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Natural Resources Defense Council v. Abraham

Citation: 33 ELR 20235
No. No. 01-0413-S-BLW, (D. Idaho, 07/02/2003) Invalidating DOE disposal order

The court invalidates a 1999 U.S. Department of Energy (DOE) order governing the disposal of high-level radioactive waste (HLW) at the Hanford site in Washington, the INEEL facility in Idaho, and the Savannah River site in South Carolina. Part of the order defines a process by which HLW that meets certain criteria may be deemed incidental waste, thereby exempting the waste from having to be disposed of in a deep geologic repository. An environmental group filed suit, arguing that DOE exceeded its authority by attempting to revise the Nuclear Waste Policy Act's (NWPA's) definition of HLW. Contrary to DOE's arguments, the NWPA applies to defense reprocessing waste. DOE does not have discretion to dispose of defense HLW somewhere other than a repository established under the NWPA. Moreover, DOE's order directly conflicts with the NWPA's definition of HLW. The waste at issue clearly falls within the NWPA's definition of HLW. The waste is highly radioactive and the result of reprocessing. As a safeguard against arbitrary action, DOE's order mandated that certain requirements be met before HLW would be exempt from the NWPA. One requirement would allow DOE to reclassify HLW if it would be too difficult or expensive to treat HLW. However, the NWPA's definition pays no heed to technical or economical constraints in waste treatment. The second requirement sets forth certain "alternative requirements" that DOE may establish, but the NWPA does not delegate to DOE the authority to establish alternative requirements for solid waste. Thus, the order is invalid.

[A prior decision in this litigation is published at 31 ELR 20547.]

Counsel for Plaintiffs
Geoffrey H. Fettus
Natural Resources Defense Council, Inc.
1200 New York Ave. NW, Ste. 400, Washington DC 20005
(202) 289-1060

Counsel for Defendants
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000