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Coalition on West Valley Nuclear Wastes v. Bodman

September 28, 2007

COALITION ON WEST VALLEY NUCLEAR WASTES AND JOANNE E. HAMEISTER, PLAINTIFFS,
v.
SAMUEL BODMAN, SECRETARY, DEPARTMENT OF ENERGY, UNITED STATES OF AMERICA AND UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

Plaintiffs initiated this action on August 26, 2005, pursuant to the judicial review provision of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, seeking to compel defendants' compliance with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., and to enforce the "Stipulation of Compromise Settlement" ("Stipulation") entered into by the parties in 1987 in connection with prior litigation in this court entitled Coalition on West Valley Nuclear Wastes, et al. v. United States Department of Energy, et al., Civ. No. 86-CV-1052C. Plaintiffs have filed a motion for summary judgment (Item 14) pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking a ruling that the process by which the defendants are proceeding with management of radioactive waste at the Western New York Nuclear Service Center in West Valley, New York, is in breach of the Stipulation and in violation of NEPA. Defendants have filed a cross-motion for summary judgment (Item 20) dismissing the complaint. Oral argument of these motions was heard by the court on December 4, 2006, with follow-up argument on May 22, 2007.

For the reasons that follow, plaintiffs' motion for summary judgment is denied, and defendants' cross-motion for summary judgment is granted.

BACKGROUND

A. The Western New York Nuclear Service Center

The Western New York Nuclear Service Center (the "Center") is a radioactive waste management facility located on a five-square-mile site in West Valley, approximately 30 miles southeast of the City of Buffalo. From 1966 to 1972, the Center operated as a commercial nuclear fuel reprocessing plant under a license issued by the federal Atomic Energy Commission (now the Nuclear Regulatory Commission ("NRC")) to Nuclear Fuel Services, Inc. ("NFS"), a private contractor, and the New York State Atomic and Space Development Authority, now known as the New York State Energy Research and Development Authority ("NYSERDA"). Activities at the site included the recovery of uranium and plutonium from spent nuclear fuel by means of a solvent extraction system. Radioactive waste from this process was chemically neutralized and remained on-site in underground storage tanks or buried in two separately designated waste burial grounds -- a 20-acre State-licensed Disposal Area (the "SDA"), and the adjacent 7-acre NRC-licensed Disposal Area (the "NDA") (see AR 50, 53).*fn1

Fuel reprocessing ended in 1972, when the plant was shut down for modifications to increase capacity and implement occupational safeguards. In 1976, due to the perceived costs of upgrading and reopening the plant to comply with changing regulatory requirements (estimated at over $600 million), NFS decided to withdraw from the nuclear fuel reprocessing business and exercised its contractual right to yield responsibility for the Center to NYSERDA. NFS withdrew from the site without removing any of the in-process nuclear wastes. NYSERDA now holds title to the site and manages the Center on behalf of the State of New York (AR 50).

B. The West Valley Demonstration Project Act

In 1980, Congress passed the West Valley Demonstration Project ("WVDP") Act, Pub. L. No. 96-368, 94 Stat 134742 (October 1, 1980), which requires the United States Department of Energy ("DOE") to demonstrate that the liquid high-level waste ("HLW")*fn2 from reprocessing can be safely managed by solidifying it at the Center and transporting it to a geologic repository for permanent disposal. Specifically, Section 2(a) of the Act provides:

Under the project the Secretary shall carry out the following activities:

(1) The Secretary shall solidify, in a form suitable for transportation and disposal, the high level radioactive waste at the Center by vitrification or by such other technology which the Secretary determines to be the most effective for solidification.

(2) The Secretary shall develop containers suitable for the permanent disposal of the high level radioactive waste solidified at the Center.

(3) The Secretary shall, as soon as feasible, transport, in accordance with applicable provisions of law, the waste solidified at the Center to an appropriate Federal repository for permanent disposal.

(4) The Secretary shall, in accordance with applicable licensing requirements, dispose of low level radioactive waste and transuranic waste produced by the solidification of the high level radioactive waste under the project.

(5) The Secretary shall decontaminate and decommission--,

(A) the tanks and other facilities of the Center in which the high level radioactive waste solidified under the project was stored,

(B) the facilities used in the solidification of the waste, and

(C) any material and hardware used in connection with the project, in accordance with such requirements as the [Nuclear Regulatory Commission ("NRC")] may prescribe. (Pub. L. No. 96-368, § 2(a); see AR 52).

In the 26 years since the WVDP Act was enacted, DOE has accomplished only actions (1) and (2) -- vitrifying (i.e., solidifying as a glass composite) 600,000 gallons of high level liquid waste resulting from the reprocessing of spent nuclear fuel, and developing stainless-steel canisters suitable for permanent disposal of HLW (id.). DOE's completion of the remaining statutory requirements -- transportation and disposal of the wastes, and decontamination and decommissioning of the facilities at the Center -- forms the basis of the current dispute.

C. The 1986 Litigation

In the mid-1980s, DOE proposed to store drums of LLW on-site in an engineered disposal area located near the NDA. In support of this proposed action, DOE undertook environmental review under NEPA, resulting in preparation of an environmental assessment ("EA") in April 1986, and a finding of no significant impact ("FONSI") dated August 6, 1986 (see AR at 56).*fn3

The Coalition on West Valley Nuclear Wastes was formed in 1974 and participated as an intervenor in some of the regulatory proceedings that occurred between the time of the shutdown of the reprocessing plant in 1972 and NFS's decision to withdraw from the site. In November 1986, the Coalition filed a lawsuit challenging DOE's proposal for on-site radioactive waste storage, primarily attacking the August 6, 1986 FONSI as contrary to NEPA's environmental impact statement ("EIS") requirements (see Coalition on West Valley Nuclear Wastes, et al. v. United States Department of Energy, et al., Civ. No. 86-CV-1052C, Item 1). Then, in January 1987, the Coalition brought a motion for a preliminary injunction seeking to enjoin the construction of the proposed LLW disposal facilities "unless an [EIS] is prepared, circulated and filed pursuant to [NEPA] . . . " (id., Item 2).

Prompt settlement negotiations between the parties resulted in entry of the Stipulation of Compromise Settlement on May 27, 1987, which provided in part as follows:

3. The [DOE] had planned to prepare an [EIS] concerning closure for the post-solidification phase of the [WVDP]. The defendant hereby agrees that the scope of that [EIS] shall include the following:

a. Disposal of those Class A wastes generated as a result of the activities of the [DOE] at the [WVDP] as mandated by the United States Congress under the [WVDP] Act. However, in lieu of undertaking such an EIS, the defendant reserves the right to:

I. dispose of the Class A wastes in accordance with applicable law at a site other than the Center; or

ii. evaluate disposal of those Class A wastes in a separate EIS; or

iii. seek and obtain [NRC] review and approval of any proposed disposal methodology for such Class A wastes at the Center.

b. The disposal of those Class B/C wastes generated as a result of the activities of the [DOE] at the [WVDP] as mandated by the United States Congress under the [WVDP] Act.

4. The parties hereby agree that the closure [EIS] process --including the scoping process -- shall begin no later than 1988 and that this process shall continue without undue delay and in an orderly fashion consistent with applicable law, the objectives of the [WVDP], available resources and mindful of the procedural processes (including ...


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