State of N.J., Dept. of Environmental Protection and Energy v. Long Island Power Authority, No. 93-5613

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSCIRICA
Parties, 24 Envtl. L. Rep. 21,233 STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENERGY; Jeanne M. Fox, in her official capacity as Acting Commissioner of the Department of Environmental Protection and Energy v. LONG ISLAND POWER AUTHORITY; Thomas De Jesu, in his official capacity as Executive Director of the Long Island Power Authority; United States Nuclear Regulatory Commission; U.S. Coast Guard, within the United States Department of Transportation; Philadelphia Electric Company, New Jersey Department of Environmental Protection and Energy and Jeanne M. Fox, Commissioner of the New Jersey Department of Environmental Protection and Energy, in her official capacity, Appellants.
Docket NumberNo. 93-5613
Decision Date19 July 1994

Page 403

30 F.3d 403
29 Fed.R.Serv.3d 963, 24 Envtl. L. Rep. 21,233
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION
AND ENERGY; Jeanne M. Fox, in her official
capacity as Acting Commissioner of the
Department of Environmental
Protection and Energy
v.
LONG ISLAND POWER AUTHORITY; Thomas De Jesu, in his
official capacity as Executive Director of the Long Island
Power Authority; United States Nuclear Regulatory
Commission; U.S. Coast Guard, within the United States
Department of Transportation; Philadelphia Electric Company,
New Jersey Department of Environmental Protection and Energy
and Jeanne M. Fox, Commissioner of the New Jersey
Department of Environmental Protection
and Energy, in her official
capacity, Appellants.
No. 93-5613.
United States Court of Appeals,
Third Circuit.
Argued Dec. 1, 1993.
Decided July 19, 1994.

Page 405

Thomas A. Kowalczyk (argued), John M. Van Dalen, Office of Atty. Gen., Dept. of Law & Public Safety, Trenton, for appellants.

Barry M. Hartman (argued), Lawrence C. Lanpher, Kirkpatrick & Lockhart, Washington, DC, Paul G. Shapiro, Cohen, Shapiro, Polisher, Shiekman & Cohen, Lawrenceville, NJ, Richard P. Bonnifield, Garden City, NY, for appellees, Long Island Power Authority and Thomas De Jesu, in his official capacity as Executive Director of the Long Island Power Authority.

Katherine W. Hazard (argued), U.S. Dept. of Justice, Washington, DC, for appellees, U.S. Nuclear Regulatory Com'n and U.S. Coast Guard, within U.S. Dept. of Transp.

Robert M. Rader (argued), Winston & Strawn, Washington, DC, for appellee, Philadelphia Elec. Co.

Before: BECKER and SCIRICA, Circuit Judges and POLLAK, District Judge *.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The New Jersey Department of Environmental Protection and Energy (NJDEPE) appeals the denial of its application to enjoin shipment of partially irradiated reactor fuel by barge through New Jersey coastal waters. NJDEPE claims the shipment violates the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4321-4347 (1988), because neither the Nuclear Regulatory Commission

Page 406

(NRC) nor the United States Coast Guard conducted an environmental assessment of the method and route of transportation. NJDEPE also claims certain licenses were improperly granted to the Philadelphia Electric Company (PECo) and the Long Island Power Authority (LIPA) by the NRC and the Coast Guard in violation of the Coastal Zone Management Act (CZMA), 16 U.S.C. Secs. 1451-1464 (1988 and Supp. IV 1992), because neither PECo nor LIPA demonstrated its actions would be consistent with state coastal management laws.

We hold the district court properly dismissed NJDEPE's NEPA claim against the NRC for want of jurisdiction, and properly granted summary judgment on NJDEPE's CZMA claim in favor of the Coast Guard. We also rule on three claims the district court did not address. We will instruct the district court to grant summary judgment for the Coast Guard on NJDEPE's NEPA claim against it, dismiss the CZMA claim against the NRC for want of jurisdiction, and dismiss the CZMA claim against LIPA and PECo for failure to state a claim.

I.

A. Events leading to fuel shipment

The Shoreham Nuclear Power Station in Wading River, New York was licensed by the NRC in 1989 for full power operation but was never put into commercial operation. LIPA, a corporate municipal instrumentality and political subdivision of New York State, bought Shoreham from the original owner, the Long Island Lighting Company, and in 1992 began the process of decommissioning the plant by dismantling and removing or decontaminating its various components.

By February, 1993, the only remaining step in decommissioning the plant was disposal of its fuel, 560 bundles of uranium-235, containing an estimated radioactivity of 176,000 Curies. 1 On March 1, 1993, LIPA entered into an agreement with PECo and General Electric Co., under which PECo would accept delivery of Shoreham's nuclear fuel and General Electric would manage the project. PECo intended to use the almost new nuclear fuel in its Limerick Generating Plant near Pottstown, Pennsylvania. Under the agreement, LIPA was responsible for transporting the fuel.

On March 8, 1993, PECo applied to the NRC for an amendment to its operating license to allow it to receive the fuel. On March 31, the NRC published a notice of a proposed finding that the license amendment involved no significant environmental hazards under NEPA, 58 Fed.Reg. 16851, 16867-68 (1993), and that transport would be by rail. Id. at 16867. On May 18, pursuant to its regulations, the NRC published an Environmental Assessment of the proposed license amendment, along with a "Finding of No Significant Impact" (FONSI), which indicated that no Environmental Impact Statement was required. 58 Fed.Reg. 29010-11 (1993); see 10 C.F.R. Secs. 51.21, 51.25 2; 42 U.S.C. Sec. 4332(2)(C) (1988). The FONSI did not discuss the method or route of transportation of the fuel, but included a finding that the impact from transporting the nuclear fuel would be minimal, based on application of Table S-4, 10 C.F.R. Sec. 51.52. The NRC issued the amendment June 23, 1993.

The parties disagree about when NJDEPE learned of LIPA's plans to ship by barge. NJDEPE states that at about the time the amendment was issued, LIPA informed NJDEPE that it was considering shipping the fuel by barge along New Jersey's coast. LIPA and PECo claim they had discussed barge shipment with NJDEPE at a number of meetings in May and June. In any event, NJDEPE asserts that in July it expressed objections to barge transport but after receiving no response from PECo or LIPA assumed that the barge shipment plan had been delayed or abandoned, until an Assistant Commissioner of NJDEPE read in a

Page 407

newspaper in mid-August that LIPA and PECo still intended to pursue the plan. NJDEPE also acknowledges receipt on August 9 from LIPA of an application for a state permit, a "Certificate of Handling," that indicated the plan to transport the fuel by barge. 3

On July 7, LIPA submitted a proposed "Operations Plan" to the Coast Guard's Captain of the Port of Long Island Sound describing the route, equipment, safety and emergency procedures of the barge shipment. 4 In a July 27 letter, the Captain of the Port stated that final approval was contingent on structural inspections of the barges, and gave directions for reporting positions and emergencies en route. NJDEPE states it did not see a copy of LIPA's plan until September 3.

LIPA planned shipment in specialized casks approved by the NRC for shipment of radioactive materials. Each cask weighs 130,000 pounds, and holds up to 17 fuel assemblies. The casks' manufacturer, non-party Pacific Nuclear Systems, Inc., asked the NRC to approve modifications in the support structure and packing of the casks to fit the Shoreham fuel assemblies. On May 11 and August 19, the NRC issued "Certificate[s] of Compliance for Radioactive Materials Packages" to Pacific Nuclear Systems, approving the alterations. The cask is designed to contain fully irradiated fuel, which would be more than 100 times as radioactive as the Shoreham fuel. 5

On September 8, NJDEPE notified the Coast Guard by letter, with a copy to LIPA, that the CZMA, 16 U.S.C. Sec. 1456(c)(3)(A), required LIPA to submit a "Consistency Certification" showing compliance with state coastal management law. On September 15, NJDEPE sent a similar letter to the National Oceanic and Atmospheric Administration (NOAA). 6 On October 1, NOAA replied that no such submission was required. LIPA refused to refrain from shipping until it had submitted the requested certification.

Barge shipments commenced on September 24, 1993, with each barge carrying a single cask. A total of 33 shipments was planned. The barges left Long Island, travelled south through the Atlantic Ocean, at points within 15 miles of the New Jersey Coast, went around Cape May through New Jersey waters and up the Delaware River to dock at Eddystone, Pennsylvania. The fuel was then moved by rail to PECo's Limerick plant.

B. Litigation

On September 21, 1993, NJDEPE filed suit against the NRC, the Coast Guard, LIPA, and PECo, raising three counts.

Count I complained the NRC and the Coast Guard had violated NEPA by not preparing adequate "Environmental Assessments" when they approved the fuel shipment from LIPA to PECo because NEPA, 42 U.S.C. Sec. 4332(2)(C), and an NRC regulation, 10 C.F.R. Sec. 51.30, required assessment of the risks of and alternatives to the proposed method and route of transportation. Lacking this analysis, the Environmental Assessment of PECo's license amendment was "fatally flawed." Verified Complaint at 19, Joint Appendix (J.A.) at 24.

Page 408

Count II claimed the Atomic Energy Act of 1954, 42 U.S.C. Secs. 2011-2282 (1988 & Supp. IV 1992), and an NRC regulation, 10 C.F.R. Sec. 70.3, required LIPA to obtain an amendment to its license for its nuclear fuel or to its Decommissioning Plan before shipping the fuel.

Count III referred to the CZMA's requirement that applicants for certain federal licenses whose activity would affect a state's coastal zone submit certifications of consistency with the state's approved Coastal Zone Management program. 16 U.S.C. Sec. 1456(c)(3)(A). NJDEPE claimed that Coast Guard approval of LIPA's transport plan and NRC approval of PECo's license amendment and of LIPA's transfer plans constituted such licenses, but lacked the required consistency certifications.

NJDEPE requested a temporary restraining order and a preliminary injunction against shipment until an adequate Environmental Assessment was done. LIPA claimed delay in decommissioning would cost $2-3 million per month in carrying costs and additional expenses for disruption of contractors' schedules. On September 22 the district court denied the motion for a temporary restraining order. On September 24 we denied a motion for an injunction pending appeal,...

To continue reading

Request your trial
43 practice notes
  • Curry v. U.S. Forest Service, No. Civ.A. 97-1081.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • October 15, 1997
    ...lower arbitrary and capricious standard. See State of New Jersey, Dept. of Environmental Protection and Energy v. Long Island Power Auth., 30 F.3d 403, 415 n. 21 (3d In the present case, the court concludes that the standard of review applied in connection with plaintiffs' NEPA challenge to......
  • Minard Run Oil Co. v. United States Forest Serv., Nos. 10–1265
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 20, 2011
    ...the project by lease, license, permit, or other entitlement for use.” N.J. Dept. of Envt'l. Prot. and Energy v. Long Island Power Auth., 30 F.3d 403, 417 (3d Cir.1994). But “[f]ederal approval of a private party's project, where that approval is not required for the project to go forward, d......
  • Council Tree Communications, Inc. v. F.C.C., No. 06-2943.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 28, 2007
    ...in nature, and may not be enlarged or altered by the courts." N.J. Dep't of Envtl. Prot. & Energy v. Long Island Power Auth., 30 F.3d 403, 414 (3d Cir.1994) (quoting Natural Res. Def. Council v. NRC, 666 F.2d 595, 602 (D.C.Cir.1981)); see also Fed. R.App. P. 26(b)(2). In Western Union Teleg......
  • Clairton Sportsmen's Club v. PENN. TURNPIKE COM'N, Civ. A. No. 94-1114.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 3, 1995
    ...the project a major federal action has been held to be unlawful." New Jersey Dept. of Env'l Protection v. Long Island Power Authority, 30 F.3d 403, 411 (3d Cir.1994), quoting Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 240 (3d Cir.1980), cert. denied, 449......
  • Request a trial to view additional results
41 cases
  • Curry v. U.S. Forest Service, No. Civ.A. 97-1081.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • October 15, 1997
    ...lower arbitrary and capricious standard. See State of New Jersey, Dept. of Environmental Protection and Energy v. Long Island Power Auth., 30 F.3d 403, 415 n. 21 (3d In the present case, the court concludes that the standard of review applied in connection with plaintiffs' NEPA challenge to......
  • Minard Run Oil Co. v. United States Forest Serv., Nos. 10–1265
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 20, 2011
    ...the project by lease, license, permit, or other entitlement for use.” N.J. Dept. of Envt'l. Prot. and Energy v. Long Island Power Auth., 30 F.3d 403, 417 (3d Cir.1994). But “[f]ederal approval of a private party's project, where that approval is not required for the project to go forward, d......
  • Council Tree Communications, Inc. v. F.C.C., No. 06-2943.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 28, 2007
    ...in nature, and may not be enlarged or altered by the courts." N.J. Dep't of Envtl. Prot. & Energy v. Long Island Power Auth., 30 F.3d 403, 414 (3d Cir.1994) (quoting Natural Res. Def. Council v. NRC, 666 F.2d 595, 602 (D.C.Cir.1981)); see also Fed. R.App. P. 26(b)(2). In Western Union Teleg......
  • Clairton Sportsmen's Club v. PENN. TURNPIKE COM'N, Civ. A. No. 94-1114.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 3, 1995
    ...the project a major federal action has been held to be unlawful." New Jersey Dept. of Env'l Protection v. Long Island Power Authority, 30 F.3d 403, 411 (3d Cir.1994), quoting Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 240 (3d Cir.1980), cert. denied, 449......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT