The opinion of the court was delivered by: PENN
This case comes before the Court on plaintiffs' motion for a preliminary injunction. Plaintiffs seek to have the Court enjoin the defendants from transporting radioactive spent nuclear reactor fuel through the City of Portsmouth, Virginia, and its environs.
The organization plaintiffs are not-for-profit, public-benefit organizations located in the Richmond-Norfolk, Virginia area. Both seek generally to promote the generation and distribution of energy resources in such a way as to ensure public safety and protect the environment. The individual plaintiffs reside in and about the area where the spent fuel would be transported.
Briefly, the facts are as follows: In 1977, the Nuclear Regulatory Commission (NRC) issued licenses to Transnuclear, Inc. to transport spent fuel from Europe to the United States. Transnuclear is required to obtain approval of domestic shipping routes and its proposed physical protection measures prior to transport of nuclear fuel. It obtained approval from NRC, on July 23, 1979, for calls by ship at Portsmouth, Virginia, an urban area, and transport by motor carrier from Portsmouth to the Savannah River Processing facility at Aiken, South Carolina. The approval is for a "short period" and Transnuclear must submit a further analysis of alternative routes by August 31, 1979, to demonstrate that it is not practicable to use a port located outside of a heavily populated area. The requirements that Transnuclear submit a request for approval is found in 44 Fed.Reg. 34467.
Plaintiffs seek to enjoin the transportation of spent fuel through the Portsmouth area and allege (1) that the NRC's approval of the route is arbitrary and capricious because it fails to comply with the interim regulations and the Atomic Energy Act of 1974, 42 U.S.C. §§ 2011 et seq., and (2) that NRC violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, et seq., by failing to prepare an Environmental Impact Study (EIS).
In February 1977, NRC concluded an investigation into the radiological consequences from sabotage of spent fuel casks. See Calculations of Radiological Consequences From Sabotage of Shipping Casks for Spent Fuel and High Level Wastes (Deft. Appendix). That study concluded that the unlikely Breach Of the casks would cause only minimum health effects. The casks weigh from 12 to 25 tons and are described in the record (McDonald Aff. PP 3-6, 11-13, 18) and need not be described here. The casks must meet certain specifications relating to resistance to impact, puncture, fire, and water immersion. (Id., P 8.)
NRC continued its study and in December 1977 issued a Final Environmental Impact Statement (FES). (Deft. Appendix B.) That report concluded that the NRC's regulations governing physical protection of radioactive material during transport were adequate to protect against sabotage or theft. Although spent fuel shipments were not covered by NRC's physical protection regulations at the time the FES was prepared, they were not considered an attractive or practical target for theft or sabotage.
Finally, in May 1978, the Sandia Report (Deft. Appendix C) became available. It concluded that the likelihood of successful sabotage or theft of spent fuel was remote. Nevertheless, the NRC established the additional safeguards described in 44 Fed.Reg. 34467. It is the above regulations permitting transport of spent fuels subject to the additional safeguards which plaintiffs now attack.
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 ...