 2.202.” NRC, Procedures for Imposing Requirements by Order, or for Modification, Suspension, or Revocation of a License, or for Imposing Civil Penalties, 10 C.F.R. § 2.206(a) (2001). The NRDC filed its petition pursuant to this section.
105 Receipt of Petition for U.S. Nuclear Regulatory Commission Action, 63 Fed. Reg. 67,494, 67,494.
106 See id. “In October 1997, Congress transferred funding for FUSRAP from DOE to the Corps. NRDC believes that the Corps should obtain an NRC license to conduct activities under FUSRAP. At this time, the NRC has not required the Corps to obtain a license.” Id.
107 In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 302 (1999).
108 See id.
109 NRC Hearings, supra note 103, at 46.
110 Corps of Eng’rs, 49 N.R.C. at 302.
111 Atomic Energy Act, 42 U.S.C. § 2014(s) (2000); see supra note 18 and accompanying text.
112 Corps of Eng’rs, 49 N.R.C. at 302.
113 Id.
114 Id.
115 Id.; NRC Hearings, supra note 103, at 46.
116 Corps of Eng’rs, 49 N.R.C. at 302.
117 NRC Hearings, supra note 103, at 46.
118 Id. During his testimony, Mr. Adelman alluded to the problems that the Corps was having at the Ashland 2 FUSRAP site in North Tonawanda, New York. Id.; see discussion supra at note 12.
119 NRC Hearings, supra note 103, at 46.
120 Id.
121 Id.
122 Id.
123 Id. The NRDC stated further that FUSRAP sites were “not your typical Superfund project,” because they involved radioactive contaminants that had halflives of thousands of years. Id.
124 See Energy and Water Development Appropriations Act, 1999, tit. 1, Pub. L. No. 105–245, 112 Stat. 1838, 1843 (1998).
125 Congress had passed the Energy and Water Development Appropriations Act, 1999, on October 8, 1998. This Act contained the provision ordering the Corps to undertake FUSRAP cleanups subject to the procedures of CERCLA. See supra note 98 and accompanying text. The NRC decision on the NRDC petition was not handed down until March 26, 1999. In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 299 (1999).
126 See Corps of Eng’rs, 49 N.R.C. at 303; see text of 42 U.S.C. § 9621(e)(1) (2000), supra note 20.
127 42 U.S.C. § 9621(e)(1); see McClellan Ecological Seepage Situation (MESS) v. Cheney, 763 F. Supp. 431, 434 (E.D. Cal. 1989).
128 Corps of Eng’rs, 49 N.R.C. at 303. Note that the exemption applies only to remediation activities undertaken entirely on site. The Corps did not assert, nor did the NRC accept, that the CERCLA permit waiver would protect its off-site activities (primarily disposal of waste material). Id. at 307.
129 Id. at 303.
130 See id.
131 Id.; see discussion supra at notes 69–70.
132 Corps of Eng’rs, 49 N.R.C. at 303. DOE disagreed with the Corps on this point when the NRC solicited its opinion. DOE stated that the NRC should “evaluate the licensability of the Corps’ activities in the same manner as it would evaluate the activities of any other ‘person’ within the meaning of the Atomic Energy Act.” Id. Thus, according to DOE, if the Corps escaped NRC licensing authority, it was not because of the waiver provided under the AEA. See id. NRC would accept DOE’s interpretation of the AEA exemption, thus rejecting the Corps’ argument. Id. at 309.
133 Id. at 304.
134 Id. at 304–09.
135 Id. at 304.
136 Id. at 307–09.
137 Corps of Eng’rs, 49 N.R.C. at 304.
138 Id.
139 Id. at 305.
140 Id. at 305–06; see United States v. City of Denver, 100 F.3d 1509, 1513 (10th Cir. 1996); McClellan Ecological Seepage Situation (MESS) v. Cheney, 763 F. Supp. 431, 434 (E.D. Cal. 1989).
141 42 U.S.C. §§ 6901–6992k (2000).
142 763 F. Supp. at 433–34.
143 Id. at 434.
144 Id. at 435.
145 Corps of Eng’rs, 49 N.R.C. at 306.
146 Id.
147 Id.
148 Id. at 307.
149 Id.
150 See Uranium Mill Tailings Radiation Control Act of 1978 § 2(b)(1)–(2), 42 U.S.C. § 7901 (2000).
151 See H.R. Rep. No. 95–1480(I), at 11 (1978), reprinted in 1978 U.S.C.C.A.N. 7433, 7433–34.
152 Id.
153 Id.
154 Atomic Energy Act, 42 U.S.C. § 2014(e) (2000). Because the Uranium Mill Tailings Radiation Control Act of 1978 amended the AEA’s section 11(e) definition of by-product waste, such waste is called 11(e)(2) waste. See Envirocare of Utah, Inc. v. United States, 44 Fed. Cl. 474, 477 (1999).
155 In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 307 (1999).
156 Id.
157 Id. “Though the NRC exercised some control over such material in connection with licensed processing of ore for source material, it did not exercise jurisdiction at inactive sites where no license was in effect.” Id. at 308.
158 Id. at 307.
159 Id.
160 Id.
161 Corps of Eng’rs, 49 N.R.C. at 307.
162 Envirocare (along with the Snake River Alliance) filed a parallel petition before the NRC. See generally Issuance of Director’s Decision Under 10 C.F.R. 2.206, 65 Fed. Reg. 79,909 (Dec. 20, 2000). The NRC ruled on this petition on December 13, 2000, but no decision has been filed. The NRC issued an order extending the period in which the decision could be appealed. In re Envirocare of Utah & the Snake River Alliance, 2001 NRC LEXIS 2, at *1 (Jan. 5 2001).
163 Envirocare of Utah, Inc. v. United States, 44 Fed. Cl. 474, 478 (1999).
164 Id. at 477.
165 Id. at 482–83. The court dismissed this challenge, noting that “Congress can and frequently does ‘legislate’ in appropriation acts.” Id. at 482.
166 Id. at 477.
167 Id. at 478.
168 Id.
169 Envirocare, 44 Fed. Cl. at 478.
170 Envirocare of Utah, Inc. v. United States, 217 F.3d 852 (Fed. Cir. 1999) (unpublished table decision).
171 Id.
172 See The Nuclear Regulatory Commission Authorization Act For the Fiscal Year 2000: Hearing Before the House Subcomm. on Energy and Power of the Comm. on Commerce on H.R. 2531, 106th Cong. 1 (1999) (statement of Chairman Barton, Chairman of House Subcomm. on Energy and Power).
173 See NRC Hearings, supra note 103, at 45–48.
174 See id. at 46. Substantively, the NRDC’s public policy arguments echoed those made before the NRC. See In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 302 (1999).
175 See NRC Hearings, supra note 103, at 46–48. The UMTRCA contained two titles: Title I provided for cooperative partnership between states and the federal government to remediate inactive mill tailing sites and Title II granted the NRC express jurisdiction over the production and disposal of mill tailings at active sites. Uranium Mill Tailing Radiation Control Act § 2(b)(1)–(2), 42 U.S.C. § 7901 (2000).
176 Corps of Eng’rs, 49 N.R.C. at 307–08.
177 Id.
178 Uranium Mill Tailing Radiation Control Act § 201, 42 U.S.C. § 2014 (2000). Section 201 provides that:
Section 11e of the Atomic Energy Act of 1954 is amended to read as follows: e. The term “byproduct material” means (1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content.
Id.
179 See Kerr-McGee Chem. Corp. v. NRC, 902 F.2d 1, 7 (D.C. Cir. 1990).
180 In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 307 (1999).
181 NRC Hearings, supra note 103, at 46–47.
182 Id. at 47.
183 Id. at 47 (citations omitted).
184 See id. at 47.
185 Id. at 47.
186 H.R. Rep. No. 95–1480(I), at 16 (1978), reprinted in 1978 U.S.C.C.A.N. 7433, 7438. The House noted that “[t]he [NRC] should issue all necessary permits or licenses for uranium mill tailings sites.” Id.; see also Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426, 1429 (9th Cir. 1998) (“Thus, UMTRCA was enacted in part to close the regulatory gap and give NRC the express authority to regulate mill tailings at inactive sites.”).
187 See NRC Hearings, supra note 103, at 47.
188 Id. at 47.
189 Kerr-McGee Chem. Corp. v. NRC, 903 F.2d 1, 5 (D.C. Cir. 1990).
190 Id. at 7. Similar to the controversy addressed in this Note, the court in Kerr-McGee was confronted by a controversial NRC determination of what constitutes section 11(e)(2) by-product waste. Id.
191 Id.
192 See id. at 8.
193 Id. at 3.
194 Id. at 7.
195 Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426, 1430 (9th Cir. 1998); Macias v. Kerr-McGee Corp., No. 92-C-3389, 1993 WL 408357, at *2 (N.D. Ill. Oct. 12, 1993).
196 NRC Hearings, supra note 103, at 46, 51–52.
197 These sites included sites designated by agreement states—states that had assumed, under agreement with the NRC, responsibility for regulating nuclear waste. See Montange, supra note 4, at 355–56. The NRC requires that the regulatory programs of agreement states be “‘compatible’ with that of NRC.” Id. at 356. Indeed, the state requirements may be more stringent. Id.
198 NRC Hearings, supra note 102, at 48.
199 Id. at 50.
200 Id. at 51.
201 Id. at 51–52. The NRC has also noted that 11(e)(2) waste does not fall under the jurisdiction of RCRA. Uranium Mill Facilities, Request for Public Comment, 57 Fed. Reg. 20,525, 20,528 (May 13, 1992).
202 See NRC Hearings, supra note 102, at 48.
203 See Memorandum of Understanding Between the U.S. Nuclear Regulatory Commission and the United States Army Corps of Engineers for Coordination of Cleanup and Decommissioning of the Formerly Utilized Site Remedial Action Program (FUSRAP) Sites with NRC-Licensed Facilities, 66 Fed. Reg. 36,606, 36,607–08 (July 12, 2001).
204 Id. Four FUSRAP sites were subject to NRC licensing at the time of the MOU. Id. at 36,609.
205 See id. at 36,607.
206 Id. “[The Corps] as provided for in section 121(e) of CERCLA and 40 CFR 300.400(e), is not required to obtain a NRC license for its on-site remediation activities conducted under its CERCLA authority.” Id. at 36,607.
207 See In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 307–08 (1999); NRC Hearings, supra note 103, at 46–48.
208 See Corps of Eng’rs, 49 N.R.C. at 307–08; NRC Hearings, supra note 103, at 46–48.
209 CERCLA, 42 U.S.C. § 9621(e)(1)–(2) (2000).
210 Corps of Eng’rs, 49 N.R.C. at 304–06.
211 NRC Hearings, supra note 103, at 46–48.
212 Atomic Energy Act, 42 U.S.C. § 2014(s) (2000).
213 See Corps of Eng’rs, 49 N.R.C. at 305–06.
214 Id. at 309.
215 See 42 U.S.C. § 2014(s).
216 Id.
217 Corps of Eng’rs, 49 N.R.C. at 303.
218 S. Rep. No. 1211, § 12(f), reprinted in 1946 U.S.C.C.A.N. 1327, 1336.
219 Id. (emphasis added).
220 See id.; NRC Hearings, supra note 103, at 46.
221 Corps of Eng’rs, 49 N.R.C. at 305, 306.
222 Id. at 305.
223 Id. at 305–06; see generally United States v. City of Denver, 916 F. Supp. 1058 (D. Colo. 1996), aff’d 100 F.3d 1509 (10th Cir. 1996); McClellan Ecological Seepage Situation (MESS) v. Cheney, 763 F. Supp. 431 (E.D. Cal. 1989).
224 See City of Denver, 916 F. Supp. at 1063.
225 Id. at 1060.
226 Id.
227 Id.
228 Id.
229 Id. at 1063. “This result makes it unnecessary to consider the United States’ Second Claim for Relief regarding CERCLA section 121(e)(1) . . . .” Id.
230 United States v. City of Denver, 100 F.3d 1509, 1513 (10th Cir. 1996).
231 FUSRAP Report, supra note 3, at 2.
232 See generally McClellan Ecological Seepage Situation (MESS) v. Cheney, 763 F. Supp. 431 (E.D. Cal. 1989).
233 Id. at 433–36.
234 Id. at 435.
235 Id.
236 In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 305 n.15 (1999).
237 Id., citing McClellan, 47 F.3d 325.
238 See CERCLA, 42 U.S.C. § 9621(e)(1) (2000); NRC Hearings, supra note 103, at 46. Offsite activities include transfers of waste and disposal. 42 U.S.C. § 9621(e)(1) (2000); NRC Hearings, supra note 104, at 46.
239 Corps of Eng’rs, 49 N.R.C. at 307.
240 See U.S. Army Corps of Eng’rs, Engineer Circular 200–1–3: Off-Site Disposal of Materials From the Formerly Utilized Site Remedial Action Program 2 (2000). The Corps states that it “will dispose of FUSRAP radioactively contaminated materials only at facilities licensed by the Nuclear Regulatory Commission . . . or at facilities permitted by a Federal or state regulator to accept radioactive materials in accordance with all applicable laws and regulations.” Id. (emphasis added).
241 Corps of Eng’rs, 49 N.R.C. at 307.
242 Id. at 307; see discussion supra notes 147–160 and accompanying text.
243 Corps of Eng’rs, 49 N.R.C. at 308.
244 H.R. Rep. No. 95–1480(II), at 43 (1978), reprinted in 1978 U.S.C.C.A.N. 7450, 7470.
245 Kerr-McGee Chem. Corp. v. NRC, 903 F.2d 1, 3 (D.C. Cir. 1990).
246 See id. at 7; see also Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426, 1429 (9th Cir. 1998) (noting that the “UMTRCA was enacted in part to close the regulatory gap and give NRC the express authority to regulate mill tailings at inactive sites”).
247 See Kerr-McGee, 903 F.2d at 7.
248 Id.
249 Id.
250 NRC Hearings, supra note 103, at 46–47.
251 In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 307 (1999).
252 NRC Hearings, supra note 103, at 48.
253 Id.
254 FUSRAP Report, supra note 3, at 14.
255 See NRC Hearings, supra note 103, at 47.
256 Id. at 47.
257 Id.
258 Id. at 46–47.
259 Id.
260 Id. at 47.
261 NRC Hearings, supra note 103, at 47.
262 H.R. Rep. No. 95–1480(II), at 25 (1978), reprinted in 1978 U.S.C.C.A.N. 7450, 7452.
263 See NRC Hearings, supra note 103, at 46–48.
264 See Uranium Mill Tailings Radiation Control Act of 1978 § 2, 42 U.S.C. § 7901 (2000).
265 See NRC Hearings, supra note 103, at 51–52.
266 RCRA, 42 U.S.C. § 6903(27) (2000).
267 See id. § 6905. In fact, the statute states that “[n]othing in this Act shall be construed to apply to . . . any activity or substance which is subject to . . . the Atomic Energy Act of 1954 . . . .” Id.
268 See id.
269 See, e.g., NRC Licensing Requirements for Land Disposal of Radioactive Wastes, 10 C.F.R. § 61.52 (2001).
270 Id. § 61.41.
271 Id. § 61.42.
272 Id. § 61.43.
273 See H.R. REP. NO. 95–1480(I), at 11 (1978), reprinted in 1978 U.S.C.C.A.N. 7433, 7433.
274 See FUSRAP Report, supra note 3, at 14.
275 H.R. Rep. No. 95–1480(I), at 11 (1978), reprinted in 1978 U.S.C.C.A.N. 7433, 7433.
276 Groundwater Standards for Remedial Actions at Inactive Uranium Processing Sites, 60 Fed. Reg. 2854, 2855 (Jan. 11, 1995) (to be codified at 40 C.F.R. pt. 192).
277 NRC Hearings, supra note 103, at 46.
278 Uranium Mill Tailings Radiation Control Act § 105(b), 42 U.S.C. § 7915(b) (2000).
279 Id.
280 See In re United States Army Corps of Eng’rs, 49 N.R.C. 299, 307–08 (1999); NRC Hearings, supra note 103, at 46–48.
281 See, e.g., NRC Hearings, supra note 103, at 45–48.
282 See Uranium Mill Tailings Radiation Control Act § 105(b), 42 U.S.C. § 7915(b); NRC Hearings, supra note 103, at 48.
283 See discussion supra Part I.C.
284 See discussion supra Part I.B.
285 See discussion supra Part I.C.
286 See discussion supra Part I.C.
287 See discussion supra Part II.
288 See discussion supra Part II.
289 See discussion supra Parts II & III.A.1.
290 See discussion supra Part II.
291 See discussion supra Parts III.A & Part IV.
292 See discussion supra Part IV.A.1.
293 See discussion supra Part IV.A.1.
294 See discussion supra Part IV.A.1–2.
295 See discussion supra Part IV.B.
296 See discussion supra Part IV.B.
297 See discussion supra Part IV.B.
298 See discussion supra Part IV.B.