ELR Citation: ELR 20768
No(s). s. 86-1112, -1125 (1st Cir. May 1, 1986)

The court holds that the Department of Energy's (DOE's) refusal to extend the deadline on its comment period for determination of geogrphic areas to be included on a preliminary list of 12 possible sites for future storage of nuclear waste is not sufficiently final to permit judicial review. After initially declining to rule on DOE's claim that Congress prohibited all judicial review of its actions in this area until DOE completes its final list of sites in 1989, the court holds that DOE's refusal to extend the comment deadline is not a final agency action, and Maine and New Hampshire's request for review not is premature. DOE could accept late comments and has indicated it may do so. The report might not include candidate sites within either state, and the deadline is but one of a series of steps leading toward a more substantive final administrative order. Moreover, neither state will suffer any significant harm from a postponement of judicial review until promulgation of the report.

Counsel for Petitioner
Philip Ahrens, Ass't Attorney General
State House Station #6, Augusta ME 04333
(207) 289-3661

Peter G. Beeson, Ass't Attorney General
208 State House Annex, 235 Capitol St., Concord NH 03301-6397
(603) 271-3658

Counsel for Respondent
John A. Bryson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2740

Before BOWNES, BREYER, and TORRUELLA, Circuit Judges.