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South Carolina ex rel. Campbell v. O'Leary

ELR Citation: 26 ELR 20246
Nos. Nos. 95-1182, -1183, 64 F.3d 892/41 ERC 1849/(4th Cir., 08/22/1995) rev'd & injunction vacated

The court holds that the U.S. Department of Energy (DOE) did not violate the National Environmental Policy Act (NEPA) when it decided to import 409 spent nuclear fuel rods for storage at the Savannah River site in South Carolina without first preparing an environmental impact statement (EIS). As part of a formal program to encourage foreign nuclear reactors to convert from using highly enriched uranium to low-enriched uranium, the United States committed to accept for permanent storage in domestic facilities approximately 24,000 spent nuclear fuel rods from European research reactors. DOE is preparing an EIS in connection with a long-term plan to select a site and construct a facility to receive these rods. In addition, DOE prepared an environmental assessment (EA) and issued a finding of no significant impact for the immediate import of 409 spent fuel rods in urgent need of shipment for storage at DOE's Savannah River site. The district court enjoined the urgent-relief shipments until DOE completes the EIS for the entire project. The court first holds that the district court incorrectly interpreted the Spence Amendment, §3151 of the National Defense Authorization Act for Fiscal Year 1994, to require DOE to prepare an EIS for the receipt and storage of any spent nuclear fuel at the Savannah River site, in the absence of a formal declaration of emergency. The court holds that on its face, the Spence Amendment permits DOE to accept and store spent nuclear fuel at the Savannah River site in the absence of an emergency and without preparing an EIS as long as the number of fuel rods does not exceed the number of available storage spaces. The 1,150 available storage spaces at the Savannah River site are more than adequate to accommodate the rods. The court next holds that the shipment of 409 rods is not an improper segmentation from DOE's larger plan to import 24,000 rods. The court distinguishes the project to construct a facility to receive 24,000 rods, which requires preparation of an EIS, from the plan to store 409 rods in need of urgent relief at existing and approved facilities. The Savannah River site is currently being used on a continuing basis to receive spent nuclear fuel rods from U.S. research reactors, and no EA or EIS is required for each domestic shipment. The fact that the 409 rods under consideration originate in Europe has not been shown to impose a meaningfully different environmental impact. Moreover, the EA that DOE conducted found that the shipment and storage of these 409 rods would result in no significant impact. The court notes that the urgent-relief shipments do not in any way commit the government to accepting the larger shipments of 24,000 rods, nor do they determine the outcome of the EIS that is being prepared for the larger shipments. The court holds that the urgent-relief shipments are not "connected actions" under 40 C.F.R. §1508.25(a)(1), because these shipments do not automatically trigger the acceptance of the 24,000 rod shipments, nor does their utility depend on the viability of the larger shipments. Moreover, the urgent-relief shipments are independent and separable, and merely preserve DOE's option to accept the larger shipments. The court then holds that the urgent-relief shipments and the larger proposed shipments are not "cumulative actions" under §1508.25(a)(2). The 24,000 rod proposed shipments will necessitate the construction of a new domestic storage facility and the preparation of an EIS regardless of whether DOE is permitted to accept the urgent-relief shipments. Furthermore, the cumulative impact of accepting the urgent-relief shipments is not significant, because it does not require the construction of a new facility or even materially deprive the United States of existing storage facilities. The court also holds that the two separate actions are not "similar actions" under §1508.25(a)(3). The timing of the two shipments is dissimilar and the site for the larger facility has not been selected and may be at an entirely different area of the country with no geographic similarity to the Savannah River site. Finally, the court holds that DOE effectively considered the reprocessing alternatives the district court identified and rejected them as contrary to national policy.

[The district court decision in this litigation is published at 25 ELR 20388. Pleadings in this litigation are digested at ELR BRIEFS & PLEADS. 66406.]

Counsel for Plaintiffs
Kenneth P. Woodington, Ass't Attorney General
Attorney General's Office
R.C.D. Office Bldg.
1000 Assembly St., Columbia SC 29205
(803) 734-3970

Counsel for Defendants
Lois J. Schiffer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before RUSSELL, HALL, and NIEMEYER, Circuit Judges.