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Waste Control Specialists v. Department of Energy

Citation: 28 ELR 21210
No. 97-11353, 98-10331, 141 F.3d 564/46 ERC 1893/(5th Cir., 05/14/1998)

The court holds that the U.S. Department of Energy (DOE) may require bidders on cleanup work at its Fernald, Ohio, nuclear site to demonstrate their ability to obtain the proper permits and dismisses a waste disposal company's suit against the DOE for rejecting its bid on the grounds that the company was not licensed for the disposal of low-level radioactive waste. The company's bid provided for self-regulation rather than state or Nuclear Regulatory Commission (NRC) oversight via a license.

The court first holds that it will not defer to the DOE's decision because the DOE has not enunciated its interpretation prior to the litigation. The DOE's policy requiring a license is set forth only in a memorandum, which is not the product of a formal rulemaking. Moreover, the memorandum does not address the issue of utilizing self-regulation in place of a state license. The court next holds that although the existence of a state or NRC license is neither a necessary prerequisite nor a sufficient basis for the receipt by a DOE contractor of DOE low-level or mixed radioactive wastes for disposal at a private site, the DOE is not precluded from requiring a state or NRC license as part of the grounds for the contract. If the DOE chooses to regulate or control the private waste disposal sites, then the sites are exempt from NRC and authorized state licensing requirements. Where, however, the DOE does not exercise such control, the NRC and the states retain their power to regulate commercial sites providing a service to the DOE. Nothing in the Atomic Energy Act indicates that the DOE must exercise regulatory authority over such sites. Last, the court holds that the DOE need not facilitate competition. Neither the Department of Energy Organization Act nor the overall federal procurement policy directs the DOE to promote competition to the exclusion of other concerns, such as safety and state involvement.

Counsel for Plaintiff

Lonny D. Morrison
Morrison & Shelton
City National Bldg.
807 8th St., Ste. 400, Wichita Falls TX 76301
(817) 322-2929

Counsel for Defendants
Christine N. Kohl
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000/4027

Before DeMoss and Parker, JJ.