status. In addition, the defendants argue that since the waste it
intends to ship to WIPP is non-hazardous, interim status is not
required in any event.
The background of the issue relating to interim status is set
forth in the opinion by the Court of Appeals, State of New
Mexico, 297 U.S.App.D.C. at 128-133, 969 F.2d at 1127-1133, and
need not be repeated here. Suffice it to note that the federal
law extended interim status to facilities in existence on the
effective date of statutory or regulatory changes under RCRA
which allowed the facility to go through the process without
being required to shut down in the meantime. This is known as the
"trigger date" for the filing of applications for interim status
under RCRA. There is a two part application. Part A is an
abbreviated document and Part B is a detailed document which
describes, in part, how the facility will comply with substantive
regulations governing the operation of hazardous waste management
facilities. A facility which qualifies for interim status will
lose it interim status if it does not meet the deadline for
submitting its Part B application. The plaintiffs argue that DOE
failed to meet the deadline.
In 1987, New Mexico amended the HWA to specifically exempt
radioactive mixed wastes to be placed in WIPP from regulation
under HWA. Thereafter, on February 23, 1989, the state repealed
the section of the statute exempting WIPP. In July 1990, EPA
authorized New Mexico to enforce state law in lieu of RCRA for
radioactive mixed waste. The effective date of the authorization
was July 25, 1990. DOE contends that July 25, 1990 became the
trigger date for filing the Part A and Part B applications. DOE
filed its Part A application on January 22, 1991 and its Part B
application on February 26, 1991. Assuming that July 25, 1990 was
the trigger date, both applications were timely.
The plaintiffs contend that the trigger date was February 23,
1989 and thus, the applications were untimely. It is interesting
to note that New Mexico initially agreed that the trigger date
was July 25, 1990, a fact also noted by the Court of Appeals. 297
U.S.App.D.C. at 129, 969 F.2d at 1129 ("DOE submitted the permits
applications forms within the deadlines set by New Mexico"). That
court noted, however, that "[a] year later . . . a new state
director suggested that the trigger date for DOE's filings was
the date [February 23, 1989] New Mexico repealed WIPP's
exemption." Id. at 1129 n. 10.
The question that is presented is what is meant by "regulatory
change." The Court of Appeals stated that "we see nothing in the
statute or its legislative history that defines a regulatory
change at all." 297 U.S.App.D.C. at 132-33, 969 F.2d at 1132-33.
But significantly, the court went on to state: "Because RCRA does
not define the type of change that qualifies as a "regulatory
change" under the statute, we defer to EPA's reasonable
interpretation, and therefore reverse the district court's
decision that WIPP was not eligible for interim status under
RCRA. The precise date of the regulatory change for the WIPP
facility is a matter the district court, because of the character
of its analysis, did not reach, and we have no occasion to
address that question." 297 U.S.App.D.C. at 133, 969 F.2d at 1133
(emphasis this Court's, footnote omitted).
This Court concludes that the regulatory change or trigger date
was July 25, 1990. Notwithstanding that New Mexico repealed the
exemption for WIPP on February 23, 1989, it did not receive EPA
authorization to enforce state law in lieu of RCRA until July 25,
1990. It was the latter date on which the facility was first
subjected to RCRA's permit requirements. The agency's
interpretation concluding that the date was July 25, 1990 is a
reasonable one. Moreover, as noted earlier, that is the date the
state had recognized as the trigger date until after DOE filed
its Part A and Part B applications. DOE relied on the EPA and the
representation of the state as to the dates for filing.
In short, the Court concludes that WIPP has interim status.
3. Nature of the proposed shipment.
Finally, the Court concludes that the waste in TA-55-43, Lot
No. 01 is not hazardous waste under RCRA, so it would appear that
even absent interim status for WIPP, DOE may make the shipment.
One reason the parties agreed to stay action on the plaintiffs'
motion for construction of injunction and for preliminary
injunction was to receive a report from NMED, the state agency.
The State of New Mexico Environment Department (NMED) stated in a
letter dated December 2, 1998 and addressed to DOE as follows:
Thank you for your response to the New Mexico
Environment Department's (NMED) comments dated
November 24, 1998 on the report prepared by LANL/DOE
entitled "Sampling and Analysis Project Validates
Acceptable Knowledge on TA-55-43, Lot No. 01." The
report contains information resulting from the
sampling and analysis of waste samples collected from
waste stream TA-55-43 Lot No. 01.
NMED has determined that LANL/DOE's response to
comments and the findings in the LANL/DOE Report
provides the information needed to allow the waste
specific to TA-55-43, Lot No. 01 to be managed as
non-RCRA wastes. Any and all other applicable
federal, state or local laws, regulations and
requirements must still be met by LANL/DOE in the
possession and management of this specific waste
NMED's determination is restricted solely to
TA-55-43, Lot No. 01 waste as presented in "Los
Alamos, Confirmatory Sampling and Analysis Plan for
Waste Stream TA-55-43, Lot No. 01, Revisions 2" and
LANL/DOE report "Sampling and Analysis Project
Validates Acceptable Knowledge on TA-55-43, Lot No.
01" and response to NMED comments on this report
received from LANL/DOE on November 25, 1998 and
November 30, 1998.
Opposition Exhibit K (emphasis this Court's). The state does not
dispute the contents of that letter but seeks to have the Court
enjoin any shipment until such time as the "state process has
been completed," sometime in October 1999. However, during oral
argument, the state did not contend that it expected NMED to
reach a different result. The environmental plaintiffs do not
accept the results of NMED's finding but they have not convinced
this Court that DOE and NMED are in error or that the process
relating to the shipment of waste from TA-55-34, Lot No. 01
should be delayed any longer.
The Court concludes that the plaintiffs have failed to
demonstrate that they have a likelihood of success on the merits.
B. The other criteria relating to the issuance of injunction
The plaintiffs have failed to demonstrate that they will suffer
irreparable injury in the event injunctive relief is denied. They
appear to contend that DOE has not followed applicable
regulations, but the record does not support this claim. They
complain about the site and the fact that some rooms may be
unstable, but based on the present record they cannot prevail on
that argument. Moreover, NMED has concluded that the waste from
TA-55-43, Lot No. 01 is nonhazardous.