advised the Court that it will immediately inform the Court if and when they receive the seven-day notice for shipment of spent fuel. At that time counsel for plaintiffs shall also be notified. Taking into consideration the seven-day notice, and the time required for any shipment to reach the shores of the United States, it amounts to at least two weeks before any shipment arrives at Portsmouth, Virginia.
Plaintiffs, in seeking an injunction, must show a likelihood of success on the merits, that they will suffer irreparable injury if the injunction is not granted, that other parties to the action would not be substantially harmed, where lies the public interest. Virginia Petroleum Jobbers Assoc. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). The test has been somewhat modified by Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S.App.D.C. 220, 559 F.2d 841 (1977). After applying the above criteria to the facts set out in the present record, the Court concludes that plaintiffs' motion for preliminary injunction should be denied.
The record indicates that NRC has taken a "hard look" at the possibility of sabotage. Indeed, upon the agency's receipt of the Sandia Report, it issued amended regulations regarding the shipment of spent fuel by motor carriers. 44 Fed.Reg. 34467. It now requires that each shipment be accompanied by at least one driver and one escort in the transport vehicle or one driver in the transport vehicle and two escorts in a separate vehicle. The transport or escort vehicle must be equipped with two-way radios and the driver is required to maintain regular contact with NRC officials. The Sandia Report concluded that the spent fuel casks are not attractive targets for many reasons.
NRC prepared an EIS report, the present issue comes as a result of the Sandia Report, a supplement to the EIS. Considering those reports and the agency's action based upon those reports, the Court cannot find that the agency's decision is arbitrary or capricious or without a rational basis.
Moreover, plaintiffs have not demonstrated that they would suffer any impact if the transports are allowed to proceed. Their concern is understandable, however, it is based upon many "if's" and the speculation that (1) someone or a group is interested in sabotage or theft of a cask at considerable risk to himself, (2) that he has the resources to carry out such an attempt, (3) that if successful he has the equipment to move the heavy casks weighing up to 25 tons, (4) that if successful he has the equipment and the expertise to open the cask without injury to himself keeping in mind that the materials contained therein are radioactive and (5) that all of this can proceed without prompt intervention by security forces. The plaintiffs claim that they will suffer irreparable harm is based upon speculation, speculation about dangers which have been considered by the agency and rejected as being an extremely remote possibility. It appeared to have been remote even before the regulations were amended and is even more so after the amendments and the extra precautions by NRC.
The defendants have set forth reasons why they feel they would be harmed if the Court should grant an injunction one being that to allow materials to return to this nation hopefully reduces the inventory of such materials in foreign countries.
All of the above factors must be balanced, Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc. supra, and after consideration of all of those factors the Court concludes that defendants have taken a hard look at the possibility of sabotage in compliance with the NEPA, that the plaintiffs have failed to make a showing that they will suffer irreparable harm if the injunction is not granted, and that the public interest would support the denial of injunctive relief.
It is hereby
ORDERED that plaintiffs' motion for a preliminary injunction shall be denied, and an appropriate order to that effect will be entered.
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