United States v. Manning (WA Dept. of Ecology)

May 21: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-35613, 06-35664, 06-35765. The case involves the Hanford Nuclear Reservation (Hanford) in Washington State -- one of the largest sites in the country for the treatment, storage and disposal of radioactive and non-radioactive hazardous waste; currently storing over 53 million gallons of mixed radioactive and nonradioactive hazardous waste. During World War II, the United States government constructed Hanford to manufacture plutonium for military purposes.

Over the decades, the United States Department of Energy (DOE) has disposed of approximately 450 billion gallons of contaminated water and liquid mixed waste on the site. At least one million gallons of high-level mixed radioactive and non-radioactive hazardous waste have leaked into the environment and approximately 170 miles of groundwater beneath Hanford are contaminated. In addition, tens of millions of gallons of waste are stored at Hanford in tanks that were constructed in the 1940s and meant to last only twenty years. As of 2004, there was a backlog of over 22,000 cubic meters of low-level mixed waste and transuranic mixed waste awaiting treatment and disposal.

In 1989, Washington’s Department of Ecology (Ecology), the DOE, and U.S. EPA entered into the Hanford Federal Facility Agreement and Consent Order, also known as the Tri-Party Agreement, to bring Hanford into compliance with federal
and state environmental laws. However, according to Ecology, since signing the agreement, the DOE and its contractors have been cited numerous times for violations of federal and state hazardous and mixed waste laws and requirements. The present appeal arises out of an effort by Washington voters “to prevent the addition of new radioactive and hazardous waste to the Hanford nuclear reservation until the cleanup of existing contamination is complete.”

The Ninth Circuit said, "Although the desire to take action against further environmental contamination and to protect the health and welfare of the community is understandable, we conclude that the statute enacted through the passage of Initiative 297 (I-297), the Cleanup Priority Act (CPA), is preempted by federal law. This result is dictated by a plain reading of the Washington statute, as interpreted by the Washington Supreme Court, as well as longstanding principles of federal preemption."

Access the complete opinion (click here).