Appendix — City of New York v. United States Department of Transportation

In THE

Supreme Court of the United States

Octroser Term, 1983

THE CITY OF NEW YORK and THE STATE OF NEW YORK,

Appellants,

—against—

THE UNITED STATES DEPARTMENT OF TRANSPORTATION and THE

MATERIALS TRANSPORTATION BUREAU OF THE UNITED STATES

DEPARTMENT OF TRANSPORTATION, eé# al.,

Appellees.

APPENDICES TO JURISDICTIONAL STATEMENT FOR

APPELLANTS CITY OF NEW YORK AND STATE OF

NEW YORK

——_— ES

FREDERICK A.O. SCHWARZ, JR. ROBERT ABRAMS

por Counsel of the City of New eee Sa SS Se CUS ee

Attorney for Appellant, City of New Attorney for Appellant, State of

York New York

100 Church Street Two World Trade Center

New Y New York 10007 New ¥ New York 10047

(212) 4338 (212)

LEORARD KOERNER EZRA BIALIK

Appeals Division Of Counsel

INDEX

PAGE

A—Opinion and Judgment of the Court of Ap-

dca gusioendsoiindndieanensnassianiiinmenenees ~ ae

B—May 5, 1982 District Court Judgment ............ 53a

C—May 5, 1983 District Court Opinion .............. 57a

D—Notice of Appeal for Appellant City of New

SEE 189a

E—Notice of Appeal for Appellant State of New

TEE cetcininicns - " 192a

F—Resolution Adopted January 15, 1976

Amending the New York City Health Code 195a

G—Excerpt from the Department of Transporta-

IE SITING voseneerensdasiintessmeriastessinenetnessnnnss 198a

APPENDIX A

Opinion and Judgment of the Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—

Nos. 415, 451—August Term, 1982

Argued: February 14, 1983 Decided: August 10, 1983

Docket Nos. 82-6094, 82-6200

7

THE City OF NEW YORK,

Plaintiff-Appellee,

—and—

THE STATE OF NEW YORK, ETAL.,

Plaintiffs-Intervenors-A ppellees,

—_—V—

THE UNITED STATES DEPARTMENT

OF TRANSPORTATION, ETAL.,

Defendants-Intervenors-Appellants.

+

Before:

OAKES, NEWMAN, and PRATT,

Circuit Judges.

[1a]

2a

Appendiz A

Appeal from the May 6, 1982, judgment of the District

Court for the Southern District of New York (Abraham

D. Sofaer, Judge) invalidating in part Department of

Transportation Regulation. HM-164 governing the

highway transportation of large quantities of radioactive

materials. 539 F. Supp. 1237 (S.D.N.Y. 1982).

Reversed and remanded.

Judge Oakes dissents.

+

Twita L. Perry, Asst. U.S. Atty., New York,

N.Y. (John S. Martin, Jr, U.S. Atty.,

Gaines Gwathmey, III, Peter C. Salerno,

Asst. U.S. Attys., New York, N.Y.,

Douglas Anderson, Department of Trans-

portation, Washington, D.C., on the

brief), for defendants-appellants.

HARRY H. VoiGct, New York, N.Y. (Leonard

M. Trosten, Mindy A. Buren, Robert S.

Garrick, LeBoeuf, Lamb, Leiby & Mac-

Rae, New York, N.Y., on the brief), for

defendants-intervenors-appellants.

STEPHEN P. KRAMER, New York, N.Y. (Fred-

erick A.O. Schwarz, Jr., Corp. Counsel,

Barry L. Schwartz, New York, N.Y., on

the brief), for plaintiff-appellee.

Ezra I. BiALIk, Asst. Atty. Gen., New York,

N.Y. (Robert Abrams, Atty. Gen., Peter

H. Schiff, Acting Atty. in Chief, New

York, N.Y., on the brief), for plaintiffs-

intervenors-appellees.

5702

3a

Appendiz A

(PETER M. COoLLins, John G. Collins, Mid-

Atlantic Legal Foundation, Inc., New

York, N.Y., filed a brief on behalf of

amicus curiae Scientists and Engineers

for Secure Energy, Inc. and Mid-Atlantic

Legal Foundation, Inc.)

(ELDON KAuL, Asst. Atty. Gen., Roseville,

‘Min., E. Dennis Muchnicki, Asst. Atty.

Gen., Columbus, Ohio, filed a brief on

behalf of amicus curiae States of Ohio

and Minnesota on the Relation of Their

Attys. Gen. William J. Brown and War-

ren Spanus.)

—+—

NEWMAN, Circuit Judge:

Every age has experienced scientific advances. A distin-

guishing feature of our era is the effort the scientific

community is making to quantify the risks that seem

inevitably to accompany the results of technological pro-

gress. The availability of this data has doubtless played a

part in raising public consciousness about the mixed

blessings of “progress,” and public concern has led to

rigorous governmental regulation. These trends, in turn,

have brought before the courts controversies that present

old issues in new contexts of unusual complexity. In

determining whether regulatory actions conform to statu-

tory requirements, courts are now obliged to review

agency consideration of sophisticated data concerning the

potential gravity of adverse consequences and the proba-

bility of their occurrence. This assessment of risk lies at

5703

4a

Appendiz A

the heart of this appeal, which involves a challenge to a

federal regulation designed to reduce the risks from the

transportation of radioactive materials. The United States

Department of Transportation (“DOT” or “the Depart-

ment”) appeals from the May 6, 1982, judgment of the

District Court for the Southern District of New York

(Abraham D. Sofaer, Judge) declaring invalid, in part,

regulations promulgated by DOT to govern the transpor-

tation of large quantities of radioactive materials by

highway. 539 F. Supp. 1237 (S.D. N.Y. 1982). For reasons

set out in detail below, we reverse and remand the matter

for entry of a judgment upholding the regulations.

The challenged DOT regulations can best be under-

stood in light of developments preceding their issuance.

In early 1976, the City of New York ame ded its health

code to prohibit the transportation of spent nuclear fuel

and other large quantities of radioactive material through

the City without a Certificate of Emergency Transport

from the Commissioner of Health. See N.Y. City Health

Code § 175.111() (Jan. 15, 1976). The amendment of the

City’s Health Code effectively banned the use of motor

vehicles to ship spent fuel from nuclear reactors operating

on Long Island because all roads from Long Island pass

through New York City. Since 1976, spent nuclear fuel has

been removed from Long Island by barge across the Long

Island Sound to New London, Connecticut.

The Brookhaven National Laboratories, which oper-

ates a reactor on Long Island, responded to New York

City’s action by asking DOT to declare the amendment

preempted by the Hazardous Materials Transportation

Act (HMTA), 49 U.S.C. §§ 1801-1812 (1976 & Supp. V

5704

5a

Appendiaz A

1981).' Section 105(a) of HMTA authorizes the Secretary

of Transportation to promulgate rules governing the rout-

ing of shipments containing hazardous materials includ-

ing radioactive materials. 49 U.S.C. § 1804(a). Section

112(a) of HMTA provides that any state or local regula-

tion inconsistent with federal regulations is preempted. 49

U.S.C. § 1811(a).

In an “Inconsistency Ruling” published in April 1978,

DOT found that HMTA did not preempt the amendment

of the New York City Health Code. 43 Fed. Reg. 16,954

(Apr. 20, 1978). DOT reasoned that, although HMTA

authorized the Secretary to develop national rules for the

routing of nuclear materials, the Secretary had not yet

exercised that authority. Consequently, in DOT’s view,

municipalities like New York City were free to enact their

own routing rules, including extreme routing require-

ments such as a ban on the shipment of nuclear materials

through densely populated urban areas.’

As a consequence of restrictions placed on the trans-

portation of nuclear materials by New York City and

numerous other jurisdictions across the country, DOT

decided to investigate whether federal rules governing

highway carriers of radioactive materials might be

needed. In an Advance Notice of Proposed Rulemaking

published in August 1978, DOT expressed its concern that

! Initially, the United States challenged the amendment to the New

York City Health Code in federal court. United States v. City of New

York, 76 Civ. 273 (IBW) (S.D.N.Y. Jan. 15, 1976). After the District

Court denied tie Government's motion for a preliminary injunction,

the case was transferred to the suspense calendar by stipulation.

The Inconsistency Ruling concluded that, if DOT chose to establish

national routing procedures in the future, the New York City ordinance

might become preempted unless the City received a non-preemption

cae from DOT, as permitted by section !12(b) of HMTA, 49 U.S.C.

1811(b).

5705

A

6a

Appendtz A

the various, inconsistent safety regulations imposed by

state and local authorities might in fact diminish the

overall safety of the transportation of nuclear materials.

See 43 Fed. Reg. 36,492 (Aug. 17, 1978). In this Advance

Notice, DOT outlined several proposals for regulating the

highway transportation of radioactive materials at the

federal level and invited comments on these proposals as

well as on the threshold question, “Should radioactive

materials be subject to more stringent Federal highway

routing requirements than now imposed?” Jd. at 36,493-

94.’ From the start, DOT indicated its intention to limit

its proposed rulemaking to highway routing, which it

identified as the mcde of transportation that “offers the

largest number of routing possibilities and the greatest

access to population centers. . . . [while] fac[ing] imme-

diate and significant disparities in safety requirements

imposed by State and local jurisdictions.” /d. at 36,492.

In the course of rulemaking proceedings mandated by

the Administrative Procedure Act, 5 U.S.C. §§ 551-706

(1976 & Supp. V 1981), DOT conducted eight public

hearings and received more than 1600 comments on its

proposed regulation of the highway transportation of

radioactive materials. In January 1980, DOT published a

Notice of Proposed Rulemaking, which contained DOT’s

preliminary assessment of appropriate routing require-

ments and driver training programs. See 45 Fed. Reg.

7140 (Jan. 31, 1980). Almost a year later, DOT published

a Final Rule, known as HM-164, which closely resembled

the proposed version. 46 Fed. Reg. 5298 (Jan. 19, 1981)

(codified at 49 C.F.R. §§ 171-173, 177 (1982)).

3 At that time, federal regulations simply stated that unless impracti-

cable, carriers of hazardous materials should use routes that avoid

heavily popuiated areas. 49 C.F.R. § 397.9 (1978); see 43 Fed. Reg. at

36,492-93.

5706

7a

Appendiz A

This litigation challenges the sections of the Final Rule

governing the routing of motor vehicles that carry “large-

quantity shipments” of radioactive materials.* The Final

Rule establishes a system of preferred routes comprising

the highways of the Interstate Highway System supple-

mented by local highways selected and approved by state

routing agencies.’ Under the Final Rule, vehicles carrying

large-quantity shipments of radioactive materials should

as a general matter “operate[] over preferred routes

selected to reduce time in transit, except that an Interstate

System bypass or beltway around a city shall be used

when available.” 49 C.F.R. § 177.825(b) (1982). DOT

designated the entire Interstate Highway System as a

preferred route because of the System’s low accident rates

and its capacity to reduce transit times. See 46 Fed. Reg.

at 5300-01. However, because DOT believed that in many

cases local roads might provide safer and more direct

routes for highway carriers and that state authorities were

better situated to determine where alternate routes would

be preferable, state routing authorities were given author-

ity to supplement the Interstate Highway System. See id.

at 5301-02. The Rule also requires that large-quantity

radioactive materials carriers prepare written route plans

before shipment, that drivers for these shipments com-

plete training programs, and that carriers moving irra-

diated reactor fuel follow security procedures established

by the Nuclear Regulatory Commission (NRC). See 49

C.F.R. §§ 173.22, 177.825(c), (d), (e); see also 10 C.F.R.

§ 73 (NRC security regulations). Accompanying HM-164

4 “Large quantity radioactive materials” are defined in 49 C.F.R.

§ 173.38%b) (1982).

5 See “Guidelines for Selecting Preferred Highway Routes for Ship-

ments of Large Quantity Radioactive Materials,” 49 C.F.R.

§ 277.825(b)(1)(ii) (providing directions for state routing agencies).

5707

8a

Appendiz A

was an appendix expressing DOT’s opinion that the Rule

would preempt local regulations, such as the New York

City Health Code, that “prohibit[] transportation of large

quantity radioactive materials by highway between any

two points without providing an alternate route for the

duration of the prohibition.” 46 Fed. Reg. at 5317-18

(codified at 49 C.F.R. § 177 app. A (1982)).

In conjunction with the issuance of HM-164, DOT

reckoned with section 102(2)(C) of the National Environ-

mental Protection Act (NEPA), 42 U.S.C. § 4332(2)(c)

(1976), which requires a detailed Environmental Impact

Statement (EIS) in every proposal for a major federal

action “significantly affecting” the quality of the human

environment. DOT released with HM-164 a Final Regula-

tory Evaluation and Environmental Assessment,° which

concluded that an EIS was not needed because HM-164

would not have a “significant” impact on the environ-

ment. DOT’s Environmental Assessment noted that HM-

164 would benefit the environment by reducing the

existing level of background radiation. This benefit would

result from a reduction in the transit time for shipments

of radioactive materials. The Rule would also have a

beneficial effect upon the risk that a shipment would be

involved in a highway accident, since the interstate

highway system enjoys a comparatively low accident rate.

However, the Environmental Assessment acknowledged

that in one respect the Final Rule creates a risk. Permit-

ting high-quantity shipments of spent nuclear fuel and

other radioactive materials to be trucked through densely

populated urban centers in jurisdictions that had pre-

viously banned such shipments creates an estimatable risk

6 The Department had prepared a draft Environmental Assessment to

accompany its Notice of Proposed Rulemaking. See 45 Fed. Reg. at

7152 (summary of draft assessment).

5708

9a

Appendiaz A

of serious consequences that would occur in the unlikely

event of an accident with substantial leakage of radioac-

tive gases. Conceding that this risk was credible, DOT

concluded, on the basis of “overall risk” assessment, that

this possibility did not cause HM-164 to have a “signifi-

cant impact” on the environment. The concept of overall

risk incorporates the significance of possible adverse

consequences discounted by the improbability of their

occurrence. DOT’s risk assessment, which we discuss in

detail in Part IV, infra, relied on a study estimating the

probability of a catastrophic accident resulting from the

highway transportation of radioactive materials through

urban centers to be approximately once every 300 million

years. See Nuclear Regulatory Commission, Office of

Standards Development, Final Environmental Statement

on the Transportation of Rac‘ioactive Material by Air and

Other Modes at v-vi (Dec. 1977) (hereinafter cited as 1977

NRC Report or NUREG-0170) (national estimate based

on 1975 shipping rates); see also Sandia National Labora-

tories, Transportation of Radionuclides in Urban En-

virons: Draft Environmental Assessment 66 (July 1980)

(hereinafter cited as Sandia Report) (study of probability

of accident in New York City).

Throughout the rule-making process, the City of New

York was a vocal critic of DOT’s proposals and re-

peatedly urged DOT to broaden the scope of its inquiry

and to consider barging as an alternate means of trans-

porting large-quantity shipments of radioactive materials

around urban centers that lack circumferential highways.

When the Department failed to incorporate the City’s

barging suggestion into the Proposed Rule issued in early

1980, the City reiterated its support of barging and

requested DOT to accompany the Final Rule with a

non-preemption ruling for section 175.111() of the New

5709

10a

Appendix A

York City Health Code. See HMTA § 112(b}, 49 U.S.C.

§ 1811(b). The City’s application for a non-preemption

ruling was denied as premature. Once the Final Rule was

published in January 1981, the City renewed its applica-

tion for a non-preemption ruling. On January 15, 1982,

fifteen days before the Final Rule went into effect, DOT

sent the City a letter indicating that the City’s non-pre-

emption application would most likely not be approved

for lack of substantial supporting documentation. The

Final Rule went into effect on February 1, 1982.

However, orders entered in this litigation have pre-

vented preemption of the City’s regulation. On March 25,

1981, the City filed a complaint in the Southern District

of New York to invalidate Rule HM-164 on numerous

grounds. Shortly after the complaint was filed, the Dis-

trict Court granted motions by the State of New York and

a group of utilities to join the proceeding as intervening

plaintiff and intervening defendants, respectively. On Jan-

uary 29, 1982, three days before HM-164 was to take

effect, the District Court issued a temporary order re-

straining the preemptive effect of HM-164 upon section

175-111() of the City’s Health Code. On February 19,

1982, the District Court, in an exhaustive opinion, ruled

that HM-164 violated HMTA and NEPA in its preemp-

tion of state and local bans on the transportation of

large-quantity radioactive materials along highways in

densely populated areas. The District Court permanently

enjoined nationwide the enforcement of what it con-

cluded was the invalid effect of HM-164, and offered the

parties the opportunity to suggest corrections to the

Court’s opinion. Based on these suggestions, the District

Court filed an amended opinion and judgment on May 6,

1982, which limited its earlier decision and invalidated

5710

lla

Appendiz A

HM-164 only insofar as it preempted New York City’s

Health Code. 539 F. Supp. 1237.

We consider first the District Court’s interpretation of

HMTA, the statute under which DOT issued Rule HM-

164. The District Court construed HMTA to require that

regulations promulgated under the statute set the safest

feasible standards for transportation of hazardous mate-

rials. In the District Court’s view, HMTA regulations

must maximize public safety not only for the nation as a

whole, but for every local jurisdiction in the country as

well. Furthermore, in the District Court’s view, DOT

must require shippers to use the safest of alternative

modes of transportation.’ Applying this construction of

HMTA, the Court faulted DOT for not demonstrating

that HM-164 offers a safer means of transporting ra-

dioactive materials through New York City than barging

these materials around the City. On this appeal, the

Government and the intervening utility companies con-

tend that HMTA does not require the Secretary to max-

imize safety, but rather authorizes her to set acceptable

levels of safety for each mode of transportation. We agree

with the appellants’ interpretation of the statute.

HMTA empowers the Secretary of Transportation “to

protect the Nation adequately against the risks of life and

7 The District Court viewed the Act as “a simple yet strong direction”

for the Secretary “not only to consider alternatives to proposed

regulations but also, when considering alternatives, to adopt the safer

option unless it is impractical.” 539 F. Supp. at 1289; see id. at 1290.

From this mandate, the District Court concluded that it was impermis-

sible for the Secretary to promulgate HMTA regulations that “declare

a certain level of safety ‘acceptable’ regardless of the possibility of

achieving higher levels through reasonable measures.” Jd. at 1289.

5711

12a

Appendix A

property which are inherent in the transportation of

hazardous materials in commerce.” HMTA § 102, 49

U.S.C. § 1801. The reference to “adequate” protection

suggests that Congress expected the Secretary to exercise

discretion in determining the appropriate level of safety.

This understanding of HMTA is supported by section 105

(a), which permits, but does not require, the Secretary to

promulgate regulations governing “any safety aspect of

the transportation of hazardous materials which the Sec-

retary deems necessary or appropriate.” 49 U.S.C.

§ 1804(a).

A further clue that Congress did not intend HMTA

regulations to maximize public safety, particularly ona

jurisdiction-by-jurisdiction basis, is the statute’s regula-

tory structure. Under section 112(a), HMTA regulations

preempt inconsistent state and local regulations. 49

U.S.C. § 1811(a). Congress included this provision “to

preclude a multiplicity of State and local regulations and

the potential for varying as well as conflicting regulations

in the area of hazardous materials transportation.” S.

Rep. No. 1192, 93d Cong., 2d Sess. 37 (1974) (hereinafter

cited as Senate Report); see Kappelmann y. Delta Air

Lines, Inc., 539 F.2d 165, 169-70 (D.C. Cir. 1976), cert.

denied, 429 U.S. 1061 (1977); Consolidated Rail Corp. v.

City of Dover, 450 F. Supp. 966, 973-74 (D. Del. 1978);

see also National Tank Truck Carriers, Inc. v. City of

New York, 677 F.2d 270, 275 (2d Cir. 1982). To ameliorate

the sweep of section 112(a), Congress wrote into HMTA a

procedure whereby local jurisdictions could apply for

non-preemption rulings for their own regulations. See

HMITA § 112(b), 49 U.S.C. § 1811 (6). A local jurisdic-

tion qualifies for a non-preemption ruling if it can dem-

onstrate to DOT that its local regulation “affords an

5712

13a

Appendiz A

equal or greater level of protection to the public” than

that of DOT’s regulations, and “does not unreasonably

burden commerce.” /d. This non-preemption procedure

was added to HMTA so that in “certain exceptional

circumstances” DOT could limit the preemptive force of

federal regulations “to secure more stringent regulations”

by local authorities. Senate Report, supra, at 38. It is

difficult to understand why Congress would have added a

non-preemption procedure to permit safer local regula-

tions if the statute required the Secretary to adopt only

those HMTA regulations that would maximize public

safety on a jurisdiction-by-jurisdiction basis.

The District Court’s construction of HMTA would

place tremendous, if not insuperable, constraints on the

Secretary’s rule-making power in the absence of explicit

statutory direction. Undoubtedly, Congress has (and oc-

casionally uses) the authority to instruct a federal agency

to regulate an area so as to maximize a public benefit

Or minimize a public harm. See, e.g., 33 U.S.C.

§ 1314(b)(2)(B) (1976) (“best measures and practices

available to comply with” effluent limitations). But

courts should not strain to infer from vague statutory

language or legislative committee rhetoric a goal of max-

imizing a particular public policy. See FCC v. WNCN

Listeners Guild, 450 U.S. 582, 593-95 (1981); INS v.

Wang, 450 U.S. 139, 144 (1981) (per curiam). See Note,

Intent, Clear Statements, and the Common Law: Statu-

tory Interpretation in the Supreme Court, 95 Harv. L.

Rev. 892, 910-12 (1982).

The District Court’s interpretation of HMTA would

also require the Department to compare modes of trans-

portation to determine which mode is the safest, thereby

pitting the various modes of transportation in direct

$713

l4a

Appendiz A

competition because only one mode of transportation can

be the safest mode for any given task. We do not believe

that Congress imposed such a requirement.

Before HMTA was passed in 1974, a number of federal

agencies, including the Federal Highway Administration

and the Federal Railway Administration, supervised the

transportation of hazardous materials. The Secretary of

Transportation maintained a small technical staff to ad-

vise these agencies, see Hazardous Materials Transporta-

tion Control Act of 1970, Pub. L. No. 91-458,

§§ 301-303, 84 Stat. 971, 977 (repealed 1974), but DOT

had no substantive control over the various modes of

transportation. Consequently, there was no coordinated

regulation of the various modes.

In 1974, Congress passed HMTA to “draw{] the Fed-

eral Government’s now-fragmented regulatory and en-

forcement power over the movement of hazardous

materials in commerce into one consolidated and coordi- ’

nated effort under the direction of the Secretary of

Transportation.” Senate Report, supra, at 1. For the first

time, a single federal authority had the responsibility for

overseeing the transportation of hazardous materials by

all modes. This centralization was designed to achieve a

comprehensive approach to reducing risk, for example,

by ensuring that consistent packaging rules were enforced

for all modes. See id. at 2.

Because HMTA consolidated federal regulatory con-

trol, the District Court inferred that the Act required the

Secretary to permit the use of only the safest mode for

any function. Such a requirement would constitute a

radical shift in regulatory policy with serious ramifica-

tions for the transportation industry. In the past, we have

been extremely reluctant to hold Congress to have made

such a basic change in regulatory procedure absent ex-

5714

15a

Appendiz A

plicit statutory language or other clear manifestation of

congressional intent. Toilet Goods Ass’n v. Finch, 419

F.2d 21, 27 (2d Cir. 1969). None of the provisions of

HMTA remotely suggests that the Act was intended to

mandate comparisons among modes of transportation.

To the contrary, the House Committee made it clear that

the Act would not change the Secretary’s regulatory

authority. See H. Rep. No. 1083, 93d Cong., 2d Sess. 20

(1974), reprinted in 1974 U.S. Code Cong. & Ad. News

7669, 7680. We conclude, therefore, that in passing

HMTA Congress intended DOT to use its centralized

authority to develop a rational and consistent system of

regulations for all modes of transportation, but expected

that the Department would continue to follow the prior

practice of regulating each mode of transportation on an

individual basis.*

Having rejected the Disirict Court’s construction of

HMTA, we now reach the question of what standards

HMITA sets to govern the Secretary’s rule-making author-

ity. In our view, HMTA regulations are valid as long as

they are rationally related to the policy—the development

of acceptable levels of public safety for each mode of

transportation—underlying HMTA and are promulgated

in accordance with the Administrative Procedure Act, 5

U.S.C. §§ 551-706 (1976 & Supp. V 1981). DOT fully

complied with these standards. DOT followed appropri-

aie notice and comment procedures, and the Final Rule

was rationally related to the goal of developing acceptable

levels of safety in the highway transportation of radioac-

tive materials. Except for claims premised on an erro-

8 In so ruling, we do not mean to imply that DOT cannot prohibit the

transportation of certain classes of hazardous materials by one particu-

lar mode if the Department concludes that there is no practical means

of regulating that mode to ensure an acceptable level of safety.

5715

16a

Appendiz A

neous interpretation of HMTA, we do not understand the

plaintiffs to dispute that HM-164 is a valid HMTA regula-

tion.

Ill.

We next consider the District Court’s conclusions that

DOT failed to comply with the requirements of NEPA.

We discuss in this part the Court’s conclusion that by

giving insufficient attention to barging as an alternative

to HM-164 nationwide and for New York City in particu-

lar, DOT failed to consider alternatives to proposed

agency action as required by NEPA. In Part IV, infra, we

consider the Court’s ruling that DOT erred in assessing

HM-164 not to have a “significant” environmental im-

pact.

Section 102(E) of NEPA obliges agencies to “study,

develop, and describe appropriate alternatives to recom-

mended courses of action in any proposal which involves

unresolved conflicts concerning alternative uses of avail-

able resources.” The Secretary suggests preliminarily that

HM-164 does not even encounter this requirement be-

cause it does not propose a “use” of a “resource” within

the meaning of section 102(2)(E). This Court, however,

has not construed section 102(2)(E) narrowly to apply

only to agency actions that propose an identifiable use of

a limited resource like park land or fresh ~vater.’ Instead,

we have ruled that federal agencies have a duty under

NEPA to study alternatives to any actions that have an

impact on the environment, even if the impact is not

significant enough to require a full-scale EIS. Hanly v.

9 Arguably, HM-164 satisfies the literal meaning of section 102(2)(E)

since the movement of radioactive materials along highways can be

considered a “use” of the surrounding air.

5716

17a

Appendiz A

Kleindienst, 471 F.2d 823, 834-36 (2d Cir. 1972), cert.

denied, 412 U.S. 908 (1973); see Trinity Episcopal School

Corp. v. Romney, 523 F.2d 88, 93 (2d Cir. 1975).

HM-164 is an agency action with some impact on the

environment. The Rule establishes the manner in which

highly toxic substances will be moved around the country.

Even apart from the risk of a possible accident, the

permitted transportation will cause some contribution to

the amount of low-level radiation on the interstate

highway system. Under the standards developed in Hanly

v. Kleindienst, supra, and Trinity Episcopal School Corp.

v. Romney, supra, we conclude that HM-164 has suffi-

cient impact on the environment to require DOT to

consider alternatives to the action.

This general conclusion, however, does not determine

what sort of alternatives DOT had to consider in its

Environmental Assessment and, in particular, whether the

Department should have studied barging as an alternative

to applying HM-164 to New York City.'® As the Supreme

Court has recognized, an agency’s duty to consider al-

ternatives under NEPA is “not self-defining.” See Ver

mont Yankee Nuclear Power Corp. v. National Resources

Defense Council, Inc., 435 U.S. 519, 551 (1978).

In the first instance, the agency itself is responsible for

determining the range of alternatives to be considered,

North Slope Borough v. Andrus, 642 F.2d 589, 601 (D.C.

Cir. 1980), and is supposed to follow what the District of

Columbia has called a “rule of reason,” Natural Re-

10 Two different NEPA provisions deal with the analysis of alterna-

tives. Section 102(2)(E), 42 U.S.C. § 4332(2)(E), is the more general

provision, applicable even when an agency need not prepare a com-

plete EIS. See Hanly v. Kleindienst, supra, 471 F.2d at 834-35 (discus-

sing previously numbered section 102(2D)). Section 102(2C iii), 42

U.S.C. § 4332(2)(C\iii), requires a more detailed statement on alterna-

tives to the proposed action, but only applies when an EIS is required.

$717

18a

Appendiz A

sources Defense Council, Inc. v. Morton, 458 F.2d 827,

834 (D.C. Cir. 1972). An agency’s selection of alterna-

tives, however, is not insulated from review. See County

of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375

(2d Cir. 1977), cert. denied, 434 U.S. 1064 (1978). While

an agency is not obliged to consider every alternative to

every aspect of a proposed action, see Environmental

Defense Fund, Inc. v. Corps of Engineers, 492 F.2d 1123,

1134-36 (Sth Cir. 1974), aff’d, 376 F.2d 573 (Sth Cir.

1978); East 63rd Street Ass’n v. Coleman, 414 F. Supp.

1318, 1326 & n.18 (S.D.N.Y. 1976); Inman Park Restora-

tion Inc. v. Urban Mass Transportation Administration,

414 F. Supp. 99, 115 (N.D. Ga. 1976), reviewing courts

have insisted that the agency “consider such alternatives

to the proposed action as may partially or completely

meet the proposal’s goal.” Natural Resources Defense

Council, Inc. v. Callaway, 524 F.2d 79, 93 (2d Cir. 1975).

Moreover, an agency will not be permitted to narrow the

objective of its action artificially and thereby circumvent

the requirement that relevant alternatives be considered.

See id.; Committee io Stop Route 7 v. Volpe, 346 F. Supp.

731, 739-41 (D. Conn. 1972).

The scope of alternatives to be considered is a function

of how narrowly or broadly one views the objective of an

agency’s proposed action. In this case, for example, if

DOT’s objective is to improve the safety of highway

transportation of radioactive materials, relevant alterna-

tives might include a choice of routes, a choice of equip-

ment, and a choice of driver qualifications. If DOT is

concerned more broadly with all transportation of these

materials, it might consider alternative modes of trans-

portation. If the objective is viewed still more broadly as

reducing the hazards of radiation exposure, the Depart-

ment might consider alternative sources of power that

5718

19a

Appendiz A

could reduce the generation of spent nuclear fuel. Fre-

quently, a pertinent guide for identifying an appropriate

definition of an agency’s objective will be the legislative

grant of power underlying the proposed action. See

Picher, Alternatives Under NEPA: The Function of Ob-

jectives in an Environmental Impact Statement, 11 Harv.

L. Legis. 595 (1974); Comment, The National Environ-

mental Protection Act of 1969: What “Alternatives”

Must an Agency Discuss?, 12 Colum. J.L. & Soc. Probs.

221, 241-50 (1976). Statutory objectives provide a sensible

compromise between unduly narrow objectives an agency

might choose to identify to limit consideration of alterna-

tives and hopelessly broad societal objectives that would

unduly expand the range of relevant alternatives. We

implicitly endorsed the pertinence of statutory objectives

in ruling that an agency need not consider “alternatives

which could only be implemented after significant

changes in government policy or legislation.” Natural

Resources Defense Council, Inc. v. Callaway, supra, 524

F.2d at 93."

Having described the nature of an agency’s duty to

consider alternatives, we now consider whether DOT

satisfied that duty in this case. The Environmental

Assessment prepared for HM-164 was a thirty-six page

document supplemented by nine technical appendices.

The Assessment covered nine alternatives, including a

no-action alternative. All of the alternatives concerned

highway transportation of radioactive materials. The two

" This view is at odds with cases such as Natural Resources Defense

Council, Inc. vy. Morton, supra, in which the District of Columbia

Sete St ae, 0 Sus neNNS SS ee ee ae

Objective behind the agency’s action—meeting the nation’s energy

requirements.

5719

20a

Appendiz A

principal alternatives involved routing shipments around

heavily populated areas, except for pickup and delivery,

and, as HM-164 proposed in modified form, routing the

materials via interstate highways, except for pickups and

deliveries. The Assessment also considered requiring ad-

vance notice of large-quantity shipments as well as prepa-

ration of after-the-fact routing plans for these shipments.

Finally, the Assessment considered time-of-day or time-

of-week routing restrictions and specialized driver train-

ing programs for large-quantity shipments.

The District Court’s basic criticism of the Environmen-

tal Assessment was the absence of any serious considera-

tion of the barging alternative. At various points in its

opinion, the District Court seems to suggest that DOT

should have considered barging as a nationwide alterna-

tive to trucking radioactive materials through densely

populated areas. See, e.g., 539 F. Supp. at 1282. More

often, however, Judge Sofaer makes clear that he was

primarily concerned with DOT’s failure to consider barg-

ing as an alternative for New York City. See id. at 1281,

1287. This fundamental complaint was also directed at

the Assessment’s treatment of the no-action alternative

because, had DOT failed to promulgate HM-164, barging

would have been the inevitable consequence in some

jurisdictions, such as New York City. See id. at 1279.

Though we have required an agency to give some

consideration to alternatives even though preparation of

an EIS is not required, Hanly v. Kleindienst, supra, 471

F.2d at 834-36, it remains something of an anomaly to

insist that an agency assess alternatives for an action that

it has determined will not have a “significant” effect on

the environment. See id. at 836-37 (Friendly, J., dissent-

ing). But even accepting the teaching of Hanly, as we

must, we are of the view that an agency’s finding of no

5720

21a

Appendiz A

significant impact, if otherwise valid, permits the agency

to consider a narrower range of alternatives than it might

be obliged to assess before undertaking action that would

significantly affect the environment. In this case, DOT’s

finding that HM-164 would not significantly affect the

environment substantially diminishes the claim that the

Department acted arbitrarily in declining to consider

barging as a national alternative.

The claim is further undermined when we consider the

Statutory objective HM-164 was fulfilling. As we dis-

cussed in Part Il, supra, HMTA authorizes the Secretary

to promulgate regulations that establish acceptable na-

tional levels of public safety for each mode of transporta-

tion of hazardous materials. With HM-164, DOT

consciously limited itself to studying and establishing

national regulations for highway carriers, leaving for

some future date the investigation of other modes of

transportation. See 43 Fed. Reg. at 36,492. Since HMTA

neither requires nor envisions that DOT will compare

modes of transportation before issuing safety regulations,

DOT was acting within its statutory mandate in limiting

its inquiry to highway transportation. Even if barging

offered a nationwide alternative to highway transporta-

tion, which seems unlikely,’ barging was not an alterna-

tive to DOT’s statutorily imposed objective of creating

national safety regulations for highway transportation.

A third consideration that weighs heavily against re-

quiring DOT to consider barging as a national alternative

is the availability of the procedure for obtaining a non-

preemption ruling. Of course, it was open to DOT to

consider including in HM-164 a provision requiring (or at

2 Twenty-six percent of the nation’s nuclear facilities are reportedly

not directly accessible to navigable waters. See NUREG-0170, supra, at

6-9.

5721

22a

Appendix A

least permitting local preference for) barging in those

circumstances where this alternative could safely and

conveniently avoid highway transportation through urban

centers. But the opportunity for a non-preemption ruling

will enable the Department to give adequate consideration

to the barging alternative in those areas where local

circumstances might warrant it.

There is even less justification for requiring DOT to

consider in its Environmental Assessment barging only

around New York City. As a site-specific solution, barging

around New York City offered no reasonable alternative

to a nationwide regulation for highway transportation.

Moreover, to fault DOT for not considering a barging

alternative to New York City would imply that the De-

partment should have made similar comparisons of trans-

portation modes for numerous other jurisdictions.

Enlarging the duty to consider alternatives to this degree

would make it virtually impossible for an agency to

promulgate national regulations like HM-164. See East

63rd Street Ass’n v. Coleman, supra; Inman Park Resto-

ration, Inc. v. Urban Mass Transportation Administra-

tion, supra.

The availability of a non-preemption ruling is, in any

event, a complete answer to the claim that DOT was

required in its Environmental Assessment to consider the

barging alternative specifically for New York City. When

an agency undertakes a national regulatory scheme like

HM-164 and adopts procedures permitting localized en-

vironmental alternatives to be considered at a later date,

we will not fault the agency for not considering these

particular alternatives in its original Environmental

Assessment. See County of Suffolk v. Secretary of Inte-

rior, supra, 562 F.2d at 1378.

$722

23a

Appendiz A

In sum, we conclude that DOT did not violate NEPA

by omitting from its Environmental Assessment consider-

ation of barging as an alternative to HM-164 either for

the nation as a whole or for New York City.

IV.

We turn now to the core issue: whether DOT violated

NEPA by determining in its Environmental Assessment

that HM-164 did not require preparation of an EIS

because it was-not an action that would “significantly”

affect the environment. The District Court did not rule

that an EIS was required. Instead, Judge Sofaer con-

cluded that the Environmental Assessment was flawed in

its consideration of whether HM-164 would “signifi-

cantly” affect the environment. Though he strongly inti-

mated that DOT would be obliged to conclude that an

EIS was required, once it remedied the shortcomings that

he perceived in the Assessment, his ruling faulted the

sufficiency of the Assessment, not the absence of an EIS.

In Judge Sofaer’s view, the Assessment was deficient in

its failure to reckon with numerous factors affecting the

determination of how much risk HM-164 wouid create.

Like Judge Sofaer, we approach the matter with an

intuitive reaction that the transportation of radioactive

materials through the cities of America poses risks that

warrant careful consideration. However, after reviewing

DOT’s analysis of the risks and the studies the Depart-

ment relied upon, in light of the standards circumscribing

our role, see Baltimore Gas & Electric Co. v. Natural

Resources Defense Council, Inc., 51 U.S.L.W. 4678 (U.S.

June 6, 1983), we conclude that the Department did not

violate NEPA in deciding that an EIS was not required.

$723

24a

Appendix A

DOT undertook the Assessment to consider environ-

mental ramifications of a national rule. The Assessment

confronted the question of what effect HM-164 or possi-

ble alternatives to HM-164 would have on the environ-

mental quality of the nation as a whole. The “no-action”

alternative against which HM-164 and its alternatives

were compared was not a national environment free of

radioactive materials, but a national environment with

radioactive materials and without comprehensive federal

regulations governing their transportation by highway.

DOT’s task in preparing the Environmental Assessment

was complicated by the fact that the various options

under consideration could not be tested against a single

measure of environmental safety. In fact, for each al-

ternative, the Department had to assess two distinct

radiological risks: the effect of transporting radioactive

materials on the level of background radiation and the

risk that such transportation might result in accidents

with the potential of causing serious damage.

Studies considered by DOT estimated the total annual

dose of background radiation in the United States to be

40,000,000 rems. Of this total, transportation of radioac-

tive materials, prior to HM-164, contributed 24,360 rems,

less than one-tenth of one percent of the total dose. One

measure of the relatively slight health hazard presented by

such transportation is the estimate in NUREG-O170 that

this background dose can be expected to cause an average

of 3.07 latent cancer fatalities per year.'? DOT’s Environ-

mental Assessment considered the estimated impact upon

background radiation of two basic trucking alternatives:

routing all large-quantity shipments of radioactive mate-

3 A latent cancer fatality is a death that results from exposure to

radiation, that occurs more than a year after the exposure, and that

would not have occurred in the absence of the exposure.

5724

25a

Appendiz A

rials around heavily populated areas, except for pickups

and deliveries, and routing such shipments on interstate

highways, except for pickups and deliveries. The first

option, avoiding population centers, was estimated by

NUREG-0170, which DOT relied on, to reduce back-

ground radiation by 15.1 rems per year, which reduces

latent cancer fatalities by an average of .002 per year. The

“interstate” option, which HM-164 adopted in modified

form, was estimated in the same study to reduce back-

ground radiation by 10.7 rems per year, which reduces

latent cancer fatalities by an average of .0013 per year.

None of the plaintiffs seriously claims that the impact of

HM-164 on background radiation levels—actually a slight

improvement—constitutes a “significant” environmental

effect.

What attracted the concern of the plaintiffs and of the

District Judge was the risk that highway transportation of

radioactive ‘materials through urban centers might result

in an accident of potentially serious dimensions. This

possibility requires an analysis somewhat different from

that undertaken in other NEPA cases. If the proposed

agency action is the construction of a highway or the

dredging of a harbor, some adverse environmental effects

are certain to occur, such as destruction of park land or

disturbance of animal or fish feeding grounds. Actions of

this sort may also pose risks of other consequences that

can only be estimated, but normally the seriousness of the

certain consequences provides an adequate basis for de-

termining that the effect on the environment will be

sufficiently significant to require an EIS. In this case,

however, the certain consequences are not at all signifi-

cant. It is only the risk of accident that might render the

proposed action environmentally significant. That cir-

cumstance obliges the agency to undertake risk assess-

5725

26a

Appendia A

ment: an estimate of both the consequences that might

occur and the probability of their occurrence."

DOT’s Environmental Assessment faced up to this

task. The Assessment initially noted the accident risk

posed by highway transportation of radioactive materials

by all modes of transportation in the absence of HM-164.

The Assessment relied on the NUREG-0170 study, which

used two measures of risk. First, the study estimated the

average number of latent cancer deaths per year that

could be expected from all types of accidents occurring

during transportation of radioactive materials. The

average figure was .017 deaths per year. Considerable

perspective on this estimate is provided by comparing it to

the 3.07 deaths per year estimated to result from the

background radiation caused by transportation of ra-

dioactive materials. The background radiation risk is 18]

times greater than the accident risk. The study’s second

measure of risk estimated the probability of a transporta-

'4 We recognize that in a sense all evaluations mandated by NEPA are

predictions about the future. The Act is concerned with the future

effects of proposed agency actions, Scientists’ Institute for Public

Information, Inc. v. Atomic Energy Commission, 481 F.2d 1079,

1088-89 (D.C. Cir. 1973); Morningside Renewal Council, Inc. v.

United States Atomic Energy Commission, 482 F.2d 234, 241-42 (2d

Cir. 1973) (Oakes, J., dissenting), cert. denied, 417 U.S. 951 (1974).

Nevertheless, there is a difference between assessing the future conse-

quences of agency actions that “will affect the environment,” Scien-

tists’ Institute, supra, 481 F.2d at 1089, and assessing the risk that

proposed actions might have environmental effects, especially in the

event of accidents. The fact that effects are only a possibility does not

insulate the proposed action from consideration under NEPA, but it

does accord an agency some latitude in determining whether the risk is

sufficient to require preparation of an EIS. “|A] reviewing court must

remember that the Commission is making predictions, within its area

of special expertise, at the frontiers of science. When examining this

kind of scientific determination, as opposed to simple findings of fact,

a reviewing court must generally be at its most deferential.” Baltimore

Gas & Electric Co. v. National Resources Defense Council, Inc.,

supra, 51 U.S.L.W. at 4682.

5726

27a

Appendix A

tion accident in any one year of sufficient seriousness to

cause one or more early fatalities.'’ The annual probabil-

ity was 9.12 x 10*. In other words, the Department

estimated that an accident of sufficient seriousness to

cause one or more early fatalities would occur approxi-

mately once every thousand years.

The Assessment then considered the impact upon acci-

dent risk of the two principal trucking alternatives for

large-quantity shipments. The alternative of avoiding ur-

ban centers was estimated to cause a slight increase in the

accident risk because this alternative entails circuitous

travel on less safe secondary routes. The increase in latent

cancer deaths from an accident was estimated to be

.00031 per year and the increase in annual probability of

an accident causing one or more early fatalities was

estimated to be .37 x 10%. The interstate alternative,

adopted by HM-164, was estimated to reduce latent

cancer fatalities from an accident by .00062 per year and

to decrease the annual probability of an accident causing

one or more early fatalities by .9 x 10°.

The assessment also considered the consequences and

probabilities of a “worst case” accident, relying on a

study prepared for the NRC by Sandia Laboratories. See

Sandia Report, supra. This study estimated the conse-

quences of trucking accidents in New York City that

would result in the maximum credible release of radioac-

tive materials. The study estimated that the most lethal

credible accident woul” be one involving plutonium ship-

ments, which could cause 5 early fatalities, 1800 latent

cancer fatalities, and 290 early morbidities (non-fatal

1s An early fatality is a death that results from radiation exposure, that

occurs soon after the exposure or at least within one year of the

exposure, and that would not have occurred in the absence of the

exposure.

$727

28a

Appendiz A

injuries within a year). /d. at 66. The accident with the

most severe economic impact would be one involving

polonium, which could cause up to $9 billion in damages,

primarily from reduced value of affected land. Jd. How-

ever, notwithstanding the seriousness of these conse-

quences, the Sandia Report concluded, “Since these

accidents have very low probabilities of occurrence, they

do not contribute significantly to expected values of risk.”

Id. at 68. The NRC reached the same conclusion when it

estimated that the probability of such a “worst case”

accident occurring throughout the country in any year

was 3 x 10°, based on 1975 shipment figures, approxi-

mately once every 300 million years. See NUREG-0170,

supra, at v-vi.

Based on the Department’s overall risk assessment, the

interstate alternative appeared to offer a cost-efficient

solution to the transportation of large-quantity radioac-

tive materials, achieving high levels of overall safety by

requiring trucks to stay on the fast and relatively safe

interstate highway system. However, the interstate al-

ternative would permit trucks carrying large-quantity ra-

dioactive materials to travel through densely populated

areas where a “worst case” accident with serious conse-

quences was theoretically possible, although the probabil-

ity was infinitesimal. Recognizing this theoretical risk,

DOT modified the interstate alternative to require trucks

carrying large-quantity shipments to use circumferential

interstate highways around urban centers whenever possi-

ble. HM-164 also authorizes states to propose preferred

local highways where interstate beltways are not avail-

able. In addition, the Rule requires drivers of large-quan-

tity shipments to complete training courses designed to

enhance safety and reduce the risk of accident. Having

selected the interstate alternative with these modifica-

5728

29a

Appendiz A

tions, DOT concluded, “The probability that a ‘worst

case’ accident could occur is computed to be so low that

when multiplied by even extraordinarily high conse-

quences, the overall risk figure remains low,” in DOT’s

view, so low that HM-164 would not have a “significant”

impact on the human environment.

Though rejecting the adequacy of the Environmental

Assessment, the District Court did not quarrel with

DOT’s methodology. Judge Sofaer agreed that the De-

partment was entitled to calculate overall risk by estimat-

ing possible consequences and then discounting them by

the improbability of their occurring. However, he was

critical of the manner in which the Department applied

this methodology to the risk of high-consequence acci-

dents. Judge Sofaer’s criticisms were three-fold: the De-

partment had insufficiently analyzed the probability of a

high-consequence accident; second, the Department had

not fully discussed the consequences of such an accident;

and finally, the Department had impermissibly considered

the risk of a worst-case accident insignificant simply

because the chances of such an accident are extremely

low.

The issue we face is whether the District Court sub-

jected the Environmental Assessment to a more exacting

and instrusive review than is permissible under NEPA.

NEPA establishes procedural requirements designed to

infuse environmental considations into the Government’s

decision-making processes. See Strycker’s Bay Neighbor-

hood Council, Inc. v. Karlen, 444 U.S. 223, 227-28 (1980)

(per curiam); County of Suffolk v. Secretary, supra, 562

F.2d at 1383. However, the Act mandates no particular

substantive outcomes, and courts reviewing agency com-

pliance with NEPA are limited to determining whether

“the agency has taken a ‘hard look’ at the environmental

5729

30a

Appendiz A

consequences.” Kleppe v. Sierra Club, 427 U.S. 390, 410

n.21 (1976). When an agency determines that a particular

action will have no significant impact on the environ-

ment, a court may reject that determination only if it is

arbitrary, capricious, or an abuse of discretion. See

Morningside Renewal Council, Inc. v. United States

Atomic Energy Commission, 482 F.2d 234, 238 (2d Cir.

1973), cert. denied, 417 U.S. 951 (1974); Hanly v. Klein-

dienst, supra, 471 F.2d at 829-30.

In its criticisms of DOT’s Environmental Assessment,

the District Court took the Department to task for its

treatment of highly technical matters relating to the

probability, consequences, and overall risk of one particu-

lar facet of a rule that indisputably enhances safety on a

nationwide basis. At this level of technical detail within a

national rule-making process, errors in computation or

shortcomings in analysis would have to be extraordinarily

grievous to justify the District Court’s conclusion that the

errors and omissions render the agency’s overall assess-

ment arbitrary and capricious. Examining separately the

District Court’s critique of DOT’s assessment of proba-

bilities, consequences, and overall risk of high-conse-

quence accidents, we see no legal infirmity in DOT’s

conclusion.

A. Probabilities

The District Court did not disagree with the Depart-

ment’s basic assessment of probabilities: “DOT’s conclu-

sion that high-consequence accidents are very unlikely is

supported by the record.” 539 F. Supp. at 1265. However,

the Court faulted the Department’s probability assess-

ment because it rested on several preliminary estimates

that were themselves subjects of some dispute. For in-

5730

3la

Appendix A

stance, experts disagreed about the number of large-

quantity shipments that would occur in the future. In

addition, there was some controversy over the Depart-

ment’s assumptions about cask integrity during an acci-

dent. The District Court was also concerned that the

Department did not fully consider the manner in which

human error might affect its probability estimates.

Finally, the Court criticized the Department for not ex-

plicitly dealing with the degree to which the risks of

sabotage might affect the probability of a high-conse-

quence accident.

Number of Shipments. Not surprisingly, experts dis-

agree over how many shipments of large-quantity ra-

dioactive materials will be made in the future. In 1977,

the NRC study known as NUREG-O170 predicted that

there would be 1,911 shipments a year by 1985. See

NUREG-O0170, supra, at A-20 to -23; 539 F. Supp. at

1266. In 1979, another government report estimated that

there would be no more than 641 such shipments in 1985.

See Report to the President by the Interagency Review

Group on Nuclear Waste Management (1979) (hereinafter

cited as IRG Report). Other sources noted by the District

Court indicate that as many as 2,500 shipments may be

made annually in 1985. See 539 F. Supp. at 1267 & n.9.

Faced with this uncertainty, DOT based its calculations

on the relatively conservative 1977 NRC study. At various

points in the Environmental Assessment, the Department

recalculated its projections using the lower IRG Report.

The District Court faulted DOT’s adoption of the NRC

figures, supplemented by the IRG Report estimate, on the

ground that the Department failed to discuss “the great

uncertainties that exist on this subject and the possibility

that the number of such shipments will increase exponen-

5731

32a

Appendia A

tially” Jd. at 1267. Apparently, the District Court con-

cluded that the uncertainties inherent in projecting

shipment rates were sufficiently severe that the Depart-

ment had to discuss the matter in its Environmental

Assessment.'®

We do not accept this conclusion. The Department

conservatively selected a projection that was on the high

side of the various estimates. The highest estimates for

1985 reveal shipment levels only slightly more than 25

percent greater than the ones accepted by the Depart-

ment. Inasmuch as these projections would have to be off

by several orders of magnitude before there would be any

substantial impact on the probability of a high-conse-

quence accident, the Department cannot be faulted for

not discussing the relatively minor difference among ex-

perts in predicting 1985 shipment levels. Certainly the

Department did not act arbitrarily in failing to engage in

such a discussion."”

Cask Reliability. The District Court also criticized the

Department for commenting in its Advance Notice of

Proposed Rulemaking that “packaging, in a severe trans-

portation accident, would be expected to survive without

any significant release of iis contents.” 45 Fed. Reg. at

16 In a footnote, the District Court contends that DOT erred in

interpreting projections in the IRG report. See 539 F. Supp. at 1267

n.8. Even if this criticism were well taken, it would not affect the

Department’s Assessment, which was based on the more conservative

figures developed in the 1977 NRC study.

7 The District Court also faults DOT for using historical accident rates

to corroborate its projections. See 539 F. Supp. at 1267-68. The Court

felt that the use of these rates was improper because, elsewhere, the

Department had conceded that the figures were not wholly reliable.

While it might have been arbitrary for the Department to base its entire

analysis on statistics of doubtful validity, it was not improper for it to

introduce these figures to double check estimates derived through

independent means.

5732

33a

Appendiz A

7143. While Judge Sofaer did not label this comment as

arbitrary, see 539 F. Supp. at 1268-69, he noted that

several commentators had found the risks of cask failure

more severe, and he suggested that the Department

should have discussed the conflicting evidence at greater

length. /d.

We think that DOT’s assessment was well supported by

two of the most complete studies on the transportation of

radioactive materials. In particular, the NUREG-0170

study explicitly discussed cask reliability and explained

why it found the risk of cask failure to be slight. See

NUREG-O170, supra, at 5-20 to -2!. As the District Court

noted, in light of this scientific support, the Department’s

conclusion as to cask reliability was not arbitrary. Ac-

cordingly, it should not be susceptible to attack on judi-

cial review.

Human Error. The District Court also faulted DOT

for relying on probability assessments that “fail to take

into account the potential effect of human error.” 539 F.

Supp. at 1269. This objection stems from the Court’s

concern that the Department unreasonably underesti-

mated the likelihood of high-consequence accidents by

assuming that every shipment of large-quantity radioac-

tive materials would be packaged and handled without

human error. The Court apparently feared that inevitable

human mistakes would make large-quantity shipments

more susceptible to leakage and contamination during an

accident than the Department had assumed. /d.

This criticism is unjustified. Both the NUREG-0170

study and the 1980 Sandia Report analyzed the impact of

human error. As the District Court noted, the Sandia

Report devoted a chapter to the subject, see Sandia

Report, supra, at 71-84, and the NRC also discussed the

5733

34a

Appendiz A

matter under the heading of “Abnormal Transport Occur-

rences,” NUREG-0170, supra, at 4-31 to -33. The NRC

report indicated that human errors compromise cask

integrity in only a small fraction of shipments. Since

large-quantity shipments are packed in such massive con-

tainers, human error is even less likely to affect overall

package integrity of these shipments. /d. at 4-44 to -48.

The Sandia Report agreed that “[mJost human errors do

not produce compromises of package integrity.” Sandia

Report, supra, at 15. In light of the extremely low

probability that any cask involved in a truck accident

would also be compromised by human error, it does not

seem to be reasonable to criticize DOT for not factoring

this contingency into its calculations. Moreover, the De-

partment corroborated its probability estimates by look-

ing to the historic accident rates. Since the effect of

human error is inevitably included in the historic rate of

accidents, the Department, at least implicitly, considered

human error in its probability assessment. For a source of

risk this insignificant, implicit consideration was ade-

quate.

Sabotage Risks. In its advance Notice of Proposed

Rulemaking, DOT acknowledged that many observers

had expressed concern over the possibility that saboteurs

or terrorists might disrupt nuclear shipments and precipi-

tate high-consequence accidents. The Department de-

clined to assess this possibility on jurisdictional grounds:

Development of the current DOT proposal reflects

existing arrangements between DOT and NRC whe-

rein NRC exercises responsibility for any necessary

physical security requirements during transportation.

The DOT proposal is therefore directed at reducing

impacts associated with normal and accident situa-

5734

35a

Appendiz A

tions arising in transportation, while NRC is con-

cerned with preventing malicious or deliberate release

of radioactive materials.

45 Fed. Reg. at 7144. In 1979, the NRC had promulgated

interim security rules governing the transportation of

irradiated fuels, see 10 C.F.R. §§ 73.25-.37 (1982). The

Department’s sole response to the threat of sabotage was

to propose extending the NRC regulations to shippers

outside the NRC’s jurisdiction.

The District Court had no complaint with DOT’s

decision to defer to the NRC as the appropriate agency

for supervising matters of physical security. Nevertheless,

Judge Sofaer felt that the Department should have in-

cluded a discussion of sabotage in its assessment of the

probability of high-consequence accidents. Under regula-

tions of the Council on Environmental Quality, agencies

should consider “[t]he degree to which the possible effects

on the human environment are highly uncertain or in-

volve unique or known risks.” 40 C.F.R. § 1508.27(b)(5)

(1982); see DOT Order 5610.1C (Sept. 18, 1979). Both the

Sandia Report and the NRC have accepted that sabotage

presents a real although unquantifiable risk for the trans-

portation of large-quantity radioactive materials. See

Sandia Report, supra, at 85 (“Sabotage involves human

motivations and the probability of human actions which

are unquantifiable with our present knowledge.”); 45

Fed. Reg. 27,402 (1980) (“[E]stimates of the probability

of successful sabotage of spent fuel shipments cannot be

made with any confidence.”). However, other experts

have insisted that sabotage-induced, high-consequence

accidents are “essentially impossible.” NUREG-0170, su-

pra, at 7-2. The District Court concluded, “[G]iven the

conflicts in the underlying data, [DOT] was obligated to

5735

36a

Appendiz A

state its view on the probability of such an event, even if

that view was only that no estimate could reasonly be

made.” 529 F. Supp. at 1271.

With respect to environmental consequences that are

only remote possibilities, an agency must be given some

latitude to decide what sorts of risks it will assess. See

Natural Resources Defense Council, Inc. v. NRC, 685

F.2d 459, 516, 540-45 (D.C. Cir. 1982) (Wilkey, J., dis-

senting), rev’d, 51 U.S.L.W. 4678 (U.S. June 6, 1983).

Here DOT simply concluded that the risks of sabotage

were too far afield for consideration. To a large degree

this judgment was justified by the record. Substantial

evidence indicated that sabotage added nothing to the risk

of high-consequence accidents. Even the least sanguine

commentators could say only that sabotage added an

unascertainable risk. In light of these conflicting points of

view, it was within DOT’s discretion not to discuss the

matter further beyond adopting the NRC security require-

ments.

B. Consequences

Physical Consequences. Despite the discussion of

high-consequence accidents in the Environmental Assess-

ment and the Department’s references to more detailed

analyses of the subject, the District Court found that the

Department had treated the subject arbitrarily: “[I]n over

a period of about five years, estimates of the conse-

quences of the most severe accident have escalated dra-

matically. DOT must address these uncertainties and their

implications for rational planning.” 539 F. Supp. at 1273.

Here again, the District Court’s demands on DOT’s

Environmental Assessment were excessive. The Depart-

ment cited and commented upon the Sandia Report’s

estimate of the extent of a high-consequence accident.

5736

37a

Appendiz A

The Sandia Report’s estimate was toward the high end of

the scaie of predictions offered to the Department."* For a

freakish accident that is only theoretically possible, the

Department did not commit reversible error by conser-

vatively accepting an estimate of serious impact without

noting and attempting to analyze professional disagree-

ment over the precision of the estimate.

Social Consequences. The District Court also faulted

DOT’s Environmental Assessment for its failure to con-

sider the psychological impact that HM-164 would have

on the general public, even in the absence of any serious

accidents. Since the District Court wrote its opinion, the

Supreme Court has determined that fear is not a cogniza-

ble environmental impact under NEPA. See Metropolitan

Edison Co. v. People Against Nuclear Energy, 103 S. Ct.

1556 (1983).

C. Overall Impact

At the heart of the District Court’s criticisms of the

Environmental Assessment lay its dissatisfaction with

DOT’s use of the results of the assessment of overall risk.

In Judge Sofaer’s view,

DOT’s use of overall risk obfuscated the central

question as to the environsnental significance of its

proposed action: whether a proposal entaiiing a cred-

ible risk of catastrophe demands treatment as one

18 Other commentators predicted that sabotage could exact a higher

toll in human life than the Sandia Report estimated, see 539 F. Supp. at

1272, but the Sandia Report was generally more conservative than

other studies. For instance, the NRC itself estimated taat a “worst

case” accident would cause 174 latent cancer fatalities with $800

million of economic damage, whereas the Sandia Report estimated that

latent cancer fatalities could run as high as 1800 and economic

damages as much as $9 billion. Compare NUREG-O170, supra, at 5-38

to -53, with Sandia Report, supra, at 66.

$737

38a

Appendiz A

“significantly affecting the quality of the human

environment.”

593 F. Supp. at 1274 (quoting 42 U.S.C. § 4332(2)(C)).

This final criticism can be understood in two ways,

neither of which justifies declaring the Department’s

action arbitrary or capricious. First, Judge Sofaer could

have meant that DOT was required to use some other

form of risk assessment than overall risk analysis. Cer-

tainly, other risk techniques were available, and Judge

Sofaer apparently preferred the so-called “mini-max”

methodology employed by the Sandia Report.'® Jd. at

1275. However, in reviewing an environmental assess-

ment, a district court is precluded from imposing its own

choice of risk analysis upon a federal agency. As long as

the agency’s choice of methodology is justifiable in light

of current scientific thought, a reviewing court must

accept that choice. In this case, DOT had discretion to

apply overall risk analysis in its Environmental Assess-

ment.

Alternatively, Judge Sofaer might have meant that

DOT was wrong to conclude that HM-164 would have no

significant impact on the environment once the Depart-

ment had conceded the infinitesimal probability that the

Rule might lead to catastrophic consequences. We believe,

especially in light of the Supreme Court’s recent caution

in Baltimore Gas, supra, that this view does not comport

with the degree of deference that courts should accord to

agency determinations concerning environmental conse-

quences. In Kleppe v. Sierra Club, supra, 427 U.S. at 410

n.21, the Supreme Court stated that neither NEPA nor its

19 Under “mini-max” analysis, the Sandia Report simply analyzed the

worst possible consequences of a highway accident without considering

the likelihood of that event.

5738

>>

39a

A ppendiz A

legislative history “contemplates that a court should sub-

stitute its judgment for that of the agency as to the

environmental consequences of its actions. . . . The only

role for a court is to insure that that agency has taken a

‘hard look’ at environmental consequences.” Here, DOT

considered a rule that might be expected to generate a

catastrophic accident approximately once every 300 mil-

lion years. After receiving advice from all sides, the

Department decided that such a remote possibility, even

of a serious consequence, did not create a “significant”

risk for the human environment. Disquieting as it may be

even to contemplate such matters, this decision cannot be

said to be an abuse of discretion.”

V.

Throughout its opinion, the District Court emphasized

the effect of HM-164 on New York City. To a large extent

the proceedings in the District Court can be viewed not as

a review of the validity of HM-164 as applied to New

York City but as an inquiry into DOT’s anticipated denial

20 Our dissenting colleague appears to take the view that the very

existence of the “worst case” possibility would be sufficient to require

preparation of an EIS, regardless of the infinitesimal probability that

the “worst case” accident will happen. We do not doubt the general

proposition that “worst cases” do occur. Planes crash, and the Titanic

sank. What we reject is an automatic rule requiring preparation of an

EIS for every action that has any possibility, however remote, of

causing serious accidental injury. Such a rule would routinely require

an EIS for federal actions, since it is hard to imagine any agency action

involving people or equipment that is not subject to some estimatable

risk of causing serious accidental injury. In this case, reasonable minds

may differ as to whether or not the gravity of the “worst case”

accident or other less serious accidents, discounted by their improba-

bility, presents an overall risk of sufficient significance to warrant an

EIS. So long as that choice falls within the range of reasonable dispute,

an agency's informed decision not to require an EIS is neither arbitrary

nor capricious.

$739

40a

Appendiz A

of the City’s request for a non-preemption ruling under

section 112(b) of HMTA. To the extent that this occurred,

it was premature. In framing HMTA, Congress decided

that federal regulations would presumptively preempt

inconsistent local regulations and that the local authori-

ties would then have the burden of demonstrating to DOT

that their local regulations provided greater safety

without burdening interstate commerce. Courts are not

free to reverse this presumption or to shift the burden of

proof from state to federal authorities.

If DOT ultimately denies New York City’s pending

application for a non-preemption ruling, the City can

seek judicial review of that denial. At that time, a federal

court will review the Department’s action, if adverse,

with the benefit of both the Department’s explanation for

its denial and a fully developed record comparing New

York City’s Health Code to HM-164 as applied to New

York City. If the Court determines that the Department

impermissibly denied the City’s application for non-pre-

emption, adequate relief will then be available.”' In the

interim, however, Congress has legislated that the federal

rule will govern.

The judgment of the District Court is reversed, and the

case is remanded with instructions to enter a judgment

upholding HM-164.

21 Sanit differ over whether New York City would be entitled to a

non-preemption ruling if it can show that its local regulations enhance

safety without burdening interstate commerce or whether DOT retains

discretion to deny a non-preemption ruling even if the City makes such

a showing. This question is not before us, and we do not reach it.

5740

4la

Appendiz A

OAKES, Circuit Judge (dissenting):

The question I find crucial in this case is whether the

district court erred in holding that DOT could not prop-

erly conclude on the record before it that the implementa-

tion of HM-164 would not “significantly” affect the

environment and that an environmental impact statement

(EIS) was therefore unnecessary. When we talk of “worst-

case” accidents, which one of the two major studies the

DOT relied on, the Sandia Report, indicated could result

in 1,800 latent cancer fatalities, 290 early morbidities, and

5 early fatalities, not to mention genetic effects—in the

case of plutonium transport—or $9 billion in “Direct

Economic Impact”—in the case of PO-0210 transport—it

seems almost nonsense to talk of no “significant” impact.

“Worst-case” accidents have a way of occurring—from

Texas City to the Hyatt Regency at Kansas City, from the

Tacoma Bridge to the Greenwich, Connecticut, 1-95

bridge, from the Beverly Hills in Southgate, Kentucky, to

the Cocoanut Grove in Boston, Massachusetts, and from

the Titanic to the DC-10 at Chicago to the I-95 toll-booth

crash and fire—and that alone would end the case for

many. As I said in respect to nuclear accidents in New

York City in Morningside Renewal Council, Inc. v.

United States Atomic Energy Commission, 482 F.2d 234,

241-42 (2d Cir. 1973) (Oakes, dissenting), cert. denied,

417 U.S. 951 (1974), it is the potential environmental

effect that is important. In my opinion, the effect of the

“worst-case” accident alone would be sufficiently sub-

stantial to justify an EIS, since the effect of HM-164 is to

permit the transportation of nuclear waste and other

materials through the most densely populated city in the

United States, when “credible” accidents may occur. But

the worst-case accident is only one shade of a spectrum of

potentially significant environment impact; as the severity

$741

42a

Appendiz A

of the accident lessens, and the possibility of its occur-

rence increases, the potential impact remains serious

enough in my view to require an EIS, but I will refer only

to this one end of the spectrum, for illustrative purposes.

The DOT concluded that the possibility of an accident

involving the release of dangerous radioactive materials is

exceedingly low. Specifically, a highest severity (Class

VIII) accident, for example, has “a probability na-

tionwide of 1.1x10°,” HM-164 at 13, citing Sandia Re-

port, while the probability of such an accident is

“estimated to be no greater than the 3x10° per year for

1975 shipping rates” by the Nureg-0170 Report. Both of

these figures—the latter suggesting that a “worst-case”

accident could occur only once in 300 million years—are

based on 1975 shipments, where presumably there was no

worst-case accident. The Nureg-0170 Report attempts to

place these figures in perspective by comparing them to

“many commonly accepted accident risks” as follows:

Cost IN Days OF LIFE ASSOCIATED WITH

VARIOUS ACTIVITIES (Ref. 3-19)

Cost in

Activity Days of Life

Living in city (rather than in country).... 1800

Remaining unmarried.................. 1800

Smoking | pack of cigarettes per day.... 3000

Being 4.5 kg overweight................ 500

SR EEE «onc ccctcevcgenveusei 240

170 mrem/year of radiation dose........ 10

Transportation of radioactive material* .. 0.030

*Calculation based on an average of 0.5 mrem per

year to an average exposed individual (see Chapter

4).

Nureg-0170, at 3-13 (emphasis added).

5742

43a

Appendix A

INDIVIDUAL RISK OF EARLY FATALITY

BY VARIOUS CAUSES (Ref. 5-10)

Number

Accident Type per Year

Motor Vehicle....... EE ee

RR aay ee. Je

SE a k's & ain wa n'a (Ate Se

Drowning........... io Ae

PO et? ASS

Falling Objects...... fe 2

Electrocution........ weet Sore

Ru cvees sab ses acsas

IE ss bo wag.vee-oes Woirveass

Hurricanes...... OP within we eeewe

100 Nuclear

Re os wd Pe rr...

Transportation of

Radioactive

Material (from

Radioactive

SEN ada curiae’ 3.5 x 10***...

* Statistical estimate.

** Statistical estimate for 1975.

Individual

Risk per Year

lin 4,000

lin 10,000

lin 25,000

lin 30,000

1 in 100,000

1 in 160,000

1 in 160,000

1 in 2,000,000

1 in 2,500,000

1 in 2,500,000

1 in

5,000,000,000

1 in

200,000,000 ,000* **

*** Using a population at risk of 75 million people.

$743

I find quantifications such as these absurd on their face.

The tables above compare the risks of known and fairly

common accidents and activities with nuclear related

activities for which there is little and limited historical

data. Extrapolation on the basis of limited time-place

experience is notoriously misleading; I note that the

above tables were compiled before the near-catastrophic

occurrence at Three Mile Island with its sordid tale of

human and mechanical error.

44a

Appendiz A

I am aware that courts have neither the expertise nor

the right to second-guess risk assessment methodologies

employed by agencies, see Baltimore Gas & Electric Co.

v. Natural Resources Defense Council, Inc., 51 U.S.L.W.

4678, 4682 (U.S. June 6, 1983), and that an EIS need not

address remote and highly speculative consequences of

proposed action. See, e.g., South Louisiana Environmen-

tal Council, Inc. v. Sand, 629 F.2d 1005, 1016 (Sth Cir.

1980); Concerned About Trident v. Rumsfeld, 555 F.2d

817, 828-29 (D.C. Cir. 1977). But DOT has adopted and

is therefore bound by Council on Environmental Quality

guidelines enacted for the purpose of implementing

NEPA. Those regulations make it clear that, in determin-

ing whether a proposed action is likely to affect the

environment “significantly,” decisionmakers must con-

sider, among other things, “[t]he degree to which the

effects on the quality of the human environment are likely

to be highly controversial” and “[t]he degree to which the

possible effects on the human environment are highly

uncertain or involve unique or unknown risks.” 40 C.F.R.

§ 1508.27(b)(4), (5). To be sure, the fact that people are

highly agitated and willing to go to court does not alone

render a given project “controversial,” see Fund for

Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir.

1975); instead, a project is controversial if “a substantial

dispute exists as to the size, nature, or effect of the major

federal action.” Foundation for North American Wild

Sheep v. United States Department of Agriculture, 681

F.2d 1172, 1182 (9th Cir. 1982) (emphasis in original)

(quoting Rucker v. Willis, 484 F.2d 158, 162 (4th Cir.

1973). But the purpose of NEPA generally and the EIS

requirement in particular is to ensure that the decision-

making process canvasses “every significant aspect of the

environmental impact of a proposed action.” Vermont

5744

45a

Appendiz A

Yankee Nuclear Power Corp. v. Natural Resources De-

fense Council, Inc., 435 U.S. 519 (1978). In this case, as

in Baltimore Gas & Electric Co., supra, policymakers

must make hard choices “in the face of uncertainties

about the long-term effects on the environment.” 51

U.S.L.W. at 4680. Given the “unique [and] unknown

risks” associated with and the “highly controversial”

nature of nuclear waste transport, I believe that the

DOT’s decision not to prepare an EIS was arbitrary,

capricious, and not in accordance with law, viz., the CEQ

guidelines cited above.

Even if I am wrong with respect to the DOT’s obliga-

tion under CEQ guidelines, however, I believe that HM-

164 is itself defective because it relies on insufficient or

contradictory data at several crucial points and because it

fails to address certain risks—the effect of human error

and the possibility of sabotage, for example—that bear

directly on the possibility of a serious consequence,

“worst-case” accident. My conclusion in this regard is

based primarily on the following factors which, because

they were all addressed by Judge Sofaer in his opinion, I

will only summarize here.

1. Shipment volume analysis

The estimates concerning the number of shipments are

subject to variations—wholly unresolved by the DOT’s

environmental assessment-—of several orders of magni-

tude. The assessment states that

A 1985 shipment model is not contained in the

urban studies, but for spent fuel the NUREG 0170

figures are projected from 254 packages shipped by

truck per year in 1975 to 1,530 in 1985, a 600%

increase. The IRG Report estimates 260 truck ship-

5745

46a

Appendiz A

ments of spent fuel in 1985. If the increase used in

NUREG 0170 were applied to figures for the number

of spent fuel packages and the total number of

radioactive materials packages used in the Urban

Environs Draft, one would project that 72 truck

shipments of spent fuel would occur in New York

City in 1985, out of [a] total of 3.95 x 10° packages

shipped. (Total packages shipped other than spent

fuel are projected in NUREG 0170 for 1985 by

applying a factor of 2.6, or a 10% increase per year,

to the 1975 figures. NUREG 0170, p. A-20; 1978

Urban Environs Draft, p. 61.) The more conservative

IRG Réport estimate would leave the spent fuel

shipments in 1985 in New York City unchanged from

1975.

HM-164 at 19. As Judge Sofaer pointed out,

DOT failed to mention data on spent fuel and

plutonium shipments collected in a report prepared

for the NRC in 1978, and published by that agency in

1980. That report refers to estimates made by the

Environmental Protection Agency (EPA) in a 1974

report on both spent fuel and plutonium shipments

with projections through the year 2020. The number

of spent fuel shipments (both truck and rail) are

estimated to increase to 2,103 by 1985, to 7,513 by

1000, and to 15,043 by 2020. Plutonium shipments

(50% by truck) are estimated to increase from 60 in

1975, to 400 by 1985, 4764 by 2000, and 20,737 by

2020. NUREG/CR-0742: Review and Integration of

Existing Literature Concerning Potential Social Im-

pacts of Transportation of Radioactive Materials in

Urban Areas 71 (Exhibit 11-4). The authors wrote:

5746

47a

Appendiz A

Although the average number of miles per ship-

ment are presumed to decrease as new facilities

are built around the country, the number of

shipments per year is estimated to increase so

rapidly that total units-times-miles figures in-

crease over the 45 year period by a factor of 18

for spent fuel and 138 for plutonium. Consider-

ation of the number-of-shipments columns

might well give one pause, since each shipment

provides an opportunity for an accident or a

diversion, in addition to possible public response

to “normal” transport. The estimated increase

from 363 spent fuel shipments in 1975 to over

2,000 by 1985 might be enough cause for con-

cern, but the estimated increase from 60 pluto-

nium shipments to 400 in the same period is

potentially much more sérious.

Id. at 70. Of course, these data might be unreliable,

but DOT did not analyze the question.

539 F. Supp. at 1267 n.9. In my view an agency is no more

justified in “neglect[ing] to mention a serious environ-

mental consequence . . . or otherwise swe[eping] ‘stub-

born problems or serious criticism . . . under the rug,’ ”

County of Suffolk v. Secretary of Interior, 562 F.2d 1368,

1384-85 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973)

(quoting Silva v. Lynn, 482 F.2d 1282, 1285 (ist Cir.

1973)), in deciding whether to prepare an EIS than it is in

preparing an EIS. The failure to resolve the shipment

volume question, given its obvious importance in calcu-

lating accident risk, strikes me as a serious deficiency in

the DOT’s decisionmaking process.

5747

48a

Appendiz A

2. Accidents data

The volume of shipments is but one component of the

‘accident risk estimates relied on in HM-164. The other

essential component is accident frequency, i.e., fractional

number of accidents per vehicle-kilometer, and I agree

with Judge Sofaer’s conclusion that the accident data

relied on in HM-164 are wholly inadequate. The Nureg

0170 Report’s truck accident frequency assumption was

apparently lifted from a 1974 symposium paper; the

Report merely cites this source without discussing either

the derivation or reliability of the estimate it contains.

The Sandia Report’s estimate of truck accident frequency

apparently relies, at least in part, upon the DOT’s own

Hazardous Materials Incident Reporting System, a data

base that, as Judge Sofaer noted, the DOT itself has

conceded is unreliable because

the DOT does not know the exact number of compa-

nies subject to this requirement [of reporting acci-

dents;] agency officials concede that those reporting

constitute only a small percentage of them. Further-

more, the DOT concedes that the information trans-

mitted by these reports is not reliable. The DOT

Hazardous Materials Transportation Task Force

noted that “the adequacy and relevancy of much of

the data [in the incident reports] are questionable”

and “the credibility of available incident data is

questionable, and there is no routine validation of

the data [by the DOT].”

539 F. Supp. at 1268, National Transportation Safety

Board, Safety Effectiveness Evaluation 5, citing DOT

Task Force Report. HM-164 itself never explicitly ad-

dresses this issue, but instead merely observes that “the

low historical accident rates do tend to support the

5748

49a

Appendia A

research conclusions that the risks in transporting ra-

dioactive material by highway are very low.” HM-164 at

33. That only accidents that are not particularly serious

have been reported over the very limited time that the

DOT has passively received accident reports submitted

from time to time by carriers does not to my mind

support the prediction that a serious accident is so un-

likely to occur that the preparation of an EIS is unneces-

sary.

3. Packaging response data

The volume of shipments and the accident frequency

rate are the primary components of accident risk; the

consequences of an accident, however, turn on the integ-

rity of the package containing the radioactive material.

The district court found, and I agree, that HM-164’s

treatment of the uncertainty surrounding packaging re-

sponse data was insufficient. Again, the very sources

relied on by the DOT in HM-164 point up the limitations

of the data those sources employed. As Judge Sofaer

noted, 539 F. Supp. at 1268 n.11, “NUREG-O170 recog-

nizes [at 5-20] that the ‘paucity of data on package

responses to severe accidents’ makes the consequences of

such accidents difficult to predict. Accidents became

increasingly catastrophic as greater quantities of radioac-

tive materials are released from their containers.” More-

over, HM-164 does not even comment upon the Sandia

Report’s statement at 49 that places some of NUREG-

0170’s conclusions about severe accidents in doubt:

Before summarizing the results of the analysis, a few

comments on data changes since the working draft of

this report (Reference 10) was published are in order.

The major change has been in the consideration of

5749

Appendia A

material which can be released from a spent fuel

shipping cask. In the previous analysis, a fraction of

the entire cask contents was assumed to be released

and aerosolized. After consideration of test data on

cask response to severe accidents, the authors de-

cided that this assumption was not reasonable. The

analysis of cask accidents in the present study is

based upon the more realistic assumption that the

major source of radioactive material which would be

released in a severe accident is the material deposited

on the cask interior and exterior surfaces of the fuel

elements during their lifespan in the reactor (known

as reactor “crud” and containing predominantly pri-

mary system corrosion products). . . . [A]bout 154

curies of Co-60 are present on the surface of the fuel

pins. Recent information indicates that approxi-

mately 20% of the adhered crud could be easily

removed by physical shock.

Given the uncertainties surrounding packaging re-

sponse—the record indicates that much of the data was

derived from computer simulation rather than actual

testing—the DOT should have addressed the issue more

thoroughly.

4. Human error

In this respect I agree with the district court that human

error was not sufficiently factored into DOT’s probability

estimates. The majority refers to “the extremely low

probability that any cask involved in a truck accident

would also be compromised by human error,” majority

op. at 35-36, but I note that the Sandia Report bases its

analysis on one study referring to 3,939 cask shipments

(rail and truck) as to which 16 incidents were “traced

5750

Sla

Appendix A

directly to a human error or deviation from [quality

assurance] practices,” id. at 77, something quite different

from the human error entering into transportation acci-

dents themselves. As the report itself concludes:

As mentioned earlier, human errors resulting in acci-

dents are not included in this analysis. Although

there are possible synergisms that would connect the

human error with a vehicular accident, the two were

considered separable for this treatment. The results

should be interpreted carefully since the source of the

initial data for the determination of incident rates

were vastly different.

Sandia Report at 84 (emphasis added). Thus I cannot

agree with the majority, supra at 36, that “since the effect

of human error is inevitably included in the historic rate

of accidents, the Department, at least implicitly, consid-

ered human error in its probability assessment.” I think it

did nothing of the sort, and I do not believe that statisti-

cal apologetics in the name of judicial deference to agency

expertise is sound as a matter of law or policy.

5. Sabotage

I believe that, under Natural Resources Defense Coun-

cil, Inc. v. Nuclear Regulatory Commission, 539 F.2d

824, 842 (2d Cir. 1976), vacated and remanded on other

grounds, 434 U.S. 1030 (1978), the DOT’s failure to

address the special problems of theft, diversion or sabo-

tage of hazardous nuclear materials is fatal to its conclu-

sion of “no significant environmental effect.” Even

though these problems may be “unquantifiable,” Sandia

Report at 85, they were thought sufficiently serious to

justify fifty-five pages of analysis therein, analysis lim-

ited, however, so as “[t]o avoid providing potential adver-

5751

52a

Appendix A

saries with a ‘cookbook’ of methods.” Jd. at 86. The fact

that there has been a “world-wide increase in terrorist

activity,” id. at 85, that “[hJigh explosives are available

commercially in a variety of chemical and physical

forms,” id. at 86, and that “[a]ccess to shipments of spent

fuel would be possible for an adversary intent upon

sabotage or theft,” id. at 91, would seem to make the

subject a matter for serious consideration, at least in an

Environmental Impacf’ Statement.

I repeat that I fully realize that agencies have to be

shown extreme deference in their environmental deter-

minations, particularly when they are “making predic-

tions, within [their] area of special expertise, at the

frontiers of science.” Baltimore Gas & Electric Co., 51

U.S.L.W. at 4682. But for the reasons set out above I

believe that DOT’s determination that there is or will be

no significant effect upon the environment from a na-

tional rule pertaining to the highway routing of radioac-

tive materials was arbitrary and capricious. When we add

to that the fact that DOT did not even consider alterna-

tive modes of transport or local storage in arriving at its

rule, we have a result which effectively negates NEPA and

runs contrary to the spirit of cases decided in this court.

See, e.g., WATCH (Waterbury Action to Conserve Our

Heritage, Inc.) v. Harris, 603 F.2d 310, 326-27 (2d Cir.),

cert. denied, 444 U.S. 995 (1979); Trinity Episcopal

School Corp. v. Romney, 523 F.2d 88, 92-93 (2d Cir.

1975); Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972),

cert. denied, 412 U.S. 908 (1973).

I therefore respectfully dissent.

5752

53a

APPENDIX B

May 5, 1982 District Court Judgment

UNITED STATES DISTRICT COURT

Southern District of New York

in

>

THE CITY OF NEW YORK,

Plaintiff,

and

THE STATE OF NEW YORK, THE TOWN OF

BROOKHAVEN, and SULLIVAN COUNTY,

Plaintiffs-Intervenors,

—against

THE UNITED STATES DEPARTMENT OF TRANS-

PORTATION and THE MATERIALS TRANSPORTA-

TION BUREAU OF THE UNITED STATES DE-

PARTMENT OF TRANSPORTATION,

Defendants,

—and—

COMMONWEALTH EDISON COMPANY, CONSOLI-

DATED EDISON COMPANY OF NEW. YORK, INC.,

GEORGIA POWER COMPANY, LONG ISLAND

LIGHTING COMPANY, NORTHEAST UTILITIES,

NORTHERN STATES POWER COMPANY, PACIFIC

GAS AND ELETRIC COMPANY, POWER AUTHOR-

ITY OF THE STATE OF NEW YORK, PUBLIC

54a

Appendix B

SERVICE ELECTRIC AND GAS COMPANY, SOUTH-

ERN CALIFORNIA EDISON COMPANY, and YAN-

KEE ATOMIC ELECTRIC COMPANY,

Defendants-Intervenors.

+

JUDGMENT

81 Civ. 1778 (ADS)

Upon the cross-motions for summary judgment, and

upon the Court’s Amended Opinion dated May 5, 1982,

it is

OrpereD, ApJtUvuED, AND Decreep, that the motions by

plaintiff and plaintiff-intervenors for summary judgment

are granted to the extent set forth in this Judgment

but are otherwise denied; and it is further

Orperep, Apsupcep, AND Decreep, that the regulations

promulgated by defendants, United States Department

of Transportation and its Materials Transportation Bur-

eau, on the highway routing of radioactive materials,

46 Federal Register 5298-5318 (January 19, 1981), in-

cluding but not limited to 49 CFR §177.825 and Ap-

pendix A to Part 177, are declared to be arbitrary,

capricious, an abuse of discretion, and in violation of both

the National Environmental Policy Act, 42 U.S.C. §4321

et seq., and regulations promulgated pursuant thereto

(“NEPA”), and the Hazardous Materials Transportation

Act (“HMTA”), 49 U.S.C. §1801 et seq., to the extent

that said regulations would override or preempt State

or local bans on truck, highway, or road transportation

55a

Appendia B

of spent (irradiated) nuclear fuel and other large quantity

shipments of radioactive materials, as defined at 49 CFR

§173.389(b), through the City of New York and other

densely populated areas without undertaking and mak-

ing reviewable findings concerning the risks posed and

the potential consequences of incidents involving the trans-

port of such materials through such areas; without com-

plying with the mandate of the HMTA to avoid where

reasonably possible all significant risks not inherent in

the transport of such materials; and without examination

of the availability of nonhighway modes of transport

and other appropriate alternatives; and it is further

OrprreD, ApsyupGeD, AND Decreep, that until compli-

ance with NEPA and HMTA the defendants are hereby

permanently enjoined from enforcing, implementing, ad-

ministering, or in any way relying upon the regulations

published at 46 Fed. Reg. 5298-5318 (January 19, 1981)

and 49 CFR §177.825 and Appendix A to part 177, in

such a manner as to override or preempt New York

City’s ban on truck, highway, or road transportation of

spent (irradiated) fuel and other large quantity ship-

ments of radioactive materials; and it is further

Orperep, Apsupcep, AND Decreep, that until compli-

ance with NEPA and HMTA the defendants are hereby

permanently enjoined from enforcing, implementing, ad-

ministering, or in any way relying upon the regulations

published at 46 Fed. Reg. 5298-5318 (January 19, 1981)

and 49 CFR §177.825 and Appendix A to part 177, in

such a manner as to override or preempt existing or fu-

ture state or local bans on truck, highway, or road trans-

portation of spent (irradiated) fuel and other large guan-

tity shipments of radioactive materials through densely

o6a

Appendix B

populated areas, once the state or local jurisdiction, on

application to DOT, shows (1) that overriding its ban

would result in road transport of such materials through

areas in the range of population densities for which DOT’s

analysis of high consequence accidents is inadequate and

(2) that an alternative to road transport existe that,

from the evidence available, appears to be feasible and

potentially safer than road transport.

Dated: New York, New York

May 5, 1982

s/ Cuartes L. Brieant

U.S.D.J.

Signed at the request of

Abraham D. Sofaer, United States

District Judge, in his absence, in

my capacity as Part I Judge. See

Rule 5(2) of the Rules for Division

of Business S.D.N.Y.

Judgment Entered 5/6/82

s/ Raymonp F. BurcHarpt

Clerk

57a

APPENDIX C

May 5, 1983 District Court Opinion

UNITED STATES DISTRICT COURT

Southern District of New York

81 Civ. 1778 (ADS)

™

-

THE CITY CF NEW YORK,

Plaintiff,

and

THE STATE OF NEW YORK, THE TOWN OF

BROOKHAVEN, and SULLIVAN COUNTY,

Plaintiffs-Intervenors,

—against—

THE UNITED STATES DEPARTMENT OF TRANS-

PORTATION and THE MATERIALS TRANSPORTA-

TION BUREAU OF THE UNITED STATES DE-

PARTMENT OF TRANSPORTATION,

Defendants,

—and—

COMMONWEALTH EDISON COMPANY, CONSOLI-

DATED EDISON COMPANY OF NEW YORK, INC.,

GEORGIA POWER COMPANY, LONG ISLAND

LIGHTING COMPANY, NORTHEAST UTILITIES,

NORTHERN STATES POWER COMPANY, PACIFIC

GAS AND ELETRIC COMPANY, POWER AUTHOR-

58a

Appendiz C

ITY OF THE STATE OF NEW YORK, PUBLIC

SERVICE ELECTRIC AND GAS COMPANY, SOUTH-

ERN CALIFORNIA EDISON COMPANY, and YAN-

KEE ATOMIC ELECTRIC COMPANY,

Defendants-Intervenors.

[Appearances Omitted in Printing]

OPINION

Sofaer, District Judge:

On January 19, 1981, the United States Department

of Transportation (“DOT”) published a “Final Rule” con-

cerning the transportation of radioactive materials pur-

suant to its authority under the Hazardous Materials

Transportation Act (“HMTA”), 49 U.S.C. §§ 1801-1812

(1976). The rule, scheduled to take effect on February 1,

1982, would permit the shipment by road throughout the

nation of all types of radioactive materials. One avowed

purpose of the rule was to override local prohibitions

against the shipment of radioactive materials, particu-

larly a local regulation adopted by the Board of Health

of New York City (“City”) on January 15, 1976. The

City commenced this action on March 25, 1981, seeking

to invalidate DOT’s rule or, at least, to prevent it from

overriding the City’s regulation. The State of New York

intervened as a plaintiff, moving for discovery and a

preliminary injunction against enforcement of DOT’s rule

within the State’s borders; the Town of Brookhaven and

Sullivan County, New York, joined the City’s and State’s

598

Appendiz C

efforts. The United States has been joined in its de-

fense of DOT’s rule by numerous intervening power com-

panies as well as by several amici curiae.

Plaintiffs seek relief on numerous grounds. Several

are meritless. Indeed, the welter of arguments contained

in plaintiffs’ papers tends to obscure the fact the DOT’s

actions are challenged meaningfully only insofar as they

relate to the highway transportation of spent fuel from

nuclear reactors and other large-quantity shipments of

radioactive materials through densely populated areas such

as New York City. In all other respects, the admini-

strative record and the law supports DOT’s Final Rule.

Insofar as DOT’s actions require states and locali-

ties to permit the highway transport of spent fuel and

other large-quantity shipments through densely populated

areas, the record developed by DOT cannot justify the

challenged rule. The agency has failed to fulfill its re-

sponsibilities under the National Environmental Policy

Act (“NEPA”), 42 U.S.C. §§ 4321-4347 (1976), and under

the regulations promulgated under NEPA by the Council

on Environmental Quality and by DOT itself. In parti-

cular, DOT has failed adequately to evaluate and to

address itself to the problems posed by low-probability/

high-consequence occurrences that are concededly, “credi-

ble.” NEPA requires that an agency confronted with

these problems, fundamental in a society dependent on

inherently dangerous technologies, conduct a thorough ex-

amination and make determinations that are susceptible

to review concerning: (1) the probability of the oceur-

rence contemplated; (2) the potential consequences of such

an occurrence; and (3) the environmental risk reflected

by the probability and the consequences estimated. Be-

60a

Appendix C

cause its environmental evaluation is deficient in all three

respects, DOT’s Environmental Assessment is inadequate,

and DOT’s finding that its action will have no significant

environmental impact—and therefore that no environment-

al impact statement need be prepared—is insufficiently

supported by the present record. Furthermore, DOT has

failed adequately to consider alternatives to highway trans-

port that might reduce or eliminate the risks posed to

urban areas by low-probability/high-consequence accidents

or by malevolent acts. Even if DOT could lawfully choose

to regulate only highway transport at this time, it cannot

rationally evaluate the option of taking no action without

examining at least superficially the availability of non-

highway modes to accommodate shipments prevented by

local and state laws from crossing densely populated

areas. DOT has therefore failed to perform its obliga-

tion to “study, develop, and describe” appropriate al-

ternatives.

Apart from DOT’s obligation under NEPA to evaluate

more fully the environmental consequences of its pro-

posed rule, HMTA imposes similar duties on DOT and

in addition sets limits on the agency’s authority to deem

certain risks acceptable. For the same reasons DOT’s

analysis is invalid under NEPA, its adoption of the chal-

lenged rule was an arbitrary and capricious exercise of

its rulemaking authority under HMTA: DOT inadequately

considered the risks of highway transport and the need,

given potential alternatives, to impose those risks on the

public. Further, DOT erroneously concluded that it is

free under HMTA to subject unwilling states and locali-

ties to risks of potential catastrophe that DOT itself -

deemed “credible” and “important” when those risks are

avoidable. HMTA mandates that in exercising its regu-

6la

Appendix C

latory power DOT avoid where reasonably possible all

significant risk not inherent in the transportation of ha-

zardous substances. In adopting a new rule covering the

transportation of spent fuel and other large-quantity

radioactive materials, DOT must be guided by Congress’

policies, not by its own perception of acceptable risk.

On the present record, DOT’s regulation is unreason-

able in light of the properly applicable legal standards.

The Court’s role in this case is to conduct a “search-

ing and careful” review of DOT’s actions, but only in

order to determine whether the agency has acted rea-

sonably in fulfilling its statutory obligations. Citizens

to Preserve Overton Park, Inc., v. Volpe, 401 U.S. 402;

416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). The na-

ture of contemporary scientific disputes requires a court

to give close attention to detail, to ensure that it neither

fails to perform its duty to careful review, nor goes

beyond its limited role because of any failure to give

proper weight to all the evidence supporting the agency’s

judgment. A full review of the record is therefore nec-

essary to identify all the evidence actually considered or

implicitly supporting DOT’s conclusion. After that re-

view the opinion examines plaintiffs’ numerous conten-

tions.

I. Factual Background for DOT’s Action

One of the problems created by the use of radioactive

materials in American medicine and industry is the need

to transport them. Our society is highly dependent on

radioactive materials. In medicine, gamma-ray-emitting

isotopes are commonly used to image specific areas and

62a

Appendix C

organs of the body. Radioisotopes of iodine are used

to diagnose and treat thyroid disorders; other isotopes

are used in millions of scanning procedures annually.

Large quantities of Co-60 (cobalt) or Cs-137 (cesium)

are used for cancer treatment, research, and large-scale

food sterilization. Well-logging firms use radicisotopes

to assess a well’s capability; radioactive tracers are also

used for this purpose. The radiography industry uses

certain isotopes that emit high-energy gamma rays to

examine the structural integrity of welded joints, parti-

cularly in large pipes and frames. Radioactive materials

are especially effective in a large variety of gauging

applications. And, of course, the nuclear power industry

uses radioactive materials, and generates large quantities

of irradiated (spent) fuel. All of these uses require

transport to one degree or another, often at several

different stages, including manufacture, use, and disposal.

As the use of radioactive materials has become increas-

ingly common, public awareness of the dangers posed

by their transportation has heightened. Since the middle

of the 1970s, governmental authorities on federal, state,

and local levels have begun to address the problem. In

1975 Congress passed HMTA to centralize authority in

DOT to promulgate and enforce regulations to protect the

public against “the risks to life and property which are

inherent in the transportation of hazardous materials,”

including radivactive materials. 49 U.S.C. § 1801 (1976).

The act specifically empowers the Secretary of Trans-

portation to issue routing rules for the safe transporta-

tion of radioactive materials. Jd. § 1804(a). Congress

provided expressly for the preemption of state and local

rules inconsistent with the act or with regulations adopted

under it, except for inconsistent rules that DOT finds

63a

Appendix C

ensure equal or greater public safety than the inconsistent

federal requirements and do not unreasonably burden in-

terstate commerce. Id. § 1811.

DOT regulations that preexisted the passage of HMTA

required motor vehicles containing hazardous materials

to use routes that “do not go through or near heavily

populated areas, places where crowds are assembled, tun-

nels, narrow streets, or alleys,” unless “there is no prac-

ticable alternative.” 49 C.F.R. § 397.9(a) (1980). Every

vehicle containing hazardous materials was required to

comply with local driving and parking laws, unless the

local laws were at variance with a more stringent rule

imposed by DOT; and state or local laws governing

transport through vehicular tunnels used for mass trans-

portation were specifically exempted from any arguable

preemption. 49 C.F.R. §§ 177.810, 397.3 (1980). These

regulations continued in effect after HMTA’s adoption

in 1975.

The Final Rule challenged in this proceeding is the

direct result of DOT’s determination to deal with the

disruptive effects of a health regulation, adopted on Janu-

ary 15, 1976, by New York City’s Board of Health as an

amendment to its Health Code, prohibiting the commercial

transport into or through the City of large-quantity or

high-level radioactive materials. N.Y.C. Health Code

§ 175.111(1). Complaint of New York City, Ex. A. The

1 The amendment reads as follows:

(1) Notwithstanding the foregoing provisions of this

section, a Certificate of Emergency Transport issued by the

Commissioner or his designated representative shall be re-

(Footnote continued on following page)

64a

Appendiz C

amendment effectively prevented the Brookhaven National

Laboratories (“BNL”) from shipping spent nuclear fuel

(Footnote continued from preceding page)

quired for each shipment, to be transported through the

City or brought into the City, of any of the following

materials:

(1) Plutonium isotopes in any quantity and form ex-

ceeding two grams or 20 curies, whichever is less;

(2) Uranium enriched in the isotope U-236 exceeding

25 atomic per cent of the total uranium content in quanti-

ties where the U-235 content exceeds one kilogram;

(3) Any of the actinides (i.e., elements with atomic

number 89 or greater) the activity of which exceeds 20

curies;

(4) Spent reactor elements or mixed fission products

associated with such spent fuel elements the activity of

which exceeds 20 curies; or

(5) Any quantity of radioactive material specified as

a “Large Quantity” by the Nuclear Regulartory Com-

mission in 10 CFR Part 71, entitled “packaging of Radio-

active Material for Transport.”

A“note” appended to the resolution adopting this subsection

explains: -

It is intended that such Certificate will be issued for the

most compelling reasons involving urgent public policy or

national security interests transcending public health and

safety concerns and that economic consideration alone will

not be acceptable as justification for the issuance of such

Certificate.

The resolution further amended § 175.111 to state that the

section does not apply “to radiation sources shipped by or for the

Unitgl States Government for military or national security purposes

or which are related to national defense.” Complaint of New York

City, Exhibit A.

65a

Appendiz C

from Long Island through densely populated areas of the

City by truck. In addition the regulation would prevent

shipments of spent fuel and other materials from travel-

ing through the City from the Shoreham Nuclear Unit,

expected to begin operating in 1983. On the very day

that the City adopted the regulation, the federal govern-

ment sued to have it declared preempted and unenforce-

able. Judge Inzer B. Wyatt denied preliminary relief

on January 30, 1976, and the case was subsequently trans-

ferred to the suspense docket by stipulation. United

States v. City of New York, 76 Civ. IBW). On

March 1, 1977, Associated Universities, Inc., consisting

of nine institutions whose representatives formed the BNL

Board of Directors, sought a declaration from DOT that

the City’s regulation was inconsistent with HMTA and

with DOT regulations. DOT denied the request on April

20, 1978, ruling that the City regulation was in effect a

routing requirement and that, although DOT had the

power to preempt local routing rules, the agency had

not yet exercised that power. DOT recognized that the

City had adopted its regulation because its public health

officials had considered that, given the City’s dense popu-

lation, “the consequences of a major accident are too

extreme to be tolerable, however remote the probability.”

43 Fed.Reg. 16954, 16957 (1978). Even so DOT sug-

gested that it disapproved of the City’s regulation. Jd.

at 16957-58. Since 1976 BNL has shipped spent fuel by

water, via New London, Connecticut, although that op-

tion may have been made unavailable by local law.?

? Defendant-intervenors informed the Court that, “fo]n August

21, 1978, New London enacted an ordinance banning the trans-

(Footnote continued on following page)

66a

Appendia C

On August 17, 1978, DOT invited comment “on the

need, and possible methods for establishing routing re-

quirements under the Hazardous Materials Transportation

Act applicable to highway carriers of radioactive ma-

terials.” 43 Fed.Reg. 36492 (1978). The “advance no-

tice” made clear that it was motivated in particular by

the fact that the City had prohibited highway transport

of most commercial shipments of radioactive materials.

It noted that other jurisdictions had adopted safety re-

quirements imposing “significant additional responsibili-

ties on shippers, carriers, or neighboring jurisdictions,”

all of which “affect interstate commerce.” The notice

proposed to examine the safety aspects of highway trans-

port and the effects of existing regulations. Most sig-

nificantly, DOT announced at that time that it intended

to limit its consideration to highway routing, and would

not consider alternative modes:

Only highway routing of radioactive materials will

be considered in this docket. This does not rule

out the possible future consideration of materials

in other hazard classes and other modes of trans-

portation. However, highway transportation, of

all four modes of transportation, offers the largest

number of routing possibilities and the greatest

access to population centers.

(Footnote continued from preceding page)

port of [Brookhaven’s] radioactive materials through its borders.”

Memo. of Law in Support of Motion for Summary Judgment by

Defendant-Intervenors at 7. By letter dated January 18, 1982,

plaintiff New York City has informed the Court that the New Lon-

= a was overriden by Connecticut Public Act No. 79-527 (June

, 1979).

67a

Appendix C

Id. at 36492. The notice referred the public to several

studies, including most notably the Final Environmental

Statement on the Transportation of Radioactive Material

by Air and Other Modes (“NUREG-0170”) prepared for

the U. S. Nuclear Regulatory Commission (“NRC”) in

December 1977. It also noted DOT’s intention to con-

sider the results when available of NRC’s study, then

underway, of transport through urban areas, eventually

published as Transportation of Radionuclides in Urban

Environs: Draft Environmental Assessment (NUREG/

CR-0743; SAND 79-0369) (1980) (“SANDIA”). Finally,

the notice flatly asserted that, although its prior regula-

tions left control of highway traffic of hazardous ma-

terials primarily to state and local regulation, those regu-

lations reflected “the principle that such State and local

regulation should not have the actual effect of altogether

forbidding highway transportation between any two points,

even where other modes of transportation are available.”

43 Fed.Reg. at 36493. DOT did not explain how it de-

rived this principle, although DOT had itself ruled that

the City’s regulation was consistent with federal law and

with its own regulation, 49 C.F.R. § 397.9(a) (1980),

requiring compliance wherever “practicable” with local

rules that mandate avoidance of heavily populated areas.

43 Fed.Reg. at 16954.

DOT scheduled a public hearing on its notice. The

Director of the City’s Bureau of Radiation Control, Dr.

Leonard R. Solon, submitted a statement proposing that

DOT not limit itself to considering only highway trans-

port. Dr. Solon suggested that barging spent fuel was

feasible and that DOT should enlist the assistance of

the Coast Guard and Department of Energy to develop

plans for maritime transport. Solon Affidavit ] 11, New

68a

Appendia C

York City Notice of Cross-Motion for Summary Judg-

ment [hereinafter “City Motion”] “This would minimize

the public health risks of spent fuel transportation by

bypassing populated areas.” City Motion, Ex. B at 11.

In addition, DOT’s proposed rulemaking was specifically

noted in the Report to the President by the Interagency

Review Group on Nuclear Waste Management (March

1979) (“IRG Report”). Responding to the concerns of

a highway-carrier representative regarding state and local

restrictions, and of state and local officials regarding trans-

portation through or near populated areas, the IRG Report

stated that DOT’s rulemaking was an important step

towards resolution of the issues. Although comments re-

ceived by the IRG said that there was a special need for

DOT to resolve the highway routing question, id. at 113,

the IRG, consistent with its comments on NEPA’s re-

quirement that alternatives be considered, id. at 21-22,

articulated a broader view:

DOT should proceed expeditiously to examine the

desirability of Federally prescribed routing require-

ments for barge, rail, and highway shipment of

radioactive wastes, as well as the question of to

what degree local restrictions are appropriate.

Id. at 112 (emphasis added).

A. DOT’s Notice of Proposed Rulemaking

On January 31, 1980, DOT published its proposed rule

for the highway routing of radioactive materials, as well

as a draft environmental assessment. 45 Fed.Reg. 7140

(1980). The agency again reviewed the history of New

69a

Appendix C

York City’s regulation and concluded that national ac-

tion was necessary to prevent local and state rules from

interfering with radioactive shipments by highway. The

notice summarized accident data and, relying on NUREG-

0170 and on the Sandia Leboratory’s draft report Trans-

port of Radionuclides in Urban Environs: A Working

Draft Assessment (May 1978). DOT concluded that the

“estimated risks” from both accident-free highway trans-

port and accidents “are within the magnitudes of other

socially accepted risks, such as evidenced in highway

traffic fatality rates.” The agency noted the public con-

cern over highway transport of radioactive materials, but

found it unjustified by the estimates:

Public concern with radioactive materials trans-

portation, however, is more profound than those

estimates would suggest is justified. In part this

concern reflects the distinction between risks which

are likely to be concentrated and similar risks

spread over differing times and locations. The

annual death rate from passenger car accidents,

for example, usually is perceived as less catastro-

phic than major aircraft accidents, although far

fore people die in automobile accidents. This dis-

tinction may reflect the perceived limits of society

to deal with catastrophic occurrences.

45 Fed.Reg. at 7141. In fact, the agency found, risks ex-

pected from highway transport of radioactive materials

are minimal.

DOT took particular note of the possibility of a severe

accident involving spent fuel or another type of large-

quantity package. It found that “only large quantity

70a

Appendiz C

packages pose even a remote risk of extraordinary or

catastrophic accident consequences.” Jd. at 7148. It

pointed out that such an accident was extremely unlikely,

because the casks used for spent fuel shipments are

massive (up to 35 tons) and able to sustain great im-

pacts without rupture. Recognizing, however, the NUREG-

0170 reported that a rupture could conceivably occur in

extreme circumstances, the noticr went on to describe

the consequences of several “worst case” accidents. Some

of these hypothetical accidents, DOT noted, could be ex-

tremely serious, but the most serious “is likely only

once in 25 billions years and is thought by MTB not to

warrant undue concern. A more typical high speed col-

lision and fire in a highway accident is not likely to re-

sult in extensive radiological injuries or damage from

the presence of either Type A, Type B or large quantity

packages of radioactive materials.” Jd. at 7143.

The notice also recognized the possibility of sabotage.

This risk, too, was limited to spent fuel and other large-

quantity shipments. Although the possibility of such an

attack exists, DOT suggested “the likelihood of a success-

ful act of sabotage that breaches a spent fuel cask and

disperses its contents may be quite small.” Jd. at 7150.

Regulations established by the NRC for its licensees re-

garding shipments of spent fuel “will provide adequate

physical protection” for licensees’ shipments.

Finally, DOT maintained its resolve to refuse to con-

sider alternative modes of transport. Despite the «xpress

suggestions of commentators that barging be considered

where feasible, especially for spent fuel and other large-

quantity shipments, the notice did not even mention barg-

ing. In a discussion of “Other Modes and Other Hazard-

Tla

Appendiz C

ous Materials,” the agency only raised and deferred con-

sideration of routing spent fuel by rail. Jd. at 7151-52.

The Draft Environmental Assessment, moreover, consid-

ered only alternatives involving highways. The only op

tion even arguably covering nonhighway transport—to

take no action—gave no attention to barging as a po-

tential means of eliminating the burden on commerce

that some local rules might otherwise impose. The As-

sessment specifically found that taking no action would

have few if any effects. Nevertheless, DOT rejected

the no-action option and proposed to implement its pre-

viously suggested policy by making it absolutely clear

that, irrespective of alternatives, any state or local rule

preventing the use of highways for any type of ship-

- ment between any two points was inconsistent with DOT’s

proposed rule:

State and local requirements which apply to any

person because that person transports radioactive

materials are inconsistent with this subchapter if

they have any of the following effects.

(1) Completely prohibiting travel between any two

points serviced by highway;

(2) Prohibiting the use of an Interstate highway,

including prohibition of travel based on time of

day, without designation of an equivalent preferred

highway as a substitute in accordance with the pro-

visions of this section

Id. at 7153 (proposed 49 C.F.R. § 177.825(d)).

The City responded to DOT's proposed rule on Janu-

ary 30, 1980. It took issue with DOT's analysis of dan-

a

72a

Appendix C

gers in transporting spent fuel and other large-quantity

shipments through densely populated areas. In addition,

the City renewed its criticism of DOT’s refusal to con-

sider the feasibility of transporting spent fuel by barge.

It noted, in particular, that NUREG-0170, on which DOT

placed great reliance for its findings and conclusions, had

found barging a feasible alternative with respect to many

reactor sites:

The fact that transportation costs are so much

lower for barges than for other modes makes this

alternative certainly worth additional investigation.

Barge transportation of irradiated fuel may be a

viable alternative, at least for some specifie re-

actor sites, if not as a nationwide scheme.

NUREG-0170 at 6-11. The City contended, moreover,

that barge transport was safer than highway transport

of large-quantity shipments through its densely popu-

lated limits. Finally, arguing that its regulation afforded

greater protection without burdening interstate commerce,

the City requested that DOT issue a nonpreemption rul-

ing with its final rule, so as to preclude the existence of

a period in which spent fuel shipments by highway would

be made through the City while its nonpreemption re-

quest was pending. Complaint of New York City, Ex. D.

DOT responded to the City’s nonpreemption request

on July 31, 1980. It included the City’s comments in

the record and agreed to consider them before taking

final action. But it refused to docket the nonpreemption

request, because no final rule had been promulgated with

which the City’s regulation could be deemed inconsistent.

Douglas A. Crockett, than of DOT’s Offiee of Chief Coun-

sel, raised no other objection to the City’s request at

73a

Appendiz C

that time, and in fect suggested to then Corporation

Counsel Allen G. Schwartz that “you may wish to renew

your application at a more appropriate time.” City

Motion, Ex. M.

B. DOT’s Final Rule, HM-164

DOT published its Final Rule on January 19, 1981,

to take effect on February 1, 1982. 46 Fed.Reg. 5298

(1981). In most respects, the rule follows the scheme

earlier proposed. In general, the rule classifies covered

materials as Type A, Type B, or large-quantity radio-

active materials, which, respectively, must be packaged

for shipment in Type A, Type B, or specially approved

Type B containers. “Large quantity radioactive materials”

embraces spent nuclear reactor fuel. 49 C.F.R. § 173.389

(1980). The rule specifies what shipments must be “pla-

earded,” 49 C.F.R. §§ 172.403(d), 172.504 (1980), leav-

ing unplacarded shipments unregulated, as posing no haz-

ard. For placarded shipments, the rule requires carriers

to use routes that “minimize radiological risk,” but in

general the rule does not mandate use of specified routes.

For large quantity shipments, by contrast, HM-164 re-

quires the use of “preferred routes” for highway trans-

portation. In particular, HM-164 provides, in relevant

part:

Unless otherwise permitted by this section, a car-

rier and any person who operates a motor vehicle

containing a package of large quantity radioactive

material as defined in § 173.389(b) of this sub-

chapter shall ensure that the vehicle operates over

prefered routes selected to reduce time in transit,

74a

Appendix C

except that an Interstate System bypass or belt-

way around a city shall be used when available.

(1) A preferred route consists of—

(i) An Interstate System highway for which an

alternative route is not designated by a State

routing agency as provided in this section, and

(ii) A State-designated route selected by a State

routing agency (see § 171.8 of this subchapter)

in accordance with the DOT “Guidelines for Se-

lecting Preferred Highway Routes for Shipments

of Large Quantity Radioactive Materials”.

~ 46 Fed.Reg. at 5316-17 (te be codified at 49 C.F.R. § 177.-

825(b)) [hereinafter cited only to C.F.R.]. The “Guide-

lines” require that, in selecting a preferred route, the

State routing agency analyze radiation exposure, costs,

economic risks from accidents, public health risks, emer-

gency response capabilities, evacuation plans, traffic fa-

talities and injuries, and the locale of special facilities.

City Motion, Ex. W.

The Final Rule deleted from the proposed official regu-

lations the provision expressly declaring inconsistent ail

local bans on highway transport. Instead, DOT reiterated

that position and policy at greater length in what was

to become Appendix A to C.F.R. Part 177. 46 Fed.

Reg. at 5317. State and local jurisdictions are informed

how they “can exercise authority over motor carriers

under [their] own laws in a manner that the Depart-

ment of Transportation considers to be consistent with

rules in Part 177.” The Appendix states, in relevant

part:

75a

Appendix C

Ill. Large quantity radioactive materials

A. State routing rues. A State routing rule which

applies to large quantity radioactive materials

is inconsistent with Part 177 if—

1. It prohibits transportation of large quantity

radioactive materials by highway between any

two points without providing an alternate route

for the duration of the prohibition; or

2. It does not meet all of the following cri-

teria:

(a) The rule is established by a State routing

agency as defined in § 171.8 of this subchapter;

(b) The rule is based on a comparative radio-

logical risk assessment process at least as sensi-

tive as that outlined in the “DOT Guidelines”;

(ec) The rule is based on evaluation of radio-

logical risk wherever it may oceur, and on a

solicitation and substantive consideration of views

from each affected jurisdiction, including local

jurisdictions and other States; and

(d) The rule ensures reasonable continuity of

routes between jurisdictions.

B. Local routing rules. A local routing rule that

applies to large quantity radioactive materials

is inconsistent with this Part if it prohibits

or otherwise affects transportation on routes

or at locations either—

1. Authorized by Part 177, or

2. Authorized by a State routing agency in a

manner consistent with Part 177.

76a

Appendix C

Under this interpretive policy, § 175.111(1) of the New

York City Health Code is inconsistent with the routing

rules of 49 C.F.R. § 177.825(b) because it effectively

prohibits use of the highways for shipments through

New York City of large-quantity radioactive materials.

DOT persisted, in adopting the Final Rule, in refusing

to evaluate alternative modes of transport. It resolved

to consider “only routing requirements for radioactive

materials shipped by highway, the focus of most State

and local actions, rather than undertake a comprehensive

regulatory proceeding to consider all classes of hazardous

materials and all modes of transportation.” 46 Fed.Reg.

5300 (1981). The Regulatory Evaluation and Environ-

mental Assessment filed with the Final Rule also re-

flected this policy. It restricted its consideration of al-

ternatives to taking no action (which it found would have

little or no effect), and to taking a variety of other

actions, all involving highways. Environmental Assess-

ment, DOT Motion, Ex. D.

The ultimate basis for DOT’s Final Rule is “that the

public risks in transporting these materials by highway

are too low to justify the unilateral imposition by local

governments of bans and other severe restrictions.” 46

Fed.Reg. at 5299. This same finding supports DOT’s

policy decision in Appendix A to deem inconsistent with

the Final Rule any nonfederal rule preventing highway

transport:

A State cannot make transportation between two

points impossible by highway. The radiological

risks in transporting large quantity radioactive ma-

terials by highway are small and total preclusion

of shipments cannot be justified on that basis.

a

77a

Appendix C

Id. at 5313; see id. at 5317 (49 C.F.R. Part 177, app. A,

pt. III(1)). See also id. at 5309: “(Packages of large

quantity radioactive materials can be transported over

any Interstate highway, and most other comparable [high-

way] routes, with a confident level of safety.”

In reaching this conclusion, DOT was aware of the

potential for a serious accident in a densely populated

area. It stated at one point that the “accident rate

is not the only important element to consider in assess-

ing risk to the public—one must consider the conse-

quences of a serious accident, even though the probability

of that accident may be small.” Jd. at 5301. It affirmed

at another point that DOT, “also, is concerned with such

events [as high consequence accidents] and is mindful

of the large economic consequences estimated for such

hypothetical events by [the recent SANDIA report]. These

estimates relate to a scenario which assumes the worst

credible accident for certain truck shipments of spent

fuel and polonium in densely populated urban areas.”

Id, at 5299. Nevertheless, DOT concluded, the potential

consequences of such accidents did not warrant allowing

a state or locality to prevent highway transport, at bottom

because the consequences were highly unlikely, and “these

currently low risks will be further minimized by the

adoption of driver training requirements and provisions

of a method for selecting the safest available highway

routes” for carriers of large quantity radioactive ma-

terials, as accomplished in this rule.” Jd,*

% The record reflects that driver training will have no “environ-

mentally significant” effect on the radiological hazards. Environ-

mental Assessment, DOT Motion Ex. D at 23. “Most commenters”

were “quite cynical” about DOT’s capacity, presumably given its

limited budget and past history, to ensure that safety measures

will A effective. Summary of Comments, DOT Motion, Ex. E,

pt. 1.3.

78a

Appendix C

DOT stated its position with respect to low-probability/

high-consequence accidents in very general terms. “Many

commenters,” the agency contended, “seem to be con-

cerned only with consequence—particularly high conse-

quence accidents involving large quantity radioactive ma-

terials in a heavily populated urban center.” Jd. A proper

assessment of the risk of such accidents, DOT said, must

be more balanced:

[A]n assessment of risk to the public from acci-

dents involving large quantity radioactive materials

should include a balanced consideration of factors

which affect both the likelihood of an accident as

well as the consequences.

Id. High-consequence accidents should be “of great con-

cern,” said DOT, “but not to the extent that public policy

on hazardous material routing should be formulated solely

on the basis of avoiding such ‘worst case’ aceidents.” Id.

at 5315. See also id, at 5300. The probability of such

accidents was low enough, in DOT’s view, for the overall

risk to be deemed acceptable.

If, in addition to low risk, “other factors” were con-

sidered by DOT in reaching its conclusion, they were not

described as such. Two factors, however, seem to have

been considered, First, DOT concluded that publie con-

cern over the worst-case accident is irrational, because

the same pubiic is willing to bear much greater risks,

including the consequences of ordinary highway accidents.

See p. 1245 supra. Second, DOT regarded local laws

in particular as highly suspect and likely to reflect public

irrationality. Indeed, the Final Rule and its aeeompany-

ing documents are a veritable essay in political philosophy,

79a

Appendix C

expressing DOT’s skepticism of the capacity of localities

to adopt rules worthy of national, or event regional, re-

spect. The rulemaking, DOT noted, was necessary to

“consider the overall safety impact of piecemeal, unco-

ordinated local actions on hazardous material transporta-

tion,” actions DOT characterized as “narrowly conceived.”

46 Fed.Reg. at 5300, Although it noted the argument

of “commenters” that, in the United States, local govern-

ments have traditionally had primary responsibility for

highway safety and for public health, as well as the

duty to respond to and clean up after serious accidents,

DOT explained:

Local jurisdictions are inherently limited in per-

spective with respect to establishing routing re-

quirements. While the Department recognizes that

local governments are accountable only to their

own citizens, such a limited accountability has some

undesirable effects.

Id.

While repeatedly expressing its resolve not to examine

alternative modes of transport in its rulemaking, DOT

nevertheless twice expressed the view that alternative

modes would not clearly reduce public risks. Thus, early

in its discussion of the Final Rule, DOT stated with-

out elaboration or supports

Other modes of transport generally do not appear

to offer alternatives which clearly lower public risks

to the extent that use of the highway mode should

be substantially restricted.

Id. at 5299. DOT’s second comment on the subject, and

its most comprehensive statement of its understanding

80a

Anpendiz C

of its HMTA responsibilities, is found in the Supplement

to Docket HM-164: Summary and Analysis of Public

Comments, DOT Motion, Ex. E. In responding to eri-

ticism of its decision to refuse to consider alternative

modes of transport that might avoid a possible catas-

trophe, DOT stated that it willingly assumed responsi-

bility for imposing the risk, because the risk was small

and could not significantly be reduced by resorting to

other modes:

A number of commenters do not share MTB’s opin-

ion that this rulemaking be so severely limited.

Although none of the proposed or adopted rules

pertain to other modes or other hazardous ma-

terials the Bureau believes that a discussion of

these comments is appropriate.

The most prominent comments addressing this area

question MTB’s failure to impose a requirement

on shippers of large quantity radioactive materials

packages to evaluate the risks identified with each

mode or combination of modes and then select the

method which is most favorable on the basis of

the expected impacts on public health and safety.

These commenters go on to say that the potential

for catastrophe does exist whenever large quanti-

ties of radioactive materials are transported in

urbanized areas and that it is a proper function of

government to safeguard its citizens from such a

possible tragedy. In essence MTB finds itself in

general agreement with these comments and must

conclude that the differences which exist are not

of a philosophical nature but rather are repre-

sented by varying degrees of protection which rea-

8la

Appendia C

sonable minds may find difficult in reaching a con-

sensus. [sic] When differences such as these can-

not otherwise be resolved a judgment must be made

by the responsible party. In this case the MTB

has primacy over hazardous materials transporta-

tion and believes that this exercising of its auth-

ority is in order. The determination made by MTB

applicable to large quantity radioactive materials

packages transported by public highway is that they

ean be shipped with confidence of an acceptable

level of safety and therefore such packeges should

not be subjected to compulsory modal shifts which

result in the fractional reduction of an otherwise

low risk. This policy is consistent with MTB’s

history of recognizing the inherent risks appropriate

to the transportation of particular hazardous ma-

terials by each of the modes, and its reluctance

to specify an order of precedence in the choices

available to shippers regarding the physical state

of their materials, packagings, quantity amounts,

and the like. Such a policy would also not appear

to violate recommendations made by the National

Council on Radiation Protection (NCRP) concern-

ing the maintenance of dose rates at levels which

are “as low as reasonably achievable.”

DOT Motion Ex. E. pt. H.2. The same assumptions

that led DOT to discount the potential consequences of

serious accidents led it to reaffirm its view that the possi-

bility of sabotage did not warrant allowing states or

localities to prohibit some shipments through or near

densely populated areas. DOT Motion, Ex. E, pt. E

at 6.

82a

Appendiz C

C. The City’s Nonpreemption Request

The City responded by letter to DOT’s Final Rule on

March 20, 1981, criticizing the rule’s premises st length,

and renewing the City’s request for a nonpreemption

ruling. City Motion, Ex. N. The City noted that DOT’s

express declaration in Appendix A rendered the City’s

regulation inconsistent, but the City insisted that its

local ban afforded greater protection without imposing

an unreasonable burden on commerce:

The City believes that barging of large quantities

of radioactive materials, and in particular spent

nuclear fuel, achieve [sic] a level of safety greater

than the highway transport authorized by the DOT

rule, and at the same time, no unreasonable bur-

den on commerce will be imposed.

Id. at 2. The City’s letter referred again to NUREG-

0170’s recognition of barging as a possibly viable al-

ternative, and to a site-specific study confirming that

barging could be used for spent fuel from the Shoreham

Nuclear Station. Barging, the City noted, has already

been successfully used by Brookhaven National Labora-

tories and by others, and would make a serious acci-

dent much less likely. The letter asserted in particular:

“Barge shipments to highway points avoiding New York

City will eliminate the risk to the City’s residents and,

at the same time, produce no increased risk of exposure

to residents of other localities if the interconnection

points between barge and highway are south of New

York City.” Jd. at 4 (emphasis added).

DOT responded to this request by letter dated April

22, 1981. City Motion, Ex. O, It stated that the MTB

83a

Appendix C

“will need to develop more information concerning the

safety level and commercial burden associated with § 175.-

111 of the City’s Health Code before reaching a con-

clusion,” and proposed to extend the comment period

until further notice, a proposal in which the City ac-

quiesced, City Motion, Ex. P. DOT took no further

action on the City’s request until after a meeting of

DOT personnel with City representatives on December

21, 1981. At that time the City requested “a preliminary

response to its March 20, 1981, application for a non-

preemption determination.” The Court, in an Order en-

tered on January 4, 1982, also requested DOT to state

its position on the City’s application.

On January 15, 1982, DOT sent the City a seven-page

letter, detailing the weaknesses and flaws in its nonpre-

emption request. Letter from Alan I. Roberts to Stephen

P. Kramer (Jan. 15, 1982). The City’s regulation, DOT

wrote, “is precisely the type of requirement . .. that

led to the adoption of the regulations with which the

City’s requirement is inconsistent,” because the Depart-

ment had already concluded that the publie risks of high-

way transport were too low to justify local government

bans such as the City’s. Jd. at 2. Even if the ban

provided greater safety without unreasonably burdening

commerce, a nonpreemption ruling might not be granted.

The City, DOT said, “must make a clear demonstration

that, because of its peculiar circumstances, it is entitled

to an exception from the general rules of HM-164... .

Without such a demonstration, the exception permitted

by a non-preemption determination would, in effect, ‘swal-

low the rule’ and severely undermine the policies under-

lying HM-164.” Id. The legislative history “clearly in-

dicates that” inconsistent requirements are to be deemed

Sta

Appendix C

nonpreempted only when “shown to be clearly necessary.”

Id. The City had failed in its application to demon-

strate the exceptional circumstances required, because the

application relied on the same studies DOT had used

in reaching its conclusion that the risks of radioactive

materials transport by highway are too low to justify

local bans; because NRC itself had recently concurred

in DOT’s conclusion; and because the “general state-

ments” and “anecdotes” relied on by the City to es-

tablish the feasibility of barging were “of little value

to DOT in attempting to determine the extent of in-

creased costs and impairment of efficiency resulting from

the City’s requirements.” Jd. at 3. The City, moreover,

relied “on a ‘worst-case’ approach to safety analysis which

considers only the possible consequences of an accident

and ignores the probability that such consequences would

ever occur.” Jd, HM-164 had “explicity rejected the

worst-case approach to safety analysis,” requiring that

routing policy be based also upon “all other factors which

contribute to the overall risk involved in transporting

large quantity radioactive materials.” Jd.

Before DOT would proceed further with the City’s

application, the City was required to provide “a detailed

analysis” comparing the levels of safety and cost re-

sulting from its regulation with those achieved by HM-

164. The City would also have to identify in any re-

newed application all parts of “the public” affected by

its proposal, id. at 4, and then estimate the risks from

accident-free transport and from accidental release, on

all population groups, for both the highway and barge

alternatives. In addition, the City would have to per-

form an analysis of comparative costs, including initial

capital investments and operating costs. Jd. at 3-5. “The

85a

Appendix C

Department appreciates the degree of effort on the part

of the City that the analysis described above will re-

quire. However, it is our firm view that that effort

is required in order to substantiate the determinations

required by § 112(b).” Jd. at 5. Noting that Congress

was considering a bill to require DOT to undertake the

burden of analysis it was placing on the City, DOT ex-

pressed its willingness to hold open the City’s requests

pending Congress’ action on the bili “[i]f the City con-

siders the analysis discussed above to be beyond its

capabilities.” J. The letter concluded with several tech-

nical objections that have little if any substantive sig-

nificance, but do reflect the Department’s hostility towards

the City’s application.‘

* First, the letter announced that the City had failed to provide

DOT with the text of the regulation for which it had sought a non-

preemption ruling. This failure was excused “[f]or purposes of

this response.” Jd. Second, the City had not clearly enough ac-

knowledged that its regulation was inconsistent with DOT's rule.

The City had acknowledged that its regulation was inconsistent

with Appendix A, correctly noting that, without the Appendix,

DOT’s rule could be read to permit the City in effect to

require barging. Although DOT in its letter ruled expressly that

the City’s regulation was inconsistent, DOT informed the City that

it “must acknowledge that inconsistency.” Jd. at 6. Third, the

City had failed to demonstrate that, assuming its regulation pro-

vided greater safety, the City would continue “to administer and

enforce effectively such requirement.” The City’s renewed appli-

cation would have to show in advance of any nonpreemption ruling

that it would satisfy that aspect of § 112(b), even though the

provision seems intended to apply only after a nonpreemption

ruling is rendered. Jd. Finally, DOT asserted that HMTA re-

quires any nonpreemption application to be made by a “State

(Footnote continued on following page)

86a

Appendix C

DOT’s letter is clearly a ruling rejecting the City’s

application as filed in March 1981, and mandating a

massive demonstration by the City. The letter imposing

these demands was written, moreover, nine months after

the agency informed the City that its own MTB was

collecting the material necessary to evaluate the City’s

request, and only fifteen days before DOT’s rule was

scheduled to take effect. DOT thereby effectively pre-

cluded the City from preparing a more detailed pre-

sentation and obtaining a defiinitive ruling on the merits

of its application prior to the date on which the City’s

ban was scheduled to be rendered unenforceable.

Il. DOT’s Authority to Adopt HM-164

The City and State of New York present several chal-

lenges to DOT's authority to adopt its Final Rule, in-

cluding Appendix A. The State claims that HMTA un-

constitutionally delegates legislative authority to DOT,

and that the Final Rule violates the Tenth Amendment

(Footnote continued from preceding page)

agency,” which DOT read to exclude the City. The letter acknow-

leged that DOT’s Final Rule, specifically 49 C.F.R. 107.215(a),

expressly permitted either a state or its political subdivision to apply

for nonpreemption rulings. But now, in considering the City’s

application, DOT implicitly found its recently adopted regulation

inconsistent with HMTA and insisted on the City’s obtaining spon-

sorship from New York State. Jd. at 6-7.

The Court has been provided with no further information con-

cerning the City’s application, although at oral argument on the

cross-motions for summary judgment, the State of New York made

clear its willingness to sponsor the City’s application for nonpreemp-

tion, if required by law.

87a

Appendix C

of the Constitution of the United States by interfering

unjustifiably with matters of state concern. Both plain-

tiffs argue that the Final Rule is unauthorized by HMTA,

in that the statute permits only regulations that “pro-

mote” safety in every particular application. Finally,

both contend that HMTA’s preemption provision impli-

citly prevents DOT from adopting regulations that pre-

empt local rules that provide no less safety than the

regulation proposed and that do not unreasonably bur-

den commerce. None of these arguments is valid.

A. Constitutionality of HMTA’s Delegations

Congress lawfully delegated to DOT both its rule-

making authority and the authority, under 49 U.S.C. §

1811(b) (1976), to make nonpreemption determinations.

The rulemaking -authority is constrained by the require-

ment that regulations rationally seek to protect the public

from the risks of transporting hazardous materials, Jd.

§ 1804(a). The nonpreemption decision is governed by

the requirement that the non-federal rule both promote

public safety no less than the federal rule and not un-

reasonably burden commerce. Jd, § 1811(b). Both stand-

ards call for technical decisions that fall within DOT's

area of expertise, and the public-safety standard is “suffi-

ciently precise to apprise DOT both of its regulatory

mission and the means to carry it out.” Memorandum

of Law in Support of Motion for Summary Judgment

by Defendant-Intervenors at 60. With respect to both

these powers, therefore, HMTA’s delegations pass con-

stitutional muster becanse Congress laid down sufficiently

intelligible principles and clearly defined standards in

88a

Appendix C

one of DOT’s “areas of expertise.” National Nutritional

Foods Ass’n v. Weinberger, 512 F.2d 688, 696 (2d Cir.),

cert, denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 445

(1975); Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83

L.Ed. 441 (1939).

B. Validity of HM-164 Under the Tenth Amendment

HMTA, and in particular its preemption provi-

sion, 49 U.S.C. § 1811(a) (1976), are well within the

commerce power of Congress. “[W]hen Congress has

determined that an activity affects interstate commerce,

the courts need inquire only whether the finding is ra-

tional.” Hodel v. Virginia Surface Mining and Reclama-

tion Ass’n, 452 U.S. 264, 101 S.Ct. 2352, 2360, 69 L.Ed.

2d 1 (1981). Congress’ determination that the transporta-

tion of hazardous materials affects interstate commerce

is rational. The spent fuel from the Brookhaven facility

that is at issue in this case would, if the DOT regula-

tions take effect, be trucked on Interstate highways across

the New York border into New Jersey and eventually to

upstate New York or South Carolina for storage. Fur-

ther, the means adopted by Congress are “ ‘reasonably

adapted to the end permitted by the Constitution.’” Jd.

at 2360. In order “to protect the Nation adequately

against the risks to life and property which are inherent

in the transportation of hazardous materials in com-

merce,” 49 U.S.C, § 1801 (1976), Congress provided for

preemption on the reasonable ground that state and local

regulations might otherwise lessen the degree of safety

provided by uniform federal rules, or might interfere

unreasonably with the unimpeded and safe flow of com-

89a

Appendix C

merce. S.Rep.No.1192, 93d Cong., 2d Sess. 6-9, 37-38

(1974) ; see Hodel y. Virginia Surface Mining and Reclama-

tion Ass'n, supra, 101 S.Ct. at 2362; Ray v. Atlantic

Richfield Co., 485 U.S. 161, 165-66, 98 S.Ct. 988, 995,

55 L.Ed.2d 179 (1978).

Nothing in the Tenth Amendment to the Con-

stitution undermines the validity of HMTA or of its

preemption provision. As the Supreme Court recently

said in Hodel v. Virginia Surface Mining and Reclama-

tion Ass’n, supra, 101 S.Ct. at 2367-68, “the Tenth Amend-

ment [does not limit] congressional power to pre-empt

or displace state regulation of private activities affect-

ing interstate commerce . . . regardless of whether the

federal legislation displaces laws enacted under the States’

‘police powers.’” Moreover, HMTA does not impair Tenth

Amendment rights recognized in National Leaque of Cities

v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245

(1976). It neither “regulates the ‘States as States,’”

nor “addresses matters that are indisputably attributes

of state sovereignty,’” nor impairs the ability of states

“‘to structure integral operations in areas of traditional

functions.’” Hodel vy. Virginia Surface Mining and Recla-

matiouw Ass’n, supra, 101 S.Ct. at 2366 (quoting National

League of Cities v. Usery, supra, 426 U.S. at 845, 852,

854, 96 S.Ct. at 2471, 2474, 2475). Indeed,

[t]he regulation of traffic on roads and highways

with its strong regional and interstate character

(particularly in the New York City metropolitan

area), has long been considered to be a cooperative

effort between City, State and federal authorities,

with no single entity being able to provide or

impose a comprehensive traffic system, and with

federal power, where necessary, taking precedence,

9a

Appendix C

Friends of the Earth v. Carey, 552 F.2d 25, 38 (2d Cir.),

cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188

(1977) (citations omitted).

C. DOT’s Authority to Regulate the Transportation of

Radioactive Materials

New York State argues broadly that DOT has exceeded

its authority under HMTA by regulating so as to permit

the freer transport of a hazardous substance, without

a finding of increased safety. HMTA’s declared policy

is to increase the authority of the Secretary of Trans-

portation “to protect the Nation adequately against the

risks to life and property which are inherent in the trans-

portation of hazardous materials in commerce.” 49 U.S.C.

§ 1801 (1976) (emphasis added). Radioactive materials

have been designated “hazardous,” in that their trans-

portation in commerce “may pose an unreasonable risk

to health and safety or property.” Jd. § 1802(2); see

49 C.F.R. § 171.8 (1980). And the Secretary’s power

to issue regulations is expressed in terms of enhancing

“the safe transportation in commerce of hazardous ma-

terials” and of governing “any safety aspect of” such

transportation. 49 U.S.C. § 1804(a) (1976) (emphasis

added). From these premises the State argues that DOT

may not lawfully deem the transport of “hazardous” radio-

active material to be safe, or preempt a local rule regu-

lating the transport of material deemed “hazardous” with-

out finding that the local rule renders such transport

less safe than DOT’s rule.

DOT’s authority eannot be so artificially limited.

HMTA specifically anthorizes regulations governing all

9la

Appendiz C

aspects of the transportation of radioactive materials,

including routing. Jd. § 1804(a). Congress therefore

contemplated that routing rules could advance HMTA’s

goal of protecting the public. Furthermore, the designa-

tion of a material as hazardous does not necessarily es-

tablish that its transport under a particular regulatory

scheme is hazardous. DOT could reasonably conclude

under the Act that a particular method and route for

transporting such a material in fact creates no signifi-

eant hazard. DOT is also well within its authority to

increase risks in one area or on one route, if it acts

reasonably to establish an overall scheme for the safe

and efficient transport of hazardous materials. In the

present rulemaking DOT concluded that the interests

of safety and efficiency required it to establish a national

plan for transporting radioactive materials to stem and

offset the proliferation of state and local rules. 46 Fed.

Reg. at 5299. The Final Rule is in general thus rea-

sonably within DOT’s authority.

The State also challenges DOT’s assertion that the

Final Rule was needed to enhance safety or efficiency.

In fact, DOT’s Environmental Assessment concludes that,

even if DOT had taken no action, the consequences would

be “speculative.” City Motion, Ex. H at 25. The Assess-

ment anticipates more local rules, but recognizes that

“[t]hose impacts could involve both increases and de-

creases in accident risk and normal dose.” Jd. at 9.

Furthermore, with respect to efficiency, the Assessment

could only report that the no-action costs “could be sub-

stantial” if by 1985, for example, localities enact :e-

strictions so as to increase travel distances and times

by 2%. Id. No estimates were made, however, “be-

eause of the uncertain nature of future state and local

actions.” Id.

92a

Appendix C

The State’s analysis is acute, in that it supports the

argument that DOT’s concern has been to facilitate trans-

port by preventing state and local interference irrespective

of their speculative costs and possible enhancement of

safety. But the attack is so broad that it would leave

too little latitude to a national regulatory body’s judg-

ment on the need for uniformity and certainty. The

DOT is vested by Congress with responsibility not only

to deal with problems it reasonably concludes might arise.

The record contains an ample basis for DOT’s precep-

tions that the existing multiplicity of laws presents dan-

gers both to efficiency and to safety. Finally, and most

concretely, the Final Rule does not merely override state

and local rules, It also adopts many measures that are

expressly and incontrovertibly designed to enhance safety,

including, for example, enhanced driver training and pro-

teciion against theft or sabotage. DOT takes pains to es-

taLlish that the Final Rule will facilitate the shipment not

only of spent fuel but also of small-quantity medical sup-

plies, which it finds has been obstructed. See 46 Fed.

Reg. at 5299, The State’s broad attack on DOT's regula-

tory authority is therefore rejected.

D, Effect of HMTA’s Preemption Provisions on DOT’s

Authority

Section 112(a) of HMTA provides for blanket preemp-

tion of nonfederal requirements inconsistent with validly

promulgated federal rules, “[e]xcept as provided in sub-

section (b).” 49 U.S.C, § 1811(a) (1976). Section 112(b)

permits the Secretary of Transportation to waive preemp-

tion for a nonfederal rule that protects the public at least

as well as the inconsistent federal requirement and does

93a

Appendix C

not unreasonably burden commerce. Jd, § 1811(b).° In

setting up this two-part preemption structure, Congress

intended that states and localities would retain some role

in the regulation of hazardous-materials transporation but

that, once valid federal regulations were issued, inconsis-

tent nonfederal requirements would be preempted unless

the Secretary of Transportation grants a waiver.

This text is long and has been trimmed here. Open the source document for the complete record.