Garrett v. Nuclear Regulatory Commission

No. 78-269 (D. Or. March 31, 1978)

The court denies a request that a temporary restraining order (TRO) be issued prohibiting defendant public utility from transferring spent nuclear fuel from the reactor at the Trojan Nuclear Plant to an on-site waste storage facility. The on-site facility was designed to handle spent-fuel containers for periods of no more than several months, but due to a lack of available long-term facilities, the decision was made to store waste in the Trojan facilities for an indefinite period. Plaintiffs claim that this decision violates state law and that the failure to prepare an environmental impact statement contravenes the National Environmental Policy Act. A prerequisite to the issuance of a TRO is the imminent threat of irreparable injury to the plaintiff. Here, the anticipated injury is not irreparable because until the reactor is refueled, defendants retain the ability to remove the spent-fuel cannisters from storage and replace them in the reactor. Refueling will not take place for seven weeks from the date of the instant decision; in the interim, a full hearing will be held to consider plaintiffs' suit for a preliminary injunction. [The opinion of the court in that matter can be found at 8 ELR 20510.] Moreover, the danger of radiation leakage of which plaintiffs complain would likely take many lifetimes to materialize. The court declines to premise temporary injunctive relief on the assumption that the government does not intend to construct long-term nuclear waste storage facilities prior to that time.

Counsel for Plaintiffs
Richard Aboussie
4150 S.W. Dosch Rd., Portland OR 97200
(503) 246-4402

Charles J. Merten
Suite, C, Mikado Block, 117 S.W. Taylor, Portland OR 97204
(503) 227-3157

Counsel for Defendants
Sidney I. Lezak, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
P.O. Box 71, Portland OR 97207
(503) 221-2101

Warren Hastings, Associate General Counsel
Portland General Electric Co.
1325 Williamette Center Tower, 121 S. W. Salmon, Portland OR 97204
(503) 226-8881

[8 ELR 20510]

Juba, U.S. Magistrate:

Plaintiffs have brought this action pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and joined a pendent state claim. The source of both claims is the expected storage of spent nuclear fuel at the Trojan Nuclear Plant (Trojan). Defendant United States Nuclear Regulatory Commission (NRC) is responsible for licensing and regulating Trojan. The NRC has licensed Portland General Electric (PGE) to operate Trojan.

When Trojan initially began operation it was contemplated that the on-site storage facility known as the spent nuclear fuel pool would be used only as a short-term repository for spent fuel. After four to six months in that pool the spent fuel was to be transported to a processing plant in South Carolina where it would be broken down for reuse of certain components. The South Carolina processing plant was never constructed. There are no other processing plants or long-term storage facilities to which defendants have access for transfer of spent fuel from Trojan. To date no spent fuel has been removed from the reactor at Trojan. PGE intends to refuel the reactor within the next few days.Refueling would cause one-fourth the capacity of the spent nuclear fuel pool to be filled with spent fuel. Plaintiffs have moved for a temporary restraining order to prevent the refueling operation.

Plaintiffs contend that before defendants undertake long-term storage of spent fuel at Trojan an environmental impact statement (EIS) must be made assessing the environmental effects of that activity. Defendants have not made such a statement. Plaintiffs urge that the spent nuclear fuel pool at Trojan is susceptible to stress corrosion when spent fuel is stored there on a long-term basis. Stress corrosion could cause leaks which in turn would allow radioactive waste to escape into the environment. The absence of an EIS is the basis of plaintiffs' NEPA claim.

The origin of plaintiffs' state claim is ORE. REV. STAT. § 469.525. That statute prohibits the establishment, operation or licensing of any waste disposal facility for radioactive material within the State of Oregon.

A hearing has been held on plaintiffs' motion. After careful consideration of all the testimony at that hearing and as careful a consideration of the other evidence submitted as time would allow, I find that plaintiffs are not entitled to a tempoary restraining order.

An absolute prerequisite to a temporary restraining order is a demonstration by the party seeking relief of irreparable injury in the absence of the relief sought. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 [8 ELR 20065] (9th Cir. 1977); WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2951. Here, the harm is claimed to be irreparable because there is now nowhere else to put the spent fuel. Plaintiffs claim that by placing any spent fuel in the spent fuel pool, an irrevocable chain of events will be started that will culminate in radioactive waste entering the environment in which they live: storage in the pool will be permanent or at least for the foreseeable future which will lead to stress corrosion which will lead to leakage which will lead to the escape of radioactive waste into the environment.

I find that the "harm" is not irreparable as it can be repaired by construction of off-site storage facilities or replacing the spent fuel in Trojan's reactor before the reactor is activated.

Plaintiffs' harm is irreparable only on the assumption that spent fuel stored in the spent fuel pool will remain there for a sufficient period of time to allow the other events in the chain to occur. It would likely take many lifetimes for that chain to be complete, if it will ever be completed. To give plaintiffs the benefit of the above assumption would be to assume that the government intends no construction of off-site storage facilities before the chain is complete or is incapable of it. Such an assumption is unwarranted on this record.

Four facilities now exist or are planned which have the capacity for storing spent fuel away from nuclear reactors. NRC, Draft Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel Vol. 1 2-3 (1978)¹. There is ample reason to believe that more such facilities will be built as it becomes necessary and appropriate or other means of waste disposal will be undertaken by the federal government that will abate the situation which plaintiffs perceive and fear. As recently as October 18, 1977, the Department of Energy publicly announced a national policy under which the federal government will accept title to spent fuel and responsibility for its final disposition. It is clear that the wherewithal and intent to ultimately dispose of spent fuel at other than on-site locations, such as the spent fuel pool at Trojan, exist.

There is another reason why the harm to plaintiffs is not irreparable. PGE plans to refuel the Trojan reactor within the next few days, but does not plan to reactivate the plant until May 19, 1978. When new fuel is put into the reactor, the spent fuel must be placed into the spent fuel pool to make room for it. However, these transactions are not irreversible until the plant is reactivated. Before reactivation the new fuel can be placed back into the holding pool where new fuel is kept² and the spent fuel returned to the reactor. Since plaintiffs' motion for a preliminary injunction will be heard prior to May 19, 1978,³ a return to the present status quo can be achieved at the time that motion is heard if the court finds it necessary. Therefore, no irreparable harm can come to plaintiffs by the denial of their motion for a temporary restraining order.

IT IS ORDERED that plaintiffs' motion for a temporary restraining order is denied.

1. Defendants' Exhibit 22A.

2. The process of replacing the unspent fuel in the holding pool is not without its costs. However, the fact that it can be done establishes that the harm to plaintiffs is not irreparable.

3. I have set the hearing on plaintiffs' motion for a preliminary injunction for May 2, 1978.