954 F.2d 1174 (6th Cir. 1992), 91-1801, Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog

Docket Nº:91-1801.
Citation:954 F.2d 1174
Party Name:MICHIGAN COALITION OF RADIOACTIVE MATERIAL USERS, INC., Plaintiff-Appellee, v. Jerry GRIEPENTROG, Director of the Nevada Department of Human Resources; Christine Gregoire, Director of the Washington Department of Ecology; John P. Pate, Chairman of the South Carolina Board of Health and Environmental Control, Defendants-Appellants.
Case Date:January 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1174

954 F.2d 1174 (6th Cir. 1992)

MICHIGAN COALITION OF RADIOACTIVE MATERIAL USERS, INC.,

Plaintiff-Appellee,

v.

Jerry GRIEPENTROG, Director of the Nevada Department of

Human Resources; Christine Gregoire, Director of the

Washington Department of Ecology; John P. Pate, Chairman of

the South Carolina Board of Health and Environmental

Control, Defendants-Appellants.

No. 91-1801.

United States Court of Appeals, Sixth Circuit

January 24, 1992

Argued Nov. 12, 1991.

Order Feb. 14, 1992.

Rehearing Denied March 2, 1992.

Page 1175

Charles J. Cooper, David R. Lewis, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., Max R. Hoffman, Jr., Richard C. Kraus (argued and briefed), Farhat, Story & Kraus, Charles R. Toy, Michael S. Green, House Republican Programs & Policies, Lansing, Mich., for plaintiff-appellee.

David J. Bloss, Roberts, Betz & Bloss, Grand Rapids, Mich., for defendants-appellants.

Frankie Sue Del Papa, Nancy Ford Angres, Atty. Gen.'s Office, Dept. of Human Resources, Carson City, Nev., for defendant-appellant Griepentrog.

Allen T. Miller, Jr. (argued and briefed), Kenneth O. Eikenberry (briefed), Atty. Gen.'s Office, State of Wash., Olympia, Wash., for defendant-appellant Gregoire.

Walton J. McLeod, III, Samuel L. Finklea, III (argued), Dept. of Health & Environmental Control, Office of General Counsel, T. Travis Medlock, James Patrick Hudson, Atty. Gen.'s Office, Columbia, S.C., for defendant-appellant Pate.

Before MARTIN and SUHRHEINRICH, Circuit Judges, and PECK, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Three state officials from Nevada, Washington, and South Carolina appeal the district court's permanent injunction that required those states to accept low-level radioactive waste generated in Michigan. 769 F.Supp. 999. An opinion addressing the issue of the stay in this case was issued on September 24, 1991 and is reported at 945 F.2d 150 (6th Cir.1991).

The named defendants, Jerry Griepentrog of Nevada, Christine Gregoire of Washington, and John Pate of South Carolina, argue that under the three-part standard for in personam jurisdiction we announced in Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir.1968), the district court in Michigan has no jurisdiction over them. They argue the district court erred in finding that they lack authority pursuant to 42 U.S.C. § 2021e to bar Michigan generators of low-level nuclear waste access to disposal sites in the three states when they found that Michigan was no longer in compliance with the Low-Level Radioactive Waste Policy Amendments Act of 1985.

Defendants administer the operation of low-level radioactive waste disposal sites located in these states. There are only three such sites in the United States: the Beatty site in Nevada, the Richland site in Washington, and the Barnwell site in South Carolina. These "sited states", as they are called, objected to the handling of low-level nuclear waste generated by other states and attempted to restrict access to their disposal systems. In 1980, Congress responded by passing the Low-Level Radioactive Waste Policy Act, 42 U.S.C. § 2021b-2021d, in an effort to motivate other states to assume some of the burden for disposal of such waste. Because progress to this end was slow, Congress amended the Act in 1985, adding specific incentives and penalties to encourage other states to develop disposal capacities by December 31, 1992. 42 U.S.C. § 2021b et seq. Pursuant to the scheme established by the amended Act, specifically provisions (b) through (g) of § 2021e, the sited states are required to make their disposal capacity available for low-level radioactive waste from non-sited states for the period between January 1, 1986, through December 31, 1992.

In 1990, the defendants concluded that Michigan was not in compliance with the Act and effective November 10, 1990, denied waste generators in Michigan access to their disposal facilities. The plaintiff, the Michigan Coalition of Radioactive Material Users, Inc., is an association whose members engage in the use of radioactive materials and who...

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