TITLE:  Applicability of Environmental Laws to National Nuclear Security Administration, B-285281, May 8, 2000
BNUMBER:  B-285281
DATE:  May 8, 2000
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Applicability of Environmental Laws to National Nuclear Security
Administration, B-285281, May 8, 2000

B-285281

May 8, 2000

The Honorable Mac Thornberry
Chairman, Special Oversight Panel
on Department of Energy Reorganization
Committee on Armed Services
House of Representatives

Subject: Applicability of Environmental Laws to National Nuclear Security
Administration

Dear Mr. Chairman:

In your letter of April 28, 2000, you asked two questions regarding the
applicability of federal, state, interstate, and local environmental,
safety, and health requirements to the newly created National Nuclear
Security Administration (NNSA). Specifically, you asked whether the National
Nuclear Security Administration Act [1] narrows the waivers of sovereign
immunity contained in existing environmental, safety, and health laws that
apply to the Department of Energy (DOE) and the NNSA. This has been a
concern of the attorneys general of several states. Second, you asked
whether a bill now before the Committee on Commerce (H.R. 4288) might, if
enacted, be interpreted to expand the application of existing environmental,
safety, and health laws as they will be applied to the NNSA. After reviewing
the statute and applicable law, we believe that the NNSA Act clearly states
that current law will apply to the NNSA exactly as it applied to the NNSA's
functions when performed previously by DOE. The continuation of current law
necessarily carries forward all waivers of sovereign immunity in existing
law, making further clarification superfluous. We also believe that the
proposed amendments in H.R. 4288 may have the inadvertent effect of
expanding or confusing existing waivers of sovereign immunity. Our reasoning
is explained below.

Background

Title XXXII of the National Defense Authorization Act for Fiscal Year 2000
created a new entity within DOE, the National Nuclear Security
Administration. The law charged the NNSA with carrying out the vital
national defense functions associated with the nuclear weapons program. It
also transferred the employees and functions of the national security
laboratories and nuclear weapons production facilities to NNSA. [2] NNSA
came into existence on March 1, 2000. The statute contained two provisions
that indicated how current law would apply to the NNSA. The first, section
3296, provided as follows:

"APPLICABILITY OF PREEXISTING LAWS AND REGULATIONS.

"Unless otherwise provided in this title, all provisions of law and
regulations in effect immediately before the effective date of this title
that are applicable to functions of the Department of Energy [that have been
transferred to the NNSA] . . . shall continue to apply to the corresponding
functions of the Administration."

50 U.S.C. sect. 2484. Among the myriad laws that are and remain applicable to
the functions transferred to the NNSA are key federal environmental
statutes, such as the Clean Water Act and the Resource Conservation and
Recovery Act (RCRA). Both of these environmental statutes contain broad
waivers of sovereign immunity, which "continue to apply" to NNSA as they do
to DOE.

Another provision, section 3261, reinforced the Administrator's
responsibility to comply with existing laws and requirements applicable to
DOE in the areas of safety, health, and the environment. That provision
reads as follows:

"ENVIRONMENTAL PROTECTION, SAFETY, AND HEALTH REQUIREMENTS.

"(a) Compliance Required.- The Administrator shall ensure that the
Administration complies with all applicable environmental, safety, and
health statutes and substantive requirements."

50 U.S.C. sect. 2461. This provision was amplified by a requirement to develop
implementing procedures and reiteration of the Secretary of Energy's
authority to ensure NNSA's compliance. While the NNSA Act was under
consideration by the Congress, the attorneys general of several states
expressed concern that section 3261 might be interpreted as restricting
existing waivers of sovereign immunity in federal environmental laws. That
concern generated colloquies on both the House and the Senate floor during
debate on the Act. The colloquies between Senators Patty Murray and John
Warner [3] and between Representatives Ike Skelton and Floyd Spence [4]
sought to clarify that the NNSA Act made no actual change in existing
environmental, safety, or health law, and that no reduction in existing
waivers of sovereign immunity was contemplated or intended. The language
about which the attorneys general expressed reservations was enacted without
change, and that, in turn, prompted the introduction of H.R. 4288.

H.R. 4288 contains provisions that spell out in detail the environmental,
safety, and health laws and requirements applicable to NNSA. In particular,
it reiterates that NNSA is subject to procedural as well as substantive
requirements of federal, state, interstate, and local laws. With regard to
enforcement mechanisms, H.R. 4288 borrows language from the Federal
Facilities Compliance Act, which was enacted to ensure that state law
enforcement of RCRA would be maximally effective. It also expressly restates
the continued applicability to NNSA facilities and functions of all levels
of environmental, safety, and health laws.

NNSA Act Made No Change in Application of
Environmental, Safety, and Health Laws

The issue raised by the attorneys general derives from the fact that federal
environmental laws such as the Clean Water Act and RCRA include waivers of
sovereign immunity that allow federal, state, interstate, and local
requirements to be applied to and enforced against federal facilities. As
the source of their apprehension, the attorneys general pointed to section
3261 and its directive to comply with "all applicable environmental, safety,
and health statutes and substantive requirements," and to section 3296's
pronouncement that all existing law continues to apply to NNSA, "[u]nless
otherwise provided in this title" (emphasis added). They voiced concern that
NNSA would selectively apply federal environmental statutes to its
activities, ignore procedural requirements altogether, and justify that
action based on the presumed constriction of sovereign immunity they infer
from the language quoted above.

The attorneys general base their analysis on the fact that waivers of
sovereign immunity are disfavored by the courts. They cite the Supreme Court
decisions in Hancock v. Train, 426 U.S. 167 (1976) and Department of Energy
v. Ohio, 503 U.S. 607 (1992), which found that specific federal
environmental laws contained incomplete waivers of sovereign immunity, and
that the states' enforcement authority was limited as a result. [5] Both of
these decisions were promptly addressed by legislation. The Clean Air Act
Amendments of 1977 remedied the problem identified in Hancock by modifying
the requirements to which federal entities were subject to include "any
requirement whether substantive or procedural." This refinement has since
been included in other federal environmental laws as well. [6] Responding to
the Ohio decision, which identified loopholes in the waivers of sovereign
immunity contained in RCRA and the Clean Water Act, Congress enacted the
Federal Facilities Compliance Act. [7] This statute amended RCRA to close
the gap and allow recovery of "punitive" as well as "coercive" penalties
assessed under state law. Of importance here, the Federal Facilities
Compliance Act did not amend the Clean Water Act or other federal
environmental statutes to incorporate that expanded waiver of sovereign
immunity.

The Hancock and Ohio decisions do indeed stand for the proposition that
waivers of sovereign immunity are narrowly applied by the courts. Their
relevance to interpreting the law applicable to NNSA is questionable,
however, in view of the fact that the NNSA Act contains no waiver of
sovereign immunity. Rather than waiving sovereign immunity, the NNSA Act
merely continues existing law, including whatever waivers of sovereign
immunity already exist. [8] The requirement in section 3261 that NNSA comply
with all applicable environmental, safety, and health statutes is a
directive to comply with all existing law, including specifically "any
requirement" of RCRA or of the Clean Air and Clean Water Acts, "whether
substantive or procedural." [9]

The remaining part of section 3261(a) requires NNSA to comply with "all
applicable . . . substantive requirements." Coupled with the next provision,
section 3261(b), which directs the Administrator to develop procedures for
meeting "such requirements," that language is best interpreted as a
statutory directive to comply with DOE orders on the subjects of the
environment, safety and health. These orders are not statutes or regulations
and the NNSA might, arguably, have been excused from compliance if they had
not been included in section 3261. An argument of that sort would have been
bolstered by the fact that title XXXII insulates NNSA and its employees from
direction and control by Department of Energy personnel other than the
Secretary of Energy. [10] This interpretation was also confirmed by the
legislation's sponsor in a colloquy on the Senate floor [11] and deserves
additional weight because it also explains why only substantive requirements
were mentioned. NNSA was expressly required in subsection (b) of section
3261 to develop its own procedures for applying those substantive internal
requirements.

H.R. 4288 Is Unnecessary and Risks Expanding Existing Law

Since we believe that the NNSA Act did not withdraw or limit the waivers of
statutory immunity in existing law, we also conclude that H.R. 4288 is
unnecessary to accomplish its purpose: "[t]o clarify that environmental
protection, safety, and health provisions continue to apply to the functions
of the National Nuclear Security Administration to the same extent as those
provisions applied to those functions before transfer to the
Administration." Moreover, in seeking to add precision to the provisions of
the NNSA Act, H.R. 4288 also adds language which might have the unintended
effect of expanding existing law.

The provisions of most concern relative to sovereign immunity are the new
subsections (a) and (e) and particularly paragraph (e) (3) which would be
added to section 3261. [12] New subsection (a) would direct NNSA to comply
with the "matters" listed in subsection (e). Subsection (e) would add an
enumeration of environmental, safety, and health matters applicable to NNSA.
The proposed subsection reads as follows:

"(e) MATTERS INCLUDED.- The matters referred to in subsections (a) and (d)
are requirements, whether procedural or substantive, of-

"(1) Federal environmental, safety, and health laws, regulations, and rules,
including any waivers of Federal sovereign immunity in any such laws;
(2) State, interstate, or local environmental, safety, and health laws,
regulations, and rules for which the Federal Government has waived its
sovereign immunity;
(3) orders, permits, licenses, and other directives issued pursuant to the
laws, regulations, and rules and requirements referred to in paragraphs (1)
and (2), including--

"(A) civil and administrative fines and penalties, whether coercive or
punitive, and whether imposed for isolated, intermittent, or continuing
violations;
(B) fees and charges; and
(C) civil and administrative processes, authorities, and sanctions,
including injunctive relief; and

(4) agreements entered into pursuant to those laws, regulations, and rules."

The proposed paragraph (3)(A) and (B) adopts, nearly verbatim, the language
Congress enacted in the Federal Facilities Compliance Act. The paragraph
applies the fines, penalties, fees and charges without apparent exception or
limitation to those "[s]tate . . . laws . . . for which the Federal
Government has waived its sovereign immunity." If this language were applied
to punitive penalties under the Clean Water or Clean Air Acts, it would
expand the existing waivers of sovereign immunity contained in those laws
today.

The Federal Facilities Compliance Act amended section 6001 of RCRA [13] and
its parent law, the Solid Waste Disposal Act, to broaden their waiver of
sovereign immunity and override the Supreme Court's Ohio decision. In that
decision, the Court held that because of limitations in the statutory
waivers of sovereign immunity in RCRA and the Clean Water Act, federal
facilities were not subject to punitive penalties assessed by states under
either of those acts. Congress chose to remedy that situation as regards
RCRA, but has not yet similarly amended the Clean Water Act. [14]
Subparagraph (e) (3) could be viewed as subjecting NNSA to punitive
penalties that might be imposed under the Clean Water Act by requiring the
same compliance as the Federal Facilities Compliance Act, without regard to
the more limited extent of the waiver of sovereign immunity in the
underlying law.

In addition, paragraph (e) (3) would also expand on the language borrowed
from the Federal Facilities Compliance Act in two respects. First, that Act
authorizes the payment of "reasonable service charges." That term is defined
in the statute as nondiscriminatory permit application fees and the like.
Subparagraph (3)(B) refers more broadly to "fees and charges," and thereby
could be construed as allowing interest, attorney's fees, and other monetary
consideration, for which authority to use federal appropriations may be
limited. See, for example, 27 Comp. Gen. 560 (1948) (interest added to late
payments not permitted, absent statute); B-236958, Oct. 3, 1989 and
B-195809–O.M., March 30, 1981 (limitations on post-judgment interest
payable from judgment fund); 63 Comp. Gen. 260 (1984) (attorney's fees
payable if authorized by statute); B-193862, April 30, 1979 (state fee for
issuing water operator's certificate is personal expense of certified
employee). Second, the Federal Facilities Compliance Act makes clear that no
employee, agent, or officer of the United States may be subjected to
personal liability for any act or omission within the scope of official
duties. No such limitation is included in H.R. 4288.

It is true that, as a potential waiver of sovereign immunity, the language
in H.R. 4288 would be scrutinized in the same careful way as the Hancock and
Ohio cases demonstrate. In such circumstances, courts might well conclude
that these provisions were not clear enough to be deemed an expanded waiver
of sovereign immunity, but considering that the existing law is clear, the
bill would risk confusion and litigation to test this point.

Conclusion

The attorneys general are understandably vigilant about preventing any
possible infringements of states' authority to carry out the RCRA, Clean Air
Act and Clean Water Act programs and the state laws through which they
implement those programs in their respective jurisdictions. However, in this
instance we believe the law is clear and their concern, though genuine, is
unnecessary. Even if title XXXII had been silent on the questions of
continuing application of preexisting law, the NNSA obligation to comply
with environmental, safety, and health laws already on the books would have
been clear. Considering the fact that the law included an explicit statement
that all preexisting statutes and regulations would continue to apply, that
the NNSA was directed to observe all environmental, safety, and health
requirements, and that legislative history evidences congressional intent
not to disturb existing law in any way, additional clarification is
unnecessary. H.R. 4288 may also risk introducing uncertainty about the
extent of waivers of sovereign immunity by engrafting what may be the
broadest waiver of sovereign immunity in any federal environmental law onto
preexisting laws with more limited waivers.

We trust the foregoing is helpful to you. We are issuing an identical letter
today to the co-requestor of this opinion, Representative Ellen O. Tauscher,
Ranking Minority Member of the Special Oversight Panel.

Sincerely yours,

Robert P. Murphy
General Counsel

B-285281 Digest

Proposed legislation to clarify the applicability of environmental, safety,
and health laws to the newly created National Nuclear Security
Administration (NNSA) is unnecessary. Existing law, title XXXII of Pub. L.
No. 106-65 (1999), is already clear. Environmental, safety, and health laws,
regulations and Department of Energy (DOE) orders continue to apply to NNSA,
as they did to DOE when it performed the same functions before enactment of
title XXXII. Statutory waivers of sovereign immunity contained in federal
laws remain in tact, permitting states to enforce substantive and procedural
requirements of state, interstate and local law to the same extent as
before. Bill to clarify the continued application of existing law further
risks expanding waivers of sovereign immunity applicable to NNSA. H.R. 4288,
106th Cong., 2d Sess. analyzed.

Notes

1. This is the popular name assigned to title XXXII of the National Defense
Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65,
sect.sect. 3201–99, 113 Stat. 512, 953–71 (1999). This opinion will use
the terms NNSA Act or title XXXII interchangeably.

2. Section 3291(c) of the NNSA Act allowed environmental cleanups at
NNSA-operated facilities to be retained in the DOE Environmental Management
Office. DOE's Implementation Plan, dated January 1, 2000, confirmed DOE's
plan not to transfer ongoing cleanup responsibility to NNSA. For that
reason, changes made by title XXXII would not affect implementation of the
Comprehensive Environmental Response Compensation and Liability Act of 1980,
42 U.S.C. sect. 9620 (1994).

3. 145 Cong. Rec. S11194 (daily ed. Sept. 22, 1999).

4. 145 Cong. Rec. H8305 (daily ed. Sept. 15, 1999).

5. Hancock interpreted the extent to which federal facilities were covered
by the Clean Air Act's waiver of sovereign immunity. The Hancock Court
differentiated between substantive and procedural requirements, holding the
latter were not applicable to federal entities, unless sovereign immunity
was expressly waived for them. Ohio differentiated between penalties
contained in federal and state law, holding that punitive penalties in state
laws implementing the Clean Water Act and RCRA could not be exacted from
federal facilities because the federal law waivers of sovereign immunity
were insufficient.

6. The Clean Air Act provision is found at 42 U.S.C. sect. 7418. See, also, the
Clean Water Act, 33 U.S.C. sect.sect. 1323, and 1344; the Safe Drinking Water Act,
42 U.S.C. sect. 300j-6; RCRA, 42 U.S.C. sect. 6961; and the Medical Waste Tracking
Act, 42 U.S.C. sect. 6992e.

7. Pub. L. No. 102-386, 106 Stat. 1505 (1992).

8. The considerable evidence in the legislative history that Congress
intended no waiver of sovereign immunity and no change at all in
environmental, safety, and health laws would be of no importance in
determining the existence of a waiver. To be effective, a waiver of
sovereign immunity must be absolutely clear on its face. However, the
legislative history is and remains instructive in confirming that the NNSA
Act did not abrogate those waivers of sovereign immunity already existing in
law.

9. 42 U.S.C. sect.sect.  6961, 7418, and 33 U.S.C. sect. 1323.

10. Pub. L. No. 106-65, sect. 3213, 113 Stat. 958 (1999).

11. "Section 3261 was included to make clear NNSA's obligation to continue
to comply with environmental laws and DOE environmental orders." 145 Cong.
Rec. S11194 (daily ed. Sept. 22, 1999) (remarks of Sen. Warner in answer to
Sen. Murray's question.)

12. The bill would also add a "savings clause," new subsection (d), to
section 3261. It reads as follows: "Nothing in this title shall be construed
to limit, impair, enlarge, or otherwise alter the matters described in
subsection (e), or any obligation of the Administration or the Department to
comply with any such matter." This provision was probably intended to
respond to the concern of the attorneys general that the continued
application of existing law to NNSA, as specified in section 3296, was
qualified by the expression, "[u]nless otherwise provided in this title." We
view that qualifying language as the unavoidable acknowledgment that title
XXXII made many substantive changes to existing law applicable to DOE, most
notably to the Department of Energy Organization Act. The attorneys general
viewed that as building in the exceptions they found in section 3261. Since
there are no such exceptions, there is no reason to impute a hidden meaning
to the qualifying introductory phrase.

13. 42 U.S.C. sect.  6961 (1994).

14. The waiver of sovereign immunity in the Clean Air Act as regards state
law imposed fines and penalties has not been tested in litigation, but it is
not as broad as the waiver in the Federal Facilities Compliance Act.