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NEW MEXICO EX REL. MADRID v. RICHARDSON

March 22, 1999

STATE OF NEW MEXICO, EX REL. PATRICIA A. MADRID, ATTORNEY GENERAL, ET AL., PLAINTIFFS,
v.
BILL RICHARDSON, SECRETARY OF THE DEPARTMENT OF ENERGY, ET AL., DEFENDANTS. ENVIRONMENTAL DEFENSE FUND, ET AL., PLAINTIFFS, V. BILL RICHARDSON, SECRETARY OF THE DEPARTMENT OF ENERGY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John Garrett Penn, District Judge.

MEMORANDUM ORDER

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.

I

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 operational cycle.

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 case.

II

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." Id.

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 ...


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