Can Bambi ride herd over Godzilla? The role of executive oversight in EPA's rulemaking for the waste isolation pilot plant

Natural Resources Journal

Volumn 36, Issue 3 PART 1, 1996, Pages 643-680

  Carde, Marget ^a  

^a NONE

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EID: 26444580345     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (290)

1. 125 CONG. REC. H6298, 6310 (daily ed. July 21, 1992) ("[A]sking EPA to oversee DOE is like asking Bambi to ride herd over Godzilla. To date, EPA has been unable to hold DOE accountable for even the most blatant violations of environmental laws. So we really believe that it will be able to keep DOE in line on this project?")(statement of Rep. Wolpe). See also BAMBI MEETS GODZILLA (Pyramid Film and Video 1969).
2. President Dwight D. Eisenhower, Farewell Radio and Television Address to the American People, January 17, 1961, reprinted in PUB. PAPERS OF THE PRESIDENTS: DWIGHT D. EISENHOWER 1960-1961, 1365, 1368 (1961).
3. GREGG HERKEN, COUNSELS OF WAR 3 (Oxford Univ. Press 1987) (Alfred A. Knopf 1985).
4. PETER PRINGLE & JAMES SPIGELMAN, THE NUCLEAR BARONS 30-32 (1981).
5. Nuclear scientists, fearing that Nazi Germany would develop and use a nuclear weapon against allied forces, recommended to President Roosevelt that the United States develop its own atomic bomb. RICHARD RHODES, THE MAKING OF THE ATOMIC BOMB 303, 312-17 (1986).
6. HERKIN, see generally supra note 3.
7. Id.
8. Id. at 9-10.
9. BROOKINGS INSTITUTE, ACTIVE UNITED STATES NUCLEAR WEAPONS PRODUCTION AND NAVAL NUCLEAR PROPULSION FACILITIES 1-14 (Stephen I. Schwartz ed., 1995) [hereinafter BROOKINGS].
10. The Brookings Institute is a non-profit organization devoted to public service through research and education in social sciences particularly in economics, government and foreign policy. The Encyclopedia Britannica, vol. II 300 (15th ed. 1983).
11. BROOKINGS INSTITUTE, ATOMIC AUDIT: WHAT THE U.S. NUCLEAR ARSENAL REALLY COST: A PRELIMINARY REPORT BY THE U.S. NUCLEAR WEAPONS COST STUDY PROJECT 1 (Stephen I. Schwartz ed., 1995) [hereinafter ATOMIC AUDIT].
12. "All of the major facilities in the U.S. nuclear weapons production complex were shut down in the late 1980s. For several reasons, the end of production was quite sudden and largely unexpected." OFFICE OF ENVIRONMENTAL MANAGEMENT, DEPARTMENT OF ENERGY, CLOSING THE CIRCLE ON THE SPLITTING OF THE ATOM: THE ENVIRONMENTAL LEGACY OF NUCLEAR WEAPONS PRODUCTION IN THE UNITED STATES AND WHAT THE DEPARTMENT OF ENERGY IS DOING ABOUT IT 79 (1995).
13. Schwartz, BROOKINGS, supra note 9.
14. Schwartz, ATOMIC AUDIT, supra note 11.
15. See, e.g., OFFICE OF ENVIRONMENTAL MANAGEMENT, DEPARTMENT OF ENERGY, INTEGRATED DATA BASE REPORT-1993: U.S. SPENT NUCLEAR FUEL AND RADIOACTIVE WASTE INVENTORIES, PROJECTIONS, AND CHARACTERISTICS (1994) [hereinafter IDB] (DOE/RW-0006, Rev. 10).
16. U.S. CONGRESS OFFICE OF TECHNOLOGY ASSESSMENT, COMPLEX CLEANUP: THE ENVIRONMENTAL LEGACY OF NUCLEAR WEAPONS PRODUCTION 6 (1991) [hereinafter COMPLEX CLEANUP].
17. Dick Russell, In the Shadow of the Bomb, 12 THE AMICUS JOURNAL 18 (1990).
18. ARJUN MAKHIJANI & SCOTT SALESKA, INSTITUTE FOR ENERGY AND ENVIRONMENTAL RESEARCH, HIGH-LEVEL DOLLARS, LOW-LEVEL SENSE: A CRITIQUE OF PRESENT POLICY FOR THE MANAGEMENT OF LONG-LIVED WASTES AND DISCUSSION OF AN ALTERNATIVE APPROACH 17-19 (1992).
19. ENVIRONMENTAL PROTECTION AGENCY, HIGH-LEVEL AND TRANSURANIC RADIOACTIVE WASTES: BACKGROUND INFORMATION DOCUMENT FOR PROPOSED AMENDMENTS 1-2 (1993) [hereinafter EPA] (EPA 402-R-93-007).
20. HARRY H. HESS ET AL., REPORT OF THE COMMITTEE ON WASTE DISPOSAL OF THE DIVISION OF EARTH SCIENCES, NATIONAL ACADEMY OF SCIENCES-NATIONAL RESEARCH COUNCIL, THE DISPOSAL OF RADIOACTIVE WASTE ON LAND 6 (1970).
21. EPA, supra note 19, at 1-2 through 1-7.
22. The Atomic Energy Commission (AEC) began the investigation. AEC's eventual successor, DOE, continued the process.
23. In that period of time, DOE generalized the NAS report to include not just liquid high-level wastes, but also transuranic waste. See supra note 18.
24. Congress was aware of the growing awareness among states about the increasing public concern over health and safety of nuclear waste. In 1979, the California Superior Court considered the validity of the California legislature's attempt to forbid the licensing of any new nuclear power plants until a permanent waste solution was secured. See Pacific Legal Found. v. State Energy Resources Conservation & Dev. Comm'n, 472 F. Supp. 191 (S.D.Ca. 1979). The law was upheld by the Supreme Court in 1983. Pacific Gas and Elec. Co. v. State Energy Resources Conservation and Dev. Comm'n, 461 U.S. 190 (1983). See also DEPARTMENT OF ENERGY, FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT, WASTE ISOLATION PILOT PLANT (January 1990) [hereinafter 1990 FEIS] (DOE/EIS-0026-FS).
25. Dep't of Energy National Security and Military Applications of Nuclear Energy Authorization Act of 1980, Pub. L. No. 96-164, § 213, 93 Stat. 1259, 1265 (1979).
26. Id.
27. See 41 Fed. Reg. 54,994-95 (1976); 43 Fed. Reg. 53,063 (1978); 45 Fed. Reg. 75,768-69 (1980); 48 Fed. Reg. 3878-79 (1983); 48 Fed. Reg. 31,038-39 (1983); 54 Fed. Reg. 15,814-15 (1989).
28. Waste Isolation Pilot Plant Land Withdrawal Act, Pub. L. No. 102-579, 106 Stat. 4777-96 (1992).
29. Id.
30. Even today the issue of whether geological burial is a safe, reliable, and permanent solution remains highly controversial. See, e.g., K.S. SHRADER-FRECHETTE, BURYING UNCERTAINTY: RISK AND THE CASE AGAINST GEOLOGICAL DISPOSAL OF NUCLEAR WASTE (1993).
31. Pub. L. No. 102-579 § 5(d)(2)(A), 106 Stat. at 4782 (1992) ("[I]f the Administrator determines that the experiments will provide data that are directly relevant to a certification of compliance with the final disposal regulations . . . .").
32. Id. ("[I]f the Administrator determines that it [the retrieval plan] will provide for satisfactory retrieval of all transuranic waste emplaced during the test phase . . . .").
33. See generally DANA COYLE ET AL., DEADLY DEFENSE: MILITARY RADIOACTIVE LANDFILLS (1988); see COMPLEX CLEANUP supra note 16;
34. see also OFFICE OF ENVIRONMENTAL RESTORATION AND WASTE MANAGEMENT, DEPARTMENT OF ENERGY, FINAL SUPPLEMENT ENVIRONMENTAL IMPACT STATEMENT, WASTE ISOLATION PILOT PLANT (Jan. 1990) [hereinafter 1990 FEIS] (DOE/EIS-0026-FS). DOE nuclear weapons production, unlike nuclear waste disposal, is classified under the Atomic Energy Act. See Atomic Energy Act of 1954, 42 U.S.C. 2121-2122 (1994).
35. 125 CONG. REC. H6298, 6303 (daily ed. July 21, 1992) (statement of Rep. Synar).
36. Pub. L. No. 102-579, 106 Stat. at 4786-87 (1992).
37. Original EPA standards were vacated by the 1st Cir. in 1987. See Natural Resources Defense Council v. U.S.E.P.A, 824 F.2d 1258 (1st Cir. 1987). EPA published final standards in 1993. See Environmental Radiation Protection Standards for the Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes, 58 Fed. Reg. 66,398-416 (1993) (40 C.F.R. § 191.15).
38. This paper does not deal with the obstacles posed by congressional budgetary constraints which could undercut proposals for an independent regulatory agency.
39. See generally PRELIMINARY COMPARISON WITH 40 CFR 191 SUBPART B FOR THE WASTE ISOLATION PILOT PLANT (1991) [hereinafter SANDIA PA] (SAND91-0893/1.UC-721).
40. See Pub. L. No. 102-579, 106 Stat. 4777-96 (1992).
41. Citizens and officials in New Mexico opposed congressional approval of WIPP's construction without some state control over the project. See Waste Isolation Pilot Plant: Hearing on [House or Senate Bill No.] Comm. on Armed Services, 96th Cong., 1st Sess. 41 (1979) [hereinafter Procurement Hearing]. To satisfy New Mexico concerns, Congress authorized DOE to enter into a written agreement with New Mexico to set forth procedures for the State to consult and cooperate with DOE over "public health and safety aspects of such project [WIPP] before the occurrence of certain key events identified in the agreement." 93 Stat. at 1266.
42. However, in 1981 New Mexico Attorney General Jeff Bingaman, dissatisfied with DOE's initial offers for negotiation procedures, sued DOE and the United States Department of Interior. Civil Action No. 81-0363 JB (D.N.M. 1981). Eventually New Mexico Governor Bruce King signed the federal court ordered Stipulated Agreement which approved the Consultation and Cooperation Agreement. Id. (The Court Order contains the final Consultation and Cooperation agreement.) This agreement, along with later amendments, guaranteed New Mexico an advisory role in such key areas as health and safety, transportation, and assured the State that WIPP would comply with federal and state laws. Stipulated Agreement and Consultation and Cooperation Agreement (July 1, 1981) [hereinafter C and C Agreement] appendix (agrees to timely and open exchange of information about WIPP-creates a mechanism for conflict resolution on matters ". . . relating to the public health, safety or welfare of the citizens of the State");
43. See Supplemental Stipulated Agreement Resolving Certain State Off-Site Concerns over WIPP (Dec. 28, 1982) (commits DOE to seeking congressional appropriation for upgrading selected WIPP routes in New Mexico-clarifies that DOE is liable for WIPP-related accidents at or en route to the site); "First Modification" of the C and C Agreement (Nov. 1984) (requires DOE to comply with ". . . all applicable state, federal and local standards, regulations and laws, including any applicable regulations or standards promulgated by EPA); "Second Modification" of the C and C Agreement (Aug. 1987) (requires DOE to comply ". . . with all applicable regulations of the United States Department of Transportation and any applicable corresponding regulations of the NRC); Separate Agreement which amends the 1982 Supplemental Stipulated Agreement (Aug. 1987) (relating to funding for WIPP relief routes and bypasses in New Mexico).
44. See Procurement Hearing, supra note 40, at 41.
45. Atomic Energy Act of 1954, 42 U.S.C. §§ 2010, 2011, 2014, 2273, 2282 (1994).
46. Energy Reorganization Act of 1974, 42 U.S.C. 1501 (1994).
47. Section 202(3) of the Energy Reorganization Act of 1974 stipulates that the Nuclear Regulatory Commission shall have licensing and related regulatory authority as to facilities used primarily for the receipt and storage of high-level radioactive wastes. Energy Reorganization Act of 1974, Pub. L. No. 93-438, § 202(a), 88 Stat. 1244 (1974).
48. Procurement Hearing, supra note 40 (statement of Rep. Dan Daniel).
49. Id.
50. Transuranic (TRU) waste literally means heavier than uranium. Transuranics are man-made elements in that they are byproducts of fission and fusion reactions in nuclear reactors and nuclear testing. MAKHIJANI, supra note 18, at 17-19. Plutonium 239, the main transuranic component of defense radioactive wastes, has a half-life of 24,000 years. In practical terms, this half-life means that Plutonium remains radioactive for over 240,000 years. Plutonium emits alpha particles which have weak penetrating capabilities. However, if ingested or inhaled, even very small amounts have been proven to cause cancer. Nuclear waste classification for high-level and low-level depends on the process which produced the waste. Transuranic isotopes in spent fuel rods from commercial nuclear reactors are considered high-level. However, nuclear weapons production has classified transuranic waste as a separate category called "TRU" waste. MAKHIJANI, supra note 18, at 9-11. In fact, transuranic isotopes are also found in so-called low-level waste. Id. at 22.
51. DOE National Security and Military Applications of Nuclear Energy Authorization Act of 1980, Pub. L. No. 96-164, § 213(a), 93 Stat. 1265 (1979).
52. Portsmouth Uranium Enrichment Complex in Ohio was the last congressionally authorized DOE nuclear weapons site approved by Congress. Portsmouth began operations in 1956. COYLE, supra note 33, at 12.
53. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-70d (1994); Clean Air Act of 1970, 42 U.S.C. §§ 7401-7671 (1994); Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-17 (1994); Endangered Species Act of 1973, 16 U.S.C. §§ 1531-43 (1994); Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992 (1994); Clean Water Act of 1977, 33 U.S.C. §§ 1251-1376 (1994).
54. Atomic Energy Act of 1954, 42 U.S.C. §§ 2161-2163 (1994).
55. Procurement Hearing, supra note 40, at 42 (letter from Melvin Price to Hon. Tom Bevill, July 18, 1979).
56. § 213(a), 93 Stat. at 1265 (1979).
57. See § 213, 93 Stat. 1259 (1979).
58. See supra note 50.
59. § 213, 93 Stat. at 1264.
60. 43 U.S.C. §§ 1701-1717 (1994).
61. 43 U.S.C. § 1714 (1994).
62. WIPP includes disposal areas located 2150 feet underground as well as above ground waste handling buildings. 41 Fed. Reg. 54,994-95 (1976) (application for withdrawal of 17,200 acres of land in Eddy County for two years); 43 Fed. Reg. 53,063 (1978) (two year extension of the 1976 land withdrawal); 45 Fed. Reg. 75,768-69 (1980) (two year extension of 1978 withdrawal of 8,960 acres of federal land for the purpose of conducting a Site and Preliminary Design Validation (SPVD) program at WIPP); 48 Fed. Reg. 3878-79 (1983) (two year withdrawal of 8,960 acres of federal land and 1,280 acres of state land, if acquired by the federal government, for the purpose of constructing WIPP: "no radioactive waste will be stored or disposed of under terms of this withdrawal. . ."); 48 Fed. Reg. 31,038-39 (1983) (eight year withdrawal of 8,960 acres of federal land and 1,280 acres of state land, if acquired by the federal government, for the construction of full facilities at the WIPP site: "no transportation, storage, or burial of any radioactive materials. . ."); 54 Fed. Reg. 15,814-15 (1989) (partial termination of 1983 withdrawal (PLO 6403) and "modification to change the purpose. . . [to authorize] conducting of a test program by DOE using retrievable radioactive waste at the site").
63. DEPARTMENT OF ENERGY, FINAL ENVIRONMENTAL IMPACT STATEMENT, WASTE ISOLATION PILOT PLANT (Oct. 1980) [hereinafter 1980 FEIS] (DOE/EIS-0026);
64. DEPARTMENT OF ENERGY, SUPPLEMENTAL FINAL ENVIRONMENTAL IMPACT STATEMENT, WASTE ISOLATION PILOT PLANT (1990) [hereinafter 1990 SEIS].
65. 51 Fed. Reg. 24,504-05 (1986).
66. Id.
67. 52 Fed. Reg. 15,937, 15,941 (1987) (DOE confirms that "all DOE radioactive waste which is hazardous under RCRA will be subject to regulation under both RCRA and AEA [Atomic Energy Act of 1954].").
68. 40 C.F.R. § 264.600 (1996). The New Mexico Legislature, by incorporating regulatory requirements which are as strict as the federal RCRA requirements into its Hazardous Waste Act, ensured that the State would have permitting authority over the hazardous wastes destined for WIPP during WIPP's operational phase. New Mexico Hazardous Waste Act, N.M. STAT. ANN. §§ 74-4-1 to 74-4-13 (Michie 1978 and 1993 Repl. Pamp.). On July 25, 1990, the New Mexico Environmental Improvement Division gained RCRA permitting authority over the transuranic mixed wastes destined for WIPP. 55 Fed. Reg. 28,397, 28,397-98 (1990).
69. 40 C.F.R. § 268 (1995).
70. 42 U.S.C. § 6924(d)(1)(C) 1994.
71. N.M. STAT. ANN. §§ 74-4-1 to 74-4-13 (Michie 1978 and 1993 Repl. Pamp.); 42 U.S.C. §§ 6901-6987 (1994). Congress removed EPA's RCRA authority over WIPP in an amendment to the Defense Authorization Act. National Defense Authorization Act for Fiscal Year 1997, Pub. L. No.104-201 (1996). The State of New Mexico retains RCRA authority to regulate WIPP during the operational phase.
72. 55 Fed. Reg. 13,068-94 (1990). RCRA bans land disposal of specific toxic materials which may not be buried underground without a No-Migration variance. EPA will issue a no-migration variance on a showing that the wastes will not move "for as long as [they] remain hazardous." See also 42 U.S.C. § 6924(d)(1)(C) (1994).
73. 55 Fed. Reg. 13,068-94.
74. Id.
75. Id. at 13,077.
76. 55 Fed. Reg. 47,700, 47,701 (1990).
77. Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101-10270 (1994).
78. Id.
79. See 50 Fed. Reg. 38,066 (1985).
80. See supra note 36.
81. Id. at 1293. The court held that EPA was arbitrary and capricious in promulgating nuclear waste standards which were not as stringent as Part C of the Safe Water Drinking Act, 42 U.S.C. § 300h (1994), safe drinking water standards.
82. See C and C Agreement, supra note 40, at 5.
83. See, e.g., RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, GUIDELINES FOR SELECTING PREFERRED HIGHWAY ROUTES FOR HIGHWAY ROUTE CONTROLLED QUANTITY SHIPMENTS OF RADIOACTIVE MATERIALS (Aug. 1992) (DOT/RSPA/HMS/92-02).
84. See C and C Agreement, supra note 40.
85. In 1988, Congress established federal liability for extraordinary nuclear occurrences. Price Anderson Amendments Act of 1988, 42 U.S.C. §§ 2011(j)-2210 (1994). See also C and C Agreement, supra note 40.
86. See C and C Agreement, supra note 40. See also ROBERT H. NEILL & JAMES K. CHANNEL, POTENTIAL PROBLEMS FROM SHIPMENT OF HIGH-CURIE CONTENT CONTACT-HANDLED TRANSURANIC (CH-TRU)WASTE TO WIPP (1983) (EEG-24).
87. DOE originally funded EEG in 1978 in a contract between DOE and the New Mexico Environmental Improvement Division to provide New Mexico with independent scientific evaluation of DOE's activities at WIPP. NEILL & CHANNELL, supra note 82, at I. The National Defense Authorization Act of 1989 assigned EEG to the New Mexico Institute of Mining and Technology. 102 Stat. 1918, 2073 (1988) (The shift in authority was an attempt to make EEG more independent of political influence.). The contract was continued through 2004 by The National Defense Authorization Act of 1994. Pub. L. No. 103-100, 107 Stat. 1547 et seq. (1993).
88. SANDIA PA, supra note 38.
89. HESS, supra note 20, at 4.
90. Id.
91. John D. Bredehoeft, Will Salt Repositories Be Dry? 69 TRANSACTION AM GEOPHYSICAL UNION 121 (1988). ("The idea that salt was uniformly 'dry' was revised when exploratory drilling in the vicinity of the Waste Isolation Pilot Plant (WIPP) in New Mexico encountered brines within the Castile formation. . . .").
92. LOKESH CHATURVEDI, WIPP-RELATED GEOLOGICAL ISSUES, in NEW MEXICO GEOLOGICAL SOCIETY GUIDEBOOK, 44TH FIELD CONFERENCE 331, 336 (1993). (Borehole WIPP-12 hit brine at a depth of 3016 ft. Brine started flowing out of the well at a rate of 35 gallons per minute and more than 1.14 million gallons of brine flowed out before the well was controlled. Reservoirs at WIPP-12 and AWARDEE-6 boreholes were estimated to contain 17 million and 630,000 barrels respectively.).
93. See generally MATTHEW SILVA, AN ASSESSMENT OF THE FLAMMABILITY AND EXPLOSION POTENTIAL OF TRANSURANIC WASTE (1991) (EEG-48).
94. Lokesh Chaturvedi & Matthew Silva, An Evaluation of the Proposed Tests with Radioactive Waste at WIPP 600-09 (1992).
95. KENNETH S. JOHNSON & SERGE GONZALES, SALT DEPOSITS IN THE UNITED STATES AND REGIONAL GEOLOGIC CHARACTERISTICS IMPORTANT FOR STORAGE OF RADIOACTIVE WASTE 1-2 (1978) (Y/DWI/SUB-7414/1).
96. SANDIA PA, supra note 38, at 5-14. (Clay is an impermeable boundary. However, clay posed questions about stability.).
97. The WIPP Final Environmental Impact Statement of 1980 estimated that crude oil reserves at WIPP were nonexistent, 1980 FEIS, supra note 60, at tbl. 9-14, overlooking available information which showed that the resource was present in abundant quantities. ROBERT H. NEILL ET AL., REVIEW OF THE WIPP DRAFT APPLICATION TO SHOW COMPLIANCE WITH EPA TRANSURANIC WASTE DISPOSAL STANDARDS xvi (1996) (EEG-61).
98. See, e.g., SANDIA PA, supra note 38, at 4-34 to 4-36; See also NEW MEXICO BUREAU OF MINES AND MINERAL RESOURCES, FINAL REPORT: EVALUATION OF MINERAL RESOURCES AT THE WASTE ISOLATION PILOT PLANT (WIPP) SITE (1995).
99. Bedded salt is salt layered with clay deposits.
100. In 1991, DOE recorded the fall of a 1,500 ton slab measuring 150 feet long, 33 feet wide and 8 feet thick in a test room. The slab was the second recorded in a year. Peter Eichstadt, Giant Rock Slabs Fall from WIPP Ceiling Causes Concern, THE NEW MEXICAN, Feb. 6, 1991, at B1.
101. Mining engineers have devised a supplementary roof support which gives some stability to the roof and some warning for a fall. WASTE ISOLATION PILOT PLANT SUPPLEMENTARY ROOF SUPPORT SYSTEM UNDERGROUND STORAGE AREA PANEL 1, ROOM 1, 1-1 to 2-1 (1991) (DOE/WIPP 91-057, Revision O).
102. SANDIA PA, supra note 38.
103. See generally STEVEN C. HORA ET AL., EXPERT JUDGMENT ON INADVERTENT HUMAN INTRUSION INTO THE WASTE ISOLATION PILOT PLANT (1991) (SAND90-3063);
104. See also KATHLEEN M. TRAUTH ET AL., EXPERT JUDGMENT ON MARKERS TO DETER INADVERTENT HUMAN INTRUSION INTO THE WASTE ISOLATION PILOT PLANT (1993) (SAND92-1382).
105. By 1990, 2,200 people from all over the United States submitted written and oral testimony on the WIPP Supplemental Environmental Impact Statement public hearings. 1990 SEIS, see supra note 60, at vol 3, 2.
106. SHRADER-FRECHETTE, supra note 30.
107. MAKHIJANI, supra note 18, at 22.
108. SHRADER-FRECHETTE, supra note 30, at 4.
109. K.S. SHRADER-FRECHETTE, RISK AND RATIONALITY 53 (1991)
110. (quoting Low-Level Radioactive Waste Disposal: Hearing on H.R. Maxey Flats Radioactive Waste Burial Site Before Subcommittee of the Committee on Government Operations, House of Representatives, 94th Cong., 2d Sess. 258 (1976) (statement of J. Neel)).
111. G. MEYER, ADVANCED SCIENCE AND TECHNOLOGY BRANCH, U.S. ENVIRONMENTAL PROTECTION AGENCY, MAXEY FLATS RADIOACTIVE WASTE BURIAL SITE: STATUS REPORT 9 (1975).
112. Id. at 53.
113. See generally COYLE, supra note 33.
114. Ohio v. Department of Energy, 689 F. Supp. 760 (S.D. Ohio 1988), aff'd 904 F.2d 1058 (6th Cir. 1990), rev'd, 503 U.S. 607 (1992).
115. COMM. ON THE BIOLOGICAL EFFECTS OF IONIZING RADIATION, NAT'L RESEARCH COUNCIL, HEALTH RISKS OF RADON AND OTHER INTERNALLY DEPOSITED ALPHA-EMITTERS: BEIR IV 1-23 (1988).
116. BEIR IV cautions: "As in earlier reports from the Committee on the Biological Effects of Ionizing Radiations, the so-called BEIR reports, the committee cautions that the risk estimates derived from epidemiological and experimental animal data should not be considered precise." Id. at 4. Although scientists differ about how the data should be interpreted, subsequent studies on animals have refuted previously held assurances that exposure to so-called low-levels of radiation is safe. COMM. ON THE BIOLOGICAL EFFECTS OF IONIZING RADIATION, NAT'L RESEARCH COUNCIL, HEALTH EFFECTS OF EXPOSURE TO LOW LEVELS OF IONIZING RADIATION: BEIR V 2-4 (1990).
117. See also JOHN W. GOFMAN, M.D., PH.D., RADIATION-INDUCED CANCER FROM LOW-DOSE EXPOSURE: AN INDEPENDENT ANALYSIS 1-4 (1990).
118. New Mexico Governors Jerry Apodaca, Bruce King and Gary Carruthers supported WIPP.
119. "[I]n Idaho, we have stored vast amounts of transuranic waste from the nuclear weapons program over the largest aquifer in the State. . . . For more than 10 years, the Atomic Energy Commission, the Energy Research and Development Administration, and now the Department of Energy have made promises to the people of the State of Idaho that these wastes would be removed. It is crucial to fulfilling this promise that nuclear waste activities for defense programs be maintained at an adequate level. There are also activities at the Hanford Reservation in the State of Washington and at the Savannah River Reservation in South Carolina . . . ." 125 CONG. REC. S15,187 (daily ed. June 18, 1979) (statement of Sen. Church).
120. For almost a half a century Idahoans have been promised that the nuclear waste brought to Idaho Engineering Laboratory from weapons facilities around the nation and from the Three Mile Island accident was a temporary solution. Id.; COMPLEX CLEANUP, supra note 16, at 151-53.
121. 3. Pub. L. No. 102-579, 106 Stat. at 4785 (1992).
122. Other countries are considering this approach. GENERAL ACCOUNTING OFFICE, NUCLEAR WASTE: FOREIGN COUNTRIES' APPROACHES TO HIGH-LEVEL WASTE STORAGE AND DISPOSAL 12-13 (1994) [hereinafter GAO REPORT] (GAO/RCED-94-172).
123. See supra references and text accompanying note 59.
124. Waste Isolation Pilot Plant Land Withdrawal Act: Hearings on H.R.2637 Before the Subcomm. on Energy and Power of the House Comm. on Energy and Commerce, 102d Cong., 2d Sess. 52-70 (1991) (statement of Leo Duffy, Acting Assistant Secretary for Environmental Restoration and Waste Management, U.S. Dep't of Energy).
125. Because DOE was not able to defend figures for the amount of waste necessary for different versions of the test plan, successive plans for experiments were repeatedly proposed and rejected. LOKESH CHATURVEDI, EVALUATION OF THE DOE PLANS FOR RADIOACTIVE EXPERIMENTS AND OPERATIONAL DEMONSTRATION AT WIPP 2-6 (1989) (EEG-42).
126. Id.
127. Proposals Relating to the Operation of the Waste Isolation Pilot Plant (WIPP) in New Mexico: Oversight Hearing before the Subcomm. on Energy and the Environment of the Comm. on Interior and Insular Affairs, 102d Cong., 1st Sess. 9 (1991) (statement of Rep. Synar) [hereinafter WIPP in New Mexico].
128. "The facility is standing idle, at a cost of $14 million per month to the taxpayer . . . ." 125 CONG. REC. H6305 (daily ed. July 21, 1992) (statement of Rep. Kyl).
129. An administrative land withdrawal is necessarily temporary. To bring radioactive waste to WIPP, even for a test phase, required a permanent withdrawal of the land, an action only Congress can perform. See supra note 59; see also 43 U.S.C. § 1714(c)(1) (1994).
130. 43 U.S.C. § 1714 (1994). Since the WIPP site is 10,240 acres and the nuclear waste had the potential to contaminate the site for 240,000 years, WIPP opponents argued that the test phase was a violation of FLPMA's administrative land withdrawal limitations.
131. Land withdrawal bills were introduced and failed to pass in the 100th and the 101st Congress. See, e.g., 100th Cong., 1st Sess. S1272 (1988) and 101st Cong., 1st Sess. H.R.991 (1989).
132. See supra notes 1, 34, 111, 120; see infra notes 133, 139, 141, 148.
133. 56 Fed. Reg. 3038, 3039 (1991); 56 Fed. Reg. 5731 (1991) (DOI issues Public Land Order No. 6826, which modifies the 1983 WIPP administrative land withdrawal, Public Land Order No. 6403 to: 1) allow DOE to conduct a Test Phase at WIPP using retrievable transuranic waste, 2) provide for a six year extension of the administrative land withdrawal through June 29, 1997, and 3) allow DOE to expand its exclusive use area from 640 acres to 1,453.90 acres.).
134. Id.
135. 56 Fed. Reg. 50,923, 50,924 (1991).
136. New Mexico v. Watkins, 783 F. Supp. 633, 635 (D.D.C. 1992).
137. New Mexico ex rel. Udall, v. Watkins, Nos. Civ. A. 91-2527, Civ. A. 91-2929 (D.D.C. 1992).
138. Subcomm. on Energy and the Environment, supra note 130, at 4 (statement of Rep. Kostmayer).
139. Waste Isolation Pilot Plant Land Withdrawal Act, Pub. L. No. 102-579 §§ 1-23, 106 Stat. 4777 (1992).
140. 137 CONG. REG. S15,989 (daily ed. Nov. 5, 1991) (statement of Sen. Johnston).
141. "[T]he public will not have confidence in DOE's waste programs so long as DOE self-regulates in the area of environmental compliance." 125 CONG. REC. H6308 (daily ed. July 21, 1992) (statement of Rep. Sharp).
142. Pub. L. No. 102-579 § 6(b)(3), 106 Stat. at 4783 (1992).
143. Pub. L. No. 102-579 § 8(d)(1)(B), 106 Stat. at 4787-88 (1992).
144. 40 C.F.R. § 191 (1995).
145. 61 Fed. Reg. 5224, 5224-45 (1996).
146. Pub. L. No. 102-579 §§ 1-23, 106 Stat. at 4786 (1992).
147. "Essentially, DOE would prefer to self-regulate the WIPP project. We cannot allow this. If there is anything that we can learn from the environmental nightmare that has been created over the past decades at the DOE weapons complex, it is that self-regulation is a prescription for environmental disaster." 125 CONG. REC. H6305 (daily ed. July 21, 1992) (statement of Rep. Miller).
148. See supra note 133.
149. "Without removing DOE's ability to regulate itself, I am convinced that DOE will continue to cut corners and manipulate the system to further its own institutional objectives to the detriment of taxpayers, scientific integrity, and the need to find a permanent solution to the nuclear waste problem." 125 CONG. REC. H6303 (daily ed. July 21, 1992) (statement of Rep. Synar).
150. 125 CONG. REC. H6305, supra note 139.
151. See generally Pub. L. No. 102-579 §§ 1-23, 106 Stat. 4777 (1992).
152. Section 8(b)(1) mandates that EPA issue final disposal regulations not later than six months after enactment of the Act. Section 88 mandates that EPA publish proposed criteria within one year and final criteria within two years of enactment of the Act. Pub. L. No. 102-579 §§ 8(b)(1), 8(c), 106 Stat. 4777, 4787 (1992).
153. Pub. L. No. 102-579, 106 Stat. 4777, 4786 (1992).
154. Pub. L. No. 102-579, 106 Stat. 4777, 4782 (1992).
155. WIPP in New Mexico, supra note 119, at 34 ("DOE has already announced that it is going to take until 1997, or 10 years into the intended 25-year lifespan to show compliance."). Id.
156. "I have concluded that the previously proposed bin and alcove transuranic waste tests at the Waste Isolation Pilot Plant (WIPP) should not be conducted." Letter from Tom Grumbly, DOE Assistant Secretary for Environmental Restoration and Waste Management to Robert Sussman, EPA Deputy Administrator (Oct. 21, 1993).
157. ENVIRONMENTAL PROTECTION AGENCY, CRITERIA FOR CERTIFICATION AND RECERTIFICATION OF THE WASTE ISOLATION PILOT PLANT'S COMPLIANCE WITH THE 40 CFR PART 191 DISPOSAL REGULATIONS: RESPONSE TO COMMENTS DOCUMENT FOR 40 CFR 194 (1996) [hereinafter RESPONSE TO COMMENTS] (EPA 402-R-906-001).
158. ENVIRONMENTAL PROTECTION AGENCY, REDLINE/STRIKE-OUT VERSION 7/1/94 OMB SUBMISSION: CRITERIA FOR THE CERTIFICATION AND DETERMINATION OF THE WASTE ISOLATION PILOT PLANT'S COMPLIANCE WITH ENVIRONMENTAL STANDARDS FOR THE MANAGEMENT AND DISPOSAL OF SPENT NUCLEAR FUEL, HIGH-LEVEL AND TRANSURANIC RADIOACTIVE WASTES 40 C.F.R. 194, [hereinafter REDLINE/STRIKE-OUT] (RIN 2060-AE30). (The final rule is published at 61 Fed. Reg. 5224-45 (1996)). Several provisions hotly debated during public comment, were resolved in favor of DOE. Id. at 22. EPA eliminated specific mention of waste characterization inspections. Id. at 37-38. EPA eliminated specific mention of the need for waste characterization in order to evaluate engineered barriers [examples of man-made barriers are waste containers or repository seals] and reduced requirements for certainty in evaluating containment, individual [release limits calculated for individual human beings] and groundwater requirements. Id. at 88. EPA eliminated the statement that repository design and engineering barriers are critical to evaluating removal of waste without compromising compliance with disposal standards; EPA removed mining as a scenario. Id. at 130-33. EPA gave quantitative credit for passive institutional controls. Id. at 138-39.
159. Congress worried about this situation but hoped the WIPP Act's careful structure would prevent DOE manipulation. "While I am concerned with the potential for DOE to tamper with independent scientific reviews of WIPP, I am confident that EPA's role under this bill-and the opportunity provided for public comment and judicial review-will ensure that safety is not compromised and money is not wasted." 125 CONG. REC. H6308 (statement of Rep. Sharp). Criticism of the appropriateness of OMB's role in executive agency rulemaking is not new. Earlier administrations gave OMB direct control over executive agency rulemaking with no requirement for disclosure. Executive Order No. 12,291, 3 C.F.R. 127 (1981); Executive Order 12,498 3 C.F.R. 323 (1985). President Clinton repealed both Executive Order No. 12,291 and Executive Order No. 12,498, substituting Executive Order 12,866,3 C.F.R. 638 (1993). Executive Order No. 12,866 established public disclosure requirements for discussions with the private sector, but retained the discretion to hold privileged discussions about rulemaking between and among executive branch agencies. Id.
160. REDLINE/STRIKE-OUT, see supra note 150.
161. 125 CONG. REC., supra note 133.
162. WEEKLY HIGHLIGHTS (Carlsbad Area Office), week ending Dec. 15, 1995 [hereinafter HIGHLIGHTS].
163. For example, the final rule contains directives for considering influences from mining activities based on information that EPA never submitted to the public for comment. 61 Fed. Reg. 5224, 5233-34 (1996); Memorandum from Mary Kruger to Air Docket No. A-92-56 (Feb. 1, 1996) (on file with NAT. RESOURCES J.).
164. 125 CONG. REC., supra note 133.
165. Pub. L. No. 102-579, 106 Stat. at 4795 (1992).
166. Restrictions on judicial review, however, severely limit actions in this case. The WIPP Act specifically restricts judicial review to EPA's final action and designates all civil suits to be brought "only in the United States Court of Appeals for the Tenth Circuit or for the District of Columbia." A court of appeals reviews evidence on the record. Thus, new evidence could not be introduced at this stage. The action must be brought not later than 60 days after the Administrator's final decision. See Pub. L. No. 102-579, 106 Stat. at 4794 (1992). EPA published the final Compliance Criteria February 9, 1996. 61 Fed. Reg. 5224-45 (1996). The New Mexico Attorney General, the Texas Attorney General, Concerned Citizens for Nuclear Safety and Southwest Research and Information Center all filed suit against EPA within the statutory 60 day period.
167. By expressly invoking APA, the WIPP Act establishes that EPA's compliance criteria is a substantive and not an interpretive rule. Fertilizer Institute v. U.S.E.P.A., 935 F.2d 1303, 1311 (D.C. Cir. 1991) (citing United Technologies Corp. v. Environmental Protection Agency, 821 F.2d 714, 719 (D.C. Cir. 1987) ("To determine if the preamble is interpretive, the true emphasis must be on the 'legal base upon which the rule rests'."). The distinction is important because a substantive rule creates laws, rights, and duties, whereas an interpretive rule does not. National Wildlife Fed'n v. Babbitt, 835 F. Supp. 654, 665 (D.D.C. 1993).
168. Pub. L. No. 102-579, 106 Stat. at 4789 (1992).
169. 5 U.S.C. § 706 (1994).
170. Id.
171. Id.
172. American Medical Ass'n v. Reno, 57 F.3d 1129, 1132-33 (D.C. Cir. 1995) (citing Engine Manufacturers Ass'n v. Environmental Protection Agency, 20 F.3d 1177 (D.C. Cir. 1994) ("The Administrative Procedure Act requires the Agency to make available to the public, in a form that allows for meaningful comment, the data used to develop the proposed rule."); Conference of State Bank Supervisors v. Office of Thrift Supervision, 792 F. Supp. 837, 843 (D.D.C. 1992) ("[T]he scientific material which is believed to support this rule should be exposed to the review of interested parties for their comment.").
173. Kruger, supra note 155.
174. Exceptions to the APA notice rule are narrow, but do include "good cause" when the passage of a complex and extraordinary statute justifies the agency's failure to provide public notice on all documents. Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1237 (D.C. Cir. 1994).
175. Kooritzky v. Reich, 17 F.3d 1509, 1512-13 (D.C. Cir. 1994) (Rationales and conclusions contained in the final rule are not a logical extension of the proposed rule.); Aeronautical Radio, Inc. v. Federal Communication Comm'n, 928 F.2d 428, 446 (D.C. Cir. 1991) (Final rule was a logical outgrowth of proposed rule and could therefore be reasonably anticipated.).
176. Aeronautical Radio, 928 F.2d at 446.
177. REDLINE/STRIKE-OUT, supra note 150, at 130-33.
178. Kennecott Corp. v. Environmental Protection Agency, 684 F.2d 1007, 1019-20 (D.C. Cir. 1982).
179. 5 U.S.C. § 706(2)(A) (1994).
180. Aeronautical Radio, 928 F.2d at 446.
181. Natural Resources Defense Council, Inc. v. Thomas, 838 F.2d 1224, 1242-43 (D.C. Cir. 1988).
182. Kruger, supra note 155, at 130-33.
183. 5 U.S.C. § 706(2)(A) (1994).
184. See supra note 133.
185. 5 U.S.C. § 706(2)(A) (1994).
186. Pub. L. No. 102-579 § 8(c)(1), 106 Stat. 4786 (1992).
187. "[T]he court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706 (1994).
188. RESPONSE TO COMMENTS, supra note 149.
189. See, e.g., Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 966 F.2d 1292 (9th Cir. 1992) (EPA's failure to include deadlines for permit approval was arbitrary and capricious); Delaney v. Environmental Protection Agency, 898 F.2d 687 (9th Cir. 1990) (EPA's waiver of contingency and conformance requirements for county plan was arbitrary and capricious); Environmental Defense Fund v. Environmental Protection Agency, 852 F.2d 1316 (D.C. Cir. 1988) (EPA's suspension of certain mining wastes from regulation was arbitrary and capricious.).
190. Unlike the public, DOE's access to EPA's developing criteria was not restricted to Administrative Procedure Act formal comments. The following statement reporting on the OMB process shows that DOE played an active role in lobbying EPA for changes to the final rule during the non public OMB review. "Preliminary evaluation of the final rule 40 CFR 194 criteria for certification and recertification of the WIPP compliance with 40 CFR 191 disposal regulations is underway. Several provisions in the rule, as written, could have a dramatic impact on the WIPP program." George Dials, CARLSBAD AREA OFFICE WKLY HIGHLIGHTS, supra note 154 (emphasis added).
191. "[T]he Office of Information and Regulatory Affairs ("OIRA") is the repository of expertise concerning regulatory issues, including methodologies and procedures that affect more than one agency. . . ." Executive Order 12,866 directs OIRA, an office within OMB, to review significant regulatory actions which "[C]reate a serious inconsistency or otherwise interfere with an action taken . . . by another agency. . . ." Executive Order No. 12,866, 3 C.F.R. 638 (1993).
192. Reorg. Plan No. 1 of 1939, 3 C.F.R. 1288 (1968), reprinted in 5 U.S.C.A. app." 209-219 (1996); Reorg. Plan No. 2 of 1970, 3 C.F.R. 1070-71 (1971), reprinted in 5 U.S.C.A. app. §§ 101-301 (1996); Reorg. Plan No. 1 of 1977, 3 C.F.R. 197 (1978), reprinted in 5 U.S.C.A. app. § 2 (1996).
193. Pub. L. No. 102-579, 106 Stat. at 4786-88 (1992).
194. Executive Order No. 12, 866 § 6; supra note 183.
195. Kruger, supra note 155; See also REDLINE/STRIKE-OUT, supra note 150.
196. See, e.g., Erik D. Olson, The Quiet Shift of Power: Office of Management and Budget Supervision of Environmental Protection Agency Rulemaking under Executive Order 12,191, 4 VA. J. NAT. RESOURCES L. 1 (1984) (Order may give OMB unwarranted authority to infringe on discretion delegated by Congress), Executive Order 12,498, 3 C.F.R. 235 (1985) (OMB has more discretion to review EPA actions for consistency with administration policies).
197. See also The Honorable Patricia M. Wald, The Cinematic Supreme Court: 1991-2 Term," 7 ADMIN. L. J. AM. U. 238 (1993) ("[S]eparation of powers, especially executive power, is still the hottest ticket in town. Whether the issue is standing, enforceability of Congressional intent, legislative history to inform construction, Chevron expansion, or sovereign immunity, most decisions this term did work in the executive branch's favor.").
198. David B. Rivkin, Jr., The Unitary Executive and Presidential Control of Executive Branch Rulemaking, 7 ADMIN. L. J. AM. U. 309, 310 (1993);
199. see also Stephen G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995).
200. U.S. CONST. art. II, § 1.
201. Rivkin, supra note 189, at 318.
202. U.S. CONST. art. II, § 3.
203. In 1980, the projected total cost of WIPP including design, construction and operation was $1 billion. 1980 FEIS, supra note 60, at 1-6. A recent estimate projects that WIPP will cost $9.2 billion. Mike Taugher, Feds Up WIPP Cost Projection By $1.4 Billion, ALBUQUERQUE J., NOV. 10, 1995, at A1, A2. In 1992, the cost of maintaining WIPP with no waste operations was $14 million per month. 125 CONG. REC., supra note 120.
204. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). The Chevron principle of deference to agency discretion only arises after courts determine that some ambiguity exists within the statute. If the statute is clear, the court will evaluate whether agency decisions correctly implemented the plain language of the statute.
205. Id.
206. Id.
207. Primus inter pares is Latin for first among equals.
208. Sunstein, Executive Oversight of Regulatory Procedure, 7 ADMIN. J. L. AM. U. 297-307 (1993);
209. see also Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 54 (1994).
210. U.S. CONST. art. II, § 2.
211. Sunstein, supra note 198, at 297.
212. U.S. CONST. art. I, § 18.
213. Sunstein, supra note 198, at 297.
214. EPA standards only require DOE to show a probability that no more than a certain fraction of radioactivity will reach the accessible environment. Because of the length of the 10,000 year regulatory period (twice as long as human beings have recorded history), large uncertainties are inherent in the scope and task of predicting changes in geological and hydrological movements, climatic changes and particularly human factors such as population numbers and migrations or even what people will eat or drink.
215. ROBERT H. NEILL ET AL., REVIEW OF THE WIPP DRAFT APPLICATION TO SHOW COMPLIANCE WITH EPA TRANSURANIC WASTE DISPOSAL STANDARDS, xii-xvii (1996) [hereinafter EEG-61] (EEG-61). To reduce the amount of uncertainty inherent within the regulatory process, EPA included assurance requirements as part of the standard. 40 C.F.R. 191.14 (1995) (for example, institutional controls and monitoring, engineered barriers, and mitigation against the effects of the presence of valuable minerals at the site). To date, DOE has not adequately addressed any of EPA's assurance requirements. See EEG-61 at xv.
216. 40 C.F.R. 191 (1995).
217. See GENERAL ACCOUNTING OFFICE, NUCLEAR WASTE: FOREIGN COUNTRIES' APPROACHES TO HIGH-LEVEL WASTE STORAGE AND DISPOSAL (1994) [hereinafter GAO FOREIGN WASTE] (GAO/RCED-94-172).
218. In 1992 WIPP had cost $2.2 billion and was estimated to continue at a cost of $14 million per month. 125 CONG. REC. H6302 (daily ed. July 21, 1992) (statement of Rep. Rhodes). However, the cost may be somewhat higher. At $14 million per month WIPP should cost $168 million per year. Nevertheless, 1995 appropriations for WIPP were $174,323,000. DEPARTMENT OF ENERGY, ENVIRONMENTAL MANAGEMENT 1995: PROGRESS AND PLANS OF THE ENVIRONMENTAL MANAGEMENT PROGRAM 74 (1995) (DOE/EM-0228).
219. Schwartz, supra note 11.
220. In 1987, Yucca Mountain became the only high-level waste site to be considered for permanent disposal of spent fuel rods from largely commercial nuclear power plants. 42 U.S.C. § 160(a) (1987). Located in southern Nevada, the facility has been repeatedly delayed by scientific concerns about its viability. The most recent (1990) total-system life cycle cost estimates for Yucca Mountain and possible other repositories range from $25.6 billion to $34.6 billion (in constant 1988 dollars). DEPARTMENT OF ENERGY, FISCAL YEAR 1994 ANNUAL REPORT TO CONGRESS 62 (1995) (DOE/RW-0464). Yucca Mountain will not be ready to open until 2015 at the earliest. GAO FOREIGN WASTE, supra note 206, at Appendix I, 18.
221. The U.S. Council for Energy Awareness [hereinafter USCEA] is an organization which publicly supports nuclear energy, and underground disposal of nuclear waste. USCEA's 1991 Annual Report shows that members embrace a wide variety of economic, geographic and political interests: 177 businesses including General Electric, Bechtel, Westinghouse, Merrill Lynch, Siemens Power Corp., Squibb Diagnostics, and Teledyne, among others; 45 colleges and universities in over 30 states including Harvard, University of New Mexico, Stanford, MIT, and Texas A & M; 59 public utility companies; and 4 labor unions, including AFL-CIO's Building, Construction and Trades and the International Brotherhood of Electrical Workers.
222. CARLSBAD AREA OFFICE, DEPARTMENT OF ENERGY, STRATEGIC PLAN (1995) [hereinafter CAO STRATEGIC PLAN] (DOE/WIPP-95-1149).
223. Despite the requirement for a retrieval plan, 40 C.F.R. 191.14(f) requires retrievability, but does not require that retrievability be easy. DOE's application side-steps retrieval. DEPARTMENT OF ENERGY, DRAFT TITLE 40 CFR191 COMPLIANCE CERTIFICATION APPLICATION FOR THE WASTE ISOLATION PILOT PLANT (1995) (DOE/CAO-2056).
224. Because the salt deposits will cave in around the barrels and crush them, the waste to be buried at WIPP will eventually mix with the salt. After the barrels lose their integrity the waste mixes with the salt and the waste becomes hard to safely or economically retrieve. Relying on EPA's assurance that "it only need be technologically feasible . . . to mine the sealed repository," DOE states: "The WIPP is a mined repository. No additional actions to meet this requirement are necessary, and none are planned." CARLSBAD AREA OFFICE, DEPARTMENT OF ENERGY, COMPLIANCE STATUS REPORT FOR THE WASTE ISOLATION PILOT PLANT (1994) (DOE/WIPP 94-019, Revision O).
225. COMPLIANCE STATUS REPORT FOR THE WASTE ISOLATION PILOT PLANT (1994) Id.
226. COMPLIANCE STATUS REPORT FOR THE WASTE ISOLATION PILOT PLANT (1994) Id.
227. Rivkin, supra note 189, at 309.
228. Myers v. United States, 272 U.S. 52, 135 (1926) (Justice McReynolds dissenting).
229. See generally Office of Management and Budget Influence on Agency Regulation, Subcommittee on Legislation and National Security, Senate Com. on Environment and Public Works, 99th Cong., 2d Sees. (1986).
230. Allen v. Wright, 468 U.S. 737 (1984) (Separation of powers counsels against seeking to restructure the apparatus established by the Executive Branch to fulfill its legal duties.).
231. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).
232. Id.
233. Id.
234. See, e.g., Governors of U.S.P.S. v. U.S.P.S., 654 F.2d 108, 114-15 (D.C. Cir. 1981) (Postal Rate Commission may not change decision of Board of Governors.); Leonard v. U.S.P.S., 489 F.2d 814, 817-18 (1st Cir. 1974) (USPS decisions are not subject to Department of Justice veto.).
235. Rivkin, see supra note 189; see also Sunstein, supra note 200.
236. Reorg. Plan No. 3 of 1970, 3 C.F.R. 1072-75 (1971) reprinted in 5 U.S.C.A. app. 881-7 (1996).
237. Angel Manuel Moreno, Presidential Coordination of the Independent Regulatory Process, 8 ADMIN. L.J. AM. U. 461 (1994). See also Bowsher v. Synar, 478 U.S. 714 (1986) (holding that congressional authority to fire the director of the Office of the Comptroller General constituted sufficient power over the comptroller general to find improper retention of congressional power).
238. Moreno, supra note 225, at 479, 500.
239. See, e.g., N.R.D.C. v. U.S.E.P.A., 824 F.2d 1146.
240. For a discussion of the difference between EPA's status as an "independent agency" and the status of "independent regulatory agencies" within the executive branch, Moreno, see supra note 225, at 474 (Moreno identifies the eleven most important agencies as enjoying the more autonomous status of "independent regulatory agency": the Interstate Commerce Commission, the Federal Reserve Board, the Federal Trade Commission, the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board, the Consumer Product Safety Commission, the Commodity Futures Trading Commission, the Federal Energy Regulatory Commission, the United States International Trade Commission, and the Nuclear Regulatory Commission).
241. Moreno, supra note 225, at 511.
242. Id. at 477.
243. R.H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State. 62 U. CHI. L. REV. 1, 40-41 (1995) (Public trust varies among other factors according to the nature of the actor, e.g. industry or physician, and the location or nature of the community.). This restriction in practice seems to have little real effect in reducing commission support of presidential policy. Id. at 29 n.108.
244. Moreno, supra note 225, at 489-90.
245. Moreno, supra note 225, at 498-500.
246. Id. at 500 (some independent agencies "enjoy statutory or traditional bypass provisions").
247. Id. (General Accounting Services Administration and the Office of Personnel Management maintain control over facilities and personnel of most independent agencies.).
248. Id.
249. Id.
250. Id. (This power is also subject to congressional authorization. Without some statutory independence an independent regulatory agency can be created or terminated by presidential reorganization of the executive branch.).
251. Id. (The President's authority to establish budget estimates of the federal government for the fiscal year squarely places budgetary discretion over executive agencies within presidential power.).
252. Id. (Power to control litigation implicates policy as well as control over prolonging rulemaking. In general the U.S. Attorney General retains this authority with respect to independent regulatory agencies. However, some agencies retain limited enforcement and appeal powers.).
253. Pub. L. No. 102-579, 106 Stat. 4777 (1992) (giving EPA regulatory authority over WIPP); see Procurement Hearing, supra note 41.
254. Congress bifurcated high-level nuclear waste standards, giving EPA authority over WIPP, but authorizing separate standards for Yucca Mountain. 10 C.F.R. 52.97 (1992).
255. EPA's environmental advocacy mandate is philosophically consistent with the idea of keeping this independent agency within EPA. However, before such a decision is made, serious consideration should be given to limiting the president's ability to control the agency's regulatory independence through the above-mentioned conditions. Moreno, supra note 225, at 500-04.
256. Limiting the President's control over an independent regulatory agency raises the unitary executive theory policy concern about the cost associated with inefficiency in bureaucratic management. However, recent criticism of "control and command" environmental regulation suggests that hierarchical control over governmental agencies is only one factor in reducing costs. Other devices could be more effective. For example, implementing feedback systems into regulatory programs, identifying and distinguishing between long-term and short-term risks, and developing incentives for behavior changes (including incentives not to litigate) may also significantly reduce regulatory costs and compensate for any loss of management efficiency. Pildes, supra note 231, at 96-99. See also E. Donald Elliott, TQM-ing OMB: or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It, 57 LAW & COMTEMP. PROBS. 167-84 (1994).
257. See generally Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161-214 (1995).
258. Id. at 209.
259. New York v. United States, 505 U.S. 144,169 (1992) ("[w]here the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision. Accountability is thus diminished[.]").
260. Giving a non-elected independent regulatory agency autonomy from an elected president may seem ironically nonmajoritarian. However, the goal is to clarify implementation of congressionally mandated policy. The layered veils of presidential oversight in environmental rulemaking obscure accountability about how the agency has taken public input into account. Therefore, the shared executive model, depends on a direct accountability from the agency to the public. In this model courts might apply a more critical review of agency abuse of discretion. Presidential checks for inefficiency, neglect of duty or malfeasance in office could be retained. Moreno, supra note 225, at 513.
261. THE FEDERALIST No. 10, at 77 (James Madison) (Penguin 1961).
262. THE FEDERALIST No. 60, at 369 (Alexander Hamilton) (Penguin 1961).
263. THE FEDERALIST No. 17, at 119 (Alexander Hamilton) (Penquin 1961). ("It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities."). Id.
264. THE FEDERALIST No. 17, at 119 (Alexander Hamilton) (1961) Id.
265. See generally Pildes, supra note 231, at 41.
266. In a 1992 poll conducted by the New Mexico Environmental Law Center, 40% of those polled responded "WIPP" when asked to name the environmental issue which most concerned them. The next highest concern was "water," mentioned by only 26% of respondents. RESEARCH & POLLING, INC., NEW MEXICO ENVIRONMENTAL LAW CENTER, ATTITUDES OF NEW MEXICANS TOWARD FEDERAL AND STATE MINING LAWS AND RECLAMATION, INCLUDING REFORM OF THE 1872 MINING LAW (1992).
267. DOE first promised to open WIPP in 1988. 1980 FEIS, supra note 60, at 1-6. Public insistence on DOE accountability, particularly with respect to complying with existing state and federal laws, prevented DOE from bypassing Congressional action on a WIPP land withdrawal. 56 Fed. Reg. 3038, 3039 (1991); 56 Fed. Reg. 5731 (1991); see supra, note 125.
268. For example, the October 1993 withdrawal of DOE's test phase before EPA's decision about its direct relevance to compliance presumably was based in part on a response to the July 1993 DOE forum which included representatives from Indian tribes, concerned citizens, governors, congressional members, the National Academy of Science, and Westinghouse. See Meeting Summary Waste Isolation Pilot Plant Program Review (July 30, 1993) (held at the J.W. Marriott Hotel, Wash. D.C.).
269. See DEPARTMENT OF ENERGY NATIONAL TRANSURANIC PROGRAM PLAN 1-1 (1994) [hereinafter NATIONAL TRU] (DOE/NTP-94-1040).
270. The history of other long-term, cost intensive military projects does little to boost confidence in cursory WIPP oversight. See eg., Safeguard Antiballistic Missile System, ($25 billion from 1969-76) canceled because high operational costs eclipsed limited defensive benefits; XB-70/RS-70 Valkyrie Bomber ($9 billion from 1957-60) canceled by President Eisenhower due to concerns over interservice rivalry and lack of a clear mission-revived as a political maneuver to help Richard Nixon in California in the 1960 election left to languish and die under President Kennedy; Aircraft Nuclear Propulsion (ANP) ($6 billion from 1946-61) canceled due to poor management, technical problems and lack of a clear mission; Safeguard C atmospheric nuclear testing readiness capability ($1.6 billion from 1964-1993) canceled when Congress was made aware of its continued existence; Proposed restart of the Savannah River Site production reactors ($2 billion from 1988-1992) canceled when DOE and DOD reevaluated their need for new tritium; MX rail garrison basing plan ($2 billion from 1988-1991) canceled after heavy and sustained public and congressional opposition; Skybolt air-launched missile ($2.1 billion from 1955-1962) canceled due to poor test results; Nuclear Engine for Rocket Vehicle Applications (NERVA) ($2.7 billion from 1961-1972) canceled due to lack of a clearly defined mission; Aircraft Nuclear Propulsion ($6 billion from 1946-1961) canceled due to poor management, technical problems and the lack of a clear mission. See Schwartz, ATOMIC AUDIT, supra note 11.
271. See, e.g., W. Jones, Origins of the Certificate of Public Convenience and Necessity: Developments in the States, 1870-1920, 79 COLUM. L. REV. 426 (1979).
272. Since WIPP has already been built, requiring a CCN may be moot. However, the CCN process would be useful in resolving public polarization of opinion about future nuclear waste repositories.
273. Jones, supra note 259, at 427.
274. Traditionally CCN's are issued at the state level. Jones, supra note 259, at 430.
275. Federal Administrative Procedure Act, 5 U.S.C.A. § 551, 554 (1946).
276. 42 U.S.C. 4331 (1994), 83 Stat. 852 (1970).
277. See generally id.
278. Id.
279. Furthermore, as seen above, the APA substantive review will only question agency decisions if they are arbitrary and capricious. Arguably the irretrievable nature of permanent underground disposal of nuclear waste requires a stricter standard of review. Rather than disturbing general laws like NEPA and APA which apply to many retrievable actions, this paper recommends the CCN process to strengthen the NEPA and APA process with respect to permanent nuclear waste disposal decisions.
280. See generally NEPA, 42 U.S.C. 4321-4370d (1994).
281. Independent agencies traditionally regulate private, industrial or public service companies. The more closely the independent regulatory agency comes to regulating government, the more independence it seems to have. Therefore, the Federal Reserve Board, regulating government chartered banks, has more independence than, for instance, EPA. See generally Moreno, supra note 225; Jones, supra note 259.
282. Myers, 272 U.S. at 135.
283. See generally Peter Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161-214 (1995).
284. See generally Moreno, supra note 225.
285. See text and accompanying citations supra note 258.
286. See generally Donald E. Elliott, TQM-ING OMB: or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It, 57 LAW & CONTEMP. PROBS. 167-84 (1994).
287. 125 Cong. Rec., see supra note 139 (statement of Rep. Miller).
288. DOE's nuclear weapons complex is operated by hundreds of private contractors including Westinghouse Electric Corp., General Electric Corp., Bechtel Corp., EG&G, Reynolds Electrical & Engineering Corp., Martin Marietta Corp., Mason and Hanger-Silas Mason Co. Inc., Fluor Daniel, and Morrison-Knudson Corp. See Schwartz, BROOKINGS supra note 9. In addition, the enormous involvement of corporations, universities, public utilities, and labor unions in other government-supported nuclear activities inevitably has political impact. See USCEA, supra note 210.
289. See Schwartz, ATOMIC AUDIT, supra note 11.
290. Eisenhower, supra note 2.