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Sierra Club v. Watkins

ELR Citation: 23 ELR 20728
Nos. No. 88-3519 (RCL), 808 F. Supp. 852/34 ERC 2057/(D.D.C., 12/09/1991)

The court holds that the U.S. Department of Energy (DOE) must prepare a new environmental assessment (EA) for the shipment of 118 spent nuclear fuel rods from Taiwan through the port of Hampton Roads, Virginia, to a processing facility on the Savannah River in South Carolina, because its 1991 EA for the shipment violates the National Environmental Policy Act (NEPA) and regulations of the Council on Environmental Quality. DOE determined that the shipment posed no significant impact on the environment, issued a finding of no significant impact, and stated that an environmental impact statement (EIS) was unnecessary. The court first dismisses plaintiff environmental group's claim that DOE's failure to prepare an EIS for the shipment violates NEPA. The court holds that there is no substantial controversy over dose-conversion factors used for DOE's EA such that DOE's decision not to prepare an EIS should be overruled. Affidavits of DOE's experts cast substantial doubt on plaintiff's scientific data, and several of plaintiff's studies were directly refuted by other scientists. Further, NEPA does not require a federal agency to consider and discuss every viewpoint in the scientific community on a given matter. The court also holds that there is no controversy over the risk of radioactivity escaping from the shipment casks that would require the preparation of an EIS.

The court next holds that DOE is not required to prepare a programmatic EIS examining the cumulative impact of the U.S. policy on accepting foreign spent nuclear fuel that was either produced or enriched in the United States, and DOE's program of accepting spent nuclear fuel from Taiwan that was produced abroad and not enriched. DOE's assertion that no decisions have been made as to what port will accommodate spent fuel under the spent fuel policy is uncontroverted. Because it is unclear where future shipments will be imported, the proposed policy and the shipment of Taiwan spent fuel through Hampton Roads cannot be meaningfully evaluated together.

Turning to the adequacy of the EA, the court holds that DOE's EA estimate of the duration of radiation exposure is not arbitrary or capricious. Also, the EA impliedly accounts for human error. The court holds that DOE's use of bounded variables for population density, weather patterns, and local geography does not violate NEPA, because DOE used conservative estimates for these variables. Further, the 1991 EA used actual population density values for each port and the highway route to be traversed. However, the court holds that the EA is inadequate because it fails to evaluate the full range of risks involved in the shipment of Taiwan fuel rods. By refusing to include certain low probability risks, DOE violated its own methodology. The court further holds that the EA fails to consider adequately a reasonable range of alternatives, as required by NEPA. The court finds that DOE's selection of Charleston, South Carolina, and Wilmington, North Carolina, as alternatives for analysis in the EA does not cover the full spectrum of possibilities. The court holds that DOE's choice of alternatives qualifies as an abuse of discretion under 5 U.S.C. §706. The EA did not consider other commercial ports with lower population densities or military ports in rural areas, and DOE never explained why it did not consider these other ports.

The court finds that DOE could analyze any of the 11 alternative ports suggested by the plaintiff and choose one without a shift in policy or advance in technology. The court directs DOE to prepare a new EA that examines at least two other ports that have significantly lower population densities than those already considered, or explains why other ports on the East Coast are not feasible alternatives. The court also directs DOE to calculate the cumulative dose of radiation to which people along the transportation route are exposed. The calculation should explain the amount of radiation, the number of people it might involve, and its potential health effects. The court further directs DOE to explain its reasons for not selecting an Idaho facility, rather than the Savannah River facility, for processing the spent fuel. Finally, the court enjoins shipments of spent nuclear fuel from Taiwan through Hampton Roads until a new and adequate EA has been completed. The court finds that the public interest will be served by enforcing NEPA and insuring that an appropriate risk analysis is completed before shipment is completed, and that DOE has not demonstrated that a delay in shipment pending preparation of a new EA will have a deleterious effect on the national security interests it asserts are furthered by the shipments.

Counsel for Plaintiff
Ronald J. Wilson
Sierra Club Legal Defense Fund
1531 P St. NW, Ste. 200, Washington DC 20005
(202) 667-4500

Counsel for Defendants
John C. Cleary, U.S. Attorney
U.S. Attorney's Office
555 4th St. NW, Washington DC 20001
(202) 514-7566