Greenpeace Seattle v. Weinberger

No. C81-214R (W.D. Wash. January 21, 1982)

The district court upholds the Department of the Navy's determination that the construction and operation of a water pit facility at the Puget Sound Naval Shipyard for the handling and temporary storage of radioactive fuel modules does not require the preparation of an environmental impact statement (EIS). The water pit facility will give the shipyard the capability to refuel nuclear powered warships. The Navy prepared an environmental impact assessment, which concluded that the facility would not have a significant impact on the environment and that, therefore, no EIS was required. The court rules that the Navy's finding of no significant environmental impact was reasonable. The Navy properly assessed every credible condition which could result in environmental harm and was not required to consider events so remote as to be mere possibilities. The Navy reasonably considered all potential adverse environmental consequences related to earthquakes. Finally, the court notes that, in essence, the project is designed to enable the shipyard to perform the same type of work it has previously supported and that it need not conclude that an EIS is required simply because the project involves nuclear fuel or radioactive material.

Counsel for Plaintiffs
Linda Collier
114 Prefontaine Place S., Seattle WA 98104
(206) 228-5262

Laurence J. Severance
16233 14th Ave. NE, Seattle WA 98155
(206) 323-6810

Counsel for Defendants
Robert Taylor, Ass't U.S. Attorney
800 5th Ave., Seattle WA 98104
(206) 442-7970

[12 ELR 20260]

Rothstein, J.:

Findings of Fact and Conclusions of Law

The Court having considered the administrative record, the briefs, the evidence, testimony, and the arguments of counsel, now makes the following findings of fact and conclusions of law.

Findings of Fact

The subject case was brought by plaintiffs Greenpeace Seattle and the Committee Opposed to Radioactive Puget Sound on February 26, 1981, against Caspar Weinberger, Secretary of Defense, et al.

Plaintiffs claimed that an environmental impact assessment prepared by the Navy in January 1978, concluding that the construction of a water pit facility in the Puget Sound Naval Shipyard would not have a significant impact on the human environment, was arbitrary, capricious and unreasonable. Plaintiffs sought to demonstrate that the Navy had failed to comply with the National Environmental Policy Act, had failed to properly assess the environmental effects of the water pit facility, and had failed to consider more recent seismological information which plaintiffs claimed indicated a greater threat of earthquakes in the area where the water pit facility will be located.

III

The Puget Sound Naval Shipyard, the only shipyard on the Northwest coast of the United States, is located on the Kitsap Peninsula beside Sinclair Inlet of Puget Sound, in the Bremerton area, about fifteen miles west from Seattle. A naval shipyard has been operating on this site since the 1890s.

The Puget Sound Naval Shipyard was authorized to overhaul nuclear powered naval vessels in 1961, and has been overhauling nuclear powered naval vessels since 1965, and refueling them since 1967. It is one of three shipyards on the West Coast (including Hawaii) with the capability to perform nuclear ship work such as refueling, which involves replacing the fuel modules, and it is the only one of these shipyards with drydock capacity to handle aircraft carriers.

Refueling of a naval nuclear power plant requires the removal of expended fuel modules and installation of new replacement fuel modules. The removed modules are radioactive and are handled in specially designed shielded equipment to insure the protection of workers and the public. After the refueling, the removed modules are temporarily retained at the shipyard until they can be transported in the specially designed shielded equipment to Department of Energy facilities for inspection and reprocessing.

The Puget Sound Naval Shipyard has the facilities to handle the fuel modules from nuclear powered submarines and cruisers, and has, in fact, refueled twenty-five naval reactors since 1967, but it does not currently have the facilities to handle the larger fuel modules from nuclear carriers.The only such capability for refueling nuclear carriers is at the Newport News Shipbuilding and Drydock Company, a private shipyard on the East Coast which performs both Navy and commercial work and is not under direct Navy control.

VII

To insure that the nuclear powered aircraft carriers in the fleet (three in operation, two more under construction) will have adequate facilities for refueling and related work, the Navy concluded that facilities to perform such work at a naval shipyard should be provided, in addition to the facilities at the private shipyard at Newport News. After evaluating alternative locations and performing an environmental impact assessment, the Navy concluded that this capability should be provided at the Puget Sound Naval Shipyard. Such facilities would also give the Puget Sound Naval Shipyard the capability to service and refuel the Trident ballistic missile submarines which will be homeported in close proximity to the shipyard.

VIII

The facility to be constructed at the Puget Sound Naval Shipyard will support the handling and temporary storage of the radioactive fuel modules removed during a refueling and so they can be shipped off-site for inspection and reprocessing. This facility, called the water pit facility, consists of a high integrity steel and [12 ELR 20261] concrete building containing a thick concrete tank with a stainless steel liner, together with cranes and an adjoining personnel support or administration building. The site for the water pit facility is the industrial area (fenced and guarded) of the Puget Sound Naval Shipyard near Drydock No. 5 on land owned by the United States since the 1890s. This land has been used for shipyard purposes since that time.

The Navy completed an environmental impact assessment in January of 1978. The assessment concluded that the water pit facility will not have a significant impact on the environment, and, therefore, an environmental impact statement was not required. This conclusion was predicated on a number of considerations, including the following important facts:

a. The design and operation of the water pit facility are based on and are technically equivalent to the technology and methods used to design and operate the three other water pit facilities under the cognizance of the Naval Nuclear Propulsion Program, as well as the technology and methods used to safely refuel 179 naval reactors in the thirty years since the inception of the Naval Nuclear Propulsion Program, including twenty-five such refuelings at the Puget Sound Naval Shipyard.

b. The same radiological work procedures and environmental protection features currently used in the Puget Sound Naval Shipyard are incorporated in the water pit facility. These include reuse rather than discharge of liquids containing low level radioactivity, and filtration and continuous monitoring of all ventilation air exhausted from nuclear facilities to prevent any release measurably above concentrations naturally present in the atmosphere. Further, the same methods the Navy uses to control radioactivity will remainin effect in all Puget Sound Naval Shipyard nuclear operations, including those involving the water pit facility.

c. The water pit facility building will have extensive safety, security, and environmental control features, and is designed for the worst credible conditions of wind, flood, seismic, tornado missiles, and tornado wind warnings.

In 1980, the Navy also consulted with the Environmental Protection Agency concerning the environmental impact assessment. As a result of these discussions, the EPA advised the Navy that it considers the water pit facility environmental impact assessment "technically adequate and we concur with the shipyard's finding that the proposed project will not have significant environmental consequences."

Use of the water pit facility to support refuelings of nuclear powered aircraft carriers and submarines will not technically change the methods used for such refuelings. The only difference is that whereas the mechanical disassembly of the fuel portion of each reactor module from its structural portion had been done with the module still in the reactor, it would now be accomplished in the water pit facility, and the fuel portion of each module would be temporarily stored in the water pit itself. This method has been used since 1964 for refueling of nuclear powered aircraft carriers at the private shipyard in Newport News with no environmental or public health impact.

XII

The procedures and safety methods used in transporting the radioactive fuel modules are the same regardless of whether the water pit facility is used or not, so such use does not affect the practices currently followed. There has never been an accident involving the transportation of spent naval fuel in the over twenty-five years that such shipments have been made.

XIII

The procedures and requirements for emergency preparedness are not affected by the use of the water pit facility.

XIV

The water pit facility is not a permanent nuclear waste storage facility. Unlike a permanent nuclear waste storage facility, the amount of spent fuel in the water pit facility will not be continuously increased but will fluctuate as ships are refueled. During some periods, the water pit facility will not contain any spent fuel.

The water pit facility is also not akin to or like a nuclear reactor. The operations of a commercial nuclear reactor are considerably more complex and more subject to the vagaries of human error than the water pit facility. In addition, the naval nuclear fuel which will be temporarily stored in the water pit is more conservatively designed and built than the fuel from a commercial nuclear reactor. The use of the water pit facility to support refuelings of nuclear powered ships is a relatively simple process, involving nuclear material which is completely encased and not subject to the harsh operating conditions present in a nuclear reactor.

XVI

The water pit itself is completely self-encased in the water pit facility building. In normal operation, the water pit facility is designed such that there will be no discharge of radioactive material to the environment measurably above concentrations naturally present in the environment.In addition, the building containing the water pit is to be constructed within the confines of the shipyard itself, and therefore, does not represent any new land use that would have any significant impact on the surrounding community in the sense of the traditional land use impact, such as increased traffic or changing the nature of the use of the land itself in any way.

XVII

In the environmental impact assessment prepared by the Navy, it was recognized that the seismicity of the Puget Sound area had to be taken into account in designing and building the water pit facility. It was determined in the assessment that: "The facility is designed to be operated with no adverse effect on the environment under all credible conditions, including seismic occurrences."

XVIII

The worst case earthquake for which the water pit facility has been designed is a Richter magnitude 7.5 occurring at a depth of approximately fifty-five kilometers directly below the water pit facility. Such an earthquake, which, based on seismological and geological evidence, has a reasonable probability of occurring once in 1,000 years in the Puget Sound area (but not necessarily directly under the water pit facility), would cause a ground acceleration in the vicinity of the water pit facility of 0.35g. Such an earthquake would be over twice as powerful as the most severe ever recorded in the Bremerton area. Analysis using the most advanced mathematical models available for seismic response has indicated, however, that because of the conservative design techniques used, the water pit facility will, in fact, suffer no damage affecting its safe operation in an even more severe earthquake which causes a ground acceleration of 0.40g.

XIX

Since the environmental impact assessment was completed in January 1978, an increase in the seismic activity in the immediate vicinity of Mount St. Helens was observed following the May 1980 eruption. Mount St. Helens is located more than 150 kilometers south of the Bremerton area. No change or increase in the seismicity of the Bremerton area in which the water pit facility will be built has been observed, however.

Subsequent to the Mount St. Helens eruption, the Navy did consult with recognized experts in the field of seismology in the Washington State area and these experts concluded that there is no evidence to support the hypothesis that the Mount St. Helens activity indicates the presence of a shallow fault line running close to the Bremerton area which could cause more serious, shallow earthquakes than were predicted to occur. The experts concluded that none of the physical or scientific indications which would be expected to be present as evidence that such a fault line existed, have been detected. Thus, based on all available information, the Mount St. Helens activity has not given a sufficient basis on which present scientific models would indicate a change in the expected pattern of seismic activity in the Bremerton area.

[12 ELR 20262]

XXI

The water pit facility foundation will be built down into twenty feet of naturally present solid supporting material (hard pan). This will insure that it will not be affected by liquifaction of the surrounding soil under earthquake conditions. Moreover, two separate dewatering systems in the immediate vicinity of the water pit facility will remove from the soil surrounding the water pit facility the water required for any liquifaction to occur.

XXII

The fact that the Navy planned to build the water pit facility at Puget Sound Naval Shipyard has been public knowledge since October 1978, and has received considerable coverage in the local press and news media since then. The Navy'sadministrative record reflects detailed consideration of public input on the water pit facility, and shows that no new concerns were identified which had not previously been considered by the Navy in its assessment that the water pit facility will not have a detrimental impact on the environment.

Conclusions of Law

1. An environmental impact statement (EIS) is required for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The appropriate standard for reviewing the Navy's threshold decision not to perform an environmental impact statement is set out in City and County of San Francisco v. United States, 615 F.2d 498 [10 ELR 20346] (9th Cir. 1980).

2. The standard enunciated in City and County of San Francisco requires this Court to examine the environmental assessment prepared by the Navy and determine whether that assessment, taken in light of all the circumstances and information available, is reasonable. The question can best be phrased: Was it reasonable for the Navy to conclude that the building of a water pit facility would have no significant adverse environmental consequences? If so, then no environmental impact statement would be necessary.

3. The Navy fully complied with NEPA and, while not required to engage in a venture of "'foreseeing the unforeseeable'" Davis v. Coleman, 521 F.2d 661, 676 [5 ELR 20633] (9th Cir. 1975), it did use "its best efforts to find out all it reasonably could." Id. It fully assessed every credible condition that could have an environmental consequence.

4. Many of plaintiffs' arguments concerning the potential environmental consequences are not appropriate or applicable to the water pit facility and are neither probable nor realistic given its design characteristics. Plaintiffs have raised possible events with are remote and unlikely (e.g., a bomb dropping in the area; terrorists' attacks; an unprecedented earthquake). Such mere possibilities cannot support the contention that the Navy's environmental assessment is unreasonable.

5. Based upon a weighing of all the evidence and expert testimony, plaintiffs have been unable to show that the Navy had not properly considered seismic hazards even in light of information gained on seismicity since the eruption of Mount St. Helens. The most credible evidence indicates that the design is still within the safety factor necessary to ensure the building will withstand the expected type of earthquake. The Navy reasonably considered all potential adverse environmental consequences related to earthquakes, fully complying with its responsibilities under NEPA.

6. It is not necessarily the case that in every project that involves nuclear fuel or radioactive material or that involves vast expenditures of money and therefore is large in nature, that there need be a significant adverse impact or significant impact on the environment. In essence, this project is really designed to continue the same type of work that has been done all along at the Shipyard and at other shipyards. This Court was unable to find any significant impact on the environment from constructing and operating the water pit facility and the Court does not feel that just simply because it is established that nuclear fuel or radioactive material is involved in some way, it leads to the conclusion that an environmental impact statement is required.

7. The Department of the Navy reasonably concluded that the construction and operation of the water pit facility at the Puget Sound Naval Shipyard will have no significant adverse environmental consequences requiring the preparation of an environmental impact statement.

8. The record before this Court conclusively establishes the reasonableness of the Navy's conclusion that the proposal to construct and operate the water pit facility will not result in any deterioration in the current state of the environment. The proposal to construct and operate a water pit facility at the Puget Sound Naval Shipyard is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA. 42 U.S.C. § 4332(2)(C).

9. Plaintiffs have alleged violations of other statutes, including the Clean Air Act and the Federal Water Pollution Control Act. The plaintiffs have not demonstrated any violation of these Acts, and, indeed, the Navy has demonstrated compliance.

10. Whereupon, it is ordered the Clerk of this Court shall enter judgment in favor of the defendants. Each party is to bear its own costs, including attorney's fee.