Oak Ridge Envtl. Peace Alliance v. Perry

• Decision Date: 24 September 2019
• Docket Number: No.: 3:18-cv-150 REEVES/POPLIN,: 3:18-cv-150 REEVES/POPLIN
• Citation: 412 F.Supp.3d 786
• Parties: OAK RIDGE ENVIRONMENTAL PEACE ALLIANCE, Nuclear Watch of New Mexico, Natural Resources Defense Council, Ralph Hutchison, Ed Sullivan, Jack Carl Hoefer and Linda Ewald, Plaintiffs v. James Richard PERRY, Secretary, United States Department of Energy and Lisa E. Gordon-Hagerty, Administrator, National Nuclear Security Administration, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

412 F.Supp.3d 786

OAK RIDGE ENVIRONMENTAL PEACE ALLIANCE, Nuclear Watch of New Mexico, Natural Resources Defense Council, Ralph Hutchison, Ed Sullivan, Jack Carl Hoefer and Linda Ewald, Plaintiffs

v.James Richard PERRY, Secretary, United States Department of Energy and Lisa E. Gordon-Hagerty, Administrator, National Nuclear Security Administration, Defendants.

No.: 3:18-cv-150 REEVES/POPLIN

United States District Court, E.D. Tennessee, Northern Division, at Knoxville.

Filed September 24, 2019

Eric Robert Glitzenstein, Pro Hac Vice, Meyer Glitzenstein & Eubanks LLP, William Lawton, Pro Hac Vice, Eubanks & Associates, LLC, Geoffrey H. Fettus, Pro Hac Vice, Natural Resource Defense Council, Washington, DC, for Plaintiffs.

Thomas K. Snodgrass, U.S. Department of Justice, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

Pamela L. Reeves, CHIEF UNITED STATES DISTRICT JUDGE

In 1942, Brigadier General Leslie Groves laid eyes upon the Clinch River valley in Anderson County, Tennessee. As head of the newly formed Manhattan Engineer District (better known as the "Manhattan Project"), he was drawn to this well-barricaded, sparsely populated region as an ideal location to secretively enrich the uranium he would need to build the first ever nuclear bomb. The Clinch River winds its way in a southwesterly direction through Anderson County, which is defined by a series of steep ridges and valleys that run parallel to each other in a southwest to northwest direction. Deep underground, a series of faults run roughly in the same direction; geologists know this area as the East Tennessee Seismic Zone.

Less than three years later, Groves succeeded, and the town of Oak Ridge, Tennessee—built from scratch to house the uranium-enriching workforce—became forever synonymous with the weapon that ended World War II.

After the war, the "Oak Ridge Reservation" was transferred from military to civilian control. Today, it is controlled by of the Department of Energy ("DOE") and is comprised of two main complexes, the Oak Ridge National Laboratory and the Y-12 National Security Complex. DOE, acting through its sub-agency, the National Nuclear Security Administration ("NNSA"), continues to store and manufacture the highly-enriched uranium needed to sustain the country's nuclear weapons arsenal at Y-12.

In 1969, Congress passed the National Environmental Policy Act ("NEPA")—our "national charter" for protecting the environment. The Act requires federal agencies to prepare environmental impact statements for any "major" federal action. Although it does not police substantive decisions, NEPA does require agencies to follow a rigorous process for disclosing the resulting impacts of their actions on the environment.

In 1996, with the Cold War fading, DOE undertook a monumental effort to modernize the entire United States nuclear weapons infrastructure, and considered the resulting environmental impacts in a series of three "programmatic" statements. Under these plans, Y-12 would continue to be the primary location for manufacturing and storing highly-enriched, weapons-grade uranium. Thus, Y-12 would need to develop modernization plans of its own and discuss these environmental impacts of its plans in separate impact statements. The first such impact statement was finalized in 2001; in addition to disclosing the "site-wide" environmental impacts at Y-12, NNSA proposed eliminating the existing facilities where highly-enriched uranium was kept and condensing the storage of those materials into one new facility, dubbed the "Highly Enriched Uranium Materials Facility," or HEUMF. In that same statement, NNSA contemplated the construction of a building—which came to be known as the "Uranium Processing Facility," or UPF—adjacent to the HEUMF. Ideally, the UPF would achieve the same goals for uranium manufacturing that the HEUMF would achieve for uranium storage by effectively consolidating all the manufacturing operations currently taking place in outdated buildings into a new, state-of-the-art facility.

By the mid-2000s, the HEUMF was built and preliminary plans for the UPF were being developed. As part of another site-wide impact statement, NNSA prepared in 2011 to evaluate the specific environmental impacts of its plans to upgrade Y-12's uranium manufacturing program. As required by NEPA, NNSA evaluated the environmental impacts of various alternative actions, which included a "no action" alternative, a plan called the "Upgrade in-Place" under which only existing facilities would be upgraded (and no new facilities would be built), and three plans for new manufacturing facilities that would be designed to handle different production capacities. Ultimately, NNSA settled on one of these "capability-sized" UPFs, and issued a record of decision in July 2011 that ratified this choice.

Shortly after NNSA decided on a course of action, it ran into roadblocks and quickly realized that building the UPF to specifications was going to cost much more than initially predicted. A little more than two years after the decision to build the UPF was made, those overseeing the project realized a change was necessary. A group known as the "Red Team" formed to evaluate the remaining feasible options, and issued a report recommending that all construction on the UPF stop immediately. In its place, the Red Team suggested building a much smaller-scale UPF, and refurbishing existing buildings that would have been demolished under the original plan.

The Red Team Report was released in early 2014. Later that same year, the United States Geological Survey ("USGS") issued updated "seismic hazard maps" for the entire country. As the name suggests, these maps provide a general overview of earthquake risk across the United States and are updated roughly every five to six years to account for new evidence and improvements in the field of seismology. While the maps themselves are necessarily approximate, the underlying data provides a well-respected baseline for policymakers, government agencies, and private industry decisionmakers to evaluate location-specific earthquake risks and plan accordingly. Significantly for this case, the 2014 map indicated a much higher earthquake hazard for all of East Tennessee than any previous versions.

Meanwhile, the Defense Nuclear Facilities Safety Board ("DNFSB"), a government agency formed to ensure safety compliance at nuclear weapons production facilities, had been conducting structural reviews of existing buildings at Y-12 since at least 2009. Their reviews had revealed many structural deficiencies in the buildings that were now slated to remain at Y-12.

Between 2014 and 2016, NNSA and Consolidated Nuclear Security, LLC ("CNS"), the Y-12 site contractor, began implementing the Red Team's plan. As part of this process and in compliance with DOE's NEPA regulations, NNSA prepared a so-called "supplement analysis" in 2016 to determine whether the change in plans would require preparation of a new environmental impact statement. Under NEPA, an agency is required to prepare an updated, or "supplemental," impact statement whenever there is a change in circumstances or significant new information that would alter the analysis of environmental impacts from a prior statement.

NNSA concluded that no supplemental statement was necessary because, although there had admittedly been a change in circumstances, the 2011 site-wide impact statement had already evaluated the environmental impacts that would result from the adoption of an "Upgrade in-Place" alternative in addition to the UPF. Because, in essence, the Red Team had recommended building a smaller UPF in conjunction with the refurbishment of existing buildings, and the updated plan had combined these two alternatives, NNSA concluded that NEPA did not require a new impact statement in these circumstances. In addition, NNSA discussed the 2014 seismic hazard map, and concluded the information contained therein did not warrant the preparation of a new impact statement to account for the increase in seismic hazard. Shortly thereafter, NNSA issued a formal notice of decision confirming its changed plans and reiterating its conclusion that no further environmental analysis was required under NEPA.

The Oak Ridge Environmental Peace Alliance is an organization that monitors and informs the public about nuclear weapons production at Y-12. Its members keep close track of activity at the facility, and they had taken every available opportunity to comment on the progress of the UPF. In July 2017, a year after NNSA published its formal decision declining to prepare a new impact statement, the Alliance, along with four of its members and two other organizations, brought this suit, arguing that DOE and NNSA had violated NEPA by failing to prepare a supplemental impact statement. In April, 2018, while the suit was pending, NNSA prepared a new draft supplement analysis (a less comprehensive form of environmental review than an environmental impact statement) to reassess the progress of its ongoing modernization plans since the 2011 site-wide statement had been prepared. After accepting comments to the draft, NNSA released its final analysis, again concluding that no further analysis of environmental impacts was necessary.

The April 2018 analysis disclosed new information regarding the scope of the modernization project. In response, Plaintiffs filed an amended complaint, bringing additional claims under NEPA. As it stands, they have alleged violations of NEPA under four separate theories.

First, that Defendants have improperly "segmented" the overall analysis of the Y-12 Modernization Plan to avoid disclosing potentially significant environmental impacts. Second, that they should prepare a new (or supplemental) impact statement because of the change in circumstances resulting from NNSA's 2016 decision to downsize the UPF and refurbish existing buildings through the so-called "Extended Life Program," or ELP. Third, that NNSA...