Group v. United States Dep't of Energy

• Citation: 794 F.Supp.2d 1216
• Decision Date: 23 May 2011
• Docket Number: No. 10–CV–760 JCH/ACT.,10–CV–760 JCH/ACT.
• Parties: LOS ALAMOS STUDY GROUP, Plaintiff,v.UNITED STATES DEPARTMENT OF ENERGY; The Honorable Stephen Chu, in his capacity as Secretary, Department of Energy; National Nuclear Security Administration; The Honorable Thomas Paul D'Agostino, in his capacity as Administrator, National Nuclear Security Administration, Defendants.
• Court: U.S. District Court — District of New Mexico

794 F.Supp.2d 1216

LOS ALAMOS STUDY GROUP, Plaintiff,

v.UNITED STATES DEPARTMENT OF ENERGY; The Honorable Stephen Chu, in his capacity as Secretary, Department of Energy; National Nuclear Security Administration; The Honorable Thomas Paul D'Agostino, in his capacity as Administrator, National Nuclear Security Administration, Defendants.

No. 10–CV–760 JCH/ACT.

United States District Court, D. New Mexico.

May 23, 2011.

Diane E. Albert, Law Office of Diane Albert, Albuquerque, NM, Dulcinea Z. Hanuschak, Hinkle, Hensley, Shanor & Martin, LLP, Lindsay A. Lovejoy, Thomas M. Hnasko, Santa Fe, NM, for Plaintiff.John Tustin, USDOJ, Washington, DC, Andrew A. Smith, U.S. Department of Justice c/o U.S. Attorneys Office, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JUDITH C. HERRERA, District Judge.

THIS MATTER comes before the Court on Plaintiff Los Alamos Study Group's Objections to Magistrate Judge's Proposed Findings and Recommended Disposition, filed January 20, 2011 [Doc. 33]. On November 17, 2010, the Court referred Defendants' Motion to Dismiss for Lack of Jurisdiction [Doc. 9] to the Magistrate Judge for proposed findings of fact and a recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). See Doc. 15. On January 6, 2011, the Magistrate Judge filed his Proposed Findings and Recommended Disposition (hereinafter referred to as “F & R”), recommending that Plaintiff's Complaint be dismissed in its entirety based on the doctrine of prudential mootness. See Doc. 25. Plaintiff timely filed its objections. ¹

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed de novo the findings and recommendations to which Plaintiff objects. In addition to exhaustively reviewing the briefs and voluminous exhibits submitted by the parties, the Court held hearings on April 27, 2011 and May 2, 2011, at which both sides were heard and during which the parties submitted additional material.² Having carefully considered the Objections, briefs, relevant law, arguments of the parties at the hearings, and the submitted exhibits, and being otherwise fully informed, the Court finds that Plaintiff's Objections to the Magistrate Judge's Proposed Findings and Recommended Disposition are not well taken and will be DENIED. Because this denial results in Plaintiff's Complaint being dismissed in its entirety, the Court does not reach Plaintiff's Motion for Preliminary Injunction [Doc. 13].

BACKGROUND ³

This action arises under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370(f) (“NEPA”), together with the implementing regulations for NEPA issued by the White House Council on Environmental Quality, 40 C.F.R. Part 1500–08, and regulations issued by the Department of Energy (“DOE”), 10 C.F.R. Part 1021. This action also arises under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq.

In its Complaint [Doc. 1], Plaintiff challenges the adequacy of the Department of Energy/National Nuclear Security Administration's (“DOE/NNSA” or “NNSA”) analysis of potential environmental impacts from the construction and operation of the proposed Chemistry and Metallurgy Research Replacement Nuclear Facility (“CMRR–NF”) at Los Alamos National Laboratory (“LANL”). Complaint at ¶ 2. The NNSA is responsible for the management and security of the nation's nuclear weapons, nuclear nonproliferation, and naval reactor programs. See Declaration of Donald L. Cook, attached as Ex. 1 to Deft. Mot. to Dismiss [Doc. 9] (hereinafter “Cook Decl.”) at ¶ 3; 50 U.S.C. § 2401(b). NNSA is also responsible for the administration of LANL. Id. at ¶ 4.

Plaintiff's Complaint seeks a declaratory judgment and mandatory injunction requiring Defendants to prepare a new Environment Impact Statement (“EIS”) regarding the CMRR–NF and also seeks to prohibit all further investments in the CMRR–NF project, including any funds for detailed design or construction, until a new EIS is completed. Complaint at ¶ 3. Specifically, in Count I, Plaintiff alleges that Defendants violated NEPA and the APA by failing to prepare an applicable EIS for the CMRR–NF. It claims that Defendants' current proposal differs substantially from that considered in the project's 2003 EIS and the accompanying Record of Decision (“ROD”) that was released in 2004, so that a new EIS must be prepared. Complaint at ¶¶ 52–64. In Count II, Plaintiff alleges that Defendants have failed to develop an EIS which addresses “connected actions” to the CMRR–NF and that Defendants must prepare a new EIS to address them. Complaint at ¶¶ 65–71. In Count III, Plaintiff alleges that Defendants failed to provide required mitigation measures and a mitigation action plan in the 2003 EIS and the 2004 ROD and that they must prepare a new EIS which addresses reasonable mitigation measures. Complaint at ¶¶ 72–79. Count IV alleges that the Defendants' decision-making processes for the CMRR–NF exceed the scope of the 2003 EIS and the 2004 ROD and that all activities should be stopped pending the completion of a new EIS and ROD. Complaint at ¶¶ 80–90. In Count V, Plaintiff alleges that the proposed CMRR–NF involves a much greater commitment of resources and has a far greater impact than what was analyzed in the 2003 EIS and the 2004 ROD. It alleges that the DOE authorized production of a Supplement Analysis which addresses the changed project parameters and allegedly determines if a Supplemental EIS (“SEIS”) or a new EIS should be prepared has not been made public or provided to Plaintiff. Complaint at ¶¶ 91–95.

Defendants filed a Motion to Dismiss [Doc. 9] which argues that (1) some of Plaintiff's claims are time-barred; (2) Plaintiff's claims are not ripe for review; (3) Plaintiff's claims are moot; and, alternatively, (4) Plaintiff's claims should be dismissed under the doctrine of prudential mootness.

In 2002, NNSA published a Notice of Intent to prepare the CMRR–NF EIS and invited public comment on the CMRR–NF EIS proposal. Cook Decl. at ¶ 9. At the time NNSA published the Notice of Intent, the Chemical and Metallurgy Research (“CMR”) building that Defendants sought to replace was over 50 years old and allegedly nearing the end of its useful life. Id. at ¶ 6. The CMR building is a facility which has “unique capabilities for performing special nuclear material analytical chemistry, materials characterization, and actinide ⁴ research and development.” Id. at ¶ 5. The CMR building supports various national security missions including nuclear nonproliferation programs; the manufacturing, development, and surveillance of pits (the fissile core of a nuclear warhead); life extension programs; dismantlement efforts; waste management; material recycle and recovery; and research. Id. NNSA's proposal to construct the replacement facility, CMRR–NF, was to insure that NNSA could “fulfill its national security mission for the next 50 years in a safe, secure, and environmentally sound manner.” Id. at ¶¶ 7 and 8.

NNSA hosted two public meetings on the proposed CMRR project in August of 2002 and published a Draft EIS. Id. at ¶ 9. NNSA issued a Final EIS in November 2003. Id. NNSA published its Record of Decision (“ROD”) on the 2003 EIS in the Federal Register on February 12, 2004. Id. at ¶ 10; 69 Fed.Reg. 6967 (Feb. 12, 2004).

The 2004 ROD announced that the CMRR project would consist of two buildings: a single, above-ground consolidated special nuclear material-capable, Hazard Category 2 laboratory building (the CMRR–NF), and a separate but adjacent administrative office and support building, the Radiological Laboratory Utility Office Building (“RLUOB”). Cook Decl. at ¶ 10.

Defendants contend that, since the 2003 EIS and the 2004 ROD were published, new developments have arisen that require changes to the proposed CMRR–NF structure. Id. at ¶ 12. Specifically, a site-wide analysis of the geophysical structures that underlie the area occupied by LANL revealed new geologic information regarding the seismic conditions at the site. Id.; Pl. Resp. to Deft. Mot. to Dismiss [Doc. 10] at 7–10. As a result of the new geologic information, as well as more information on the various support functions, actions, and infrastructure needed for construction, “changes were made to the proposed design of the CMRR–NF.” Cook Decl. at ¶ 12. In addition to addressing the seismic issues, other changes were made to “implement [ ] DOE's nuclear safety management design requirements for increased facility engineering controls to ensure protection of the public, workers, and the environment.” Id. Also, “sustainable design principles have been incorporated to minimize the environmental impacts of construction and operation of the proposed CMRR–NF.” Id.

In light of the design changes, NNSA prepared a Supplement Analysis pursuant to 10 C.F.R. § 1021.314(c)(2) to determine (1) if the 2003 EIS should be supplemented, (2) if a new EIS should be prepared, or (3) if no additional NEPA document was required. Id. at ¶ 15. On July 1, 2010, counsel for Plaintiff wrote to the DOE and the NNSA and expressed concerns about the adequacy of NNSA's NEPA analysis and the increased cost and scope of the CMRR–NF project. Plaintiff requested that DOE stop any and all CMRR–NF design activities, make no further contractual obligations, and seek no further funding until NNSA complete a new EIS for the CMRR–NF. Id. On July 30, 2010, NNSA informed the Plaintiff that it was preparing a Supplement Analysis. Id. Prior to NNSA's completion of the Supplement Analysis of how to proceed with possible changes to the proposed design of the CMRR–NF, Plaintiff filed its Complaint on August 16, 2010. See Doc. 1.

On September 21, 2010, NNSA's Deputy Administrator for Defense Programs, Donald L. Cook, decided “for prudential reasons” that the NNSA should complete an SEIS “to analyze the potential environmental impacts associated with the construction of the proposed CMRR–NF.” Cook Decl. at ¶ 16. A Notice of Intent to prepare an SEIS...