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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1055

## Text

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

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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.

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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 othe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0927%3A2. Public record. Not legal advice.