State of N.M. v. Watkins, s. 91-5387

Decision Date10 July 1992
Docket Number92-5044 and 92-5045,Nos. 91-5387,s. 91-5387
Citation969 F.2d 1122
PartiesNuclear Reg. Rep. P 20,555, 35 ERC 1228, 297 U.S.App.D.C. 122, 22 Envtl. L. Rep. 21,262 STATE OF NEW MEXICO, et al. v. James D. WATKINS, Secretary, Department of Energy, et al., Appellants. STATE OF NEW MEXICO, ex rel. Tom UDALL, Attorney General v. James D. WATKINS, Secretary, Department of Energy, et al., Appellants. ENVIRONMENTAL DEFENSE FUND, et al. v. James D. WATKINS, Secretary, Department of Energy, et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

John A. Bryson, Atty., Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., Martin W. Matzen, Atty., Dept. of Justice, and Marc Johnston, Atty., Dept. of Energy, were on the brief, for appellants in 91-5387, 92-5044, and 92-5045.

Tom Udall, Atty. Gen. of the State of N.M., with whom Manuel Tijerina, Michael Dickman, Lindsay A. Lovejoy, Jr., Frederic S. Nathan, Jr., Bernhardt K. Wruble, and John S. Moot for State of N.M. and Nancy Olinger for State of Tex. were on the joint brief, for appellees, State of N.M., et al. in 91-5387 and 92-5044. Renea Hicks for State of Tex. also entered an appearance for appellees.

Adam Babich, with whom Deborah S. Reames and Howard I. Fox for Sierra Club Legal Defense Fund and Dan W. Reicher for Natural Resources Defense Council were on the joint brief, for appellees Environmental Defense Fund, et al. in 91-5387, 92-5044, and 92-5045.

Before: MIKVA, Chief Judge, RUTH BADER GINSBURG and HENDERSON, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM.

In these consolidated cases, the Departments of Energy and the Interior appeal from an injunction preliminarily granted on November 26, 1991 and made permanent on January 31, 1992, barring the implementation of Public Land Order 6826; issued in January 1991, Land Order 6826 provided for the deposit for test purposes of defense-related hazardous, radioactive waste in an experimental, underground New Mexico facility. We affirm the permanent injunction.

The dispute matured in October 1991, when the Department of Energy (DOE) received permission from the Department of the Interior (Interior) to begin transporting transuranic (TRU) waste 1 to DOE's Waste Isolation Pilot Plant (WIPP), a facility constructed on federal land in New Mexico. Congress had authorized WIPP's construction "for the express purpose of providing a research and development facility to demonstrate the safe disposal of radioactive wastes from defense activities." Pub.L. No. 96-164, 93 Stat. 1259, 1265 (1979). DOE sought to transport the TRU waste in order to conduct a test phase, which involved temporary burial of the hazardous, radioactive material in underground WIPP rooms.

New Mexico, joined by intervenors (the state of Texas, three members of Congress, and four environmental organizations), sued to restrain the transportation and deposit of the waste. The complainants argued primarily that, in proceeding to a test phase, DOE and Interior had failed to observe constraints Congress placed on administrative withdrawals of federal lands in the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 et seq. 2 The environmental organization-intervenors in the FLPMA action also initiated a separate action, one month later, under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(A). The citizen-suit plaintiffs alleged that DOE did not have a permit for the management of TRU waste at WIPP, as required by RCRA, id. § 6925(a), and that WIPP lacked "interim status," which would temporarily exempt the facility from RCRA's permit requirements. See id. § 6925(e); 40 C.F.R. § 270.

The district court, addressing only the FLPMA action, entered a preliminary injunction. Memorandum Decision Granting Preliminary Injunction, 783 F.Supp. 628 (D.D.C.1991), amended Dec. 13, 1991. Several weeks later, the court made the injunction permanent, this time granting summary judgment for the plaintiffs in the RCRA citizen suit and for the complainants on one of the FLPMA claims. Memorandum Decision Granting Permanent Injunction, 783 F.Supp. 633 (D.D.C.1992). The court ordered Interior to cease implementing Land Order 6826 and DOE to cease activities relating to the WIPP test phase to the extent those activities involved the introduction or transportation of TRU waste into the state of New Mexico.

I. BACKGROUND
A. FLPMA Provisions Governing Federal Land Withdrawal

WIPP is located on roughly 9000 acres of federal land administered by the Bureau of Land Management (BLM). FLPMA authorizes the Secretary of the Interior to "make, modify, extend, or revoke withdrawals [of federal land] but only in accordance with the [Act's] provisions and limitations." 43 U.S.C. § 1714(a). A withdrawal exempts the covered land from the operation of public land laws. Id. § 1702(j). Withdrawals of 5000 acres or more may be made "only for a period of not more than twenty years," subject to specified advance reporting by Interior to Congress, publication for notice and comment in the Federal Register, and, in the case of new withdrawals, opportunity for public hearing. Id. § 1714(b), (c) & (h). FLPMA preserves for Congress the legislature's power, under the Constitution, to dispose permanently of federal lands, see U.S. CONST. art. IV, § 3, cl. 2, 3 and it provides for congressional nullification, by concurrent resolution, of administrative withdrawals. See 43 U.S.C. § 1714(c)(1).

An administrative withdrawal of federal land may be extended "only if the Secretary determines that the purpose for which the withdrawal was first made requires the extension, and then only for a period no longer than the length of the original withdrawal." Id. § 1714(f). The Secretary must report all withdrawal extensions to House and Senate committees.

B. Land Withdrawals for the WIPP Facility

In 1982, Interior issued Public Land Order 6232 withdrawing the WIPP land for eight years "for the purpose of performing a Site and Preliminary Design Validation Program (SPDV) ... and to protect the lands pending a legislative withdrawal if appropriate." 47 Fed.Reg. 13,340 (Mar. 30, 1982). 4 In 1983, DOE sought a second withdrawal to construct WIPP. Interior obliged, issuing Public Land Order 6403 "for the purpose of the construction of full facilities for [WIPP] ... and to protect the lands pending a legislative withdrawal if appropriate." 48 Fed.Reg. 31,038 (July 6, 1983) (1983 Land Order ). Valid through June 29, 1991, the order further provided that it did "not authorize the use or occupancy of the lands hereby withdrawn for the transportation, storage, or burial of any radioactive materials." Id. The Secretary reported to Congress, in June 1983, confirming that "[t]he withdrawal authorizes the construction of the full WIPP facility but does not allow for disposal or experimentation with nuclear waste." The report explained:

DOE has not sought to obtain authority to dispose of or experiment with nuclear waste by an administrative withdrawal. This position has been maintained by DOE and BLM because of the statutory 20-year time limit imposed on administrative withdrawals in excess of 5,000 acres and the feeling that such a controversial long-term and significant land use commitment is most appropriately the responsibility of Congress.

Pursuant to these withdrawals, DOE sank two shafts to the repository level, excavated several rooms, and evaluated the reaction of the salt formations. Salt formations, it has been the operative assumption, should prove suitable for disposal of radioactive waste because their low permeability serves to prevent leakage and their plasticity in response to pressure allows fractures in the formations to heal themselves. The salt, it is anticipated, will gradually encase the waste deposited in the underground rooms ("salt creep"), isolating it from the accessible environment. The rooms, in effect, will collapse around the waste due to geologic pressure.

C. DOE's Test Phase

In 1985, EPA issued its "no migration" rules, which required DOE to be assured that, for 10,000 years, radiation escaping from a waste repository not exceed specified levels. See 42 U.S.C. § 10141(a); 40 C.F.R. § 191.11-.18. 5 To satisfy the reasonable assurance requirement, DOE decided that a WIPP performance assessment was needed; gathering the necessary data, according to DOE, required a test phase, during which TRU waste would be placed in sealed bins in one of the excavated rooms. In 1987, DOE drafted a bill that would authorize the waste deposit testing, but Congress, to date, has not passed such legislation. 6

Meanwhile, activity in the experimental SPDV rooms indicated that salt creep proceeds more rapidly than the FEIS had predicted. In addition to salt creep, fractures appeared. These fractures caused blocks or chunks of salt to fall to the floor, potentially blocking access to the rooms. In a 1990 supplement to the FEIS (SEIS), preparatory to proceeding to a test phase, DOE further studied the environmental consequences of the disposal (both temporary and permanent) of TRU waste in WIPP. DOE found that a disturbed rock zone develops around the excavated room, leading to fracture-producing stresses; DOE concluded, however, that the fractures would not overwhelm the beneficial effects of salt creep.

DOE regarded the fractures as "a short-term concern for personnel safety" that could be addressed by scaling down the walls of the rooms and installing rock bolts and wire mesh in the ceilings. The SEIS stated that during the test period, waste in the WIPP "must be readily and safely retrievable." Rock-bolting would enhance retrievability. DOE's Record of Decision described the test phase as "emplacing, in a fully retrievable manner, a limited quantity of TRU waste underground." 55 Fed.Reg. 25,692 (June 22, 1990).

D. Modification and Extension of the 1983 Land...

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