Beyond Nuclear v. U.S. Dep't of Energy

• Decision Date: 02 February 2017
• Docket Number: Case No. 16–cv–1641 (TSC)
• Citation: 233 F.Supp.3d 40
• Parties: BEYOND NUCLEAR, et al., Plaintiffs, v. U.S. DEPARTMENT OF ENERGY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

233 F.Supp.3d 40

BEYOND NUCLEAR, et al., Plaintiffs,

v.U.S. DEPARTMENT OF ENERGY, et al., Defendants.

Case No. 16–cv–1641 (TSC)

United States District Court, District of Columbia.

Filed February 2, 2017

Diane J. Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Washington, DC, Terry J. Lodge, Toledo, OH, for Plaintiffs.

Stephen Menzies Macfarlane, U.S. Department of Justice, Sacramento, CA, Judith E. Coleman, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

This case concerns the U.S. Department of Energy's ("DOE") obligation under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. , to publish an environmental impact statement ("EIS") prior to taking any action that may significantly affect the quality of the environment. Before the court is the question of whether DOE violated NEPA by not preparing a supplemental EIS ahead of its planned transportation of 6,000 gallons of highly-enriched uranyl nitrate liquid ("HEUNL") from Chalk River, Ontario, Canada to the Savannah River Site in South Carolina. Plaintiffs are seven environmental advocacy groups who contend that DOE's reliance on past EISs and publication of two supplement analyses is not sufficient under the agency's NEPA requirements. The parties jointly agreed to an accelerated summary judgment briefing schedule and hearing ahead of DOE's planned February 2017 commencement of the transportation. Pursuant to that schedule, Defendants moved for summary judgment on November 4, 2016, and Plaintiffs cross-moved for summary judgment on November 22, 2016. The court heard oral argument on the motions on January 18, 2017.

Upon consideration of the parties' motions and the administrative record, Defendants' motion is GRANTED and Plaintiffs' cross-motion is DENIED. Defendants' motion to strike the extra-record materials submitted by Plaintiffs is also GRANTED, and Plaintiffs' motion to supplement the record is therefore DENIED.

I. BACKGROUND

A. Requirements of NEPA

Before the DOE, or any federal agency, engages in activity that may "significantly affect[ ] the quality of the human environment," NEPA requires it to prepare "a detailed statement" on "the environmental impact of the proposed action," as well as any potential alternative actions that may be taken. 42 U.S.C. § 4332(2)(c)(i)–(v). DOE must thus take a "hard look" at environmental consequences before moving forward on a major administrative action.

Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). The purpose of this requirement is to ensure " ‘a fully informed and well-considered decision, not necessarily’ the best decision." Theodore Roosevelt Conserv. P'ship v. Salazar , 616 F.3d 497, 503 (D.C. Cir. 2010) (quoting Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc. , 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ). The statute sets procedural requirements, but does not mandate certain outcomes. See Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ("If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.").

DOE's NEPA obligations, like those of all federal agencies, are guided by the Council on Environmental Quality's ("CEQ") regulations at 40 C.F.R. §§ 1500–08, as well as DOE's own regulations at 10 C.F.R. § 1021. These regulations, for example, require DOE to issue a Record of Decision ("ROD") upon completion of an environmental impact statement, stating its decision, alternatives considered, factors balanced by the agency, and whether all practicable means to avoid or minimize environmental harm from the selected alternatives had been adopted or why not. 40 C.F.R. § 1505.2. The regulations also require agencies to solicit public comments on proposed actions while preparing an EIS. See 40 C.F.R. §§ 1503.1, 1501.4(b), 1506.6. At issue here is the DOE's obligation to supplement an EIS if "[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns" or "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(i), (ii) ; 10 C.F.R. § 1021.314(a).

B. DOE's Planned Transportation of Highly Enriched Liquid Uranium

This case concerns the planned transportation of "target material," which is the residual substance that remains after highly-enriched uranium targets are irradiated in a research reactor, removed, and dissolved in a nitric acid solution to recover molybdenum-99, which decays into a radioisotope used in medical applications such as cancer diagnosis and treatment. (AR 0026360). The specific terminology used by DOE and other agencies reflects important differences in categories of material, many of which have statutory definitions. Plaintiffs at times refer to the target material at issue as "nuclear waste," "toxic liquid stew," "highly-radioactive liquid waste," or "a form of spent fuel." DOE clarifies that these terms are either meaningless in a technical sense or have specific definitions that do not include target material.¹

Under the DOE's acceptance policy, the agency accepts shipments of spent nuclear fuel and target material containing U.S.-origin uranium from foreign research reactors and then manages that uranium at facilities in the United States. See 61 Fed. Reg. 25,092 –103 (May 17, 1996). This program is part of a larger effort, dating back to 1950s, in which the United States has provided highly enriched uranium to foreign nuclear research reactors conditioned on the promise to not develop nuclear weapons, then later accepted the spent nuclear fuel and target material back from those foreign reactors to avoid the stockpiling of nuclear material in foreign countries and to ensure the safe processing and maintenance of the material in the United States. Id. at 25,092 –93. Pursuant to this acceptance program, DOE intends to accept 6,000 gallons of target material from Ontario and transport it to the Savannah River Site in South Carolina for processing and storage. (AR 0026361, 0027336).

Between 1995 and 2000, DOE issued three environmental impact statements and Records of Decision ("ROD") in support of this Acceptance Program. The first ROD was issued in 1995 and included the "Programmatic Spent Nuclear Fuel Management and Idaho National Engineering Laboratory Environment and Waste Management Programs EIS" (the "1995 EIS"). (AR 0001570; 60 Fed. Reg. 28,680 (June 1, 1995) ). The 1995 EIS assessed the potential environmental impacts of the transportation, receipt, processing, and storage of spent nuclear fuel, and the receipt and storage of aluminum-clad target material, at the Savannah River Site in South Carolina. Next, in 1996, DOE and the Department of State jointly issued the "Proposed Nuclear Weapons Nonproliferation Policy Concerning Foreign Research Reactor Spent Nuclear Fuel EIS" (the "1996 EIS"), which was "tiered from," or based on, the 1995 EIS and also considered the transportation, receipt, and storage of about 18.2 metric tons heavy metal of aluminum-clad spent nuclear fuel and about 0.6 metro tons heavy metal of target material to the Savannah River Site. (AR 0007903–9098). This 1996 EIS supported DOE's ROD that year establishing the ten-year Acceptance Program. 61 Fed. Reg. 25,092 (May 17, 1996).

Finally, in 2000 DOE issued the "Savannah River Site Spent Nuclear Fuel Management EIS" (the "2000 EIS"), which considered alternatives for the management, storage, and disposal of aluminum-clad spent nuclear fuel and target material at the Savannah River Site, and adopted an alternative using both a new melt-and-dilute technology and conventional processing for the uranium received there. (AR 0011537; 65 Fed. Reg. 48,224 (Aug. 7, 2000) ). In 2004, approaching the conclusion of the ten-year Acceptance Program, DOE prepared a Supplement Analysis to determine whether a supplemental EIS was necessary to extend the program, and determined that extension would not constitute a significant change, so no supplemental EIS was required. (AR 0017883–914; 69 Fed. Reg. 69,901 (Dec. 1, 2004) ).

The uranium transport at issue in this litigation would bring 6,000 gallons of target material from Ontario to the Savannah River Site by truck on land. (AR 0027336). The primary difference between this plan and that analyzed in the 1996 EIS is that the target material considered in 1996 was in the form of loose oxide powder (i.e., a solid) while here it is in the form of a uranyl nitrate liquid solution (i.e., liquid). (AR 0026366–68). Essentially all other aspects of the plan, including the source location, the use of trucks carrying casks over land, the potential routes used, and the storage at the Savannah River Site are the same. DOE seeks to accept and transport liquid target material because it was notified in 2008 by Atomic Energy of Canada,Ltd., the Canadian agency overseeing the nuclear material in that country, that certain constraints precluded taking the additional step of converting the target material to solid form after it was dissolved in the nitric acid solution. (AR 0024238). In 2012, DOE agreed to consider acceptance of liquid target material, and the two agencies signed a contract to take steps necessary to determine whether such acceptance would be possible. (AR 0026260–79).

In March 2013, DOE issued a Supplement Analysis (the "2013 SA") to consider whether acceptance and transportation of liquid target material from Canada required supplementation of the 1995 EIS, 1996 EIS, or 2000 EIS. (AR 0026359–94). The 2013 SA stated that DOE's acceptance of the material would depend on whether the specific casks designed to hold the target material (referred to as NAC–LWT casks)...