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NEW MEXICO EX REL. NATURAL RESOURCES DEFENSE COUNC

November 26, 1991

STATE OF NEW MEXICO, ex. rel. Plaintiff, NATURAL RESOURCES DEFENSE COUNCIL, et. al. and STATE OF TEXAS, ex. rel., Plaintiff-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.



The opinion of the court was delivered by: JOHN GARRETT PENN

 It is hereby

 ORDERED that the attached Memorandum amends the Memorandum filed on November 26, 1991.

 JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE

 MEMORANDUM

 This case is presently before the Court on a motion for preliminary injunction by plaintiff, State of New Mexico ("New Mexico") and plaintiff-intervenors, Natural Resources Defense Council, et. al. ("NRDC"), and plaintiff-intervenor, State of Texas ("Texas"). Plaintiff and plaintiff-intervenors seek a preliminary injunction to enjoin the Department of Energy ("DOE") from introducing radioactive waste to the Waste Isolation Pi lot Plant site, a proposed nuclear waste repository located in New Mexico and operated by the DOE.

 Upon careful consideration of the motions, the opposition thereto, and the entire record in this case, the Court concludes that a preliminary injunction is necessary.

 I.

 At the center of the controversy is a project entitled the Waste Isolation Pilot Program, ("WIPP"). The government has been exploring solutions to the national problem of nuclear waste disposal since the mid 1950's. Defendants' Opposition to Preliminary Injunction, p. 1. The WIPP has been described as the "result of a long and thorough search for a research facility in which to examine and demonstrate the safe, long-term management of DOE defense-generated radioactive waste." Id. The WIPP site is located in 200 million year old salt beds, 26 miles southeast of Carlsbad, New Mexico. Id. The site was chosen because the geological medium of bedded salt is desirable for radioactive waste disposal. Id. The WIPP is located on 10,240 acres of the public lands of the United States. Plaintiff's Motion for Preliminary Injunction, p. 3.

 In 1979, Congress enacted Public Law 96-164 section 213 which authorized WIPP as a site for "providing a research and development facility to demonstrate the safe disposal of radioactive wastes resulting from federal defense activities and programs." Defendants' Opposition to Preliminary Injunction, p. 2, Pub. L. No. 96-164, section 23, 93 Stat. 1259, 1265-66 (1979).

 In 1982, the Secretary of the Interior, granted the first withdrawal of the WIPP site, pursuant to his authority under the Federal Land Policy and Management Act, 43 U.S.C. section 1714(a). Specifically, Public Land Order No. 6232 withdrew 10,200 acres of the WIPP site solely for research and development purposes pending a legislative withdrawal. *fn1"

 In 1983, the DOE sought a new withdrawal of the WIPP site in order to begin the construction phase. Plaintiff's Motion for Preliminary Injunction, p. 11. Subsequently, Public Land Order 6403 was issued. This Order withdrew the requested acreage for the construction of the WIPP site. Id., p. 11, 48 Fed. Reg. 31,038 at 3878. The Public Land Order further specified that the withdrawal would not authorize transportation, storage or burial of any radioactive materials. *fn2" Id. p. 12.

 In 1989, the DOE sought to "modify and extend" existing Public Land Order 6403. The DOE's application specifically 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, in contravention of the purpose expressed in the previous land order. Plaintiff's Motion, p. 12; 54 Fed. Reg. 15815. The application was granted on January 22, 1991 by Public Land Order No. 6826 which modified and extended the previous land order to "expand the stated purpose . . . to include ...


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