State of Tenn. v. Herrington
| Citation | 806 F.2d 642 |
| Decision Date | 25 November 1986 |
| Docket Number | Nos. 86-5087,86-5087 and 86-5168,No. 85-3859,Nos. 85-3859,86-5168,86-,s. 86-5087,85-3859,s. 85-3859 |
| Parties | , 25 ERC 1456, 55 USLW 2320, 17 Envtl. L. Rep. 20,253 STATE OF TENNESSEE, Plaintiff-Appellee (), Petitioner (), v. John HERRINGTON, Secretary of Energy, Defendant-Appellant (5168), Respondent (). |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
W.J. Michael Cody, Atty. Gen., John Knox Walkup, Chief Deputy Atty. Gen., Frank J. Scanlon (argued), Deputy Atty. Gen., Nashville, Tenn., for State of Tenn.
Alan Bates, Natural Rights Center, Summertown, Tenn., amicus curiae.
J. Carol Williams, Dept. of Justice, Washington, D.C., Dirk D. Snel, Glen D. Nager (argued), James C. Thomason, Asst. U.S. Atty., Nashville, Tenn., for Secretary of Energy.
Jay Silberg, Washington, D.C., for amicus curiae, Baltimore Gas & Elec. Co., et al.
Before KENNEDY and WELLFORD, Circuit Judges, and BROWN, Senior Circuit Judge.
This case presents for review two issues of statutory construction: (1) whether the federal courts of appeals have original jurisdiction to review the actions of the Secretary of Energy ("Secretary") regarding his compliance with the consultation and cooperation requirements of the Nuclear Waste Policy Act of 1982, 42 U.S.C. Sec. 10101 et seq. ("NWPA" or "Act") with respect to Monitored Retrievable Storage ("MRS") facilities; and (2) whether the NWPA requires the Secretary to consult with any state before he sends Congress his proposal for the location and construction of one or more MRS facilities. We hold that the federal courts of appeals have original jurisdiction over actions involving the consultation and cooperation requirements applicable to MRS facilities under the NWPA. We further hold that the NWPA does not require the Secretary to consult with any state before he sends Congress his proposal for the location and construction of one or more MRS facilities. Accordingly, we reverse the District Court's holding that it had original jurisdiction and dismiss the petition for review of the Secretary's action.
The NWPA was passed by Congress and signed into law on January 7, 1983. The Act was designed to provide for the establishment of "programs for the development of repositories for the safe permanent disposal of high level nuclear waste and spent fuel, and to provide for the safe stabilization and long-term protection of sites for the disposal of low level radioactive waste." H.R.Rep. No. 491, Part I, 97th Cong., 2d Sess. 26, reprinted in 1982 U.S.Code Cong. & Ad.News 3792, 3792 []. Title 42 U.S.C. Sec. 10224(a) creates an Office of Civilian Radioactive Waste Management in the Department of Energy ("DOE" or "Department") to administer the Act. Section 10222 1 establishes a Nuclear Waste Fund, funded by fees assessed the generators of the waste, to pay the costs of implementing the Act. This case is concerned only with Subchapter I of the Act, which deals with the actual disposal and storage of high-level radioactive waste, spent nuclear fuel and low-level radioactive waste. 2
Subchapter I of the Act is divided into three parts. Part A authorizes and requires the DOE to construct a "permanent deep geologic disposal" facility or "repository" for high-level radioactive waste and spent nuclear fuel. 42 U.S.C. Secs. 10101(18), 10131(b). Part B provides for an interim storage program for temporary storage of limited amounts of spent nuclear fuel. 42 U.S.C. Secs. 10151, 10155(a), (e). Part C, which is the subject matter of this litigation, authorizes the Secretary to study the concept of MRS and to develop plans for MRS as an alternative plan for the long-term storage of nuclear waste in the event that Congress determines at a future date that such facilities are needed. The DOE is required to study the feasibility and practicality of constructing one or more MRS facilities and to submit a proposal to Congress detailing its findings. 42 U.S.C. Sec. 10161. Although the construction of permanent repositories is automatically authorized by the NWPA, see 42 U.S.C. Sec. 10131(b), Congress by law must explicitly authorize construction of an MRS facility. See 42 U.S.C. Sec. 10161(b), (c)(2), (f).
The MRS system, if adopted by Congress, would serve as a "back-up" to the repository program. H.R.Rep. No. 491, reprinted in 1982 U.S.Code Cong. & Ad.News at 3810. As described in the Act, the purpose of MRS is:
(A) to accommodate spent nuclear fuel and high-level radioactive waste resulting from civilian nuclear activities;
(B) to permit continuous monitoring, management, and maintenance of such spent fuel and waste for the foreseeable future;
(C) to provide for the ready retrieval of such spent fuel and waste for further processing or disposal; and
(D) to safely store such spent fuel and waste as long as may be necessary by maintaining such facility through appropriate means, including any required replacement of such facility.
42 U.S.C. Sec. 10161(b)(1). Section 10161 of the Act contains all of the express provisions relating to MRS. However, section 10161(h) also makes several of the sections and subsections of Part A of Subchapter I dealing with the participation of states and Indian tribes in the selection of sites for permanent repositories applicable to the MRS siting process. 3
The NWPA provides that "[o]n or before June 1, 1985, the Secretary shall complete a detailed study of the need for and feasibility of, and shall submit to the Congress a proposal for, the construction of one or more [MRS] facilities for high-level radioactive waste and spent nuclear fuel." 42 U.S.C. Sec. 10161(b)(1). The Secretary is required to include certain items in his proposal, see 42 U.S.C. Sec. 10161(b)(2) and (4), and he is required to consult with the Nuclear Regulatory Commission and the Environmental Protection Agency in formulating his proposal. 42 U.S.C. Sec. 10161(b)(3).
Pursuant to the congressional directive in the NWPA, the DOE undertook a study of the feasibility of MRS as an option for the storage of spent nuclear fuel. This study resulted in a document entitled The Need for and the Feasibility of Monitored Retrievable Storage--A Preliminary Analysis ("Need and Feasibility Analysis"), which concluded that an MRS facility would significantly improve the overall operation of the nuclear waste management system.
The DOE then set out to identify potential sites for the MRS facility. After a lengthy study, which is described in a second report, Screening and Identification of Sites for a Proposed Monitored Retreivable [sic] Storage Facility ("Screening and Identification Study"), 4 the DOE determined that the preferred site was the Clinch River Breeder Reactor site, which is owned by the Tennessee Valley Authority. The DOE Oak Ridge Reservation and the Hartsville Nuclear Plant site were selected as alternatives. All three sites are located in the state of Tennessee ("the State").
On April 25, 1985, the director of the Office of Civilian Radioactive Waste Management of the DOE formally notified Tennessee Governor Lamar Alexander by letter that the DOE had completed its initial evaluation of potential MRS sites and that three candidate sites had been identified in Tennessee. The letter stated that the DOE's next step would be to complete evaluation of the sites and to prepare the proposal for submission to Congress on January 15, 1986. The letter also stated that the DOE intended "to provide Tennessee with funds, information and technical assistance to gain an understanding of the impacts of siting an MRS within its jurisdiction and, subsequently, to form independent opinions regarding MRS acceptability." Joint Appendix at 85.
The DOE announced its MRS proposal in the Federal Register the next day, stating that Tennessee was the preferred location for the facility. See 50 Fed.Reg. 16536, 16537 (1985). The announcement stated that copies of the Screening and Identification Report and the Need and Feasibility Analysis were available to the public and solicited public comment on the latter by July 1, 1985. The DOE also requested that states, affected Indian tribes and the public submit available information which might be useful in preparing the environmental assessments by July 1, 1985.
In the ten months between this announcement and the finalization of the DOE proposal in February, 1986, the DOE further analyzed the three selected sites. The DOE provided Tennessee with a $1.2 million grant to assist the State in its independent evaluation of the MRS system. On August 9, 1985, the State requested a 90-day review of the final MRS proposal. The DOE responded that it was unable to provide the materials 90 days before the scheduled submittal date of January 15, 1986, and that it wanted to avoid delaying the submission to Congress if at all possible. Submission of the DOE proposal was delayed from January 15 to February 6, and then to February 10, for other reasons, however. On January 21, 1986, the Governor announced the State's position on the MRS facility. The State's comments were officially transmitted to the DOE on February 5, 1986.
The DOE intended to submit its proposal and the State's comments to Congress on February 10, 1986. As a result of the litigation described below, however, this information has not yet been submitted.
The State filed a complaint with the United States District Court for the Middle District of Tennessee on August 20, 1985, challenging the legality of the DOE's proposal for construction of an MRS facility in Tennessee. The complaint requested, inter alia, a declaratory judgment that the DOE failed to follow the state "consultation and cooperation" process required under section 10137 of the Act...
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