The law as it presently exists:
Washington has a number of laws regulating hazardous waste and radioactive substances. When hazardous wastes are mixed with radioactive wastes, more than one of these laws may apply. Whether these laws apply to federal activities depends on whether Congress has consented to state jurisdiction.
The Department of Ecology administers laws that address hazardous waste management and cleanup. The Hazardous Waste Management Act governs the transportation, treatment, storage, handling, and disposal of hazardous wastes. It implements the requirements of a parallel federal law, the Resource Conservation and Recovery Act. When hazardous wastes are mixed with radioactive wastes, this law applies only to the hazardous wastes in this “mixed waste.” Under the law, the Department of Ecology may allow a hazardous waste facility to operate under an “interim permit” after the facility has submitted an application for a “final facility permit” but before the final permit is issued. Another state law, the Model Toxics Control Act, provides for the cleanup of sites contaminated with hazardous substances and determines financial responsibility for cleanup costs. Risk assessments are used to determine the cleanup standards.
The state Department of Health is the state radiation control agency. It administers regulatory and licensing laws concerning radioactive materials, including radioactive waste. Most of the Department of Health’s regulation of radioactive materials is done by agreement with the federal Nuclear Regulatory Commission. Department of Health rules address the licensing and operation of land disposal facilities, other types of radioactive materials licenses, radiation protection standards, and cleanup standards for radioactive contamination.
Depending on the nature of the materials and substances stored or released, the regulation of such materials might also implicate laws regulating water pollution, air pollution, and the disposition of solid wastes. These laws are administered in part by the Department of Ecology and the Department of Health, and in part by local governments.
One of the sites to which these laws have been applied is the Hanford Reservation, approximately 586 square miles in eastern Washington, north of Richland. The United States originally created the Hanford Reservation in the 1940’s as part of the Manhattan Project to produce plutonium for the production of nuclear weapons. The federal government continued to operate the site for this purpose throughout the Cold War. Plutonium is no longer produced at Hanford. However, as a result of approximately fifty years of nuclear weapons production at the site, portions of the Reservation are contaminated with materials meeting state and federal definitions of hazardous substances, hazardous waste, radioactive substances, and mixtures of substances falling into more than one category. The United States Department of Energy currently operates the Hanford Reservation. The site’s current mission is focused primarily on cleanup. A 1989 Tri-Party Agreement among the Washington Department of Ecology, the Environmental Protection Agency, and the U.S. Department of Energy addresses the setting of milestones and requirements for cleanup at Hanford.
Because of the “supremacy clause” in the federal constitution, state laws may not apply to federal agencies and activities unless Congress has consented to their application. While Congress has consented to the application of state environmental laws to certain wastes and actions at the Hanford Reservation, there remain some disputes about the exact extent of the state’s regulatory authority.
A commercial low-level radioactive waste disposal site is located on leased property within the Hanford Reservation, but has a separate purpose that is not related to the U.S. Department of Energy. This site accepts low-level radioactive waste, including medical wastes, from eleven states that are part of an Interstate Compact on Low-Level Radioactive Waste Management or have entered an agreement with the Compact. Under the compact, which has been approved by the United States Congress, Washington prohibits the import of low-level radioactive waste from any other states for disposal at this site. (An initiative was adopted in 1980 to prohibit the importation of any radioactive waste, except medical waste, into the state of Washington for storage. The initiative was declared unconstitutional.)
The effect of the proposed measure, if it becomes law:
This measure would add state law requirements for the operation and closure of sites at which mixed radioactive and hazardous wastes have contaminated or threaten to contaminate the environment. The Hanford Nuclear Reservation is named in the measure as an example of such a site. State law would provide that no additional wastes could be added to these sites until waste that is already on-site has been cleaned up and stored, treated, or disposed of in compliance with all state and federal environmental laws.
The Department of Ecology would be directed to regulate mixed hazardous and radioactive wastes to the fullest extent that is not preempted by federal law. Facility owners and operators would be required to obtain final facility permits under state and federal hazardous waste laws, prior to adding mixed waste that was not generated at the facility. The Department of Ecology would be directed not to issue final facility permits unless the facility owner or operator is in compliance with all legal requirements. The addition of new trenches or cells, or widening or deepening of trenches, would be considered an expansion of existing facilities requiring a new permit. The Department of Ecology would be directed not to issue or modify any permit for treatment, storage, or disposal of additional mixed waste not generated at the facility until all hazardous substances, including radioactive substances, have been cleaned up in full compliance with specified standards.
The measure would require radioactive substances (radionuclides) to be cleaned up to the same risk level as established for hazardous substances under the state Model Toxics Control Act. Site operators would be required to cease disposal of all wastes into unlined trenches, to develop an inventory of hazardous substances that have been disposed of in the unlined trenches, conduct an investigation of releases of those substances, and develop plans for closure.
The measure would require site owners or operators to disclose to the Department of Ecology annually the projected total and annual cost of each project or action required to meet the provisions of applicable federal and state laws. Government agency owners or operators would also be required to disclose their budgets or budget requests for site cleanup and operation for the current and the next three upcoming fiscal years, together with related information.
The measure would exempt from its requirements disposal of sealed nuclear reactor vessels and compartments from submarines and other vessels of the United States Navy, and would exempt storage and disposal of the low-level radioactive waste consistent with the Interstate Compact (RCW 43.145). If hazardous or mixed wastes have been disposed or released at any facility operated pursuant to the Compact, the relevant provisions of this measure would apply.
At any site or facility where there has been a release of mixed wastes, the Department of Ecology would be required to establish permit conditions requiring the operation and funding of an advisory board composed of representatives chosen by potentially affected tribes, regional and statewide citizen groups with a record of concern about human health or the environment, local groups concerned with health and source impacts, local governments, and the state of Oregon if impacted by a release or threatened release. The department would be required to formally consider and respond to comments from the advisory board before issuing decisions on remedial, corrective, or closure actions. The department would be directed to make local government and participation grants for public review and comment. These would be funded through a surcharge added to the service charge paid by permit applications as established by RCW 70.105.280.
The measure would authorize any citizen to bring a civil action to compel the owner or operator of a mixed waste facility to comply with the requirements of the measure or of permits or orders, or to compel the Department of Ecology to perform any nondiscretionary function under this measure. The court could award attorney fees and other costs to a prevailing plaintiff. Orders of the Department of Ecology relating to mixed waste facilities could be appealed to the Pollution Control Hearings Board by any person whose interests in natural resources or health might be adversely affected by the action or inaction of the department. Civil actions could be brought in the superior court for Thurston County or in a county in which a release or threatened release occurs, or where mixed wastes are transported, stored, treated, or disposed.