ELR Citation: ELR 21262
No(s). s. 91-5387, 92-5044 (D.C. Cir. Jul 10, 1992)

The court affirms a district court order permanently enjoining the U.S. Department of Energy (DOE) and the U.S. Department of the Interior (DOI) from implementing a public land order authorizing the introduction of transuranic nuclear waste into New Mexico, as part of the testing of the proposed Waste Isolation Pilot Program (WIPP) nuclear waste repository. The court reversed the district court's decision that WIPP was not entitled to interim status under the Resource Conservation and Recovery Act (RCRA), temporarily exempting the facility from RCRA's permit requirements. In a 1986 notice that constituted a regulatory change for purposes of RCRA §3005(e), the U.S. Environmental Protection Agency (EPA) interpreted RCRA as covering radioactive mixed waste, and EPA first applied RCRA to these substances after construction of WIPP. Turning to claims that DOI exceeded its authority under the Federal Land Policy and Management Act (FLPMA), the court next holds that in modifying and extending a land withdrawal order to allow the transportation of radioactive waste until 1997 as part of WIPP's testing phase, DOI violated FLPMA §204(f)'s requirement that an extension may be authorized only if "the purpose for which the withdrawal was first made requires the extension." The purpose of the original withdrawal was to construct the facility, and the original withdrawal order specified that it did not authorize transportation of radioactive materials. Finally, the court holds that the district court's permanent injunction matches the necessities of the case, because it restricts DOE and DOI to the limited permission they sought and received.

[Briefs in this litigation are digested at ELR PEND. LIT. 66200.]

Counsel for Appellants
Martin W. Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellees
Lindsay A. Lovejoy Jr.
Attorney General's Office
Environmental Enforcement Division, Santa Fe NM 87501
(505) 827-6695

Before: MIKVA, Chief Judge; RUTH B. GINSBURG and HENDERSON, Circuit Judges.