State of NM ex rel. Udall v. Watkins, Civ. A. No. 91-2527

• Decision Date: 03 February 1992
• Docket Number: 91-2929.,Civ. A. No. 91-2527
• Citation: 783 F. Supp. 633
• Parties: STATE OF NEW MEXICO, ex rel. Tom UDALL, Attorney General, Plaintiffs, Natural Resources Defense Council, et al., and State of Texas, ex rel. Dan Morales, Attorney General, Plaintiffs-Intervenors, v. James D. WATKINS, Secretary of the Department of Energy, et al., Defendants. ENVIRONMENTAL DEFENSE FUND, et al., Plaintiffs, v. James D. WATKINS, Secretary of the Department of Energy, et al., Defendants.
• Court: U.S. District Court — District of Columbia

783 F. Supp. 633

STATE OF NEW MEXICO, ex rel. Tom UDALL, Attorney General, Plaintiffs, Natural Resources Defense Council, et al., and State of Texas, ex rel. Dan Morales, Attorney General, Plaintiffs-Intervenors, v. James D. WATKINS, Secretary of the Department of Energy, et al., Defendants.

ENVIRONMENTAL DEFENSE FUND, et al., Plaintiffs, v. James D. WATKINS, Secretary of the Department of Energy, et al., Defendants.

Civ. A. No. 91-2527, 91-2929.

United States District Court, District of Columbia.

February 3, 1992.

Bernhardt Wruble, Washington, D.C., for plaintiffs.

Michael Reed, Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM

JOHN GARRETT PENN, District Judge.

These consolidated cases are before the Court on summary judgment motions. In New Mexico v. Watkins, Civil Action No. 91-2527, defendants Department of Energy, et al. ("DOE"), and plaintiff-intervenors, Natural Resources Defense Council, et al. ("NRDC") have filed cross motions for summary judgment. In Environmental Defense Fund v. Watkins, Civil Action No. 91-2929, plaintiffs Environmental Defense Fund, et al. ("EDF") move for summary judgment.

I.

Briefly, the facts are as follows. This controversy involves a DOE project entitled the Waste Isolation Pilot Program, ("WIPP"). The WIPP came about as the result of a search for a geologically acceptable repository for DOE generated nuclear and hazardous waste. It is located in 200 million year old salt beds, 26 miles southeast of Carlsbad, New Mexico, on 10,240 acres of the public lands. In 1979, Congress authorized withdrawal of what would become the WIPP site for the purpose of "providing a research and development facility to demonstrate the safe disposal of radioactive wastes resulting from federal defense activities and programs." Pub.L. No. 96-164, section 213, 93 Stat. 1259, 1265-66 (1979).

In 1982, the Secretary of Interior withdrew the WIPP site, pursuant to his authority under the Federal Land Policy and Management Act, 43 U.S.C. section 1701, et seq., for research and development, pending a legislative withdrawal. Public Land Order No. 6232.

In 1983, the DOE obtained a new withdrawal of the WIPP site to begin the construction phase. Public Land Order 6403, 48 Fed.Reg. 31,038 at 3878. The withdrawal order prohibited the transportation, storage or burial of any radioactive materials.

In 1989, the DOE sought to "modify and extend" existing Public Land Order 6403. Specifically, the DOE's application sought to change the purpose of the previous withdrawal to allow a test program by the DOE which would introduce "retrievable radioactive waste" at the site. 54 Fed.Reg. 15815. The application was granted on January 22, 1991 by Public Land Order No. 6826. On October 9, 1991, New Mexico brought suit for declaratory and injunctive relief seeking to enjoin defendants from proceeding with the test phase of the latest withdrawal.¹ Plaintiff also filed a motion for preliminary injunction at that time. On November 26, 1991, the Court entered a preliminary injunction enjoining the defendants from proceeding under the January 22, 1991 withdrawal pending resolution of the consolidated matters. The summary judgment motions presently before the Court concern the January 22, 1991 withdrawal.

II.

The motions for summary judgment in the consolidated cases present two distinct issues. In Environmental Defense Fund v. Watkins, Civil Action No. 91-2929, the Court must address whether the WIPP site has interim status to proceed with its test phase under the Resource Conservation and Recovery Act ("RCRA"). In New Mexico v. Watkins, Civil Action No. 91-2527, the Court must address whether the defendants have violated the Federal Land Policy and Management Act ("FLPMA"). The Court will address these issues separately after a discussion of the law applicable to summary judgment motions.

III.

Summary judgment is proper where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment, must prove the lack of any genuine issue of fact. The Court must view the available facts in the light most favorable to the non-movants. Minihan v. American Pharmaceutical Ass'n, 259 U.S.App.D.C. 10, 812 F.2d 726, 727 (1987). Although the burden on the party opposing a motion for summary judgment is not great, the party is still "required to show specific facts as opposed to general allegations, that present a genuine issue worthy of trial." 10A Wright & Miller, Federal Practice & Procedure § 2727 (2d ed. 1983). Non-movants may respond by arguing that the evidence proffered by the movants raises a fact issue which must be resolved at trial. Under this standard, facts asserted by the party opposing the motion if supported by affidavits or other evidentiary material, are regarded as true. Id.

In making its inquiry on a summary judgment motion, "the court has the power to penetrate the allegations of fact in the pleadings and look at any evidential source to determine whether there is an issue of fact to be tried." Palestine Information Office v. Shultz, 272 U.S.App.D.C. 1, 853 F.2d 932, 944 (1988) (quoting Mintz v. Mathers Fund, Inc., 463 F.2d 495, 498 (7th Cir.1972)). First Nat. Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569, reh'g denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968).

IV.

In Environmental Defense Fund v. Watkins, Civil Action No. 91-2929, EDF argues that DOE is precluded from proceeding with the temporary storage of transuranic wastes at the WIPP because DOE has failed to obtain interim status or otherwise comply with the permitting requirements of RCRA. Specifically, plaintiffs contend that because none of the requirements under RCRA's narrow exceptions to the permit requirement have been met, as a matter of law, the WIPP facility must be enjoined from the storage of hazardous waste.² Defendants counter that the WIPP does in fact have interim status under RCRA because (1) the WIPP site qualifies for obtaining interim status under RCRA and (2) all of the prerequisites for obtaining interim status have been met by DOE. Thus, defendants argue that DOE may begin its test phase without violating RCRA.

Subchapter III of the RCRA, 42 U.S.C. sections 6921-39b, creates a comprehensive framework for the treatment and disposal of hazardous wastes. The EPA is required to "promulgate regulations establishing such performance standards for hazardous waste facilities ... as may be necessary to protect human health and the environment." 42 U.S.C. section 6924(a). Further, a facility must have a permit to treat, store or dispose of hazardous waste. 42 U.S.C. section 6925(a). Finally, a party must comply with EPA performance standards to be issued a permit authorizing construction or operation of hazardous waste facilities. Id.

In limited circumstances, RCRA provides "interim status" to parties without permits who meet certain requirements. Specifically, a person who:

(A) Owns or operates a facility required to have a permit under this section which facility —

(i) was in existence on November 19, 1980, or

(ii) is in existence on the effective date of statutory or regulatory changes under this chapter that render the facility subject to have a permit under this section,

(B) has complied with the requirements of section 6930(a) of this title, and

(C) has made application for a permit under this section....

42 U.S.C. section 6925(e).

Plaintiffs argue that because WIPP was not in existence when the waste it seeks to manage first became subject to regulation, WIPP was never eligible for interim status. Plaintiffs' Reply to Opposition to Summary Judgment Motion, p. 3.³

Defendants assert that neither RCRA nor the Atomic Energy Act ("AEA") specifically address the question of radioactive mixed wastes. This is important, defendants assert, because the wastes that will be managed at the WIPP site are composed of a mixture of certain hazardous wastes and certain radioactive wastes. Further, the radioactive part of mixed wastes is subject to the AEA, while RCRA applies to the non-radioactive part. Defendants argue that mixtures of hazardous waste and radioactive waste became subject to RCRA on July 3, 1986 at the earliest. Therefore, defendants argue that WIPP qualifies for interim status because it was a facility in existence when the materials it will manage became subject to RCRA. See 42 U.S.C. section 6925(e)(1)(A)(ii). Defendants argue that EPA's clarification that mixtures of hazardous wastes and radioactive nuclear wastes are regulated by RCRA served as a "regulatory change" for the purposes of interim status under RCRA. 51 Fed.Reg. 24504 (July 3, 1986) and 53 Fed.Reg. 47045 (Sept. 23, 1988). Further, the applicable interim status provision requires a facility to be in existence on the date of a statutory or regulatory change that makes the facility's wastes subject to RCRA. 42 U.S.C. section 6925(e)(1)(A)(ii). Defendants argue that since this clarification was made on July 3, 1986, and served as a regulatory change, this is the date when the wastes that WIPP seeks to manage became regulated by RCRA. Defendants assert that because WIPP was in existence...