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Coalition on West Valley Nuclear Wastes v. Bodman

August 31, 2009

COALITION ON WEST VALLEY NUCLEAR WASTES, JOANNEE. HAMEISTER, PLAINTIFFS-APPELLANTS,
v.
STEVEN CHU,*FN1 SECRETARY, DEPARTMENT OF ENERGY, UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

The Coalition on West Valley Nuclear Wastes and Joanne E. Hameister contend that the United States Department of Energy ("DOE") violated both the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the terms of a 1987 settlement between the Coalition and the DOE by issuing an environmental impact statement concerning waste management activities at the West Valley Project site, a portion of the Western New York Nuclear Service Center, that did not address long-term closure issues regarding the rest of the Center. The district court granted summary judgment in favor of the Department on all claims.

AFFIRMED.

The opinion of the court was delivered by: Debra Ann Livingston, Circuit Judge

Argued: March 9, 2009

Before: WALKER and LIVINGSTON, Circuit Judges, and KAPLAN, District Judge.*fn2

The Western New York Nuclear Service Center ("Center") is located approximately thirty miles southeast of Buffalo, New York. It began operation in 1966 as a commercial nuclear fuel reprocessing plant, operated by a private contractor, Nuclear Fuel Services ("Nuclear Fuel Services"), for the purpose of recovering uranium and plutonium from spent nuclear fuel. The reprocessing plant, which is the only one of its kind ever to operate in the United States, was closed for improvements in 1972 and ultimately did not reopen as a commercial enterprise. Nuclear Fuel Services withdrew from the business and yielded responsibility for the plant to what is now known as the New York State Energy Research and Development Authority ("NYSERDA"), which owns and maintains the 3345-acre Center to this day.

Following the withdrawal of Nuclear Fuel Services, Congress ordered a study of possible federal operation of the Center, and ultimately authorized the U.S. Department of Energy ("DOE") to carry out a high-level liquid nuclear waste management demonstration project ("West Valley Project") there. See West Valley Demonstration Project Act, Pub. L. No. 96-368, 94 Stat. 1347 (1980) ("WVDP"); Department of Energy Act of 1978, Pub. L. No. 95-238, § 105, 92 Stat. 47, 53-54. The reprocessing that took place at the Center between 1966 and 1972 produced waste that was stored on-site in underground storage tanks or buried in designated waste burial sites. The West Valley Project was designed to demonstrate solidification techniques that could be used to prepare such waste for transportation to and disposal in a suitable repository. Congress also authorized the DOE to transport solidified waste from the Center to an appropriate repository, to dispose of low-level waste generated as a result of the solidification process, and to decontaminate and decommission the facilities and materials employed during reprocessing and in the Project. WVDP,§ 2(a), 94 Stat. at 1347.

After the WVDP was enacted in 1980, NYSERDA made approximately 200 acres of the Center available for the West Valley Project. The Project site, which includes a chemical reprocessing plant, a spent nuclear fuel receiving and storing area, and liquid storage tanks, consists primarily of the facilities originally constructed and operated by Nuclear Fuel Services to reprocess spent nuclear fuel. Pursuant to the WVDP, the DOE manages the 200-acre site, to which the State of New York retains title, while the State maintains possession of the remaining portion of the Nuclear Service Center. Using a solidification process that converts the liquid waste into glass,the DOE has treated 600,000 gallons of high-level liquid nuclear waste at the Project site, emptying the Project area's on-site, underground, high-level waste storage tanks of the vast majority of their long lived radioactivity.

Litigation first commenced in 1986, as a result of the Department's proposal for the storage of drums of purportedly low-level waste on the Project site in an engineered disposal area. The Coalition on West Valley Nuclear Wastes ("Coalition"), one of the Plaintiffs-Appellants in this case, brought suit under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., arguing that the Department was required to prepare an Environmental Impact Statement ("EIS") regarding the proposal. The parties settled that lawsuit by means of a Stipulation of Compromise dated May 27, 1987. The DOE noted therein that it had planned to prepare an EIS concerning closure for the post-solidification phase of the West Valley Project and it agreed that the "closure Environmental Impact Statement process [would] begin no later than 1988" and proceed "without undue delay and in an orderly fashion consistent with applicable law, the objectives of the West Valley Demonstration Project, available resources and mindful of the procedural processes (including public input) needed to complete the aforesaid Environmental Impact Statement."

The following year, the DOE issued a notice of its intent to prepare an EIS "for Completion of [the] West Valley Demonstration Project Activities and Closure of the Western New York Center." 53 Fed. Reg. 53,052 (Dec. 30, 1988). The Department and NYSERDA, as joint lead agencies, together issued a draft EIS in 1996 evaluating the environmental impact of various alternatives for closure or long-term management of the entire 3345-acre Nuclear Service Center. Disagreements developed between the DOE and NYSERDA, however, as to future aspects of the Center, so that the 1996 draft EIS never became final. In March, 2001, the two agencies issued a public notice announcing that they had decided to bifurcate the EIS process into two stages. See DOE, Revised Strategy for the Environmental Impact Statement for Completion of the West Valley Demonstration Project and Closure or Long-Term Management of Facilities at the Western New York Nuclear Service Center and Solicitation of Scoping Comments, 66 Fed. Reg. 16,447 (Mar. 26, 2001). The first stage would address specific, short-term waste-management activities for the 200-acre West Valley Project. See id. at 16,447. The second stage would cover the long-term closure and management of the Center. See id. The Department has asserted that this approach permits it "to make decisions regarding transportation of waste for offsite disposal and to implement those decisions while undertaking the process of making long-term closure or stewardship decisions with the [NYSERDA] and federal and state regulators." In 2003, it issued a new EIS, the Waste Management EIS, addressing only short-term, waste management activities for the West Valley Project. On June 16, 2005, it entered a record of decision, selecting a course of action from among those proposed in the Waste Management EIS. See U.S. Dep't of Energy, West Valley Demonstration Project Waste Management Activities, 70 Fed. Reg. 35,073 (June 16, 2005) [hereinafter Record of Decision].

Shortly thereafter, the Coalition, an association formed to participate in developing a plan for disposal of the West Valley nuclear wastes, and Joanne E. Hameister, a resident of East Aurora, New York, filed this suit, challenging the Waste Management EIS. In their view, the DOE violated both NEPA and the 1987 settlement between the Coalition and the DOE by not issuing a single EIS that deals with the entire 3345-acre Nuclear Service Center. In addition, the Department's record of decision affirms that the DOE will ship low-level radioactive waste ("LLW") and mixed radioactive and hazardous low-level waste ("MLLW") from the West Valley Project for disposal. The Appellants also challenge the DOE's authority to reclassify wastes as LLW or MLLW "pursuant to a waste incidental to reprocessing evaluation process." The district court granted summary judgment in favor of the Appellees on all claims, see Coal. on W. Valley Nuclear Wastes v. Bodman, No. 05-cv-0614, 2007 WL 2892628 (W.D.N.Y. Sept. 28, 2007), and for the reasons that follow, we affirm.*fn3

As we have noted, "NEPA requires a federal agency to prepare an EIS before taking any major action 'significantly affecting the quality of the human environment.'" Stewart Park & Reserve Coal., Inc. (SPARC) v. Slater, 352 F.3d 545, 557 (2d Cir. 2003) (quoting 42 U.S.C. § 4332(2)(C)). "NEPA is a procedural statute that mandates a process rather than a particular result." Id. "The agency must involve the public in the NEPA review process and consider the views of other interested federal, state, and local entities in making its decision." Pogliani v. U.S. Army Corps of Eng'rs, 306 F.3d 1235, 1237-38 (2d Cir. 2002) (citing 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1506.6). "The only role for a [reviewing] court is to insure that the agency has taken a 'hard look' at environmental consequences; it cannot 'interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" Sierra Club v. U.S. Army Corps of Eng'rs, 701 F.2d 1011, 1029 (2d Cir. 1983) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). The reviewing court cannot "rule an EIS inadequate if the agency has made an adequate compilation of relevant information, has analyzed it reasonably, has not ignored pertinent data, and has made disclosures to the public." Id. (footnote omitted).

Appellants principally raise two related complaints to the DOE's Waste Management EIS. They argue that under the Council on Environmental Quality's ("CEQ") NEPA regulations, it was impermissible "segmentation" for the Department not to consider overall closure issues for the entire 3345-acre Nuclear Service Center at the same time that it considered the waste management issues for the 200-acre West Valley Project. In the alternative, Appellants contend that, once DOE issued a draft EIS in 1996, it could not later split that EIS into two separate stages.

First, we conclude that separating the consideration of the waste management and the closure issues was not impermissible segmentation. "Segmentation is an attempt to circumvent NEPA by breaking up one project into smaller projects and not studying the overall impacts of the single overall project." SPARC, 352 F.3d at 559. But the CEQ's regulations implementing NEPA make clear that not all agency decisions to break a project into stages are impermissible segmentation. To the contrary, agencies must often undertake multi-faceted actions that have complex, interdependent ...


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