Sierra Club v. Watkins, Civ. A. No. 88-3519 (RCL).

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: LAMBERTH
• Citation: 808 F. Supp. 852
• Parties: SIERRA CLUB, Plaintiff, v. James D. WATKINS, Secretary, U.S. Department of Energy, et al., Defendants.
• Decision Date: 09 December 1991
• Docket Number: Civ. A. No. 88-3519 (RCL).

808 F. Supp. 852

SIERRA CLUB, Plaintiff,
v.
James D. WATKINS, Secretary, U.S. Department of Energy, et al., Defendants.

Civ. A. No. 88-3519 (RCL).

United States District Court, District of Columbia.

December 9, 1991.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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John Charles Cleary, U.S. Attorney's Office, Washington, DC, for defendants

Ronald J. Wilson, Sierra Club Legal Defense Fund, Washington, DC, for plaintiff.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This case comes before the court on the parties' cross-motions for summary judgment. The plaintiff Sierra Club seeks to enjoin the Department of Energy ("the Department") from shipping spent nuclear fuel rods from Taiwan through the port of Hampton Roads, Virginia until the Department files an environmental impact statement ("EIS") or cures an allegedly inadequate environmental assessment ("EA")¹

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which found that shipping the fuel rods would have "no significant impact" on the environment. The Department asks this court to defer to its finding of no significant impact ("FONSI") and uphold the adequacy of the 1991 EA. For the reasons stated below, both parties' motions for summary judgment shall be GRANTED in part and DENIED in part

I. Facts

The United States has exported nuclear fuel for foreign research reactors since the mid-1950's. See Letter from J. Dexter Peach, Director, General Accounting Office, to Honorable Richard L. Ottinger, Chairman, Subcommittee on Energy Conservation and Power, at 3 (Dec 13, 1984) hereinafter "GAO Letter". Foreign nations who enter into a formal agreement with the United States for nuclear cooperation may return this fuel (after it has been used) to the United States for reprocessing and disposal. See id. By the authority of the Atomic Energy Act, as amended by the Non-Proliferation Act, 42 U.S.C. § 2160 (1988), the United States government, through the Department of Energy and its antecedents, established the "off-site fuels policy"² to accept spent nuclear fuel from foreign nations if the nuclear fuel was either produced or enriched in the United States. Since the advent of this off-site fuels policy in 1968, see Denny Decl. at ¶ 3, approximately 339 shipments of spent nuclear fuel from fourteen foreign nations have been transported into the United States without any accidents. See 1988 EA app. II. The justification for this policy has always been one of non-proliferation; quite simply, the less nuclear material available outside the United States, the less likely it is that some of it will be used for non-peaceful purposes.

In 1985, The American Institute of Taiwan and the United States government agreed to transport from Taiwan to the United States spent natural uranium from reactor fuel. See 50 Fed.Reg. 55252 (1985). According to the Department, this arrangement was separate from the off-site fuels policy because the reactor fuel was of foreign origin, involved natural (not enriched) uranium, and was shipped under different administrative arrangements. The Department's original plan (then called the Fuel Movement Project) was to bring 474 spent fuel rods into the United States through a port on the Pacific Coast (Long Beach, CA) and then to transport them overland in trucks to a processing plant located on the Savannah River in South Carolina.³ The fuel rods are transported in enormous containers, called "Type B casks" that are made of lead and steel and weigh approximately 50,000 pounds. The Pacific Coast was selected because of the "lower cost, excellent port facilities, and shorter total time in transit." Def.Resp. to Int. # 15. The Department, however, neglected to prepare any sort of document concerning the environmental effect of its action, as required under NEPA.

Before the Department was able to transfer the spent fuel rods into the United States, the Northwest Inland Waters Coalition obtained an injunction in a federal district court in Washington state preventing the Department from importing the fuel rods until it had prepared an environmental impact statement. See Northwest Inland Waters Coalition v. United States Dep't of Energy, Case No. C86-132T (W.D.Wa. Sept. 30, 1986). On appeal, the Ninth Circuit ruled that an EIS, the most

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extensive form of environmental documentation, was not required as an initial matter, but that the Department must complete an environmental assessment, a shorter document that aids an agency in deciding if an EIS is necessary, on the effects of importing Taiwan spent fuel. See Northwest Inland Waters Coalition v. United States Dep't of Energy, 852 F.2d 572 (9th Cir.1988). While the appeal was pending, the Department prepared an EA which concluded that an East Coast port would be a safer place to bring the fuel rods into the United States for reprocessing at the Savannah River site. See Environmental Assessment on Shipment of Taiwanese Research Reactor Spent Nuclear Fuel, U.S. Dep't of Energy DOE/EA-0321 (Dec.1986). The Department cited "the need to ship expeditiously, the existence of an Environmental Assessment for the East Coast, the course of proceedings in the Inland Waters Coalition lawsuit, and other institutional problems," Def.Resp. to Int. # 15, as reasons for abandoning its original plan to ship through the West Coast. The Department shipped the 474 fuel rods safely under this agreement

By a subsequent agreement, the Department agreed to accept 1100 more spent fuel rods from Taiwan. See 52 Fed.Reg. 42706 (1987). The Department prepared an environmental assessment on the effect of transporting the fuel rods to Hampton Roads, Virginia by sea and then to the Savannah River site by truck. See 1988 EA. On December 12, 1988, the Sierra Club filed this suit, seeking to force the Department to comply with the requirements of NEPA. The Sierra Club argued that an EIS was required or, in the alternative, that the 1988 EA was legally insufficient. On May 4, 1990, the Sierra Club moved for summary judgment and the Department subsequently opposed this motion and filed a cross-motion for summary judgment. The court declined to issue a preliminary injunction to stop a shipment at a December, 1990 hearing and the shipments under the 1988 EA were completed without incident. On June 19, 1991, the Department filed a new EA with the court for the shipment of 118 additional fuel rods from Taiwan; this new document mooted the Sierra Club's claims against the 1988 EA and forced the plaintiff to amend its complaint and its motion for summary judgment to argue that the Department has still failed to fulfill its obligations under NEPA, despite the improvements made in the 1991 EA.

II. An Overview of the 1991 EA

The 1991 EA used a computer program, RADTRAN IV,⁴ to compare the environmental risks of bringing the fuel rods through 1) Hampton Roads, VA, 2) a West or Gulf Coast port, 3) Charleston, SC, or 4) Wilmington, NC.⁵ The EA also considered the alternative of taking no action at all. The "no-action" alternative was summarily rejected as contrary to national security interests. RADTRAN IV calculated the radiological risks incurred by handlers, port workers, and members of the general population sufficiently near the route taken by the fuel rods. RADTRAN IV used actual population densities for all areas along the overland routes, but assumed certain conservative values for such variables as local topography and weather conditions.⁶

All three of the environmental assessments focused on two types of risks — incident-free risk and accident risks.⁷ Incident-free risk results as a consequence of radiation doses absorbed by people and the environment in the normal course of transportation. The ship's crew, handlers, and people near the transport route will almost certainly be exposed to some additional radiation. Accident risks involve a range of

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potential accidents which might occur that would release more significant amounts of radiation. Unlike incident-free risks, which will accrue regardless of any event occurring throughout transport, accident risks are reduced by the probability that such an accident will occur. The Department considered only what it deemed to be "credible" risks and divided these risks into six categories. The total radiological risk is thus the sum of the incident-free risk when added to the product of the accident risks and their conditional probabilities. On the basis of these calculations, the Department determined in each of the EA's that there was no significant impact on the environment and it issued a Finding of No Significant Impact ("FONSI"). In accordance with this finding, the Department stated that preparation of an EIS was unnecessary

III. The National Environmental Policy Act

In 1969, Congress passed the National Environmental Policy Act ("NEPA"), codified at 42 U.S.C. § 4321 et seq., in order to insure that all agencies of the federal government consider the environmental effects of proposed actions. One of NEPA's primary purposes is to make certain "that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). In addition to providing crucial information to the decisionmaker, NEPA also "guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Id. This audience includes the President, who is responsible for the agency's policy, and Congress, which has authorized the agency's actions. See Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 833 (D.C.Cir.1972). These decisionmakers need access to information concerning the environmental effects of the proposed program to decide...