The opinion of the court was delivered by: John Garrett Penn, District Judge.
These consolidated cases come before the Court on the
plaintiffs' Motion For Construction Of Injunction And For
Preliminary Injunction. The motion is opposed by the defendants.
The Court heard arguments on March 12, 1999.
The background of this litigation is as follows: The plaintiffs
filed these consolidated cases, hereinafter referred to as the
"case," in 1991. At that time, the plaintiffs sought to have the
Court enjoin the defendants from introducing hazardous,
radioactive waste in an experimental underground facility known
as the Waste Isolation Pilot Plant (WIPP). This phase was
described as the "test phase." WIPP is located in New Mexico and
is a proposed nuclear waste repository operated by the Department
of Energy (DOE). The plaintiffs filed a motion for a preliminary
injunction and a motion for summary judgment. The Court granted
plaintiffs' motion for a preliminary injunction. State of New
Mexico v. Watkins, 783 F. Supp. 628 (D.D.C. 1991). Shortly
thereafter, the Court granted plaintiffs' motion for summary
judgment and entered a permanent injunction. State of New Mexico
v. Watkins, 783 F. Supp. 633 (D.D.C. 1992). That decision was
affirmed in part and reversed in part by the Court of Appeals.
State of New Mexico v. Watkins, 297 U.S.App.D.C. 122,
969 F.2d 1122 (1992). The defendants canceled the test phase in 1993. The
history of the project is set forth in the above opinions and
will not be restated here.
Congress enacted the Waste Isolation Pilot Plant Land
Withdrawal Act ("WIPP Act"), Pub.L. No. 102-529, 106 Stat. 4777
(1992), as amended by Pub.L. No. 104-201. 110 Stat. 2422 (1996).
By that Act, Congress withdrew the WIPP site permanently from
public use and reserved the WIPP lands "for the construction,
experimentation, operation, repair and maintenance, disposal . .
. and other authorized activities associated with the purposes of
WIPP as set forth in section 213 of the Department of Energy
National Security and Military Applications of Nuclear Energy
Authorization Act of 1980." WIPP Act § 3. The WIPP Act gave the
Environmental Protection Agency (EPA) broad oversight over WIPP's
After the cancellation of the test phase, Congress amended the
WIPP Act in 1996 and rescinded most of the test phase provisions.
On or about February 9, 1996, EPA issued the WIPP compliance
criteria, a step toward certification. 61 Fed.Reg. 5224 (Feb. 9,
1996). The Court of Appeals upheld those criteria. State of New
Mexico v. Environmental Protection Agency, 324 U.S.App.D.C. 436,
114 F.3d 290 (1997). In May 1998, EPA issued a final rule
certifying that WIPP complied with the disposal standards. 63
Fed.Reg. 27,354, 27,405 (May 18, 1998). In May 1998, DOE notified
Congress that EPA had issued its final certification decision and
that EPA had determined that WIPP is in compliance will all
statutory and regulatory requirements. At the same time, the
defendants notified that Court that they intended to ship certain
non-mixed legacy debris, identified as "TA-55-43, Lot No. 01"
waste from the Los Alamos National Laboratory (LANL) to WIPP. The
defendants allege that DOE has determined and the New Mexico
Environmental Department (NMED) has confirmed that this waste is
"non-mixed" which means that it is non-hazardous waste as defined
by the Resource Conservation and Recovery Act (RCRA),
42 U.S.C. § 6901-6922k. It is the proposed shipment of TA-55-43, Lot No. 1
waste that brought about the present litigation in this case.
The plaintiffs ask the Court to (1) construe the injunction
issued by the Court in 1992 to prohibit shipments of radioactive
waste planned and announced by the DOE
and which was originally scheduled to be made on June 19, 1998
and, (2) to prohibit such shipments pending the final
determination of this case on the independent ground of
"threatened and impending violations of the New Mexico Hazardous
Waste Act", NMSA 1978 §§ 744-4-1 et seq (HWA), which governs
the disposal of hazardous waste at WIPP and effectuates RCRA in
New Mexico. The plaintiffs contend that "DOE's plan to introduce
waste violates (a) the Court's existing order, dated January 30,
1992, (b) HWA regulations requiring that a facility receiving
hazardous waste have an operating permit, and (c) HWA regulations
forbidding receipt of waste by a facility, like WIPP, which does
not have a permit or interim status." Motion at 4. The plaintiffs
filed a motion to amend their complaint and their motion for a
preliminary injunction in June 1998. The parties, with the
approval of the Court, agreed that the defendants would not ship
the waste to WIPP until eleven days after a hearing on the motion
for a preliminary injunction, absent a further order by the
Court. They also agreed that the defendants would not be required
to reply to the motion for injunctive relief until later in 1998.
One reason for the delay was to allow NMED to complete certain
tests on samples taken from TA-55-43, Lot No. 01. The defendants
filed their opposition to the motion for a preliminary injunction
in December 1998. The plaintiffs filed their reply to the
defendants' opposition in February 1999.
The defendants respond to the motion by arguing that the
Court's 1992 injunction does not bar DOE from shipping non-mixed
transuranic waste to WIPP, and that the plaintiffs have failed to
establish that a preliminary injunction is appropriate in this
In order to be entitled to a preliminary injunction, the
plaintiffs must demonstrate that (1) they have a strong
likelihood of prevailing on the merits, (2) they will suffer
irreparable injury in the event injunctive relief is not granted,
(3) the other parties interested in the proceedings will not
suffer substantial harm in the event injunctive relief is
granted, and (4) the public interest favors the granting of
injunctive relief. Washington Metropolitan Area Transit
Commission v. Holiday Tours, Inc., 182 U.S.App.D.C. 220, 222,
559 F.2d 841, 843 (1977). "The court is not required to find that
ultimate success by the movant is a mathematical probability, and
indeed, [the court], may grant [an injunction] even though its
own approach may be contrary to [movants'] view of the merits.
The necessary `level' or `degree' of possibility of success will
vary according to the court's assessment of the other factors."
A. The likelihood of prevailing on the merits.
1. The effect of the 1992 injunction entered by this Court.
The plaintiffs raise several issues that relate to the question
of whether they are likely to prevail on the merits. First, the
plaintiffs ask the Court to construe the injunction it issued in
this case on February 3, 1992, as prohibiting the shipment waste
from TA-55-43, Lot No. 01. In order to address that issue, the
Court must review the permanent injunction entered in 1992.
The plaintiffs filed this action in 1991. At that time they
were attempting to prevent DOE from placing radioactive waste in
WIPP in a phase referred to as the "test phase." DOE proposed to
place the waste in WIPP temporarily, and then remove it from the
underground facility. The plaintiffs filed a motion for a
preliminary injunction and a motion for summary judgment. In
their motion for a preliminary injunction, the plaintiffs'
primary concern was that once the waste was placed in WIPP, it
was likely that the DOE would be unable to retrieve it due to the
instability of the room in WIPP where it was to be
placed. This Court granted a preliminary injunction on December
13, 1991. State of New Mexico v. Watkins, 783 F. Supp. 628. On
February 3, 1992, the Court granted plaintiffs' motion for
summary judgment and permanently enjoined DOE "from proceeding
with Public Land Order 6826 issued on January 22, 1991." State
of New Mexico v. Watkins, 783 F. Supp. 633, 639. In granting a
preliminary injunction, this Court noted that "Congress has not
yet permanently withdrawn the WIPP site for disposal and storage
of defense generated nuclear waste. In fact, at the very same
time that the DOI [Department of Interior] administratively
extended the terms of a previous withdrawal of WIPP to include a
new purpose, Congress is in the process of determining whether a
permanent withdrawal for such purpose is appropriate." 783
F. Supp. at 630. Moreover, the Court observed that: "The proposed
legislation provides that the Secretary may not transport any
transuranic radioactive waste to WIPP to conduct test phase
activities until certain requirements, including compliance with
[EPA] standards, have been met." 783 F. Supp. at 631 (emphasis
not in the original). A review of this Court's Memorandum
granting the preliminary injunction makes clear that there were
three primary concerns; first, the test phase was not authorized,
second, a ...