Mayaguezanos Por La Salud Y El Ambiente v. U.S.

Citation38 F.Supp.2d 168
Decision Date18 February 1999
Docket NumberNo. Civ. 98-1087(SEC).,Civ. 98-1087(SEC).
PartiesMAYAGUEZANOS POR LA SALUD Y EL AMBIENTE, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — District of Puerto Rico

Pedro J. Varela-Fernandez, Cayey, PR, for plaintiffs.

Stephen G. Bartell, U.S. Dept. of Justice, Environmental & Natural Resources Div., Washington, DC, and Isabel Munoz-Acosta, U.S. Attorney's Office District of P.R., Civil Division, Hato Rey, PR, for defendants.


CASELLAS, District Judge.

Plaintiffs in this action are several organizations that advocate for the preservation of Puerto Rico's natural resources, as well as several fishermen associations. They are Mayagüezanos por la Salud y el Ambiente; Liga Ecológica Puertorriqueña del Noroeste, Inc.; Tourism Association of Rincón, Inc.; Asociación de Pescadores del El Maní; and Asociación de Pescadores de El Seco (hereinafter "plaintiffs")1. They are seeking injunctive relief against both federal government and industrial defendants pursuant to the National Environmental Policy Act of 1969 ("NEPA"); the Atomic Energy Act ("AEA"), and the Nuclear Non-Proliferation Act ("NNPA") to prevent industrial defendants from transporting vitrified nuclear waste through the waters of the Mona Passage off the coast of the Commonwealth of Puerto Rico without first preparing an Environmental Impact Statement ("EIS"). To that end, they are suing the United States of America; the State Department; the Department of Energy; the Coast Guard; Secretary of State Madeleine Albright; and Secretary of Energy Federico Peña (hereinafter the "federal defendants"). In addition, they are suing British Nuclear Fuels Limited ("BNFL"); Compagnie Generales de Matières ("COGEMA"); and Pacific Nuclear Transport Limited ("PNTL") (hereinafter the "industrial defendants"), the private entities in charge of transporting the vitrified nuclear waste at issue.

Pending before the Court are cross-motions for summary judgment filed by the federal defendants (Docket # 16) and plaintiffs (Docket # 22), and the oppositions thereto. For the reasons stated below in this Opinion and Order, plaintiffs' motion for summary judgment (Docket # 22) is DENIED and the federal defendants' motion for summary judgment (Docket # 16) is GRANTED. The above-captioned action is therefore DISMISSED.

Factual Background

Plaintiffs and federal defendants agree that there is no genuine issue of material fact and that thus this matter should be disposed of through the summary judgment mechanism. While there are disputes among the parties regarding the actual safety of the shipments at issue here, said controversy is not material to the disposition of the case. We shall thus limit the recounting of the facts to those that are relevant to the resolution of the questions of law that have been raised by the parties.

On January 21, 1998, the Pacific Swan, a British-flag freighter, left the French port of Cherbourg bound for Japan with a cargo of vitrified high-level radioactive waste. This waste being shipped to Japan is residue from reprocessed or "spent" nuclear reactor fuel; it contains only trace amounts of irrecoverable uranium and plutonium. On its way to the Panama Canal, on February 3, 1998, the Pacific Swan crossed the Mona Passage off the coast of Puerto Rico, which brought it within 200 miles of the north and west coasts of Puerto Rico.

The shipment at issue was the third in a series of oceanic shipments of this type from either France or England to Japan that are a result of spent nuclear fuel reprocessing process used by the Japanese electric utilities. The reprocessing contracts are between COGEMA in France, BNFL in the United Kingdom, and various Japanese utilities.

The uranium which was manufactured into the original power reactor fuel was supplied to Japan by the United States pursuant to the Agreement for Cooperation Between the United States of America and Japan Concerning Peaceful Uses of Nuclear Energy (the "U.S.-Japan Agreement"), entered into force on July 17, 1988. U.S.-Japan Agreement, 1988 WL 582501, H.R.Doc. No. 128, 100th Cong., 1st Sess., Nov. 9, 1987. The United States, however, plays no role in either the reprocessing process or the return of the vitrified nuclear waste to Japan.

The shipments at issue follow one of three possible routes: around Cape Horn; around the Cape of Good Hope; or via the Panama Canal. The route is selected solely by the shipping companies and the receiving country. While the Pacific Swan shipment was the first one of this particular type of nuclear waste to transit through the Panama Canal, there have been more than 150 shipments of spent fuel from Japan to Europe over the last twenty years, including numerous ones through the Panama Canal. There has also been a smaller number of plutonium and waste shipments; in all that time, there has not been a single incident involving the release of radioactivity.

In the process of reprocessing the spent fuel, a series of mechanical and chemical operations take place in order to settle out selectively the various components of the spent nuclear fuel and thus recover a majority of the unused fissionable material in the spent fuel. Among this recovered fissionable material are isotopes of plutonium and uranium; the remaining material is waste for which there is no use. As stated above, the cargo shipments involved in this case involve only this waste residue.

The waste residue is radioactive and is returned to the owner of the spent nuclear fuel, in this case Japan, for proper storage and disposal. To ensure the safe storage and handling of this radioactive waste, the waste is "vitrified," that is, turned into solid glass form, making the waste an integral part of the glass matrix and immobilizing the radioactive material within it. The molten glass is poured into stainless steel canisters, where the glass solidifies; the canisters are then welded shut. France, Japan, Germany, Belgium, Switzerland, and the Netherlands all follow this same practice of reprocessing their spent nuclear fuel.

The stainless steel canisters are loaded into specially-designed casks known as TN 28 VT's, which hold either 20 or 28 containers each. For example, the Pacific Swan shipment consisted of three of these casks, each holding 20 canisters. These casks are massive steel structures made from 10-inch forged steel, weighing about 100 metric tons each. They are certified to meet the safety standards of the International Atomic Energy Agency ("IAEA"), Japan, and France for structural integrity, thermal performance, containment level, and shielding capacity. In addition, they comply with the stringent IAEA "Type B" specifications for the transport of radioactive materials and are also known as "accident resistant" casks, for their purported ability to withstand a range of severe accidents.

These casks are loaded on specially-designed ships which are used only for the transport of nuclear materials; these ships are owned by "PNTL", a subsidiary owned by BNFL, COGEMA, and the Japanese electric utilities. These ships meet the international standards of the International Maritime Organization ("IMO"), as well as the requirements of the Japanese, French, and British authorities. Furthermore, all PNTL-operated vessels meet the standards of the Irradiated Nuclear Fuel ("INF") Code, established by the IMO, which recommends a range of requirements for the design and operation of vessels carrying nuclear materials. In short, both the ships and the casks meet all internationally-set standards for the storage and transportation of radioactive materials of this kind.

Summary Judgment Standard

As noted by the First Circuit,

[s]ummary judgment has a special niche in civil litigation. Its role is `to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.' Wynne v. Tufts University School of Medicine, 976 F.2d 791, 794 (1st Cir. 1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993). The device allows courts and litigants to avoid full-blown trials in unwinnable cases, thus conserving the parties' time and money and permitting courts to husband scarce judicial resources.

McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995).

According to Fed.R.Civ.P. 56(c), a summary judgment motion should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28 (1st Cir.1994). It is not enough to conjure up an alleged factual dispute between the parties; to defeat summary judgment, there must exist a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Having filed cross-motions for summary judgment, parties agree that this case is ripe for summary disposition. We must thus determine whether either party is entitled to judgment as a matter of law pursuant to Rule 56(c).

Applicability of the U.S.-EURATOM Agreement, the AEA, and the NNPA

Plaintiffs argue that the Court has jurisdiction to enjoin the passage of the vitrified nuclear waste at issue here because said material is subject to the transfer requirements contained in the Atomic Energy Act (the "AEA"), 42 U.S.C. § 2011, et seq.; the Nuclear Non-Proliferation Act (the "NNPA"), 22 U.S.C. § 3201, et seq.; and the Agreement for Cooperation in the Peaceful Uses of Nuclear Energy between the United States of America and the European Atomic Energy Community (EU-RATOM) (the "U.S.-EURATOM Agreement"), 1996 WL 361511.

In their complaint, plaintiffs aver that the United States needs to consent to the retransfer of the waste material from...

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