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Nevada v. Herrington

ELR Citation: 16 ELR 20165
Nos. No. 84-7846, 777 F.2d 529/23 ERC 1617/(9th Cir., 12/02/1985)

The court holds that the Department of Energy (DOE) wrongly denied Nuclear Waste Policy Act (NWPA) funds to Nevada to study a likely waste repository site and DOE's General Guidelines on Nuclear Waste Repository Program Grants are unlawful. Under the NWPA, a state is eligible to receive funds after DOE has notified it that it contains a potential repository site, and DOE has given Nevada notification. DOE has, however, refused to release funds to Nevada, relying on its internal general guidelines tht seek to minimize primary data collection by states. After noting the deference owed to the agency's interpretation of the NWPA, the court examines the Act to determine whether it compels DOE to fund Nevada's study. The court observes that Congress intended the Act's Nuclear Waste Fund to pay the costs of state participation in siting, and that Congress wished to have the states independently monitor and review DOE's decisions. The funding provision at issue, §116(c)(1)(A), would be superfluous if it did not authorize funding of preselection studies, since other provisions cover funding of postselection studies. Such studies must be funded under the section if they would be essential to an informed explanation of the state's objections to site selection. This conclusion is further supported by the statute's statement that states' participation rights under §116(c)(1)(A) were to be identical to states' rights in defense waste repository siting, and by the NWPA's legislative history. However, §116(c)(1)(A) only mandates funding for studies that contribute to the state's informed notice of disapproval and that must begin prior to site characterization. Further, any funded studies must be scientifically justifiable, must be performed by competent contractors, and must not unreasonably interfere with DOE's own activities.

The court next rules on the legality of DOE's Guidelines governing grants to states after site characterization has begun. Since DOE has already applied the Guidelines to Nevada, treating its request as if site characterization had begun, Nevada has standing to challenge the Guidelines and the challenge is ripe. On the merits, the court holds that the Guidelines run counter to congressional intent by attempting to minimize independent collection of primary data. DOE must fund relevant studies that are reasonable, scientifically justifiable, and performed by competent contractors, and that do not unreasonably interfere with or delay DOE's own activities.

Counsel for Petitioner
Malachy R. Murphy, James H. Davenport
Duryea, Houchins, Murphy & Davenport
Evergreen Plaza Bldg., 711 Capitol Way, Olympia WA 98501
(206) 754-6001

Harry W. Swainston, Deputy Attorney General
Heroes Memorial Bldg., Carson City NV 89710
(702) 885-4170

Counsel for Respondent
Martin W. Matzen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4426

Before Merrill and Jameson,* JJ.