The opinion of the court was delivered by: HOLDERMAN
On March 7, 1990 plaintiff Kerr-McGee Chemical Corporation ("Kerr-McGee") filed its Verified Complaint for Declaratory and Injunctive Relief in this case. One day later Kerr-McGee moved for a temporary restraining order ("TRO") and for a preliminary injunction -- the motions at issue here.
This dispute involves Kerr-McGee's West Chicago Rare Earths Facility ("facility"), located partially within the corporate limits of the City of West Chicago, Illinois ("City"). (Para. 5. *)
From 1932 to 1973 the facility, which sits on a 43-acre site of land, recovered thorium from "mildly radioactive ores." (Paras. 8, 10.) As an incident of recovering thorium from the ores, however, the facility produced a sand-like waste material called "tailings." (Para. 10.) Because of concern that these tailings might present a radiation hazard to public health, the U.S. Nuclear Regulatory Commission ("NRC") regulates the disposal of tailings pursuant to U.S. Environmental Protection Agency ("EPA") and NRC standards. (Paras. 10-12.)
In 1977 the NRC ordered Kerr-McGee to submit a plan for the decommissioning of the West Chicago facility. Kerr-McGee proposed to dispose of the tailings in an earthen structure called an "encapsulation cell" at the facility. (para. 13; Letter of Tom J. McDaniel, Senior Vice President of Kerr-McGee, dated March 5, 1990 [attached as Exhibit 8 to Plaintiff's Mem. In Support of TRO].) Cell construction would involve placing the tailings on a prepared base and covering them with eight feet of layered clay, rock and soil. (Letter of Tom J. McDaniel, cited supra.)
The ASLB asked the NRC staff to consider whether onsite disposal should be authorized and to prepare a supplemental environmental statement. (para. 16.) Meanwhile, Kerr-McGee prepared and submitted a 12-volume Engineering Report detailing the construction of the proposed disposal cell and its long-term performance. Among other things the Engineering Report analyzed erosion control for the encapsulation cell, described the methods for constructing the cell, and detailed the method of excavation at the site. (para. 17; Engineering Report, Volume I, "Overview of the Engineering Report," sections 1.3.5, 1.3.8, and 1.3.9 which summarize Volumes VI, IX and X respectively).
In its supplemental environmental statement the NRC staff again recommended approval of the onsite disposal cell. (Para. 18.) The State, however, again argued against approval of onsite disposal of the tailings. (Para. 19.) On February 13, 1989, after a hearing, the ASLB issued an initial decision concluding that Kerr-McGee's proposed disposal cell satisfies regulatory requirements. (Para. 20; NRC Initial Decision at 80 [attached as Exhibit 3 to Plaintiff's Mem. In Support of TRO].) Both the City and the State have appealed the ASLB decision and have filed a motion for a stay, which has been denied. (Para. 22; Plaintiff's Reply, Exhibit 1.)
On February 23, 1990 the NRC staff issued a license amendment. (Para. 21.) The license amendment specifically required that onsite disposal of the tailings "proceed in accordance with the statements and representations contained in [Kerr-McGee's] Engineering Report, Vols. IV, VI, VII, IX and X." (NRC Materials License at para. 9 [attached as Exhibit 4 to Plaintiff's Mem. in Support of TRO].)
On March 9, 1990, at a hearing on its motions for injunctive relief, counsel for Kerr-McGee provided this court with only Volume I of the Engineering Report, which summarizes and provides an overview of the other volumes of the report. Because counsel for Kerr-McGee did not provide Volumes IV, VI, VII, IX and X of the Engineering Report, which the court deems highly relevant to the motions under consideration, the court entered an order on March 12, 1990 requesting the submission of those volumes. A review of the contents of those volumes is necessary for an understanding of the issue presented here.
Volume IV of the Engineering Report is entitled "Cell Engineering" and describes the components of the encapsulation cell and their design criteria and configuration.
Volume VI is designated "Erosion Control" and describes the methods and considerations for erosion and sediment control both during construction of the disposal cell and throughout the life of the cell. At page VI-2 under the heading "1. Control of sedimentation during construction," Volume VI states:
The cell construction plan provides for compliance with sedimentation control regulations administered for all local construction projects by the City of West Chicago. The City's regulations set forth in "Procedures and Standards for Urban Soil Erosion and Sedimentation Control in Illinois" (1981), establish conventional guidelines for the management of sedimentation in a heavy construction project. Kerr-McGee has selected design criteria for sediment and erosion control during cell construction that in all cases meet or exceed the City's "Procedures and Standards" document. (emphasis added.)
On page 6-2, in a discussion of the criteria applicable to the control of erosion and sedimentation during construction, Volume VI goes on to state:
220.127.116.11 Selected Criteria and Rationale.
Kerr-McGee has selected design criteria for sediment and erosion control during the construction of the disposal cell that meets or exceeds the requirements of the City of West Chicago ordinance, and conforms to good construction practice. The criteria to be followed are:
1. control erosion and sedimentation on the construction site to the extent practicable to minimize construction delays
2. control the movement of sediment off-site to levels near pre-construction levels, and in any case, to levels below which will be harmful to the downstream aquatic environment
3. prevent the movement off-site of sediment containing tailings or other wastes from the construction site in levels exceeding those established in 10 CFR Part 20, Appendix B
4. provide a sediment and runoff detention basin that complies with the City of ...