                                            May 18, 1999



The Honorable Gary L. Walker                       Opinion No. X-0052
Chair, Land & Resource
   Management Committee                            Re: Whether development of an assured-isolation
Texas House of Representatives                     facility for low-level radioactive waste would
P.O. Box 2910                                      satisfy the requirements of the Texas Low-Level
Austin, Texas 78768-2910                           Radioactive Waste Disposal Compact, and
                                                   whether a law enacted for the purpose of
                                                   precluding private disposal facilities from
                                                   accepting waste generated by the U.S. Department
                                                   of Energy would be valid (RQ-0033)

Dear Representative Walker:

        You ask two questions regarding the disposal of low-level radioactive waste in Texas, First,
you ask whether a law requiring the development of an assured-isolation facility for low-level
radioactive waste would satisfy the state’s obligations under the Texas Low-Level Radioactive
Waste Disposal Compact. We conclude that development of an assured-isolation facility would
comply with the state’s current obligations under the Compact to manage and to provide for the
disposal of Compact waste. Assured isolation would not currently satisfy the state’s obligation
under the Compact to permanently dispose of the waste. Whether assured isolation will ultimately
develop into an option for the disposal of low-level radioactive waste, and thereby satisfy the
Compact, depends on a variety of factors and circumstances that we cannot predict.

        Second, you ask whether a law adopted for the purpose ofprecluding a private company from
contracting for the disposal at a private site within Texas of low-level radioactive waste generated
by the United States Department of Energy (“DOE”) would be valid. We conclude that a law
adopted for such a purpose would violate the Supremacy Clause and the Commerce Clause of the
United States Constitution. But we also conclude that the existing law which, because of current
federal policy, has the effect ofprecluding DOE waste disposal at private facilities, is constitutional.

        We note as a preliminary matter that we are well aware of the history of the issues raised by
your questions and of the complexity of the federal and state laws governing them. We are also
aware that law and policies are developing on these issues even as we write. But in the interest of
expediting our response, as you have requested, we will address only the questions you ask and
explore only those issues necessary to the response. As you may know, various federal and state
agencies and interested private parties have written extensively on these topics, and we refer you to
The Honorable Gary L. Walker - Page 2            (JC-0052)




them for thorough discussions of the issues. See, e.g., US. DEP’T OF ENERGY,COMMERCIAL
DISPOSALPOLICYANALYSISFORLOW-LEVEL&MIXED LOW-LEVELWASTESES-2 (Mar. 9,1999);
Donald .I. Silverman & Michael A. Bauser, U.S. DEP’T OF ENERGY,LICENSINGAN ASSURED
ISOLATIONFACILITY   FORLOW-LEVELRADIOACTIVE    WASTE(July 1998); FRANKH.SANTORO,ESQ.,
ASSUREDISOLATIONLEGALSTUDY(Mar. 10, 1999) (prepared for Connecticut Hazardous Waste
Management Service); William F. Newberry, Thomas A. Kerr & David H. Leroy, Assured Storage
Facilities: A New Perspective on LL WManagement, RADWASTE,Sept. 1995, at 13; William F.
Newberry, Thomas A. Kerr & David H. Leroy, Assured Storage Integrated Management Systems:
The Most Frequently Asked Questions, RADWASTE,Sept. 1996, at 20.

       Finally, we do not intend this opinion to advocate the adoption or rejection of the proposals
about which you ask. Whether to enact legislation is a policy decision to be made by the legislature.
We turn now to your questions.

I.     Question One: Would development of an assured-isolation facility satisfy the requirements
       of the Texas Low-Level Radioactive Waste Disposal Compact?

        You ask whether the development in Texas of an assured-isolation facility for low-level
radioactive waste would satisfy the state’s obligations under the Texas Low-Level Radioactive
Waste Disposal Compact. We conclude that development of an assured-isolation facility would at
least satisfy the state’s current obligations to manage and to provide for the disposal of Compact
waste.

        A.      Assured Isolation of Radioactive Waste.

        The concept of assured isolation is well known in the field of radioactive waste disposal.
Assured isolation has been proposed as a method for dealing with the need for radioactive waste
disposal facilities, a need that has been described by the United States Supreme Court:

                        We live in a world full of low level radioactive waste.
                Radioactive material is present in luminous watch dials, smoke
                alarms, measurement devices, medical fluids, researchmaterials, and
                the protective gear and construction materials used by workers at
                nuclear power plants. Low level radioactive waste is generated by the
                Government, by hospitals, by research institutions, and by various
                industries. The waste must be isolated from humans for long periods
                of time, often for hundreds of years. Millions of cubic feet of low
                level radioactive waste must be disposed of each year.

New Yorkv. United States, 505 US. 144, 149-50 (1992). Assured isolation ofradioactive waste is
proposed as an alternative to traditional, underground burial because attempts to build traditional
disposal sites have met with opposition and have failed, largely because of concerns of underground
contamination. See William F. Newberry, Thomas A. Kerr & David H. Leroy, Assured Storage
The Honorable Gary L. Walker - Page 3            (JC-0052)




Facilities:   A New Perspective   on LL W Management,     RADWASTE,Sept. 1995, at 13. No new
traditional low-level radioactive waste disposal sites have been established in the United States in
over twenty-five years. Id.

        The originators of the concept of assured isolation define it as “an integrated management
system for safely housing waste, while preserving options for its long-term management through
robust, accessible facilities, planned preventive maintenance, [and] sureties adequate to address
contingencies or implement future alternatives.” See William F. Newbeny, Thomas A. Kerr &
David H. Leroy, Assured Storage Integrated Management Systems: The Most Frequently Asked
Questions, RADWASTE,Sept. 1996, at 20, 21. Its essential physical features are above-ground,
concrete-encasedmodules that are easily accessible for maintenance and inspection, and from which
the waste can be removed. Id. at 20. An analysis of assured-isolation facilities published by the
United States Department of Energy describes an assured-isolation facility as an above-ground
“robust engineered facility in which LLW is isolated for an indefinite period of time.” 1 Donald J.
Silverman & Michael A. Bauser, U.S. DEP’T. OF ENERGY,LICENSINGAN ASSUREDISOLATION
FACILITYFORLOW-LEVELRADIOACTIVE            WASTE,at 3 (July 1998). These commonly understood
notions of assured isolation inform our answers to your questions.

         B.      The Texas Low-Level Radioactive Waste Disposal Compact.

        “Faced with the possibility that the Nation would be left with no disposal sites for low level
radioactive waste, Congress responded by enacting the Low-Level Radioactive Waste Policy Act.”
New Yorkv. United States, 505 U.S. at 150. The Low-Level Radioactive Waste Policy Amendments
Act of 1985 declares that “[elach State shall be responsible for providing, either by itself or in
cooperation with other States, for the disposal of low-level radioactive waste generated within the
State,” with the exception ofcertain types ofwaste generated by the federal government. 42 U.S.C.
4 2021c(a) (1994). The Act declares that the states’ responsibility for disposal “can be most safely
and effectively managed on a regional basis.” Id. 5 2021d(a)( 1). In accordance with this policy, the
Act allows states to enter into compacts to provide for the establishment and operation of regional
disposal facilities for low-level radioactive waste, and provides incentives for doing so. Id.
 5 2021d(a)(2). Compacts, to be effective, must be approved by Congress. Id. 5 2021d(c)(2).

        Texas entered into a compact with Maine and Vermont. See TEX.HEALTH& SAFETYCODE
ANN.§ 403.006 (Vernon Supp. 1999). The Compact was approved by Congress. See Texas Low-
Level Radioactive Waste Disposal Compact Consent Act, Pub. L. No. 105-236, 112 Stat. 1542
(1998). Texas, as the host state, must receive and dispose of radioactive waste from the Compact
states. TEX.HEALTH&SAFETYCODEANN.5 403.006, art. II, 5 2.01(8) (Vernon Supp. 1999). “The
host state shall develop and have full administrative control overthe development, management, and
operation of a facility for the disposal of low-level radioactive waste generated within the party
states.” Id. art. IV, § 4.01. The host state must “[clause a facility to be developed in timely manner
and operated and maintained through the institutional control period.” Id. art. IV, $ 4.04(l). You
ask whether development of an assured-isolation facility would satisfy Texas’s obligations as host
state under the Compact.
The Honorable Gary L. Walker - Page 4            (JC-0052)




        As an interstate compact approved by Congress, the Texas Compact is subject to
interpretation under federal law. See Cuyler v. Adams, 449 US. 433,438,442 (1981); Nebraska v.
CentralInterstateLow-LevelRadioactive     Waste Comm ‘n, 902 F. Supp. 1046,1049 (D. Neb. 1995);
Johnson v. State, 900 S.W.2d 475,479 (Tex. App.-Beaumont 1995), afdas modified, 930 S.W.2d
589 (Tex. Crim. App. 1996) (en bane). No federal court that we are aware of has answered your
question.

        We begin by looking at the express terms of the Compact. The Compact provides that it
“shall be broadly construed to carry out the purposes of the compact, but the sovereign powers of
a party shall not be infringed upon unnecessarily.” TEX.HEALTH& SAFETYCODEANN. ?j403.006,
art. VIII, 3 8.01 (Vernon Supp. 1999). The Compact contemplates the permanent disposal of
radioactive waste. It provides that the host state “shall develop   a facility for the disposal of low-
level radioactive waste.” Id. art. IV, 5 4.01 (emphasis added). “Disposal” under the Compact means
“thepermanent isolation of low-level radioactive waste pursuant to requirements established by the
United States Nuclear Regulatory Commission and the United States Environmental Protection
Agency under applicable laws, or by the host state.” Id. art. II, § 2.01(4) (emphasis added).

         The federal Low-Level Radioactive Waste Policy Amendments Act of 1985 also speaks in
terms of the disposal of low-level radioactive waste: “Each state shall be responsible for providing
  . for the disposal of.     low-level radioactive waste.” 42 U.S.C. 3 2021c(a) (1994) (emphasis
added). “Disposal” under the federal Act means “thepermanent isolation of low-level radioactive
waste pursuant to the requirements established by the Nuclear Regulatory Commission under
applicable laws, or by an agreement State if such isolation occurs in such agreement State.” Id.
5 2021b(7) (emphasis added). Thus, both the Act and the Compact require Texas to develop a
facility for the disposal of waste, with disposal meaning the permanent isolation of waste.

         “Permanent” is not defined by the Compact or by statute. Ordinarily it means: “Continuing
or designed to continue indefinitely without change; abiding, lasting, enduring; persistent. Opposed
to temporary.” XI THEOXFORDENGLISHDICTIONARY             574 (2d ed. 1989). Under the current federal
regulatory scheme for the disposal of radioactive waste, with which Texas law must be consistent,
a facility for the permanent disposal of radioactive waste is an underground facility licensed by the
federal Nuclear Regulatory Commission (“NRC”) under Part 61 of Title 10 of the Code of Federal
Regulations. The regulations require long-term stability of the waste, its containers, and the site in
order to minimize migration of waste until the radionuclides have decayed to harmless levels. 10
C.F.R. 5 61.7(b)(2) (1998). The requirements include protection for “inadvertent intruders” during
that time, which might be 100 to 500 years, depending on the type of waste. Id. $ 61.7(b)(3)-(5).
Site characteristics are considered for the “indefinite future” and formally evaluated for “at least a
 500-year time frame.” Id. 3 61.7(a)(2).

       An essential feature of assured isolation is that it enables waste to be retrieved. See William
F. Newberry, Thomas A. Kerr&David H. Leroy, Assured StorageZntegratedManagement               Systems:
TheMost Frequently Asked Questions, RADWASTE,         Sept. 1996, at 20,21. For example, some wastes
The Honorable Gary L. Walker - Page 5             (X-0052)




with relatively short half-lives might be suitable for traditional underground disposal after ten years
or so, and thus may be removed from the assured-isolation facility and disposed of elsewhere. And
some wastes may have intrinsic value and may be removed from the facility and sold. The fact that
assured isolation contemplates that the waste may be retrieved suggests that assured isolation is not
the permanent isolation of waste.

         Indeed, the NRC has taken the position that assured storage is not permanent disposal under
10 C.F.R. Part 61: “We do not consider assured storage to be the equivalent of permanent disposal
of LLW. By its very nature, assured storage is considered a temporary facility.” Letter from Shirley
Ann Jackson, Chair, United States Nuclear Regulatory Commission, to the Honorable Gary L.
Walker, Texas House of Representatives (Mar. 19, 1999) (on file with Opinion Committee)
[hereinafter NRC letter of 3/19/99]. Texas may not, consistent with federal law, license an assured-
isolation facility as a means of permanent disposal for low-level radioactive waste. Consequently,
assured isolation would not currently satisfy the state’s obligation to dispose of Compact waste.

        It is possible, however, that assured isolation of low-level radioactive waste might ultimately
result in its permanent disposal in the same facility. A study of the assured-isolation concept
published by the United States Department of Energy describes ways in which disposal of waste in
an assured-isolation facility might result in permanent disposal there. A facility could be converted
to a permanent disposal facility after the waste has decayed to a level where it no longer needs to be
monitored. This could be done, for example, by covering the facility with earth. See 1 Donald J.
Silverman & Michael A. Bauser, U.S. DEP’T OF ENERGY,LICENSINGAN ASSUREDISOLATION
FACILITY FORLOW-LEVEL RADIOACTIVE WASTE7 (July 1998). Thus, while assured isolation might
not result in permanent disposal in the short term, it remains to be seen whether assured isolation
could in fact ultimately result in permanent disposal of the waste.

         While we cannot determine whether the development of an assured-isolation facility will
ultimately satisfy the state’s obligation under the Compact to dispose of low-level radioactive waste,
we believe it does satisfy the state’s obligation to manage and to providefor the disposal of low-
level radioactive waste. The Low-Level Radioactive Waste Policy Amendments Act of 1985 makes
states responsible for “providing.       for the disposal of low-level radioactive waste.” 42 U.S.C.
5 2021c(a) (1994) (emphasis added). Construing the meaning ofthephrase‘provide for the disposal
of’ in another part of the Act, federal courts have held that “provide for” means “taking some
affirmative step to supply, afford, or furnish means to dispose of’ waste. See Appalachian States
Low-LevelRadioactive      Waste Comm ‘n v. Peria, 126 F.3d 193,198 (3rd Cir. 1997); CentralMidwest
Interstate Low-Level Radioactive Waste Comm ‘n v. Peria, 113 F.3d 1468, 1473-74 (7th Cir. 1997).

        Assured isolation is commonly viewed as a step leading toward permanent disposal. For
 example, a federal study of assured isolation describes the possibility that low-level waste, after it
 has decayed somewhat, will be transferred to a more appropriate disposition site. See 1 Donald J.
 Silverman & Michael A. Bauser, U.S. DEP’T OF ENERGY,LICENSINGAN ASSUREDISOLATION
 FACILITYFORLOW-LEVELRADIOACTIVE           WASTE7 (July 1998). Thus, it can be argued that assured
The Honorable Gary L. Walker - Page 6            (X-0052)




isolation, even if not permanent, provides for the permanent disposal of waste because at least it
provides for the temporary isolation of waste until a permanent disposal solution is developed.

        Moreover, the Compact contemplates the management of waste in addition to disposal,
suggesting that isolation other than “permanent” isolation, as might be contemplated by permanent
underground burial, is permissible under the Compact. The Compact speaks of both the
management and disposal of waste in describing its purpose:

                        Sec. 1.01. The party states recognize a responsibility for
               each state to seek to manage low-level radioactive waste generated
               within its boundaries       . They also recognize that the United
               States Congress, by enacting the Act, has authorized and encouraged
               states to enter into compacts for the efficient management and
               disposal of low-level radioactive waste. It is the policy of the party
               states to cooperate in the protection ofthe health, safety, and welfare
               of their citizens and the environment and to provide for and
               encourage the economical management and disposal of low-level
               radioactive waste. It is the purpose of this compact to        limit the
               number of facilities needed to effectively, efficiently, and
               economically manage low-level radioactive waste

TEX.HEALTH&SAFETYCODEANN.§ 403.006, art. I, 5 1.01 (Vernon Supp. 1999) (emphasis added)
(citation omitted). The Compact also provides that the host state must “[clause a facility to be
developed in a timely manner and operated and maintained through the institutional control period.”
Id. art. IV, 5 4.04(l). “Compact facility” means “any site, location, structure, or property located
in and provided by the host state for the purpose of management or disposal of low-level radioactive
waste.” Id. art. II, 5 2.01(3) (emphasis added). “Management” itself is defined in the Compact as
“collection, consolidation, storage, packaging, or treatment.” Id. art. II, 4 2.01(11). Thus, it can be
said that assured isolation, which is considered as the management of waste, comports with the
Compact’s requirement to develop, in a timely manner, a facility for the management of waste.

        C.      Conclusion.

         Viewing the Compact broadly in order to carry out its purposes, we conclude that
development of an assured-isolation facility complies with the state’s current obligations to manage
and to provide for the disposal of Compact waste. Because assured isolation does not effect a
method of permanent isolation or disposal of low-level radioactive waste, it would not currently
satisfy the state’s obligation under the Compact to dispose of Compact waste. Whether assured
isolation will ultimately become a legally viable option for the disposal of such waste remains to be
seen.
The Honorable Gary L. Walker - Page 7           (X-0052)




II.    Question Two: Would a law adopted for the purpose ofprecluding a private company from
       contracting for the disposal at a private site within Texas of low-level radioactive waste
       generated by DOE be valid?

         Your second question is whether a law adopted for the purpose of precluding a private
company from contracting for the disposal at a private site within Texas of low-level radioactive
waste generated by the United States Department of Energy would be valid. Because the answer to
this question depends at least in part upon the legislature’s rationale for such a statute and the
statute’s express terms, in the absence of legislation, we cannot do a full analysis of its potential
validity. But it is our opinion that a law adopted for the purpose of precluding private parties from
accepting DOE waste would contravene the United States Constitution. On the other hand, we
conclude that the existing law which, because of current federal policy, effectively precludes DOE
waste disposal at private facilities, is constitutional.

       A.      Federal regulation of DOE waste.

        The Low-Level Radioactive Waste Policy Amendments Act of 1985, discussed above, makes
the federal government responsible for the disposal of low-level radioactive waste owned or
generated by DOE. 42 U.S.C. 5 202lc(b)(l) (1994). A Compact state may exclude DOE waste
from being disposed of at a Compact facility. Id. 5 2021c(a)(l)(B)(i). Texas has chosen statutorily
not to exclude DOE waste from a Compact facility. On the contrary, the Compact specifically
allows the Texas Low-Level Radioactive Waste Disposal Compact Commission to agree to import
waste Irorn outside the Compact for management or disposal in a Compact facility. TEX.HEALTH
&SAFETYCODEANN. $403.006, art. III, 8 3.05(6) (Vernon Supp. 1999). Neither the federal Act
nor the Compact speaks to disposal ofDOE waste in private, non-Compact facilities within the state.

        The federal Atomic Energy Act of 1954 authorizes the Nuclear Regulatory Commission to
issue licenses for radioactive waste disposal sites and to exempt certain activities from licensing.
42 U.S.C. 5 2111 (1994). It also allows the NRC by agreement to withdraw from regulating in a
given state and let the state license and regulate radioactive waste disposal under state law. Id.
5 2021 (b). Texas, which has laws regulating radioactive materials, see generally TEX.HEALTH&
SAFETYCODEANN. chapter 401 (Vernon 1992 & Supp. 1999), has entered into such an agreement,
see Notice of Discontinuance of Certain Regulatory Authority and Responsibility within the State
ofTexas, 47 Fed. Reg. 15,186 (Apr. 8, 1982).

        Under Texas law, “[a] radioactive waste disposal license may be issued only to a public
entity specifically authorized by law for radioactive waste disposal.” TEX.HEALTH&SAFETY   CODE
ANN.9 401.203 (Vernon Supp. 1999). “Thus, a private commercial waste disposal facility company
is barred by state law from obtaining a license in Texas for the disposal of LLRW.” Waste Control
Specialists, Inc. Y. United States Dep’t ofEnergy, 141 F.3d 564,566 (5th Cir. 1998).

        With regard to low-level radioactive waste generated by the United States Department of
 Energy, additional considerations apply. The NRC has adopted a rule exempting from NRC
The Honorable Gary L. Walker - Page 8           (X-0052)




licensing requirements “any prime contractor of the Department [of Energy] . to the extent that
such contractor.   transfers, receives, acquires, owns, possesses, or uses byproduct material [which
includes low-level radioactive waste] for [t]he performance of work for [DOE] at a United States
Government-owned or controlled site.” 10 C.F.R. $ 30.12(a) (1998). “The phrase ‘Government
controlled site’ means a site leased or otherwise made available to the Government under terms
which afford to the Commission rights of access and control substantially equal to those which the
Commission would possess if it were the holder of the fee as agent of and on behalf of the
Government.” 29 Fed. Reg. 14,401 (1964). In other words, under federal law, a private disposal
company contracting with DOE to dispose of DOE waste at a federally-owned site need not be
licensed by the NRC.

         It may also be true that a private company disposing of DOE waste at aprivately-owned site
controlled by DOE is exempt from NRC, and thus state, licensing requirements, The Fifth Circuit
Court of Appeals said as much in Waste Control Specialists: “If DOE chooses to regulate, or
‘control,’ the private waste disposal sites, then the sites are exempt from NRC and state licensing
requirements.” Waste ControlSpecialists, 141 F.3d at 568. These issues were not points in dispute
in the case, however. See id. at 567 (“Both sides agree that WCS’s proposal for DOE regulation of
the site could lawfully be implemented.“).

        In sum, although private companies cannot be licensed by Texas to dispose of low-level
radioactive waste, they can contract with DOE to provide disposal services at a federally-owned site,
and arguably at a privately-owned site controlled by DOE, and not be subject to either NRC or state
regulation. 10 C.F.R. 5 30.12(a) (1998). It is the current policy of DOE to dispose of DOE waste
only at facilities licensed under state or federal law. See U.S. DEP’T OF ENERGY,COMMERCIAL
DISPOSALPOLICYANALYSISFORLOW-LEVELANDMIXEDLOW-LEVELWASTESES-~(M~~.
                                                               9,1999).
Accordingly, as law and policy now stand, DOE waste may only be disposed of at licensed facilities,
which, in Texas, excludes privately-owned facilities.

        In Waste Control Specialists, the Fifth Circuit Court of Appeals held that DOE may, but is
not required to, exercise control over private disposal facilities in Texas and thereby exempt them
from state licensing requirements:

                        If DOE chooses to regulate, or “control,” the private waste
                disposal sites, then the sites are exempt from NRC and state licensing
                requirements. Where, however, DOE does not exercise such control,
                the NRC and the agreement states retain their power to regulate
                commercial sites providing a service to DOE. Nothing in the statute
                indicates that DOE must exercise regulatory authority over such sites.

Waste Control Specialists,  141 F.3d at 568. Since Texas will not license private disposal facilities,
as a practical matter, given the current federal policy, no private company in Texas is eligible to
dispose of DOE waste.
The Honorable Gary L. Walker - Page 9             (X-0052)




         You ask “whether Texas has the power to adopt a law for the purpose of precluding a private
company from contracting for the disposal of DOE low-level radioactive waste at a private site
within Texas,” and you tell us that bills are under consideration in the legislature relating to this and
to your first question. Letter from Honorable Gary L. Walker, Texas House of Representatives, to
the Honorable John Comyn, Attorney General (Mar. 3, 1999) (on tile with Opinion Committee).
You appear to ask about proposed legislation, which you describe only by its purpose: to preclude
private companies from accepting DOE waste. Since current Texas law, coupled with current federal
policy, has the effect of the proposed legislation, we also address the validity of the current law. We
believe that a law enacted specificallyfor thepurpose ofprecluding DOE waste disposal at private
facilities would face a federal constitutional challenge on the grounds that it violates the Supremacy
Clause and the Commerce Clause of the United States Constitution. But we conclude that the
current law, which has the same effect by virtue of current DOE policy, is constitutional.

        B.      The Supremacy Clause,

         The Supremacy Clause of the United States Constitution declares that “[tlhis Constitution,
and the Laws of the United States which shall be made in Pursuance thereof.   shall be the supreme
Law of the Land;          any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. CONS. art. VI, cl. 2. A state law is preempted and “without effect” if it
conflicts with federal law. Maryland v. Louisiana, 451 U.S. 725,746 (1981). The Texas Supreme
Court wrote extensively about federal preemption of state laws in Hyundai Motor Company v.
Alvarado, 974 S.W.2d 1 (Tex. 1998). The court explained that federal law may preempt state law
expressly or impliedly:

                A federal law may expressly preempt state law. See Cipollone v.
                Liggett  Group, Inc., 505 U.S. 504, 516 (1992). Additionally,
                preemption may be implied if the scope of the statute indicates that
                Congress intended federal law to occupy the field exclusively or
                when state law actually conflicts with federal law. Freightliner Corp.
                v. Myrick, 514 U.S. 280,287 (1995) (citing English v. General Elec.
                Co., 496 U.S. 72, 78-79 (1990)); see also Moore v. Brunswick
                Bowling&Billiards     Corp., 889 S.W.2d 246,247-48 (Tex.1994). A
                state law presents an actual conflict with federal law when “‘it is
                impossible for a private party to comply with both state and federal
                requirements’ or where state law ‘stands as an obstacle to the
                accomplishment and execution ofthe full purposes and objectives of
                Congress.“’ Myrick, 514 U.S. at 287 (quoting, respectively, English,
                496 US. at 78-79, andHines v. Davidowitz, 312 U.S. 52,67 (1941)).

Id. at 4 (parallel citations omitted). In sum, a Texas law purposely precluding a private company
from contracting with DOE for the disposal of DOE waste in Texas would be preempted by federal
law if (1) federal law expressly preempts it; (2) Congress intended federal law to occupy the field
exclusively; or (3) state law actually conflicts with federal law by making it impossible for a private
The Honorable Gary L. Walker - Page 10           (JC-0052)




party to comply with both Texas and federal law or by standing as an obstacle to the accomplishment
of Congressional objectives.

        No federal law expressly bars states from precluding private companies from receiving DOE
waste. But it is likely that a law adopted for that purpose would be impliedly preempted. The
United States Supreme Court has said that Congress has the power to regulate the disposal of low-
level radioactive waste to the exclusion of state regulation. New Yorkv. United States, 505 U.S. at
159-60. The Court has held that under the Atomic Energy Act “the federal government has occupied
the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states.”
Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190,
212 (1983). Even where, as in Texas, the federal government has allowed the state to regulate low-
level radioactive waste disposal pursuant to the terms of the Atomic Energy Act (allowing
Agreement States to regulate) and the Low-Level Radioactive Waste Policy Amendments Act of
1985 (requiring states to provide for disposal), there has been less than a grant of total authority to
the states over the disposal of low-level wastes within their own borders. See Washington State Bldg.
Constr. Trades Council v. Spellman, 684 F.2d 627,630 (9th Cir. 1982), cert. denied, 461 U.S. 913
(1983).

        We cannot, in the absence of a specific law, determine for certain whether a law purposely
precluding private facilities from disposing of DOE waste would make it impossible for a party to
comply with both state and federal law, or whether such a law would present an obstacle to the
accomplishment ofthe federal policy that makes the federal government responsible for the disposal
of low-level radioactive waste owned or generated by DOE. See 42 U.S.C. 5 2021c(b) (1994). But
we think that a law whose express purpose is to thwart federal activities in the state would, absent
a federal law expressly allowing it, be found to violate the Supremacy Clause.

        C.      The Commerce Clause.

         The Commerce Clause of the United States Constitution also may limit Texas’s ability to
enact a law purposely precluding private disposal companies from taking DOE waste in the absence
of a federal law allowing it. The Commerce Clause gives Congress the power “[t]o regulate
Commerce with foreign Nations, and among the several States.” U.S. CONS. art. I, 9 8, cl. 3. While
the Clause is phrased as an affirmative grant of power, it has a “negative” or “dormant” aspect that
restricts the states’ power to enact laws that interfere with interstate or foreign commerce. Oregon
Waste Sys., Inc. v. Department of Envtl. Quality, 5 11 U.S. 93,98 (1994). The principle underlying
the interstate aspect of the Commerce Clause is that “our economic unit is the Nation,” and states
therefore may not act in isolation as separate economic units. HP. Hood & Sons, Inc. v. Du Mond,
336 U.S. 525, 537-38 (1949); accord, Oregon Waste Sys., 511 U.S. at 98.

         The Supreme Court has held that hazardous waste is an article of commerce legitimately
subject to constitutional protection. See New York v. United States, 505 U.S. at 159-60; Ci@ of
Philadelphia v. New Jersey, 437 U.S. 617,622-23 (1978); see also Chemical Waste Management,
Inc. v. Templet, 770 F. Supp. 1142,1149 (M.D. La. 1991) (finding that foreign generated hazardous
The Honorable Gary L. Walker - Page 11            (JC-0052)




waste is object ofcommerce subject to Commerce Clause protection), afld, 967 F.2d 1058 (5th Cir.
1992). “Space in radioactive waste disposal sites is frequently sold by residents of one State to
residents of another. Regulation ofthe resulting interstate market in waste disposal is therefore well
within Congress’ authority under the Commerce Clause.” New York v. United States, 505 U.S. at
159-60.

        When invoking the interstate portion of the Commerce Clause, courts have sought to avoid
the evils of state economic isolationism and protectionism “while at the same time recognizing that
incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard
the health and safety of its people.” City of Philadelphia, 437 U.S. at 623-24. Thus, when
considering whether a state’s regulation of interstate commerce is permissible, courts apply one of
two tests. Where a state law effects simple economic protectionism, the statute is virtually invalid
per se. See id. at 624. “The clearest example of such legislation is a law that overtly blocks the flow
of interstate commerce at a State’s borders.” Id. A law that unambiguously discriminates against
out-of-state goods is characterized as a protectionist measure that cannot withstand Commerce
Clause scrutiny unless the state can demonstrate that the law furthers a legitimate local purpose that
cannot be adequately served by nondiscriminatory alternatives. See Oregon Waste Sys., 511 U.S.
 at 100-01. For example, this office has concluded that a Texas law expressly banning the
 importation into the state of waste generated in a foreign country violates the Commerce Clause.
 See Tex. Att’y Gen. Op. No. JC-0017 (1999).

         But “‘[wlhere the statute regulates evenhandedly to effectuate a legitimate local public
interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the putative local benefits.“’ City of
Philadelphia, 437 U.S. at 624 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). In
other words, where a statute is facially neutral with regard to the treatment of out-of-state goods, it
is subject to Commerce Clause scrutiny only if it affects interstate commerce. Courts will apply a
balancing test to determine whether the statute’s effects on interstate commerce outweigh the
intended benefits of the statute.

          Thus, to determine whether a statute violates the Commerce Clause, a court must examine
 the express terms of the statute, the purpose of the provision, the reason for its enactment, and its
 effect on interstate commerce. We do not have specific legislation to consider. However, a court
 would examine the express terms of the law to determine whether it is discriminatory on its face.
 A court would also weigh the purpose of the legislation against the statute’s effect on the free
 movement of DOE waste in interstate commerce, and consider whether there is a less burdensome
 way to achieve the state’s goal. Federal courts have found unconstitutional state laws restricting the
  flow ofhazardous waste in the states where the laws were designed to protect state disposal capacity
 and the state’s environment. See, e.g., City ofPhiladelphia, 437 U.S. at 622-23; Chemical Waste
 Management, 770 F. Supp. at 1152; Diamond Waste, Inc. v. Monroe County, Georgia, 939 F.2d 941
  (1 lth Cir. 1991).
The Honorable Gary L. Walker - Page 12           (X-0052)




         The proposal sounds, from your description of its purpose, like the type of overt
protectionism designed to stop goods at the state’s border that the Commerce Clause abhors absent
a state interest that outweighs the statute’s burden on interstate commerce. In our opinion, a statute
which has as its express purpose the exclusion of DOE waste from the state would violate the
Commerce Clause.

        D.      Current Section 401.203 of the Texas Health and Safety Code.

        Our discussion of the constitutional limitations on the proposed legislation should not be
construed to include current section 401.203 ofthe Health and Safety Code. Under section 401.203,
“[a] radioactive waste disposal license may be issued only to a public entity specifically authorized
by law for radioactive waste disposal.” TEX. HEALTH& SAFETYCODEANN. 5 401.203 (Vernon
Supp. 1999). Because of current DOE policy, the combined federal and state laws have the effect
of precluding private companies from accepting DOE waste. We think that section 401.203 does
not suffer from the same constitutional infirmities as would mark the proposed legislation purposely
excluding DOE waste.

        Section 401.203 falls within the state’s authority under its agreement with the Nuclear
Regulatory Commission, as authorized by the Atomic Energy Act, to regulate radioactive waste
disposal under state law. See 42 U.S.C. 5 2021(b) (1994); Notice of Discontinuance of Certain
Regulatory Authority and Responsibility within the State of Texas, 47 Fed. Reg. 15,186 (Apr. 8,
1982). As noted above, section 401.203 provides that a low-level radioactive waste disposal facility
license may be issued only to a public entity. Because the DOE’s current policy limits disposal of
DOE waste to state-licensed facilities, the result is that private companies in Texas may not dispose
of DOE waste. Federal preemption under the Supremacy Clause is not an issue in these
circumstances because the federal government has deferred to the states.

         Similarly, the Commerce Clause does not impose the same limitations on section 401.203
as it would on a statute purposely excluding DOE waste. Under the Commerce Clause, “[wlhere the
statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on
interstate commerce are only incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc.,
397 U.S. 137,142 (1970). Section401.203 speaks neither expressly nor impliedly as to DOE waste.
Rather, section 401.203 limits who may hold a license in Texas for disposing of low-level
radioactive waste. It is facially neutral with respect to interstate commerce and its effect on the
movement of DOE waste in interstate commerce is non-existent but for DOE’s policy.

         The statute’s purpose is also nondiscriminatory and outweighs any effect it might have on
interstate commerce. See USA Recycling, Znc. v. Town ofBabylon, 66 F.3d 1272, 1288 (2nd Cir.
1995) (finding that city has compelling interest in preventing private companies from collecting
commercial garbage in city), cert. denied, 517 U.S. 1135 (1996). The statutory predecessor to
section 401.203 was adopted in 1981 as part of a larger bill reforming the regulation of low-level
radioactive wastedisposal. See Act ofMarch 18,1981,67th Leg., R.S., ch. 21,§ 1,198l TEX.GEN.
The Honorable Gary L. Walker - Page 13           (JC-0052)




LAWS3 1, 3 1. At the time, Texas was facing what some called a crisis with respect to radioactive
waste disposal. The available disposal capacity in the state was seen as insufficient to handle the
growing amount of waste, and a number of health and safety concerns existed with respect to the
storage and disposal of waste. Out-of-state commercial disposal facilities were perceived as having
poor track records of environmental compliance. There is some indication that the ban on the
licensing of private disposal facilities was motivated by the legislature’s desire to restore public
confidence in the safety of radioactive waste disposal by restricting licensing to legislatively
authorized public entities, which were perceived as likely to remain in existence and tinancially
solvent longer than any individual and most corporations. Also, the legislature may have been
aiming to achieve compatibility with a proposed or anticipated federal requirement that a site be
governmentally owned. S~~HOUSECOMM.ONENVIRONMENTALAFFAIRS,BILLANALYSIS,T~~.                     S.B.
480,67th Leg., R.S. (1981).

       Given the legislature’s justifications for section 401.203, and the fact that the effect on DOE
waste in interstate commerce exists only by virtue of a DOE policy, we conclude that section
401,203 does not violate the Commerce Clause of the United States Constitution.

        E.      Conclusion.

        It is our opinion that a Texas law enacted for the purpose ofprecluding private waste disposal
companies in Texas from contracting with the United States Department of Energy to dispose of
low-level radioactive waste in the state would face significant constitutional challenges under the
Supremacy Clause and the Commerce Clause of the United States Constitution. However, section
401.203 ofthe Health and Safety Code, which allows only state entities to be licensed to dispose of
low-level radioactive waste in the state, is not unconstitutional simply because, in combination with
a DOE policy, it has the effect of precluding private companies from contracting with DOE for the
disposal of waste in Texas.
The Honorable Gary L. Walker - Page 14           (JC-0052)




                                          SUMMARY

                        The development of an assured-isolation facility complies
               with the state’s current obligations under Texas Low-Level
               Radioactive Waste Disposal Compact to manage and to provide for
               the disposal of low-level radioactive waste. Assured isolation does
               not effect the permanent isolation or disposal of low-level radioactive
               waste, and therefore it does not currently satisfy the state’s obligation
               under the Compact to dispose of the waste. Whether an assured
               isolation facility will ultimately become a legally viable option for the
               disposal of low-level radioactive waste, and thereby satisfy the
               Compact, simply cannot be predicted.

                       An attempt by Texas purposely to preclude private low-level
               radioactive waste disposal companies in Texas from contracting with
               the United States Department of Energy to dispose ofDOE low-level
               radioactive waste is limited by the Supremacy and Commerce
               Clauses ofthe United States Constitution. However, section 401.203
               of the Health and Safety Code, which allows only state entities to be
               licensed to dispose of low-level radioactive waste, is constitutional.




                                               Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Barbara Grifftn
Assistant Attorney General
