State of Tenn. v. Herrington

• Decision Date: 05 February 1986
• Docket Number: No. 3-85-0959.,3-85-0959.
• Citation: 626 F. Supp. 1345
• Parties: STATE OF TENNESSEE v. John HERRINGTON, Secretary of the United States Department of Energy.
• Court: U.S. District Court — Middle District of Tennessee

626 F. Supp. 1345

STATE OF TENNESSEE v. John HERRINGTON, Secretary of the United States Department of Energy.

No. 3-85-0959.

United States District Court, M.D. Tennessee, Nashville Division.

February 5, 1986.

W.J. Michael Cody, Atty. Gen., John Knox Walkup, Chief Deputy Atty. Gen., Frank J. Scanlon, Deputy Atty. Gen., Nashville, Tenn., for plaintiff.

Joe E. Brown, U.S. Atty., James C. Thomason, Asst. U.S. Atty., Nashville, Tenn., Wells D. Burgess, Land and Natural Resources Div., U.S. Dept. of Justice, Gregory Fess, Dept. of Energy, Gen. Counsel, Washington, D.C., for defendant.

MEMORANDUM

WISEMAN, Chief Judge.

Before the Court, on the State of Tennessee's first cause of action, are cross-motions for summary judgment which require interpretation of certain provisions of the Nuclear Waste Policy Act of 1982 ("NWPA").¹ In 1982, Congress enacted the NWPA, an ambitious statute whose intent was to grapple with the multitude of problems associated with the generation of nuclear waste by commercial power facilities. The federal waste management program articulated by the NWPA focuses on the development of permanent, geologic repositories, and also addresses the temporary disposal and storage of nuclear waste. One such scheme approved for further study is Monitored Retrievable Storage ("MRS"), two characteristics of which are that it would require the repackaging and continuous monitoring of the waste stored in such a facility until it is retrieved, perhaps decades later, for transfer to a permanent repository.² If determined to be a necessary part in the national waste management system, MRS would serve as a "back-up" to the permanent repositories.³

To aid in its determination of the need for MRS, Congress ordered the Secretary of the United States Department of Energy to submit a proposal for the construction of one or more MRS facilities.⁴ This proposal was to include a detailed study of the need for and feasibility of MRS and site-specific designs.⁵ In late December, 1985, the Secretary completed his final draft MRS proposal.⁶ He concluded that a single, integral MRS facility is a necessary component of the waste management system, and decided that this facility should be sited in the State of Tennessee. The Secretary plans to submit this proposal to Congress on or after February 6, 1986.

The specific question before the Court is whether the State of Tennessee is entitled to a declaratory judgment that the Secretary violated the provisions of section 141(h) of the Act, 42 U.S.C. § 10161(h), in making his determination as to the preferred site of the MRS facility, and whether the Secretary should be enjoined from submitting the allegedly flawed portion of the MRS siting study to Congress when the Secretary presents his recommendation.⁷ Based upon the Court's analysis of the NWPA and its legislative history, the Court declares that the provisions incorporated in section 141(h) take effect prior to Congressional authorization of an MRS facility. Upon reviewing the voluminous record in this action, the Court also renders a declaratory judgment that the Secretary has violated section 117(b) of the Act, 42 U.S.C. § 10137(b), by failing to consult and cooperate with the State of Tennessee in conducting extensive siting studies. Thus, the siting portion of the Secretary's final proposal is fatally flawed. Partial summary judgment is granted to the State of Tennessee upon its first cause of action. Accordingly, the Secretary may submit no portion of the proposal to Congress which relates in any way to the siting and identification study which failed to comply with the consultation and cooperation requirements of the NWPA.

All parties concerned will benefit by a short statement of what this ruling is, and is not, about. The Court cannot express its personal views on nuclear energy in general or on the proper role of Monitored Retrievable Storage in achieving society's goal of permanent and safe resolution of the dangers of rapidly accumulating nuclear waste. This Court can determine, however, whether the law has been violated by the Secretary of Energy. This Court declares, without hesitation, that the Secretary has failed to carry out the statutory duties assigned to him. The Secretary has taken very few steps to achieve the clear purposes of the statute, which envisions that the states be granted the broadest possible rights in participating in the development of MRS facilities and in gaining the public's trust in the federal waste management program.

I. Jurisdiction

At the outset, the Court must address the threshold issue of jurisdiction. Recently the Court considered the defendant's motion to dismiss this action based upon the argument that the NWPA vested original jurisdiction over cases arising under the Act in the circuit courts of appeals. See Tennessee v. Herrington, 622 F.Supp. 923 (M.D.Tenn.1985) ("Tennessee I"). This Court examined the plain language of the NWPA and concluded that exclusive jurisdiction over this action was vested in the district court.⁸ The Court certified its order for interlocutory review pursuant to 28 U.S.C. § 1292(b). No action has yet been taken on this expedited appeal. In the absence of any Sixth Circuit action on the jurisdiction issue, and in view of the fact that the Secretary intends to make his MRS recommendation to Congress on or soon after February 6, 1986, this Court must act expeditiously on the merits of the case.

II. MRS Background

At the heart of this litigation lies the following statutory provision: "Any facility authorized pursuant to this section shall be subject to the provisions of sections 10135, 10136(a), 10136(b), 10136(d), 10137, and 10138 of this title."⁹ This subsection, which applies to any MRS facility, incorporates nearly all of the state participation requirements applying to permanent repositories.¹⁰ Its interpretation is determinative of this action.

The dispute in this case turns on the time at which the state consultation and cooperation requirements of section 117 of the Act, 42 U.S.C. § 10137, are triggered. The State of Tennessee maintains that these requirements necessarily apply to all of the DOE's activities subsequent to the initial steps taken in the MRS siting process. Thus, the DOE would be required to seek the state's participation in the siting process and give substantive weight to the state's comments in its decision. The Secretary argues, in contrast, that the DOE has no duty to consult and cooperate with the State prior to Congressional authorization of an MRS facility, and that the DOE discharges its responsibilities by submitting the State's comments to Congress. In determining the outcome of this action, the Court must consider the facts of the case and examine the general statutory structure of MRS.

A. Facts

On April 25, 1985, the director of the Office of the Civilian Radioactive Waste Management of DOE formally notified Tennessee Governor Lamar Alexander of the DOE's intent to ask Congress in January, 1986, to authorize construction of an MRS facility in Tennessee.¹¹ In addition to the notice to Governor Alexander, the DOE announced its MRS proposal in the Federal Register the following day, identifying Tennessee as the preferred location for such a facility.¹² The "Screening and Identification Study" released by the DOE, which identified potential MRS sites,¹³ revealed that an extensive siting process already had been completed. The DOE also expressed its intent to work closely with the states and public "to prepare the best supporting documentation possible" for the Secretary's proposal to Congress, to allow all affected parties to express their views during development of the proposal, and to provide complete information to the states and public "which will allow their informed participation in the Congressional decision-making process."¹⁴

Since the "Screening and Identification Study" was announced to the public on April 26, 1985, Tennessee officials have scrambled to "catch up" with the DOE and study the potential impacts of MRS on the state. The state executive body which was delegated responsibility for determining the impact of MRS has, among other actions, conducted studies, requested information from the DOE on MRS technology and the three "preferred" sites in the state, organized public hearings, sponsored a toll-free telephone line for public polling purposes, and accepted petitions from the state's citizens regarding the siting of an MRS facility in Tennessee.

During the period from April, 1985, until December, 1985, the DOE's efforts to comply with the State's requests for information were hindered because several studies were as yet being prepared. In fact, the final draft of several documents was not completed until late December, 1985. In August, 1985, expressing concern that it had not received several key elements of the MRS proposal, such as a waste transportation study, and cost and benefit and risk assessment comparisons among system alternatives, the State requested that it be given ninety days to study the final proposal before it was submitted to Congress, in order for the State to prepare a "studied opinion" for submission to Congress.¹⁵ Increasingly frustrated by the Secretary's failure to provide essential MRS studies for state review, the State of Tennessee filed this action on August 20, 1985.

The Secretary has denied the State's request for a grace period by his actions. Subsequent to the filing of this suit, the Secretary has continued to supply the State with information as he felt it became available and also has provided preliminary drafts of studies as they were completed. On December 24, 1985, the State of Tennessee received the final MRS proposal and was advised that the proposal would be presented to Congress shortly after February 6, 1985. The DOE also informed the State that any comments received from the State by that time would be forwarded directly to Congress...