ELR Citation: ELR 21066
No(s). s. 91-2527, -2929 (D.D.C. Feb 3, 1992)

The court holds that the Waste Isolation Pilot Program (WIPP), a proposed nuclear waste repository in New Mexico, does not have interim status under the Resource Conservation and Recovery Act (RCRA) to conduct storage tests, and the court permanently enjoins the implementation of an order issued by the Secretary of the Interior allowing the introduction of radioactive waste at the site as part of the test phase. The court first holds that the site is not entitled to interim status under RCRA, because the WIPP facility was built after the wastes that it will manage became regulated under RCRA. The court next holds that the Secretary of the Interior, in order to allow a test program that would introduce radioactive waste at the site, exceeded his authority by issuing an order to extend, and change the purpose of, the withdrawal of federal land initially made to allow the construction of the facility. The Federal Land Policy and Management Act requires that before the term of a withdrawal of public land may be extended, the Secretary of the Interior must determine that the original purpose for the withdrawal requires the extension. The court holds that the Secretary's determination at the WIPP facility could not have been made, because the extension directly contradicted the purpose of the initial withdrawal, which did not authorize the transportation, storage, or burial of any radioactive materials at the facility.

[Another decision in this litigation is published at 22 ELR 21063.]

Counsel are listed at 22 ELR 21063