Hirt v. Richardson, 1:99-CV-933.

• Decision Date: 17 December 1999
• Docket Number: No. 1:99-CV-933.,1:99-CV-933.
• Citation: 127 F.Supp.2d 833
• Parties: Alice HIRT; Anabel Dwyer; Citizens for Alternatives to Chemical Contamination; Kathryn Cumbow; Robert Anderson; Doris Schaller Vernon; and Terry Miller, Plaintiffs, v. Bill RICHARDSON, Secretary, United States Department of Energy; United States of America; and Unknown Part(y)(ies), named as "John and Jane Doe" on complaint, Defendants.
• Court: U.S. District Court — Western District of Michigan

127 F.Supp.2d 833 Alice HIRT; Anabel Dwyer; Citizens for Alternatives to Chemical Contamination; Kathryn Cumbow; Robert Anderson; Doris Schaller Vernon; and Terry Miller, Plaintiffs,
v.
Bill RICHARDSON, Secretary, United States Department of Energy; United States of America; and Unknown Part(y)(ies), named as "John and Jane Doe" on complaint, Defendants. No. 1:99-CV-933. United States District Court, W.D. Michigan, Southern Division. December 17, 1999.

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COPYRIGHT MATERIAL OMITTED

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Terry J. Lodge, Toledo, OH, Kary Love, Holland, MI, for Plaintiffs.

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Robert I. Dodge, U.S. Attorney's Office, Western District of Michigan, Grand Rapids, MI, for Defendants.

OPINION

ENSLEN, Chief Judge.

INTRODUCTION

This case proves that the most difficult cases for judges to decide are those in which both parties are well intentioned, intelligent, and motivated by the public's interest. This case is about the interrelationship between three of the most important public policy issues of our time. First, the case requires the Court to consider nuclear proliferation, and the threat posed by terrorists and/or rogue nations acquiring materials capable of producing nuclear weapons. Second, the case demands an appreciation for the unique safety considerations involved in the operation of nuclear reactors, and the inherent dangers associated with such facilities. Third, the instant matter calls for an examination of the extent to which nuclear materials may be safely transported from one place to another, and the risk of accident or terrorist attack that attaches to those shipments. For two days the parties in this case have presented arguments and evidence which touch on each of these important issues. While the parties do not agree on what the Court's decision should be, the Court is convinced beyond doubt that both parties are deeply concerned about protecting the public and minimizing the dangers associated with the use and transportation of nuclear materials.

With this in mind, the Court begins by noting there is an unmistakable duality in the atomic era in which we live. On the one hand, by harnessing the power contained in tiny atoms, atomic energy has allowed us to generate virtually limitless amounts of electricity without the need to rely upon fossil fuels that are inherently scarce, expensive, and environmentally harmful. On the other hand, atomic power necessitates the construction of large nuclear reactors where the smallest mistake can mean the deaths of thousands. The advent of atomic energy created weapons capable of destroying the world several times over, but also provided the deterrent necessary to prevent the Cold War from turning hot. Against this broad backdrop, the relevant facts in this case begin with the Department of Energy's assessment of the most recent challenge posed by nuclear power:

The end of the Cold War created a legacy of weapons-usable fissile materials both in the United States and the former Soviet Union. Substantial quantities of these materials, including plutonium and highly enriched uranium, are no longer needed for defense purposes. Further agreements on disarmament between the United States and Russia may increase the surplus quantities of these materials. The global stockpiles of weapons-usable fissile materials pose a danger to national and international security in the form of potential proliferation of nuclear weapons and potential environmental, safety, and health consequences if the materials are not properly safeguarded and managed.¹

In order to reduce the stockpiles of these materials², the United States and Russia have committed to roughly parallel programs to dispose of surplus weapons-grade plutonium. These programs are intended to ensure that the plutonium is disposed of in such a way that it will be unsuitable or unattractive for use in nuclear weapons. According to the parties, the "lock-step" nature of these programs ensures that both the United States and Russia be willing

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to dispose of their surplus plutonium.³ The United States and Russia have agreed, in principle, to each dispose of four tons of surplus plutonium per year.

For its part, the United States has committed itself to a two-part strategy to accomplish this goal. Department of Energy, Record of Decision, 62 F.R. 3014 (January 21, 1997). First, the United States intends to immobilize some plutonium in glass or ceramic material for disposal in a geologic repository ("vitrification"). Id. Second, the United States intends to burn the remaining plutonium as a mixed oxide (MOX) fuel in existing, domestic, commercial reactors, with subsequent disposal of the spent fuel in a geologic repository. Id. According to the United States, this dual-strategy can dispose of four tons of plutonium per year.

Russia also has a two-part strategy to dispose of its four tons of plutonium per year, although the second part of the strategy is undetermined. The first part, however, calls for Russia to burn two tons of plutonium per year as MOX fuel in existing Russian reactors. As for the remaining two tons of plutonium, the Russians are considering three options ("The Expansion Plan"). Option A involves enhancement of existing Russian reactors to accommodate additional MOX. Option B involves the use of European reactors to burn more MOX. Option C involves the use of Canadian Deuterium Uranium (CANDU) reactors to burn more MOX.

Related to these larger disposition programs is the Parallex Project, the immediate subject of the instant lawsuit. The Parallex Project is an experimental test project which will combine MOX fabricated in the United States, with MOX fabricated in Russia, to fuel a CANDU experimental reactor located at Chalk River Laboratories in Chalk River, Ontario, Canada. Pursuant to the Project, the United States will fabricate and ship nine MOX rods to Chalk River Laboratories from Los Alamos, New Mexico. These MOX rods contain 119 grams of plutonium.⁴ Sometime later, Russia will transport nine additional MOX rods to Chalk River Laboratories from Russia. Once all 18 MOX rods have arrived at Chalk River, 16 will be used to power the experimental reactor.

In January 1999, the Department of Energy (DOE) issued an Environmental Assessment (EA) of the Parallex Project which considered the fabrication and transportation of MOX from Los Alamos to the Canadian Border, as well as the potential environmental impacts from the experiment itself. The EA included an analysis of fabrication and transportation accident scenarios. The EA did not include any analysis related to the Russian fabrication of MOX or the Russian shipment of MOX to Canada. Based upon the EA, the DOE made a Finding Of No Significant Environmental Impact (FONSI). This finding was announced on September 8, 1999, in a Record of Decision reported at 64 F.R. 48810.

On December 6, 1999, Plaintiffs filed a Complaint alleging that DOE had violated the National Environmental Policy Act (NEPA) in its actions related to the Parallex Project. Plaintiffs requested a Temporary Restraining Order (TRO) and a Preliminary Injunction enjoining the DOE from participating in the transportation of MOX from Los Alamos to Chalk River. On December 7, 1999, the Court granted the TRO. The TRO expires on December

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17, 1999 at 5:30 p.m. On December 14 and 15, 1999, the Court took evidence and heard arguments on the Motion for a Preliminary Injunction.

I. Standard of Review

The duties imposed by the National Environmental Protection Act ("NEPA"), 42 U.S.C. § 4332(2)(C), are essentially procedural. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). The Council on Environmental Quality has issued regulations ("CEQ regulations") which are used by courts to interpret NEPA. These regulations are entitled to substantial deference. Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). NEPA requires that each federal agency prepare an Environmental Impact Statement ("EIS") on "every recommendation or report on proposals for ... major federal actions significantly affecting the quality of the human environment ...." 42 U.S.C. § 4332(2)(C); Kleppe v. Sierra Club, 427 U.S. 390, 394, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); Kelley v. Selin, 42 F.3d 1501, 1512 (6th Cir.1995). The EIS must address any adverse impacts of the proposed action and any alternatives to the proposed action. Selin, 42 F.3d at 1512. Under the CEQ regulations, an agency generally must prepare an Environmental Assessment ("EA") which briefly provides "sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant environmental impact." 40 C.F.R. § 1508.9. See also 40 C.F.R. § 1501.4(a), (b), (c); Jones v. Gordon, 792 F.2d 821, 827 (9th Cir.1986).

In determining whether to exercise discretion to grant a preliminary injunction, district courts consider the following four factors:

(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1030 (6th Cir.1995)). These factors are not prerequisites to issuing an injunction but factors to be balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985).

II. DISCUSSION

A. Likelihood of Success on the Merits

Plaintiffs assert a variety of rationales to support their contention that they are likely to succeed on their NEPA claims. The Court has grouped these arguments under the headings "Sufficiency of the Environmental...