Garrett v. Nuclear Regulatory Commission

No. 78-269 (D. Or. May 22, 1978)

The court holds that under the National Environmental Policy Act (NEPA) defendants need not prepare an environmental impact statement in connection with the decision to store indefinitely spent nuclear fuel in facilities intended only for short-term storage. Six weeks earlier, the court had denied plaintiffs' motion for a temporary restraining order, 8 ELR 20509, ruling that the alleged dangers of long-term use of such facilities was insufficiently irreparable in light of the federal government's ability and intent to construct secure long-term storage facilities within the foreseeable future. Here, plaintiffs' requested relief is denied for failure to demonstrate a likelihood of success on the merits of the NEPA claim. The expert testimony presented by plaintiffs is insufficiently credible to convince the court that the added dangers of using short-term facilities for extended-term storage constitute significant environmental effects under NEPA. The significance of any such environmental risks is lessened still further by the likelihood that the Department of Energy will soon construct longer-term storage facilities into which the nuclear waste material in question can be transferred. Nor are significant environmental effects presented by the possibility of accident or terrorist attack at the storage site. These possibilities are too remote and speculative to warrant relief under NEPA. Plaintiffs' motion for a preliminary injunction is denied; the court has assumed for this purpose that the jurisdictional and related arguments raised within defendants' motion to dismiss are without merit.

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 20511]

Juba, U.S. Magistrate:

Plaintiffs have brought this action pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.¹ They contend that before defendants may allow or undertake extended storage of spent fuel at the Trojan Nuclear Plant (Trojan), an environmental impact statement (EIS) exploring the effects of that endeavor must be made. Plaintiffs' motion for a temporary restraining order, which was intended to foreclose transfer of spent fuel from the Trojan reactor to the Trojan spent fuel pool,² was denied.

Plaintiffs were not entitled to a temporary restraining order because they could not establish irreparable harm. I found that the removal of spent fuel from the reactor to the spent fuel pool did not lead to an unbreakable chain of events culminating in an escape of radioactive waste from the spent fuel pool into the environment, in light of the fact that the spent fuel could be returned to the reactor prior to the scheduled May 19, 1978, activation date.³ I also found the federal government has the wherewithal and intent to construct off-site long-term storage facilities, to which the spent fuel in the spent fuel pool could be removed prior to, and thus avoiding, any harm to plaintiffs. Plaintiffs have filed a motion for preliminary injunction seeking to prevent activation of the reactor. Plaintiffs' motion has been the subject of an extensive two-day hearing on the likelihood that plaintiffs will ultimately succeed on their NEPA claim and the prospective harm that might befall the various parties depending on the outcome of the motion.

NEPA requires preparation of a detailed EIS for all major federal actions "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). In order for a plaintiff to establish that an EIS is required for a given project, he need not prove that the challenged project will, in fact, have significant effects. Rather, it is enough if he proves that (1) there has been a major federal action which (2) "may cause a significant degradation of some human environmental factor." City of Davis v. Coleman, 521 F.2d 661, 673 [5 ELR 20633, 20636] (9th Cir. 1975); Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 [3 ELR 20041, 20042] (5th Cir. 1973). The general rule is that once a NEPA-EIS plaintiff has shown a likelihood of success on the merits, irreparable harm is presumed to come to the plaintiff if an injunction is not issued.⁴ Lathan v. Volpe, 455 F.2d 1111, 1116-17, 1120-21 [1 ELR 20602] (9th Cir. 1971); Friends of the Earth v. Coleman, 518 F.2d 323, 330 [5 ELR 20428] (9th Cir. 1975). Therefore, traditional injunction tests, which involve a balancing of harm, do not normally apply in NEPA suits for the making of an EIS.⁵

Here, the plaintiffs have failed to show that they are likely to succeed on the merits of their NEPA claim. The plaintiffs, in seeking preliminary injunctive relief, had the burden to raise a "substantial question" whether extended storage of spent fuel at the Trojan spent fuel pool would cause a significant degradation of some human environmental factor. Davis, supra, at 673 [5 ELR at 20636]. They relied on a theory of stress corrosion cracking and the possibility of sabotage.

Plaintiffs' theory is that storage of spent fuel in the Trojan spent fuel pool will create an environment susceptible to stress corrosion. Extended storage, plaintiffs contend, will result in a situation where stress corrosion will cause leaks in the containers in the pool, allowing radioactive waste to escape into the environment. According to plaintiffs' sole expert witness, Dr. Donald Mash, stress corrosion cracking occurs in some chemical environments and is primarily a function of time and temperature: the likelihood of stress corrosion increases with time and temperature.

Dr. Mash is a metallurgical engineer. However, he has had no direct experience in designing or implementing spent fuel storage facilities. He has never seen the spent fuel pool at Trojan. His conclusions were derived from comparisons between situations where stress corrosion cracking has occurred and the Trojan spent fuel pool environment. He did not, however, point out any instances where stress corrosion occurred in a spent fuel pool. I find that his credibility is weakened by the fact that he did not have correct information regarding the Trojan spent fuel pool when making his comparisons. For example, Dr. Mash assumed that the spent fuel pool at Trojan would be maintained at temperatures ranging from 125 degrees to 140 degrees. In fact, the pool is expected to reach a maximum temperature of 140 degrees, but for the most part, the pool will be operating at temperatures up to, and ordinarily less than, 100 degrees. On May 2, 1978, approximately one month after one-third core of spent fuel had been placed in the pool, the temperature in the spent fuel pool was 73 degrees. The pool reaches its highest temperatures when new spent fuel is placed in it.

Dr. John Weeks, who testified on behalf of the defendants, is a metallurgist associated with Brookhaven National Laboratory. He is currently the leader of the Corrosion Science Group in the Department of Nuclear Energy at Brookhaven. He is involved in an ongoing investigation of stress corrosion cracking in different environments, but most particularly as that phenomenon relates to the storage of spent fuel. He testified that short-term temperature increases have little effect on the possibility of stress corrosion cracking. He concluded that stress corrosion cracking is very rare in water of the temperature of the Trojan spent fuel pool given the chloride and fluoride levels in that pool. He pointed out that the only known instances of stress corrosion cracking in environments the temperature of the Trojan pool occurred under conditions much different from those existing in the pool: under greater concentrations of chloride or fluoride,⁶ or where furnace sensitized stainless steels were involved.⁷ Weeks' testimony was corroborated by a Dr. N. Burton Johnson, Jr., who is a staff [8 ELR 20512] scientist with Batelle, Pacific Northwest Laboratories.Johnson is primarily involved in corrosion research and engineering, and in the past two years has issued and supplemented a thorough report assessing nuclear fuel integrity in water pool storage facilities. Dr. Mash testified that there is no firsthand experience with storage of spent fuel at pools similar to that at Trojan beyond one year. He reasoned, therefore, that the time factor, that is to say, how much time must elapse before stress corrosion cracking might occur, is an unknown. However, Drs. Weeks and Johnson pointed to examples, in this and other countries, of spent fuel being stored for up to 11 years in pools virtually identical to Trojan's without the appearance of stress corrosion cracking.

The 11-year lead time of these other spent fuel storage facilities strongly indicates that if the federal government constructs off-site storage facilities within the next 11 years or otherwise provides a means for removing spent fuel from the Trojan pool within that time, there is no likelihood that interim storage at Trojan will lead to detrimental environmental effects caused by stress corrosion cracking. I have already concluded that the government has the wherewithal and intent to construct offsite spent fuel storage facilities. I find the testimony of Charles Trammell, who is the United States Nuclear Regulatory Commission's project manager for Trojan, to be both realistic and persuasive regarding the time within which the government will provide at least interim off-site storage facilities. He expects the Department of Energy to provide interim off-site storage facilities by 1983 which would allow removal of spent fuel from Trojan by 1984.

Mash also found fault with the stainless steel liner which secondarily encloses the spent fuel in the pool. He contended that stainless steel liners were dismissed 30 years ago by the experts in metallurgical engineering as inappropriate. He did not say what they were replaced with. Drs. Weeks and Johnson pointed out that stainless steel liners have been used as the exclusive secondary enclosure of radioactive waste in recent years.

Mash has simply not raised a substantial question whether extended storage of spent fuel at the Trojan spent fuel pool would cause a significant degradation of some human environmental factor due to stress corrosion. Plaintiffs have stated that at a trial on the merits, Mash would be their only expert witness. Accordingly, I find that the plaintiffs are not likely to raise a substantial question in that regard after a trial on the merits. Moreover, assuming for the moment that plaintiffs could raise a substantial question as to whether stress corrosion would occur, plaintiffs have entirely failed to rebut defendants' contention that the backup system at Trojan, which is designed to capture radioactive waste which might leak through the stainless steel liner before it enters the environment, is inadequate for that task. For stress corrosion to lead to significant degradation of some human environmental factor, it must allow radioactive waste to escape into the human environment and not merely through the stainless steel liner.

Plaintiffs also argue that the threats of environmental harm posed by potential accidents or terrorist activities at the Trojan plant create a substantial question as to whether extended storage of spent fuel in the spent fuel pool would cause adverse environmental effects. The short answer to this contention is simply that the possibility of such accidents or terrorist activities istoo remote and speculative to warrant relief under the NEPA.⁸ State of New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 756-57 [7 ELR 20203] (2d Cir. 1977).

I share with plaintiffs a concern about the underdevelopment of spent fuel disposal facilities. I am convinced that they are litigating this case in utmost good faith. However, I cannot find that they are likely to prevail on the merits.

Defendants have moved to dismiss plaintiffs' complaint on the grounds that this court lacks subject-matter jurisdiction and the complaint fails to state a claim upon which relief may be granted. Defendants' motion raises novel issues concerned with the doctrines of primary jurisdiction and exhaustion of administrative remedies. While defendants filed their motion a few days before the hearing on plaintiffs' motion for injunctive relief, plaintiffs understandably did not have time to respond prior to the hearing. In light of the scheduled May 19, 1978, activation date at Trojan, I have considered the motion for injunctive relief assuming that this court has subject-matter jurisdiction in this case. The plaintiffs have now responded to defendants' motion to dismiss, and, in turn, the defendants have replied to plaintiffs' opposition. I will set defendants' motion on the May 22, 1978, motion calendar.

It Is Ordered:

1. Plaintiffs' motion for a preliminary injunction is denied.

2. Defendants' motion to dismiss is set for oral argument on May 22, 1978, at 1:30 p.m.

1. Plaintiffs originally asserted a pendent state claim as well. They have since moved for a dismissal of their state claim. Their motion was granted.

2. The "spent fuel pool" refers to the actual on-site storage facility for spent fuel at Trojan. The pool is rectangular in shape with an eight foot thick steel reinforced concrete floor and five foot thick steel reinforced walls.This is lined with a 1/4 inch stainless steel liner. It is sunk into the ground.

3. Plaintiffs' counsel agreed with this finding in his memorandum in support of plaintiffs' motion for a preliminary injunction.

4. The idea is that, in suits to compel an EIS, damage is inherent in the starting or continuation of a project, since the public information value of an EIS is diminished unless it is made before action is undertaken. Also, once a project is begun, the cost-benefit analysis that will be done in a subsequent EIS will be slanted in favor of the project, because stopping a project already in progress generally costs more (or wastes more) than not beginning it in the first place.

5. Where unusual circumstances are involved, traditional injunction tests may be applied. Alpine Lakes Protection Society v. Schlapfer, 518 F.2d 1089, 1090 [5 ELR 20322] (9th Cir. 1975); Cady v. Morton, 527 F.2d 786, 798, n.12 [5 ELR 20445, 20449 n.12] (9th Cir. 1975).

6. Where stress corrosion cracking has been observed, the chloride or fluoride concentrations are generally greater than five ppm. The Trojan spent fuel pool contains chloride and fluoride levels below 0.15 ppm.

7. Furnace sensitized stainless steel is not present in the Trojan spent fuel pool stainless steel liner.

8. Plaintiffs point out that a bomb was once placed in the visitor's section at Trojan. I do not believe this can serve as the basis for serious concern of sabotage regulating in radioactive waste being released into the environment.