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Federal Judge Rules For State In MRS Dispute

February 6, 1986

NASHVILLE, Tenn. (AP) _ The U.S. Energy Department says it will ask Congress to approve a nuclear waste storage plant despite a judge’s ruling that it unlawfully failed to consult state officials before selecting a site in Tennessee.

U.S. District Judge Thomas A. Wiseman ruled Wednesday that the plans to build the Monitored Retrievable Storage plant near Oak Ridge was ″fatally flawed″ because the agency failed ″to consult and cooperate with the state of Tennessee″ in conducting extensive site studies.

″This court declares, without hesitation, that the secretary has failed to carry out the statutory duties assigned to him,″ the judge said in the 30- page opinion.

Wiseman, however, did not grant the state’s request for an injunction against Energy Secretary John Herrington as a way to stop the plan from going to Congress, saying ″the court may assume that the defendant will proceed in good faith ... without the coercion of an injunction.″

But he said the agency ″may submit no portion of the proposal to Congress which relates in any way″ to the choice of Tennessee.

The DOE will continue with its original plan to ask Congress to authorize the plant, either on Friday or early next week, unless its lawyers advise otherwise, said Ginger King, spokeswoman for the department’s office of Civilian Radioactive Waste Management in Washington.

Wiseman’s ruling comes on a lawsuit filed Aug. 20, 1985, by state Attorney General Mike Cody, contending the agency never asked for state input before selecting the abandoned Clinch River Breeder Reactor for the plant.

The ruling should force the agency to begin the selection process again, Cody said.

″Judge Wiseman’s ruling, of course, does not permanently prevent the Department of Energy from asking Congress to authorize the construction of an MRS in Tennessee, but only prevents the DOE from making the request until there is compliance with the federal act mandating consultation with Tennessee officials,″ he said.

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