Environment, Energy and Transportation Program
Waste Control Specialists vs. U.S. Department of Energy
Do states have regulatory authority over federal nuclear waste facilities within their borders?
This question is the crux of an ongoing court battle between Waste Control Specialists, LLC of Texas (WCS) and the U.S. Department of Energy (DOE). In a preliminary injunction order that could have far-reaching effects on state regulatory authority, a federal district court judge found that state and/or Nuclear Regulatory Commission permits are not necessary for DOE radioactive waste disposal at privately-owned sites under contract with DOE. The preliminary injunction is currently on appeal.
Many states are understandably concerned about this possible erosion of state regulatory authority. In February 1998, sixteen states filed an amici curiae brief in the case, arguing that the judge's decision is inconsistent with the Atomic Energy Act and the Low-Level Radioactive Waste Policy Amendments Act of 1985. The brief argues that these acts preserve state regulatory authority. In another development with major implications for states, the U.S. Court of Appeals for the Fifth Circuit denied this amici curiae motion.
WCS CASE TIMELINE
September 1996 - Waste Control Specialists (WCS) submits a bid in response to a Department of Energy (DOE) request for proposals (RFP) for the disposal of low-level and mixed radioactive waste from DOE's Fernald, Ohio, site. WCS proposes to dispose of this waste at a facility in Andrews County, Texas. Among other things, the RFP requires that a contractor take title to such waste and that a contractor have or demonstrate the ability to obtain the necessary Nuclear Regulatory Commission (NRC) and/or state permits for radioactive waste disposal. DOE considers WCS' bid "non-responsive" because it apparently does not meet these requirements.
October 18, 1996 - The Texas Natural Resource Conservation Commission (TNRCC) denies a low-level and mixed radioactive waste disposal license to Envirocare, a private company. TNRCC claims that it does not have the legal authority to grant such a permit under state law. This strongly implies that other private companies like WCS will not be able to obtain a state permit.
December 1996 - WCS submits a new proposal to DOE. The proposal outlines an alternative regulatory arrangement whereby WCS could legally operate a disposal facility under contract with DOE without obtaining a state or NRC license.
May 5, 1997 - DOE, citing policy reasons, does not accept WCS' December proposal.
August 12, 1997 - WCS files a complaint against DOE, seeking Administrative Procedures Act review of DOE's decision not to accept WCS' proposal. The company claims that its proposal can be lawfully implemented and that DOE unfairly rejected the proposal.
August 29, 1997 - WCS amends its complaint, requesting injunctive relief. DOE opposes the motion and moves to dismiss.
September 17, 1997 - In a letter to WCS, then-Assistant Secretary for Environmental Management Alvin Alm explains that DOE policy would have to be changed before DOE could enter into independent negotiations for a regulatory agreement, as WCS has proposed. He also attests to DOE's commitment to introducing competition into low-level waste disposal.
September 30, 1997 - Judge Joe Kendall of the U.S. District Court for the Northern District of Texas, Wichita Falls Division, hears WCS' case against DOE.
October 3, 1997 - Judge Kendall issues a preliminary injunction against DOE, to go into effect on October 6, 1997. He determines that a state and/or NRC permit is not necessary for DOE radioactive waste disposal at a privately-owned site under contract with DOE. The injunction bars DOE from awarding contracts for the disposal of low-level and/or mixed radioactive wastes without considering bids from WCS.
October 14, 1997 - Court denies DOE's motion to dismiss the case.
November 20, 1997 - Corrected Joint Status Report is filed by WCS and DOE, outlining each party's contentions. WCS reiterates its arguments, and DOE agrees that the company's proposal could be lawfully implemented. However, DOE argues that its policy requires a state and/or NRC license, and that the agency has not made a final policy decision about entering into alternative regulatory agreements.
November 26, 1997 - DOE files an appeal with the U.S. Court of Appeals for the Fifth Circuit, seeking a reversal of the preliminary injunction and a reconsideration of the department's earlier motion to dismiss.
February 4, 1998 - The National Governors' Association (NGA) writes a letter to Secretary of Energy Federico Peña, expressing its concern over DOE's opinion that the WCS proposal could be lawfully implemented. The NGA disputes this position.
February 17, 1998 - WCS files a motion requesting additional injunctive relief. Specifically, the motion requests that DOE be prevented from using U.S. Army Corps of Engineers contracts to ship DOE low-level or mixed wastes to an existing Envirocare private disposal facility in Utah. The motion further requests that DOE be enjoined from shipping such wastes to states unless a memorandum of agreement exists between the individual states and DOE.
February 19, 1998 - Sixteen states file an amici curiae brief, arguing that Judge Kendall erred in his finding that the WCS proposal could be lawfully implemented. The states claim that Judge Kendall's ruling is inconsistent with the Atomic Energy Act and the Low-Level Radioactive Waste Policy Amendments Act of 1985. The brief argues that both of these acts preserve state regulatory authority. The states request a reversal of the preliminary injunction based on their legal arguments.
March 6, 1998 - DOE files its opposition to WCS' motion for additional injunctive relief.
March 11, 1998 - The U.S. Court of Appeals for the Fifth Circuit denies the amici curiae motion filed on February 19.
March 30, 1998 - Originally scheduled date for the hearing on WCS' motion for additional injunctive relief. The hearing has been postponed to an undetermined date.
April 7, 1998 - Scheduled date for oral argument on DOE's appeal of the original preliminary injunction.
May 7, 1998 - The U.S. Court of Appeals for the Fifth Circuit reversed the preliminary injunction by the district court that prohibited DOE from awarding contracts for LLW disposal without considering contract bids from WCS. The appellate court thus dismissed the WCS case against DOE. The court found that the district court was correct in determining that a state or NRC license is not required for a private site to dispose of low-level or mixed radioactive waste, but that DOE has the discretion to require a state or NRC license before granting a contract.
For more information and a more detailed summary, contact Amelie Welden at NCSL.
