ELR Citation: ELR 21472
No(s). 91-1801 (6th Cir. Sep 24, 1991)

The court holds that a district court improperly ruled that Nevada, Washington, and South Carolina, which are the only states that operate low-level radioactive waste disposal sites, must accept low-level radioactive waste from Michigan. After Congress passed the Low-Level Radioactive Waste Policy Act, which was intended to motivate other states to assume some of the burden for disposal of such waste, the sited states denied waste generators in Michigan access to their disposal facilities, claiming Michigan was not in compliance with the new Act. The district court granted injunctive and declaratory relief to a Michigan association of low-level radioactive waste users and generators after finding that Michigan was in compliance with the law and that defendant state agencies had no authority to deny access to the sited facilities. Defendants thereafter sought to stay the district court's judgment under Federal Rule of Appellate Procedure 8(a) and permanently enjoin such waste from Michigan. The court first holds that defendants have demonstrated a sufficient probability of success on the merits to issue a Rule 8(a) stay. Strong evidence exists that the district court erred in finding that it had personal jurisdiction over the various sited state representatives on the basis that defendants' contacts with Michigan were sufficient to reasonably believe that they would be hauled into court in Michigan. The court next holds that denial of the stay will subject defendants to irreparable harm, because the amount of waste produced by the plaintiff's members amounts to a significant percentage of the waste currently being accepted by the sited states, and defendants do not possess adequate short-term storage facilities to store the waste generated by Michigan until the final resolution of their appeal. Next, the court holds that the harm to the plaintiff if the stay is issued is relatively slight, since the plaintiff's members are currently storing their low-level radioactive waste in on-site temporary storage facilities. The plaintiff has not alleged that its members cannot provide the required storage capacity, but only that it is inconvenient. Public safety concerns are not thereby increased since plaintiff's members will only be required to use these facilities on a temporary basis until Michigan complies with the amendments to the Act.

Counsel for Plaintiff-Appellee
Michael Green
Olds Plaza, 5th Fl., Lansing MI 48913
(517) 373-2658

Counsel for Defendants-Appellants
Nancy Angres
Attorney General's Office
505 E. King St., Rm. 600, Carson City NV 89710
(702) 687-4732

Before: MARTIN and NELSON, Circuit Judges; and JARVIS, District Judge.^*