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New York, City of v. Department of Transp.

Citation: 12 ELR 20864
No. No. 81 Civ. 1778 (ADS), 539 F. Supp. 1237/(S.D.N.Y., 05/05/1982) Amended

The court invalidates regulations issued by the Department of Transportation (DOT) under the Hazardous Materials Transportation Act (HMTA) concerning the transportation of radioactive materials, insofar as the regulations override nonfederal bans on truck transportation of spent fuel and other large quantities of radioactive materials through densely populated areas. It holds that DOT's environmental assessment for the rules fails to comply with the National Environmental Policy Act (NEPA) and that the rules are not adequately justified under the HMTA. The regulations provide in part that any state or local routing rule is inconsistent with the regulations if it prohibits highway transportation between any two points without providing an alternate route. This provision would override § 175.11 of the New York City Health Code, which prohibits use of the highways for shipments through New York City of specified radioactive materials. Initially, the court holds that neither § 105 of the HMTA, requiring promulgation of regulations, nor § 112(b), providing for the waiver of preemption of state requirements, represents an unconstitutional delegation of legislative authority. They also do not violate the Tenth Amendment or the Commerce Clause since Congress' commerce power is not limited by the Tenth Amendment. The court further holds that DOT did not exceed its authority under HMTA by regulating so as to permit the freer transport of hazardous substances since DOT found that the establishment of a national plan for transporting radioactive materials promotes safety and efficiency. To the extent that the challenged regulations are not ruled invalid below, the court declares them to preempt state requirements unless and until the Secretary makes a determination of nonpreemption.

Under NEPA, the court upholds DOT's finding of no significant impact (FONSI) insofar as the challenged regulations relate to highway transport of materials insufficiently toxic to cause great harm in the event of an accident.Where the regulations mandate the transportation of dangerous radioactive materials through densely populated areas, the court holds the FONSI to be arbitrary and capricious. The court next holds that DOT failed to give adequate consideration to alternatives, such as barging, under § 102(2)(E) of NEPA and under Council of Environmental Quality regulations. The record shows that there is a "credible" risk of an extremely serious highway accident, and that the barging alternative may be substantially safer and less expensive.

Finally, under the HMTA, the court holds that DOT's responsibilities are not limited to ensuring a minimum level of safety for whatever mode of transportation is commercially preferred. DOT is obligated to adopt the safer option among transportation modes unless it is impractical or impairs the achievement of some other national policy. On the record, DOT failed to meet this standard. The court enjoins application in New York City of the invalid portions of DOT's regulations, but finds insufficient basis in the record to enjoin application in other jurisdictions. Each jurisdiction may present evidence to DOT for a ruling on its ban.

[This decision amends an earlier decision issued by the court and digested at 12 ELR 20461 — Ed.]

Counsel are listed at 12 ELR 20461.