State of Idaho v. U.S. Dept. of Energy, 91-70094
| Decision Date | 13 December 1991 |
| Docket Number | No. 91-70094,91-70094 |
| Citation | 945 F.2d 295 |
| Parties | Nuclear Reg. Rep. P 20,542, 33 ERC 1772, 60 USLW 2217 STATE OF IDAHO, Petitioner, Shoshone-Bannock Tribes, Intervenors, v. U.S. DEPARTMENT OF ENERGY, Respondent, Public Service Company of Colorado, Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
On Petition from Orders of the United States Department of Energy.
Before WRIGHT, FARRIS and TROTT, Circuit Judges.
Clive J. Strong, Deputy Atty. Gen., Natural Resources Division, Boise, Idaho, for petitioner.
David C. Shilton, Appellate Section, Environmental and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for respondent.
Jeanette Wolfley, Tribal Attys. Office, Fort Hall, Idaho, for intervenor-petitioner.
David W. Kerber, Kelly, Stansfield and O'Donnell, Denver, Colo., for intervenor-respondent.
The State of Idaho petitions for review of the Department of Energy's decision to transport into Idaho for storage spent nuclear fuel produced at the Fort St. Vrain nuclear power station in Colorado. Shoshone-Bannock Indian Tribes intervene on behalf of Idaho and argue that transportation of the radioactive material violates various governmental obligations to the Indians. Public Service Company, the owner of the Fort St. Vrain plant, intervenes on behalf of DOE. We dismiss the petition for lack of jurisdiction.
In 1965, the Atomic Energy Commission entered into a contract with the Public Service Company of Colorado to construct an experimental nuclear generator. Unlike conventional reactors which use low uranium fuel and a water process for cooling, the contracted High Temperature Gas-Cooled Reactor required a special enriched uranium fuel and used "dry" helium gas cooling, a technology believed to be more safe and clean. In allocating the responsibilities for the project, the government agreed to "[p]urchase ... fuel elements discharged" from the reactor and "[r]eprocess" the elements if funds were appropriated for a reprocessing facility.
Pursuant to the contract, Public Service constructed the Fort St. Vrain Nuclear Power Plant. The Fort St. Vrain reactor was the first United States power reactor to store spent fuel dry instead of under water. The reactor was accepted for commercial operation as of January 1, 1979. In 1975, the government, in anticipation of its responsibility for the spent fuel, constructed the Irradiated Fuels Storage Facility at Idaho National Engineering Laboratory. An uncontested Environmental Impact Statement was completed in 1977 concerning waste management operations at the Idaho National Engineering Laboratory, including storage in the Irradiated Fuels Storage Facility.
In order to implement the terms of the 1965 contract, DOE (which had replaced the Atomic Energy Commission) entered into an agreement with Public Service on April 1, 1980, modifying the contract to specify the conditions for transfer of the spent fuel. Under the 1980 modification, the government agreed, pursuant to its obligations under the original contract, to purchase eight "nuclear fuel segments discharged from the Plant" for $5.4 million, upon delivery to the Idaho facility. Public Service delivered the first segment of spent fuel to the Idaho facility in 1980. Two additional segments were shipped in 1982 and from 1984-1986, without incident.
Because the Fort St. Vrain plant was operating at a restricted rate, it became clear that all eight of the contracted fuel segments would not be delivered prior to January 1, 1987--the term set by the original contract. In a 1983 memorandum, the Chief Counsel to DOE indicated that he believed the 1980 modification evinced "a commitment by the parties to specify the amount of fuel as eight segments rather than to base the amount of fuel to be delivered upon a particular time." Consequently, he interpreted the contract, as modified by the 1980 agreement, to obligate DOE to receive eight segments of Fort St. Vrain spent fuel regardless of the time of delivery. In November of 1987, Public Service sent a letter to DOE stating that they understood the contract, as modified, to require DOE to accept eight segments of fuel regardless of the date of delivery and indicating that they would demand an extension if DOE considered the contract expired as of January 1, 1987. On May 11, 1988, DOE and Public Service agreed to an additional modification to the contract stating that the "contract shall continue in effect until the company has delivered eight fuel segments which is currently estimated to be by December 31, 1997."
In August of 1989, Public Service decided to shut down the Fort St. Vrain reactor because the plant was no longer commercially operable. Public Service notified DOE that it planned to deliver the remaining five fuel segments under the contract and a sixth segment if DOE was willing. Governor Andrus of Idaho, apprised of the proposed delivery, communicated in a letter to the manager of the DOE Idaho Operations Office that Idaho was no longer willing to receive radioactive waste from another state.
DOE prepared an environmental assessment pursuant to the National Environmental Policy Act to determine the impact of transporting and storing this radioactive material. The environmental assessment concluded that there would be no significant environmental impact, and, on February 5, 1991, the DOE issued a formal Finding of No Significant Impact. On February 6, Governor Andrus sent a letter to Public Service stating that the Fort St. Vrain spent fuel would "not be permitted in the State of Idaho," and that the State was "prepared to take all appropriate steps to prevent these shipments from entering the State of Idaho." DOE notified Governor Andrus on February 7, 1991, that it intended to receive the spent fuel. The next day Idaho filed this petition.
Idaho does not allege that it has authority to preclude the transfer of spent fuel from Colorado to the federal facility in Idaho. Rather, it argues that the transportation and storage of the nuclear material violates various requirements of the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101-10270, and the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370b.
The procedural posture of this action differs from typical petitions for review of administrative action. This petition was not preceded by any formal administrative or judicial proceeding. There is no formal agency order, opinion, or findings of fact or law for review.
Idaho asserts original jurisdiction in this court pursuant to the Nuclear Waste Policy Act, 42 U.S.C. § 10139. All claims other than those brought pursuant to the Nuclear Waste Policy Act are based on pendent jurisdiction. Shoshone-Bannock Indian Tribes also assert original and pendent jurisdiction pursuant to the Nuclear Waste Policy Act.
DOE does not contend that the decision to store the Fort St. Vrain material comported with various requirements of the Nuclear Waste Policy Act. Rather, DOE argues that: (1) the Act is inapplicable to storage agreements reached prior to the statute's enactment and (2) the current storage decision fulfills the government's pre-existing obligation under the original 1965 contract as clarified by the subsequent modification agreements. Idaho argues that: (1) the Nuclear Waste Policy Act is comprehensive legislation governing all federal storage of civilian nuclear waste; (2) DOE had no authority to enter agreements for storage of nuclear waste prior to enactment of the Act; and (3) the 1988 modification extending the term for delivery of the radioactive waste was an agreement for interim storage subject to the Act.
In determining the applicability of the Nuclear Waste Policy Act to pre-existing storage agreements, we first look to the plain language of the statute. Subchapter I, Part B, of the Act governs interim storage. Section 10155 states:
(a)(1) [DOE] shall provide, in accordance with paragraph (5), not more than 1,900 metric tons of capacity for the storage of spent nuclear fuel from civilian power reactors....
. . . . .
(5) [DOE] shall ensure that storage capacity is made available under paragraph (1) when needed, as determined on the basis of the storage needs specified in contracts entered into under section 10156(a) of this title, and shall accept upon request any spent nuclear fuel as covered under such contracts....
. . . . .
(b)(1) Subject to the capacity limitation established in subsections (a)(1) and (d) of this section, [DOE] shall offer to enter into, and may enter into, contracts under section 10156(a) of this title with any person generating or owning spent nuclear fuel for...
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