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December 9, 1991

SIERRA CLUB, Plaintiff,
JAMES D. WATKINS, Secretary, U.S. Department of Energy, et al., Defendants.


The opinion of the court was delivered by: ROYCE C. LAMBERTH


This case comes before the court on the parties' cross-motions for summary judgment. The plaintiff Sierra Club seeks to enjoin the Department of Energy ("the Department") from shipping spent nuclear fuel rods from Taiwan through the port of Hampton Roads, Virginia until the Department files an environmental impact statement ("EIS") or cures an allegedly inadequate environmental assessment ("EA") *fn1" which found that shipping the fuel rods would have "no significant impact" on the environment. The Department asks this court to defer to its finding of no significant impact ("FONSI") and uphold the adequacy of the 1991 EA. For the reasons stated below, both parties' motions for summary judgment shall be GRANTED in part and DENIED in part.

 I. Facts

 The United States has exported nuclear fuel for foreign research reactors since the mid-1950's. See Letter from J. Dexter Peach, Director, General Accounting Office, to Honorable Richard L. Ottinger, Chairman, Subcommittee on Energy Conservation and Power, at 3 (Dec 13, 1984) [hereinafter "GAO Letter"]. Foreign nations who enter into a formal agreement with the United States for nuclear cooperation may return this fuel (after it has been used) to the United States for reprocessing and disposal. See id. By the authority of the Atomic Energy Act, as amended by the Non-Proliferation Act, 42 U.S.C. § 2160 (1988), the United States government, through the Department of Energy and its antecedents, established the "off-site fuels policy" *fn2" to accept spent nuclear fuel from foreign nations if the nuclear fuel was either produced or enriched in the United States. Since the advent of this off-site fuels policy in 1968, see Denny Decl. at para. 3, approximately 339 shipments of spent nuclear fuel from fourteen foreign nations have been transported into the United States without any accidents. See 1988 EA app. II. The justification for this policy has always been one of non-proliferation; quite simply, the less nuclear material available outside the United States, the less likely it is that some of it will be used for non-peaceful purposes.

 In 1985, The American Institute of Taiwan and the United States government agreed to transport from Taiwan to the United States spent natural uranium from reactor fuel. See 50 Fed. Reg. 55252 (1985). According to the Department, this arrangement was separate from the off-site fuels policy because the reactor fuel was of foreign origin, involved natural (not enriched) uranium, and was shipped under different administrative arrangements. The Department's original plan (then called the Fuel Movement Project) was to bring 474 spent fuel rods into the United States through a port on the Pacific Coast (Long Beach, CA) and then to transport them overland in trucks to a processing plant located on the Savannah River in South Carolina. *fn3" The fuel rods are transported in enormous containers, called "Type B casks" that are made of lead and steel and weigh approximately 50,000 pounds. The Pacific Coast was selected because of the "lower cost, excellent port facilities, and shorter total time in transit." Def. Resp. to Int. #15. The Department, however, neglected to prepare any sort of document concerning the environmental effect of its action, as required under NEPA.

 Before the Department was able to transfer the spent fuel rods into the United States, the Northwest Inland Waters Coalition obtained an injunction in a federal district court in Washington state preventing the Department from importing the fuel rods until it had prepared an environmental impact statement. See Northwest Inland Waters Coalition v. United States Dep't of Energy, Case No. C86-132T (W.D.Wa. Sept. 30, 1986). On appeal, the Ninth Circuit ruled that an EIS, the most extensive form of environmental documentation, was not required as an initial matter, but that the Department must complete an environmental assessment, a shorter document that aids an agency in deciding if an EIS is necessary, on the effects of importing Taiwan spent fuel. See Northwest Inland Waters Coalition v. United States Dep't of Energy, Case No. 86-4383 (9th Cir. Jul. 1, 1988). While the appeal was pending, the Department prepared an EA which concluded that an East Coast port would be a safer place to bring the fuel rods into the United States for reprocessing at the Savannah River site. See Environmental Assessment on Shipment of Taiwanese Research Reactor Spent Nuclear Fuel, U.S. Dep't of Energy DOE/EA-0321 (Dec. 1986). The Department cited "the need to ship expeditiously, the existence of an Environmental Assessment for the East Coast, the course of proceedings in the Inland Waters Coalition lawsuit, and other institutional problems," Def. Resp. to Int. # 15, as reasons for abandoning its original plan to ship through the West Coast. The Department shipped the 474 fuel rods safely under this agreement.

 By a subsequent agreement, the Department agreed to accept 1100 more spent fuel rods from Taiwan. See 52 Fed. Reg. 42706 (1987). The Department prepared an environmental assessment on the effect of transporting the fuel rods to Hampton Roads, Virginia by sea and then to the Savannah River site by truck. See 1988 EA. On December 12, 1988, the Sierra Club filed this suit, seeking to force the Department to comply with the requirements of NEPA. The Sierra Club argued that an EIS was required or, in the alternative, that the 1988 EA was legally insufficient. On May 4, 1990, the Sierra Club moved for summary judgment and the Department subsequently opposed this motion and filed a cross-motion for summary judgment. The court declined to issue a preliminary injunction to stop a shipment at a December, 1990 hearing and the shipments under the 1988 EA were completed without incident. On June 19, 1991, the Department filed a new EA with the court for the shipment of 118 additional fuel rods from Taiwan; this new document mooted the Sierra Club's claims against the 1988 EA and forced the plaintiff to amend its complaint and its motion for summary judgment to argue that the Department has still failed to fulfill its obligations under NEPA, despite the improvements made in the 1991 EA.

 II. An Overview of the 1991 EA

 The 1991 EA used a computer program, RADTRAN IV, *fn4" to compare the environmental risks of bringing the fuel rods through 1) Hampton Roads, VA, 2) a West or Gulf Coast port, 3) Charleston, SC, or 4) Wilmington, NC. *fn5" The EA also considered the alternative of taking no action at all. The "no-action" alternative was summarily rejected as contrary to national security interests. RADTRAN IV calculated the radiological risks incurred by handlers, port workers, and members of the general population sufficiently near the route taken by the fuel rods. RADTRAN IV used actual population densities for all areas along the overland routes, but assumed certain conservative values for such variables as local topography and weather conditions. *fn6"

 III. The National Environmental Policy Act

 In 1969, Congress passed the National Environmental Policy Act ("NEPA"), codified at 42 U.S.C. § 4321 et seq., in order to insure that all agencies of the federal government consider the environmental effects of proposed actions. One of NEPA's primary purposes is to make certain "that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 104 L. Ed. 2d 351, 109 S. Ct. 1835 (1989). In addition to providing crucial information to the decisionmaker, NEPA also "guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Id. This audience includes the President, who is responsible for the agency's policy, and Congress, which has authorized the agency's actions. See Natural Resources Defense Council, Inc. v. Morton, 148 U.S. App. D.C. 5, 458 F.2d 827, 833 (D.C.Cir. 1972). These decisionmakers need access to information concerning the environmental effects of the proposed program to decide whether they will support or overrule the agency's action; environmental documentation aids the President and Congress in deciding larger issues of policy that may include matters outside the scope of a single agency's discretion. The "larger audience" also includes the public; NEPA documentation "gives the public the assurance that the agency 'has indeed considered environmental concerns in its decisionmaking process,' Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983), and, perhaps more significantly, provides a springboard for public comment." Robertson, 490 U.S. at 349; see also Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972) ("[NEPA] is, at the very least, 'an environmental full disclosure law,' for the agency decision makers and the general public.") (quoting Environmental Defense Fund, Inc v. Corps of Engineers, 325 F. Supp. 749, 759 (E.D.Ark. 1971)).

 The cornerstone of this law is § 102(2)(C), codified as 42 U.S.C. 4332(2)(C), which requires

 (i) the environmental impact of the proposed action,

 (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

 (iii) alternatives to the proposed action,

 (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

 (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed actions should it be implemented.

 42 U.S.C. § 4332(2)(C) (1988)

 Under this provision, a government agency must prepare an environmental impact statement ("EIS") whenever a proposed government action qualifies as a "major Federal action significantly affecting the quality of the human environment." In addition, NEPA further sets forth an independent requirement that federal agencies "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E) (1988).

 NEPA also created the Council on Environmental Quality to aid the President in designing national policies. As part of its mandate, the CEQ promulgates regulations to promote compliance with the "action-forcing" requirements of NEPA § 102(2). See 40 C.F.R. § 1500.1 (1990). These regulations define the terms of NEPA and detail the responsibilities of federal agencies. In particular, the regulations require a federal agency proposing major federal action that does not have a significant effect on the environment to file a document called an "environmental assessment" ("EA") that explains how the agency reached that conclusion. See id. at 1508.13. An EA should be brief, but also should set out sufficient evidence for the Finding of No Significant Impact ("FONSI"). See id. at 1508.9(a)(1). In addition, the regulations include an independent requirement that agencies preparing an EA examine alternatives, as required by § 102(2)(E) of NEPA. See id. at 1508.9(b).

 Primary responsibility for compliance with NEPA Is committed to the agencies. See Sierra Club v. United States Dep't of Transp., 243 U.S. App. D.C. 302, 753 F.2d 120, 126 (D.C.Cir. 1985). NEPA is a procedural statute that mandates no substantive results; so long as an agency has taken a "hard look" at an action and has followed NEPA's procedures, its substantive decision will not be overturned by a court unless it is arbitrary, capricious, or an abuse of discretion. *fn8" See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989); 5 U.S.C. § 706 (1988). Under this standard, a "reviewing court 'must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' This inquiry must 'be searching and careful,' but 'the ultimate standard of review is a narrow one.'" Marsh, 490 U.S. at 378 (quoting Citizens to Preserve Overton Park, Inc v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971)). Courts should generally defer to the expertise of the agency when assessing difficult questions regarding scientific and technical disputes. See Sierra Club v. United States Dep't of Transp., 243 U.S. App. D.C. 302, 753 F.2d 120, 129 (D.C.Cir. 1985); Izaak Walton League of America v. Marsh, 210 U.S. App. D.C. 233, 655 F.2d 346, 372 (D.C.Cir. 1981), cert. denied, 454 U.S. 1092, 70 L. Ed. 2d 630, 102 S. Ct. 657 ("In particular, [courts] should not attempt to resolve conflicting scientific opinions . . . . So long as the agency's conclusions have a substantial basis in fact, the mandate of NEPA has been satisfied."). Nonetheless, the agency must comply with the statute's and the regulations' procedural requirements, such as preparing an EA or an EIS and considering alternatives, or else a court may require compliance. The procedural provisions of NEPA "are designed to see that all federal agencies do in fact exercise the substantive discretion given them. These provisions are not highly flexible. Indeed, they establish a strict standard of compliance." Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, 146 U.S. App. D.C. 33, 449 F.2d 1109, 1112 (D.C.Cir. 1971).

 II. Disputed Issues of Fact

 III. Preparation of an EIS

 The Sierra Club asks this court to enjoin the Department of Energy from importing Taiwan spent fuel rods until the Department files an environmental impact statement. The Sierra Club argues that an EIS is required for two unrelated purposes. First, plaintiff alleges that there are substantial and significant questions of scientific controversy that demand an EIS. Essentially, the Sierra Club argues that, regardless of the conclusions of the Department's experts, there is such significant doubt concerning the scientific data about the dangers of shipping spent nuclear fuel rods that an EIS is legally required. Second, the Sierra Club claims that the shipping of nuclear fuel rods from other countries is an on-going program sponsored by the United States government. As such, separate provisions of the Council on Environmental Quality regulations compel the Department to file a programmatic EIS on the cumulative effects of the "program." For the reasons stated below, this court finds neither of the Sierra Club's arguments to be persuasive.

 A. Areas of Scientific Controversy

 The Sierra Club argues that there is a great deal of uncertainty in the scientific community concerning the hazardous effects of exposure to low-level radiation and concerning the ability of the Type a casks used in transporting the spent fuel rods to resist fire and impact forces. Under the plaintiff's theory, the existence of these scientific controversies requires the Department to file an EIS that at least explains the uncertainty because the proposed may action have a significant effect on the environment. The CEQ regulations include within the definition of "significantly" the degree to which the possible impacts on environment are "highly controversial" or "highly uncertain or involve unique or unknown risks" 40 C.F.R. § 1508.27(b)(4) - (5) (1990). Further, the D.C. Circuit has at least indicated that, if an agency cannot show that the proposed action will not have an identified danger, an EIS may be necessary. See Foundation on Economic Trends v. Heckler, 244 U.S. App. D.C. 122, 756 F.2d 143, 154-55 (D.C.Cir. 1985). There exists little authority concerning how great the difference of opinion must be in the scientific community to establish a scientific controversy sufficient to trigger an EIS *fn9" and the court must be wary not to overstep its bounds into the realm of evaluating the relative merit of conflicting scientific theories, which is committed to the discretion of agency experts. See Sierra Club v. United States Dep't of Transp., 243 U.S. App. D.C. 302, 753 F.2d 120, 129 (D.C.Cir. 1985).

 1. Dose-Conversion Factors

 The Sierra Club argues that the Department failed to disclose a substantial scientific controversy regarding dose-conversion factors. The Department, focusing on the deference which courts must show to the determinations of agency experts, argues that it reasonably selected a dose-conversion factor for RADTRAN IV's health effects computations that is supported by the vast majority of the scientific community. The dose-conversion factor is an equation or calculation that determines the risk of cancer entailed by exposure to any given dose of radiation. The dose-conversion factor thus is crucial in determining the health effects, including the number of cancer fatalities, in any situation where a population is exposed to radiation. In the calculations in its 1991 EA, the Department used a dose-conversion factor from the Committee on the Biological Effects of Ionizing Radiations' 1990 BEIR V Report (hereinafter "BEIR V"); *fn10" this conversion factor, 5.OE-04 latent cancer fatalities per person-rem, is actually somewhat greater than that used in the 1988 EA. *fn11" According to the Department's expert and a Nuclear Regulatory Commission report, the dose-conversion factor suggested by BEIR V is within a range that is generally accepted by health physicists throughout the world. See 4th Luna Decl. at para. 5. In calculating the risk factor, the 1991 EA used a conservative linear model, which directly relates the radiation dose and the number of fatalities. Linear models are favored over linear-quadratic models *fn12" by most scientists and generally predict higher numbers of fatalities than linear-quadratic models. See 54 Fed. Reg. 51659 (1989).

 The Sierra Club responds with its own experts and scientific data, including recent studies of Japanese bomb survivors that suggest that dose-conversion factors should be revised upward substantially. See Resnikoff Aff. exhs. 4 - 6. The Sierra Club claims that these studies and others create a substantial scientific controversy that was not adequately addressed in any of the environmental assessments. Additionally, the Sierra Club notes that there is no general agreement on how to calculate low-dose radiation effects because most of the studies have focused on people exposed to high doses, such as the bomb survivors; the EA does not discuss this uncertainty.

 The court rejects the Sierra Club's arguments for two reasons. First, the affidavits of the Department's experts have cast substantial doubt on the Sierra Club's scientific data. The studies concerning Japanese bomb data cited by plaintiff do not directly analyze a dose-response model or suggest a given dose-conversion ratio; while indicating that the health effects of radiation may be greater than previously anticipated, these studies aid the court and the Department little in selecting a dose-conversion factor. See 1st Luna Decl. at para. 27; 5th Luna Decl. at para. 8. Further, several of plaintiff's studies have been directly refuted by other scientists. See 1st Luna Decl. atts. 11 - 12. In addition, Dr. Gofman, one of plaintiff's principal experts, has been refuted not only by the Department's expert, but also by another district court which felt that an exclamation point was required to punctuate its rejection of Dr. Gofman's testimony against a previous BEIR report: "His obsession blinds his objectivity!" Johnston v. United States, 597 F. Supp. 374, 412 (D.Kan. 1984).

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