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In re Westinghouse Electric Corporation

August 31, 1999


Generator No: NJ080100916 Generator No: NJR990041071

Before Judges Long, Kestin and Carchman.

The opinion of the court was delivered by: Kestin, J.A.D.


Argued: April 21, 1999

On appeal from the Low-Level Radioactive Waste Disposal Facility Siting Board.

The opinion of the court was delivered by

In June 1997, the Low-Level Radioactive Waste Disposal Facility Siting Board (the Board) in the Department of Environmental Protection imposed reduced assessments totaling $351,742.03 to cover Westinghouse Electric Corporation's (Westinghouse) fiscal years 1992, 1993 and 1994 funding responsibilities, as a generator of low-level radioactive waste, for the development of a disposal facility. The assessments were made pursuant to the Regional Low-Level Radioactive Waste Disposal Facility Siting Act (the Act), N.J.S.A. 13:1E-177 to -198, and administrative rules adopted thereunder, N.J.A.C. 7:60-1.1 to -1.6 (the Rules). Westinghouse appeals. We affirm.

Westinghouse has been licensed to handle low-level radioactive materials in connection with its own manufacturing operations and its involvement in projects of the federal government, such as the Manhattan Project. Until 1983, Westinghouse owned and operated a lamp manufacturing business in Bloomfield. In 1983, the manufacturing operation was sold to Phillips Lighting Company (Phillips). Westinghouse retained title to the property. Phillips continued manufacturing at the site until 1986, when all operations ceased. Once operations on the site came to an end, clean-up was required under standards imposed by federal and State law. Among other things, there was a need to dispose of low-level radioactive waste (LLRW). This has become an increasingly common industrial problem implicating environmental concerns and policies which have been addressed legislatively and administratively on both federal and state levels.

The Seventh Circuit Court of Appeals recently provided some background regarding the problem and how it has been approached:

Millions of cubic feet of low-level radioactive waste are generated by power companies, industry, the government, universities, and hospitals each year. See New York v. United States, 505 U.S. 144, 149-50, 112 S.Ct. 2408, 2414, 120 L.Ed.2d 120 (1992). The main problem with this type of waste, which comes in forms ranging from luminous watch dials to nuclear power plant hardware, is that it often needs to remain isolated for hundreds of years before it no longer poses any health risk.

In the late 1970's, as some of the dangers associated with the disposal of the waste came to light, half of the nation's disposal facilities closed their doors. By late 1978 only three sites--those in Washington, Nevada, and South Carolina--remained open. Then, in 1979, following a series of transportation and packaging mishaps, Washington and Nevada temporarily shut down their facilities. Less than eager to serve as the nation's dumping ground for radioactive waste, South Carolina severely cut back on the amount of waste it was willing to accept at its site. A crisis was at hand.

In 1980 Congress reacted to the crisis by enacting the Low-Level Radioactive Waste Policy Act, Pub.L. 96-573, 94 Stat. 3347. The 1980 Act announced a federal policy of holding each state responsible for "providing for the availability of capacity ... for the disposal of low-level radioactive waste generated within its borders." Because Congress concluded that disposal could be managed most efficiently at a regional level, the 1980 Act encouraged states to form interstate compacts. Starting in 1986, these compacts, after being ratified by Congress to take the dormant Commerce Clause out of the picture, could prohibit outside waste from entering their regions' disposal facilities.

The 1980 Act was largely a flop. By 1985, although most states had joined compacts, only the three formed around Washington, Nevada, and South Carolina--the states with facilities in operation before the Act was passed-- had disposal sites. Congress realized that if it ratified the compacts as planned, the three sited compacts could have started excluding outside waste in 1986, and as many as 31 states would have been left without access to a disposal facility.

To head off a second disposal crisis, Congress passed the Low-Level Radioactive Waste Policy Amendments Act of 1985. The 1985 Act was largely the product of a compromise worked out by the nation's governors, and part of the legislation took a familiar tack. For example, like its predecessor, the 1985 Act declared that "[e]ach State shall be responsible for providing, either by itself or in cooperation with other States, for the disposal of ... low-level radioactive waste generated within the State." [U.S.C.A.] §2021c(a)(1)(A). Similarly, the 1985 Act made clear that Congress thought regional compacts would be the safest and most efficient way to increase disposal capacity and ensure uniform distribution of disposal sites. See [U.S.C.A.] §2021d(a).

However, part of the legislation took an aggressive approach absent in the 1980 Act. Under the new act, the three sited states were required to accept low-level radioactive waste generated outside of their borders until 1992. [U.S.C.A.] §2021e(a)(2). In exchange, the sited states were allowed to assess graduated surcharges on outside waste. [U.S.C.A.] §2021e(d)(1). Then, when the 7 years were up, the sited states would be allowed to exclude out-of-state waste. In order to encourage unsited states to meet their responsibility for disposing of their own waste by 1992, the 1985 Act set forth three different types of incentives--monetary, access, and a take-title requirement. See New York, supra, 505 U.S. at 144, 112 S.Ct. 2408 (describing the incentives and striking down a provision requiring non-complying states to take title to all waste generated within their borders). [Central Midwest Interstate Low-Level Radioactive Waste Commission v. Pena, 113 F.3d 1468, 1470-71 (7th Cir. 1997).]

Following on the federal legislative efforts, New Jersey, in 1987, adopted its Act, designed, inter alia, to generate funds for the construction of a waste disposal facility within New Jersey. N.J.S.A. 13:1E-177 to -198. The legislative statement ...

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