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. 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 on this date it qualifies for interim status as a matter of law.
With regard to this argument, the Court notes, as plaintiffs point out, that EPA concedes that EPA's treatment of the clarification as a regulatory change for purposes of interim status does not preclude judicial determination on this point.
Further it is undisputed that EPA's "notice" and "clarification" about mixed waste, 51 Fed Reg 24504 (July 3, 1986) and 53 Fed Reg 47045 (Sept 23, 1988) were not issued pursuant to the Administrative Procedure Act and thus did not create or change RCRA regulations. The Court concludes that EPA's clarification did not serve as a "regulatory change" and does not aid the DOE.
The controversy surrounding the question of interim status is thus narrowed to a single question, whether the mixture of hazardous wastes and radioactive wastes was subject to RCRA before the WIPP was constructed. With regard to this issue, it is useful to examine two relevant principles -- the "derived from" rule and the "mixture rule". The "derived from" rule provides that "any solid waste generated from the treatment, storage, or disposal of a hazardous waste, including any sludge, spill residue, ash emission control dust, or leachate . . . is a hazardous waste." 40 C.F.R. § 261.3(c)(2)(i) (emphasis supplied). The "mixture rule" states that "a mixture of solid waste and one or more hazardous wastes listed in Subpart D" will itself be a hazardous waste. 40 C.F.R. § 261.3(a)(2)(iv) (emphasis supplied). As the Court held in Chemical Waste Management Inc. v. U.S. Environmental Protection Agency, 276 U.S.App.D.C. 207, 869 F.2d 1526, (1989), these principles apply with equal force when hazardous wastes are mixed with non-solid wastes. Therefore, it follows that when hazardous wastes are mixed with radioactive nuclear wastes they retain their "hazardous" character.
The record indicates that there is no dispute as to the material fact of what type of waste the WIPP facility would store. This waste includes: carbon tetrachloride, methylene chloride, tetrachloroethylene, 1,1,1-trichloroethane, trichloroethylene, mercury, xylene, and methyl alcohol. Plaintiffs' Reply, Exhibit A, DOE Final Supplemental Environmental Impact Statement at 5-87, 5-88, and B-29. Further, there is no dispute that these wastes have been regulated under RCRA since November 19, 1980, before the WIPP was in existence. See 45 Fed. Reg. 78532, 78543-44 (Nov. 25, 1980), Plaintiffs' Reply, Exhibit B. Therefore, regardless of any compliance with the filing prerequisites for interim status, the WIPP facility could never gain interim status because it was built after the wastes it will manage became regulated by RCRA. 42 U.S.C. section 6925(A)(ii).
For all of the foregoing reasons, the Court will grant EDF's motion for summary judgment on this issue. However, the Court's conclusion that the WIPP does not have interim status does not resolve the issue regarding the Secretary of Interior's statutory authority to withdrawal public lands, and therefore is not dispositive of this litigation.
In New Mexico v. Watkins, Civil Action No. 91-2527, defendants argue that as a matter of law, the Secretary of Interior's issuance of Public Land Order 6826 was within his discretionary authority under the Federal Land Policy and Management Act, 43 U.S.C. sections 1701 et. seq., ("FLPMA").
Plaintiff, New Mexico, opposes defendants' summary judgment motion arguing that the issuance of Public Land Order 6826 went beyond the Secretary's authority under FLPMA. See 43 U.S.C. section 1714(f). Plaintiff-Intervenors, NRDC, et. al., have moved for summary judgment, on this issue.
FLPMA specifies the policy of the United States, among other things, that: Congress shall "exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes and that Congress [shall] delineate the extent to which the Executive may withdraw lands without legislative action. 43 U.S.C. 1701(a)(4).
Further, section 1714(f) of FLPMA provides that extensions of previous land withdrawals may be made "only if the Secretary determines that the purpose for which the withdrawal was first made requires the extension." (Emphasis supplied). This means that the Secretary of Interior cannot "extend" a withdrawal of WIPP for a new purpose not required by the purpose of the original withdrawal.
Defendants argue that FLPMA was not violated because the Secretary of Interior may lawfully extend and modify a previous withdrawal. Defendants correctly state that FLPMA authorizes the Secretary of Interior to extend and modify existing land withdrawals. Section 1714(a) of FLPMA allows the Secretary of Interior to "make, modify and extend or revoke withdrawals." However, that section emphasizes that the Secretary of the Interior may only modify, extend or revoke existing land withdrawals "in accordance with the provisions and limitations of this section." FLPMA section 1714(a) and 1714(f) illustrate Congressional intent to limit the Secretary of Interior's discretion in making an extension.
See e.g. Mountain States Legal Foundation v. Andrus, 499 F.Supp. 383, 395 (D. Wyoming 1980) (By passing FLPMA, Congress intended to limit the Secretary of the Interior's discretion in removing large tracts of public land. . . .)
Although the scope and duration of withdrawals are within the discretion of the Secretary of Interior, such discretion must be exercised in accordance with the rules and procedural requirements of FLPMA which is subject to judicial review. Pacific Legal Foundation v. Watt, 529 F.Supp. 982 (D. Mont. 1981). As discussed above, a proper extension of Public Land Order 6403 could only be made if the Secretary determined the original withdrawal necessitated it. The Court finds that this determination could not have been made. The first withdrawal, Public Land Order 6232, withdrew WIPP lands to (1) perform site and design tests for a future Waste Isolation Pilot Plant project and (2) protect the lands pending a legislative withdrawal. The purpose of the second withdrawal, Public Land Order 6403, was to (1) construct the WIPP site, and (2) protect the lands, pending a legislative withdrawal. Id. Moreover, the second withdrawal expressed a limitation on its purpose, the transportation, storage, or burial of any radioactive materials was not authorized. Notwithstanding the limited purpose of the second withdrawal, the DOE applied for an extension of the second withdrawal which proposed to transport and store nuclear wastes at the WIPP site for a test phase. This extension directly contradicted the purpose of the second withdrawal which expressed that such transportation and storage was not authorized. It therefore follows as a matter of law, that the Secretary of Interior could not have determined that the "purpose for which the withdrawal was first made require[d] the extension." 42 U.S.C. section 1714(f).
Accordingly, the Court will grant plaintiff-intervenor's motion because there are no genuine issues of material fact and as a matter of law, the Secretary of Interior exceeded his authority under FLPMA section 1714(f). The Court will permanently enjoin defendants from proceeding with Public Land Order 6826 issued on January 22, 1991.
In conclusion, the Court grants plaintiff's motion for summary judgment in Environmental Defense Fund v. Watkins, Civil Action No. 91-2929, and grants plaintiff-intervenor's motion for summary judgment in New Mexico v. Watkins, Civil Action No. 91-2527.
An appropriate Order accompanies this opinion.
EDITOR'S NOTE: The Following court-provided text does not appear at this cite in 783 F. Supp. 639.
Date: FEB 3 1992
JOHN GARRETT PENN
United States District Judge
ORDER - February 6, 1992, Filed
In the case of New Mexico v. Watkins, Civil Action No. 91-2527, it is hereby
ORDERED that plaintiff's November 12, 1991 Motion to Compel Production of Documents is denied as moot, and it is further
ORDERED that plaintiff's December 13, 1991 Motion to Compel Production of Documents is denied as moot, and it is further
ORDERED that plaintiff's Motion for Leave to File Memorandum in Reply to Federal Defendants' Memorandum in Opposition to Plaintiff-Intervenors' Motion for Summary Judgment is denied as moot, and it is further
ORDERED that defendants' Motion for Site View is denied as moot.
Date: FEB 5 1992
JOHN GARRETT PENN
United States District Judge