Michigan Coalition v. Griepentrog

• Decision Date: 10 July 1991
• Docket Number: No. 5:90-CV-94.,5:90-CV-94.
• Citation: 769 F. Supp. 999
• Parties: MICHIGAN COALITION OF RADIOACTIVE MATERIALS USERS, Plaintiff, v. Jerry GRIEPENTROG, Director of the Nevada Department of Human Resources, Christine Gregoire, Director of the Washington Department of Ecology, and John B. Pate, Chairperson of the South Carolina Board of Health and Environmental Control, Defendants.
• Court: U.S. District Court — Western District of Michigan

769 F. Supp. 999

MICHIGAN COALITION OF RADIOACTIVE MATERIALS USERS, Plaintiff, v. Jerry GRIEPENTROG, Director of the Nevada Department of Human Resources, Christine Gregoire, Director of the Washington Department of Ecology, and John B. Pate, Chairperson of the South Carolina Board of Health and Environmental Control, Defendants.

No. 5:90-CV-94.

United States District Court, W.D. Michigan, S.D.

June 18, 1991.

On Motion For Stay July 10, 1991.

COPYRIGHT MATERIAL OMITTED

Max R. Hoffman, Jr., Richard C. Kraus, Charles R. Toy, Farhat, Story & Kraus, P.C., East Lansing, Mich., Charles J. Cooper, David R. Lewis, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., Michael S. Green, House Republican Programs & Policies, Lansing, Mich., for Michigan Coalition of Radioactive Materials Users, Inc.

Ralph M. Reisinger, David J. Bloss, Roberts, Betz & Bloss, P.C., Grand Rapids, Mich., Nancy Angres, Chief Deputy Atty., Atty. Gen.'s Office, Dept. of Human Resources, Carson City, Nev., for Jerry Griepentrog.

Ralph M. Reisinger, David J. Bloss, Roberts, Betz & Bloss, P.C., Grand Rapids, Mich., Allen T. Miller, Jr., Asst. Atty. Gen., Atty. Gen.'s Office, Ecology Div., Olympia, Wash., for Christine Gregoire.

Ralph M. Reisinger, David J. Bloss, Roberts, Betz & Bloss, P.C., Grand Rapids, Mich., Walton J. McLeod, III, Samuel L. Finklea, III, Dept. of Health & Environmental Control, Office of Gen. Counsel, James Patrick Hudson, Deputy Atty. Gen., Atty. Gen.'s Office, Columbia, S.C., for John B. Pate.

OPINION

ROBERT HOLMES BELL, District Judge.

This is an action for declaratory and injunctive relief. Plaintiff, the Michigan Coalition of Radioactive Materials Users, Inc. (MICHRAD), is an association representing generators of low-level radioactive waste in Michigan. Defendant Griepentrog is director of the Nevada Department of Human Resources, Defendant Gregoire is director of the Washington Department of Ecology, and Defendant Pate is chairperson of the South Carolina Board of Health and Environmental Control.

The only active low-level radioactive waste disposal sites in the nation are located in Nevada, South Carolina and Washington (the "sited states"). Defendants oversee these three facilities. Low-level radioactive waste generated in Michigan had been disposed of at defendants' facilities until November 10, 1990, when defendants denied access to waste generated in Michigan pursuant to section 5(e) of the Low-Level Radioactive Waste Policy Amendments Act of 1985 ("the Act"), 42 U.S.C. § 2021b et seq. Plaintiff contests that denial.

This matter is currently before the court on the parties' cross-motions for summary judgment. MICHRAD has moved for partial summary judgment as to Counts I-IV of its complaint, claiming that defendants do not have a legal basis for denying access to the waste disposal facilities prior to January 1, 1993, because Michigan has complied with all milestones under the 1985 Act. Defendants move for summary judgment and dismissal of the entire complaint, claiming they are entitled to judgment because plaintiff is not a real party in interest; the states of Michigan, Nevada, South Carolina and Washington are indispensable parties; defendants are entitled to Eleventh Amendment Immunity; plaintiff has failed to exhaust administrative remedies; and they have statutory authority to deny access to a non-complying state.

Factual Background

In 1980, in response to the threatened closure of the only three low-level radioactive waste disposal sites in the nation, Congress passed the Low-Level Radioactive Waste Policy Act, Pub.L. No. 96-573, 94 Stat. 3347 (the "1980 Act"), 42 U.S.C. § 2021b-2021d. The 1980 Act established that each state is responsible for providing for the disposal of low-level radioactive waste generated within its borders, 42 U.S.C. § 2021c(a)(1), and declared a federal policy that low-level waste can be most safely and efficiently managed on a regional basis. 42 U.S.C. § 2021d(a)(1).

As an incentive for the development of regional disposal facilities the 1980 Act provided that any regional compact would be permitted, after January 1, 1986, to restrict use of the compact's regional disposal facility to the disposal of low-level waste generated within the compact region. As the deadline approached it became apparent that new regional disposal sites would not be developed by January 1, 1986. If the sited states were allowed to ban waste generated outside of their compacts, the non-sited states would have no place to dispose of their waste. In order to avoid a potential crisis in low-level radioactive waste disposal, Congress, with substantial input from the National Governors Association, passed the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the "1985 Act" or the "Act"). 42 U.S.C. § 2021b et seq.

The 1985 Act also provides incentives and penalties to encourage non-sited states and compacts to develop disposal capacity by December 31, 1992. 42 U.S.C. § 2021e(d) & (e). Section 5 of the 1985 Act assures that a certain amount of disposal capacity in the sited states will be available to the non-sited states and compacts during the transition period of January 1, 1986 to December 31, 1992. 42 U.S.C. § 2021e(a).

The 1985 Act allows the sited states to deny access if the states do not meet the milestones outlined Section 5(e). Michigan was selected as the host state for the Mid-west Compact. Michigan has not yet designated a regional disposal site. In the summer of 1990, the sited states sent identical letters to the governor of Michigan stating that Michigan's adoption of overly restrictive site selection criteria, taken in conjunction with other actions "makes a prima facie case that Michigan will not honor its host state commitment." Accordingly, they gave notice that as of November 10, 1990, they would deny Michigan waste generators access to their disposal sites unless Michigan designated a disposal site or revised their siting criteria bill and provided evidence of good faith in addressing the concerns raised by the sited states.

As a result of defendants' refusal to accept low-level radioactive waste from Michigan generators, members of plaintiff MICHRAD have and will be required to retain and store low-level radioactive waste on site and to expend substantial sums of money and personnel time to provide for safe interim storage. Plaintiff brought this action seeking declaratory relief and an injunction prohibiting defendants from denying access.

Analysis

In addressing the parties' cross-motions for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-53, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). If the moving party carries its burden of showing there is an absence of evidence to support a claim then the non-moving party must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. An issue of fact concerns "material" facts only if establishment thereof might affect the outcome of the lawsuit under governing and substantive law. Id. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. See also, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir.1989).

Plaintiff's motion addresses its right to access to the disposal sites under the 1985 Act. Defendants' motion claims a statutory right to deny access under the Act, and also raises procedural and jurisdictional bars to plaintiff's complaint. Before addressing the substantive arguments under the Act, the Court must first evaluate the threshold issues raised by defendants.

A. Real Party in Interest

In their brief in support of motion for summary judgment defendants contend that Michigan is the real party in interest under F.R.Civ.P. 17, that plaintiff is attempting to act on behalf of the State of Michigan, and that the action should be dismissed for failure to prosecute in the name of the real party in interest. In their reply brief defendants refer to Michigan as a real party in interest and disavow any claim that plaintiff was an improper party.

In case there is any doubt as to defendants' position, the Court will address the issue of whether plaintiff is a real party in interest who can properly prosecute this action.

Plaintiff complains that defendants have denied low-level radioactive waste generators in Michigan access to their disposal facilities. The letters sent by defendants to Governor Blanchard of the State of Michigan giving notice that access to disposal facilities "will be denied to all low-level radioactive waste generators in the State of Michigan" support plaintiff's assertion that defendants' denials of access were directed at Michigan waste generators.

Moreover, the 1985 Act which governs access to disposal sites, does not only address itself to the states. It has a significant and direct impact on waste generators as well. The 1985 Act provides that between January 1, 1986 and December 31, 1992, the sited states shall make disposal capacity available for low-level radioactive waste generated by nuclear power reactors and any other source. 42 U.S.C. §...