ELR Citation: ELR 20819
No(s). 91-36207 (9th Cir. Mar 23, 1992)

The court holds that the Department of Energy's (DOE's) storage of additional nuclear waste at an existing storage facility does not constitute construction or modification subject to permitting under Idaho's clean air regulations. Idaho's regulations under the Clean Air Act do not require DOE to obtain a permit to construct for each shipment of spent nuclear fuel from its nuclear power plant in Colorado to its existing storage facility in Idaho. Each additional block of spent fuel does not constitute a stationary source of air pollution as defined by the regulations because once the blocks are placed in the storage facility, they no longer emit air pollutants to the ambient air. When adding fuel units to the storage facility, DOE seeks no more than to operate the facility within its permitted design capacity, already approved by Idaho in the facility's permit. The court holds that the storage of each additional block of spent fuel does not constitute a modification of an existing source because simply moving fuel into the facility is not a modification to the structure itself or an alteration of its method of operation. Although the court would normally defer to Idaho's interpretation of its own regulations, in this case the Agency's interpretation is not reasoned or consistent. The court cannot reconcile Idaho's interpretation with the plain meaning of the regulations or any past rulings or administrative practice. Idaho has a long-standing practice of allowing spent fuel to be shipped to this storage facility.

Counsel for Defendants-Appellants
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Plaintiff-Appellee
John C. McCreedy, Deputy Attorney General
State House, Boise ID 83720
(208) 334-2400

Before Alarcon and Davies^*, JJ.