Tennessee v. Herrington

806 F.2d 642, 25 ERC 1225, 17 Envtl. L. Rep. (Envtl. Law Inst.) 20253, 25 ERC (BNA) 1225, 1986 U.S. App. LEXIS 34048
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 25, 1986
DocketNos. 85-3859, 86-5087 and 86-5168
StatusPublished
Cited by24 cases

This text of 806 F.2d 642 (Tennessee v. Herrington) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tennessee v. Herrington, 806 F.2d 642, 25 ERC 1225, 17 Envtl. L. Rep. (Envtl. Law Inst.) 20253, 25 ERC (BNA) 1225, 1986 U.S. App. LEXIS 34048 (6th Cir. 1986).

Opinions

CORNELIA G. KENNEDY, Circuit Judge.

This case presents for review two issues of statutory construction: (1) whether the federal courts of appeals have original jurisdiction to review the actions of the Secretary of Energy (“Secretary”) regarding his compliance with the consultation and cooperation requirements of the Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10101 et seq. (“NWPA” or “Act”) with respect to Monitored Retrievable Storage (“MRS”) facilities; and (2) whether the NWPA requires the Secretary to consult with any state before he sends Congress his proposal for the location and construction of one or more MRS facilities. We hold that the federal courts of appeals have original jurisdiction over actions involving the consultation and cooperation requirements applicable to MRS facilities under the NWPA. We further hold that the NWPA does not require the Secretary to consult with any state before he sends Congress his proposal for the location and construction of one or more MRS facilities. Accordingly, we reverse the District Court’s holding that it had original jurisdiction and dismiss the petition for review of the Secretary’s action.

[644]*644I. BACKGROUND

A. The NWPA

The NWPA was passed by Congress and signed into law on January 7, 1983. The Act was designed to provide for the establishment of “programs for the development of repositories for the safe permanent disposal of high level nuclear waste and spent fuel, and to provide for the safe stabilization and long-term protection of sites for the disposal of low level radioactive waste.” H.R.Rep. No. 491, Part I, 97th Cong., 2d Sess. 26, reprinted in 1982 U.S. Code Cong. & Ad.News 3792, 3792 [hereinafter cited as H.R.Rep. No. 491, reprinted in 1982 U.S.Code Cong. & Ad.News]. Title 42 U.S.C. § 10224(a) creates an Office of Civilian Radioactive Waste Management in the Department of Energy (“DOE” or “Department”) to administer the Act. Section 102221 establishes a Nuclear Waste Fund, funded by fees assessed the generators of the waste, to pay the costs of implementing the Act. This case is concerned only with Subchapter I of the Act, which deals with the actual disposal and storage of high-level radioactive waste, spent nuclear fuel and low-level radioactive waste.2

Subchapter I of the Act is divided into three parts. Part A authorizes and requires the DOE to construct a “permanent deep geologic disposal” facility or “repository” for high-level radioactive waste and spent nuclear fuel. 42 U.S.C. §§ 10101(18), 10131(b). Part B provides for an interim storage program for temporary storage of limited amounts of spent nuclear fuel. 42 U.S.C. §§ 10151, 10155(a), (e). Part C, which is the subject matter of this litigation, authorizes the Secretary to study the concept of MRS and to develop plans for MRS as an alternative plan for the long-term storage of nuclear waste in the event that Congress determines at a future date that such facilities are needed. The DOE is required to study the feasibility and practicality of constructing one or more MRS facilities and to submit a proposal to Congress detailing its findings. 42 U.S.C. § 10161. Although the construction of permanent repositories is automatically authorized by the NWPA, see 42 U.S.C. § 10131(b), Congress by law must explicitly authorize construction of an MRS facility. See 42 U.S.C. § 10161(b), (c)(2), (f).

The MRS system, if adopted by Congress, would serve as a “back-up” to the repository program. H.R.Rep. No. 491, reprinted in 1982 U.S.Code Cong. & Ad. News at 3810. As described in the Act, the purpose of MRS is:

(A) to accommodate spent nuclear fuel and high-level radioactive waste resulting from civilian nuclear activities;
(B) to permit continuous monitoring, management, and maintenance of such spent fuel and waste for the foreseeable future;
(C) to provide for the ready retrieval of such spent fuel and waste for further processing or disposal; and
(D) to safely store such spent fuel and waste as long as may be necessary by maintaining such facility through appropriate means, including any required replacement of such facility.

42 U.S.C. § 10161(b)(1). Section 10161 of the Act contains all of the express provisions' relating to MRS. However, section 10161(h) also makes several of the sections and subsections of Part A of Subchapter I dealing with the participation of states and Indian tribes in the selection of sites for permanent repositories applicable to the MRS siting process.3

The NWPA provides that “[o]n or before June 1,1985, the Secretary shall complete a detailed study of the need for and feasibility of, and shall submit to the Congress [645]*645a proposal for, the construction of one or more [MRS] facilities for high-level radioactive waste and spent nuclear fuel.” 42 U.S.C. § 10161(b)(1). The Secretary is required to include certain items in his proposal, see 42 U.S.C. § 10161(b)(2) and (4), and he is required to consult with the Nuclear Regulatory Commission and the Environmental Protection Agency in formulating his proposal. 42 U.S.C. § 10161(b)(3).

B. The Study

Pursuant to the congressional directive in the NWPA, the DOE undertook a study of the feasibility of MRS as an option for the storage of spent nuclear fuel. This study resulted in a document entitled The Need for and the Feasibility of Monitored Retrievable Storage — A Preliminary Analysis (“Need and Feasibility Analysis”), which concluded that an MRS facility would significantly improve the overall operation of the nuclear waste management system.

The DOE then set out to identify potential sites for the MRS facility. After a lengthy study, which is described in a second report, Screening and Identification of Sites for a Proposed Monitored Re-treivable [sic] Storage Facility (“Screening and Identification Study”),4 the DOE determined that the preferred site was the Clinch River Breeder Reactor site, which is owned by the Tennessee Valley Authority. The DOE Oak Ridge Reservation and the Hartsville Nuclear Plant site were selected as alternatives. All three sites are located in the state of Tennessee (“the State”).

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806 F.2d 642, 25 ERC 1225, 17 Envtl. L. Rep. (Envtl. Law Inst.) 20253, 25 ERC (BNA) 1225, 1986 U.S. App. LEXIS 34048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tennessee-v-herrington-ca6-1986.