Petition for Writ of Certiorari — Hodges v. Abraham

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rr SUPTEMte LOTT, 8D.

| ' FILES

nO2 544 WT -3 2004

Jn The

Supreme Court of the GAnited States

JIM HODGES, Governor of the State of

South Carolina, in his official capacity,

Petitioner,

SPENCER ABRAHAM, Secretary of the Department

of Energy, in his official capacity, and the

UNITED STATES DEPARTMENT OF ENERGY,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

WILLIAM L. WANT LISA HEINZERLING

171 Church St., Suite 300 Counsel of Record -

Charleston, SC 29401 GEORGETOWN UNIVERSITY

(843) 723-5148 LAW CENTER

600 New Jersey Ave., NW

STEPHEN P. BATES ‘ y

Chief Legal Counsel Washington, DC 20001

OFFICE OF THE GOVERNOR (202) 662-9115

P.O. Box 11829

Columbia, SC 29211

(803) 734-6313 a

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Fourth Circuit erred in holding,

contrary to the decisions of this Court and of other cir-

cuits, that agency compliance with the National Environ-

mental Policy Act necessarily implies that agency action

cannot be deemed arbitrary and capricious under the

Administrative Procedure Act.

2. Whether the Fourth Circuit erred in holding that

the National Environmental Policy Act (NEPA) did not

require the United States Department of Energy to pre-

pare any new NEPA documents when it decided to: desig-

nate South Carolina as the nation’s only consolidated,

long-term disposal site for weapons-grade plutonium;

make storage of plutonium in South Carolina independent

of any plans to process it for ultimate disposal; and elimi-

nate one of the planned methods of disposal.

LIST OF PARTIES

In addition to the parties listed in the caption, the

following were intervenors below: Media General Opera-

tions, Incorporated, d/b/a Morning News (Florence),

WBTW, WSPA, WCBD and WJBF; Aiken Communica-

tions, Incorporated, d/b/a The Standard (Aiken); Osteen

Publishing Company, Incorporated, d/b/a The Item (Sum-

ter); East Coast Newspapers, Incorporated, d/b/a Island

Packet, d/b/a The Herald (Rock Hill), d/b/a the Beaufort

Gazette; The Evening Post Publishing Company, d/b/a The

Post and Courier (Charleston); Columbia Newspapers,

Incorporated, d/b/a The State (Columbia); the Sun Pub-

lishing Company, Incorporated, d/b/a Sun News; The New

York Times Company, d/b/a The Herald-Journal (Spartan-

burg); Independent Publishing Company, Incorporated,

d/b/a Anderson Independent-Mail; Landmark Community

Newspapers of South Carolina, d/b/a The Lancaster News;

Jefferson-Pilot Communications Company, d/b/a WCSC;

Pacific and Southern Company, Incorporated, d/b/a WLTX;

The South Carolina Press Association; South Carolina

Broadcasters; Associated Press; and Lee Enterprises,

Incorporated, d/b/a The Times and Democrat.

RULE 14.1(b) AND 29.6 STATEMENT

Petitioner Jim Hodges is the Governor of South

Carolina.

iii

TABLE OF CONTENTS

Page

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RULE 14.1(b) AND 29.6 STATEMENT..................... il

OPINIONS BELOW ............cssssscssssssesserscsssscsosssoseess 1

I ovis donk sedadicceraksiexdebsesbesseibasesehabes 1

RELEVANT STATUTORY PROVISIONS ................. 1

isa ndenelbAebsdiveinenpesiinaoebbnanneatene 1

I sols csachcs abbas ovehadeheenantaduenssvenstuanyiate 1

2. Statutory and Regulatory Background........... 3

3. The Department of Energy’s Decisions........... 6

a. Decisions Before April 2002 ..................... 6

b. DOE’s Reversal of Course ...................0065 10

BS I ssi acescecisnnstninksveatekanstnessnnin 13

REASONS FOR GRANTING THE PETITION ......... 15

IIIT ac thi ciirnhesdhinnsvssavaddvnenssnevennenessissnevieess 27

TABLE OF AUTHORITIES

CASES

Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S.

Se 6 PO inikcssncseniantintnnnisnaniintienicaninnseenaannnnuaaannaiiiine

Bennett v. Spear, 520 U.S. 154 (1997) ............cceceeeeeeeeees

Blatchford v. Native Village of Noatak, 501 U.S.

FF Ce ii ccc nceceniernesaedinisstoinenniniavanetinininnaninnasitinaiition

Burlington Truck Lines, Inc. v. United States, 371

SS. ay A Iiaits pinissdcnicdlbccaseruiciiaialnalleleaintiaddcchenunsiabaadlaumiadeds

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

Re CIT a Phiditivieeaciatncicscassencinracian chiieephiaisdapeetiotanceiaiebatanidguinabaiaibe

Environmental Defense Fund, Inc. v. U.S. Envi-

ronmental Protection Agency, 485 F.2d 780 (D.C.

EIR Ta ice nssssin Scesndicasnhincasaabiiteachdesuaricndeceastadap andsiabiaiaiasieian

Federal Maritime Commission v. South Carolina

State Ports Authority, 122 S.Ct. 1864 (2002).............

Marsh v. Oregon Natural Resources Council, 490

Set I a vine necdacesilascussnstaacisa tiendaiiduiiasdialinaaaatidanminiieaiaie

Maryland Dep’t of Human Res. v. United States

Dep’t of Agric., 976 F.2d 1462 (4th Cir. 1992)...........

Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000)............

Motor Vehicle Mfrs’ Ass’n v. State Farm Mutual

Auto. Ins. Co., 463 U.S. 2B (1GGS) ....cccescssecsccesccsccesess:

Native Ecosystems Council v. Dombeck, 2002 U.S.

App. LEXIS 18845 (9th Cir. Sept. 17, 2002) .............

New York v. United States, 505 U.S. 144 (1992)..........

Pacific Gas & Electric Co. v. State Energy Resources

Conservation and Development Commission, 461

SF ein SEA ME isnckiseniiicndhitisidarsisisenuaaisieaiinadiatanaenaiial

Page

arate

TABLE OF AUTHORITIES -— Continued

Page

Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989).......... 26

Sierra Club v. U.S. Army Corps of Engineers, 701

ae B68 Fae City BONED tenccniomiindaaaeane 21

Strycker’s Bay Neighborhood Council v. Karlen, 444

SF ie SRE UIE svissssevininnicaecdcdiwniessaciccicenet mann manna 18

United States v. Students Challenging Regulatory f

Agency Procedures (SCRAP), 412 U.S. 669 (1973)........ 17

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 435 U.S. 519 (1978) ..17, 18, 19

STATUTES

D Ui a icvsochicctssinsscewbenvuieseialsiammassaladsandalaien 1

Be UTA D BRED Michccisnsccniencetesnintctieaiiaeaaniaanae

CB UG. FG i cicicssnitnnictinneiniiaanineaeen 1

GES UA. F I ceesiiivniiscescvininntacactctaanbianpocdiameaenne 4

BR UDA 9 Gee i ccisinvesinnnitiitinaaee 16

Be UI Gi nesisnasnissccccustusttcedeaiteenuiseseiannassabannmeene 16

GE AE TAA EGE sesecsvncsccrssnscascnienuensimmapenniean aan 16

MISCELLANEOUS

BO C.F FP ie circ 4

BO Co .0e. F ROR RD nsceienscsnirisarncecchnenssoeinnin aaa 4

10 C.F.R. § 1021.400 (Subpart D, Appendix D-10) ..... 25-26

BO CAF BR. BB Bet ivcensaiessisicthertsniasaiaaniataasanaae 4

6D CFT § SG vcccisssicensrinvciithiciniopmeailiiniien nies 4

TABLE OF AUTHORITIES — Continued

Page

DOE, Amended Record of Decision, Surplus Pluto-

nium Disposition Program, 67 Fed. Reg. 19432

CAO, TE Bre ecsvinuscirgntesinetiandbiaameiidan 12, 26

DOE, Record of Decision for the Storage and Dispo-

sition of Weapons-Usable Fissile Materials Final

Programmatic Environmental Impact Statement,

62 Fed. Reg. 3014 (Jan. 21, 1907)......cccccscessssessesoserssssees 6

DOE, Record of Decision on Final E.I.S. Summary,

65 Fed. Reg. 1608 (Jan. 11, 2O01)........ccccrssesssssesscceeseees 7

DOE, Storage and Disposition of Weapons-Usable

Fissile Materials Final Programmatic Environ-

mental Impact Statement }t: 1-5, 1-6, 61 Fed. Reg.

GSTROE CHORD, BE, Tee vvecessstspencekinstsanichaceeeesessnnnciainneenens 6

NNSA/DOE, Disposition of Surplus Plutonium at

Savannah River Site 4-24-27 (Feb. 15, 2002)

(available at http://www.nci.org/pdf/doe-pu-

NG kei sccicsingesacsicncersssccennaienaeeaena aia 8

National Academy of Sciences, Management and

Disposition of Excess Weapons Pu: Reactor-

Related Options 417 (National Academy Press

National Defense Authorization Act of Fiscal Year

2002, Pub. L. No. 107-117, § 3155, 115 Stat.

BOER, SEO CE) iciniesnsussinticcenenetaseanaeeaain 1, 3, 20

Supplement Analysis for Storage of Surplus Pluto-

nium in the KAMS Facility 3, D.O.E./E.1.S.-0229-

ET CP, BI otiiaricriernssertesiemmbansanaaelaaiads 8

Supplement Analysis for Storing Plutonium in the

Actinide Packaging and Storage Facility and

Building 105-K at the Savannah River Site 4

CPI BIDE) vvecccssscennennsnsnsenceeeneeeinennsnininneinaneabaigmaaaae 7

OPINIONS BELOW

The opinion of the Fourth Circuit Court of Appeals is

available at 300 F.3d 432 (4th Cir. 2002). The opinion of

the District Court for the District Court of South Carolina

at Aiken is not published yet. The Fourth Circuit opinion

is reproduced in the Appendix to this petition (hereafter

“App.”) at page 1; the District Court is reproduced at App.

32.

JURISDICTION

The judgment of the Fourth Circuit was entered on

August 6, 2002. This Court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

The relevant statutory provisions of the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et

seq.; the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 551 et seg.; and the National Defense Authorization Act

of Fiscal Year 2002, Pub. L. No. 107-117 § 3155; 115 Stat.

1012, 1378 (2001) are reproduced at App. 90.

STATEMENT

1. Introduction

The United States has determined that it has more

plutonium than it needs for national defense. The De-

partment of Energy (DOE) was charged with deciding

what to do with this “surplus” plutonium. After thorough

study, DOE decided to convert some of the surplus pluto-

nium into fuel for nuclear power plants and to immobilize

the rest in secure containers buried in a deep geologic

repository. The Savannah River Site (SRS) in South

Carolina was chosen as the site to process the plutonium.

Any plutonium delivered to SRS was to be converted into a

fuel for commercial nuclear power plants or immobilized

for transfer to a geologic site. None was to remain at SRS.

Congress ratified this approach by directing DOE to devise

a plan for surplus plutonium that would provide for

removal “in a timely manner” of all plutonium shipped to

South Carolina. Almost right up to the moment when DOE

issued the decision challenged here, DOE itself thought it

appropriate to assure a pathway out of South Carolina for

the plutonium to be shipped there. However, when the

Governor of South Carolina refused to promise, as de-

manded by the Secretary of DOE, that he would not

challenge DOE’s decisions concerning plutonium at SRS,

DOE announced that it was canceling the immobilization

program, putting off indefinitely the convezsion program,

decoupling plutonium storage at SRS from plutonium

processing, and sending surplus plutonium to South

Carolina forthwith for long-term storage. The Fourth

Circuit held that because it had found that DOE had

complied with the National Environmental Policy Act in

coming to its decision, the agency had perforce complied

with the Administrative Procedure Act as well.

In combination, the Department’s actions threaten to

make the Savannah River Site in South Carolina the

Yucca Mountain of the East, but without the benefit of

the extensive environmental reviews that have attended

the decisions concerning Yucca Mountain. Despite the

enormous implications of the lethality and longevity of

plutonium for the human environment, despite the fact

that the SRS facilities were not designed with long-term

disposal of plutonium in mind, and despite the fact that

the original purposes of shipping plutonium to and storing

plutonium at SRS were no longer being actively pursued,

DOE declined to perform an analysis of the environmental

consequences of and alternatives to its decision to ship

surplus plutonium to SRS and to store it there for the

indefinite future. The Fourth Circuit held that DOE was

not required to prepare any new NEPA documents regard-

ing its change of policy because “it was apparent,” based

on DOE’s explanation of its actions, “that the proposed

change did not create a new environmental picture from

that previously studied.” App. 30.

2. Statutory and Regulatory Background

For decades, the federal government has assumed

primary responsibility for the handling and disposal of

nuclear materials. Pacific Gas & Electric Co. v. State

Energy Resources Conservation and Development Commis-

sion, 461 U.S. 190, 194 (1983). Nevertheless, on issues

relating to long-term disposal of radioactive waste, Con-

gress has made room for the involvement of states in the

selection of disposal sites. New York v. United States, 505

U.S. 144 (1992).

With respect to the plutonium at issue in this case,

Congress specifically directed DOE to consult with the

State of South Carolina in coming to its decisions on the

management and disposal of surplus plutonium. National

Defense Authorization Act of Fiscal Year 2002, Pub. L. No.

107-117, § 3155, 115 Stat. 1012, 1378 (2001). At the same

time, Congress also instructed DOE to develop a plan for

disposition of surplus plutonium that would specify “the

means by which all such defense plutonium and defense

plutonium materials will be removed in a timely manner

from the Savannah River Site for storage or disposal

elsewhere.” Id.

In making decisions about the handling and disposal

of nuclear waste, DOE is also bound by NEPA and the

APA. NEPA requires that an agency proposal on a major

federal action significantly affecting the quality-of the

human environment be accompanied by a detailed state-

ment of the environmental consequences of, and alterna-

tives to, the proposed action. 42 U.S.C. § 4332(C).

Regulations issued under the Act require that federal

agencies prepare an environmental assessment for their

actions unless they decide at the outset to prepare an

environmental impact statement or there is a specific

exclusion for the action in question. 10 C.F.R. § 1021.104,

1021.321(a), 1021.400(d) and 40 C.F.R. § 1508.9.

The prohibition on arbitrary or capricious agency

action embodied in the APA, 5 U.S.C. § 706(2)(A), requires,

among other things, that final agency action be based on

“a consideration of the relevant factors,” Citizens to Pre-

serve Overton Park v. Volpe, 401 U.S. 402, 416 (1971), and

on a “rational connection between the facts found and the

choice made.” Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 168 (1962). Agency action will be

deemed arbitrary where, for example, the agency “has

relied on factors which Congress has not intended it to

consider.” Motor Vehicle Mfrs’ Ass’n v. State Farm Mutual

Auto. Ins. Co., 463 U.S. 29, 43 (1983).

The agency decisions at issue here arose out of the

federal government’s efforts to deal with the problem of

surplus plutonium, plutonium that the United States has

determined is no longer needed for purposes of national

defense. Beginning in the 1990s, the United States and

the Russian Federation together concluded that they no

longer needed all of the nuclear weapons they had stock-

piled during the Cold War. In 1994, the Presidents of the

two nations agreed to the goals of “safe, secure, long-term

storage and disposition of surplus fissile materials” and to

“irreversible” reduction of these materials. Joint State-

ment Between the United States and Russia on Nonprolif-

eration of Weapons of Mass Destruction and Means of

their Delivery (January 14, 1994).

The United States has committed, both bilaterally and

unilaterally, to reducing the “surplus” weapons in its

nuclear stockpile. There are at least two different ways to

accomplish this goal. One is the conversion of weapons-

grade plutonium into material that is not usable in nu-

clear weapons. Plutonium would be combined with ura-

nium to produce “mixed-oxide fuel” (MOX), which would be

used at nuclear power plants to produce electricity. An-

other way to reduce the accessibility of weapons-grade

plutonium is to immobilize it in secure containers and

bury it in a deep geologic repository. As explained below,

both of these strategies were included in DOE’s policies for

surplus plutonium until the reversal of course at issue in

this case.

3. The Department of Energy’s Decisions

a. Decisions Before April 2002

On January 21, 1997, the Department of Energy

issued a Record of Decision (ROD) announcing a dual-

track plan for plutonium disposition whereby pure forms

of plutonium would be processed into MOX for use by

commercial reactors and the remaining impure plutonium

would be immobilized into a ceramic form and placed in a

geologic site. DOE, Record of Decision for the Storage and

Disposition of Weapons-Usable Fissile Materials Final

Programmatic Environmental Impact Statement, 62 Fed.

Reg. 3014 (Jan. 21, 1997). The National Academy of

Sciences had recommended the dual approach in a 1995

report which states, “Since it is crucial that at least one of

these options succeed, since time is of the essence, and

since the costs of pursuing both in parallel are modest in

relation to the security stakes, we recommend that project-

oriented activities be initiated on both options, in parallel,

at once.” National Academy of Sciences, Management and

Disposition of Excess Weapons Pu: Reactor-Related Options

417 (National Academy Press 1995). Furthermore, the

United States wanted the immobilization technology to

deal with certain plutonium in the military complex that it

deemed unsuitable for use in nuclear reactors. Id.

The 1997 ROD had been preceded by a 1996 Pro-

grammatic Environmental Impact Statement (PEIS). The

PEIS divided its subject into three categories: storage,

storage pending disposition and disposition. DOE, Storage

and Disposition of Weapons-Usable Fissile Materials Final

Programmatic Environmental Impact Statement, 1: 1-5, 1-

6, 61 Fed. Reg. 67001 (Dec. 19, 1996). DOE’s “preferred

alternative” designated only the nonsurplus plutonium

and highly enriched uranium, not surplus plutonium, for

2a WY ERR MISE

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long-term storage. Under DOE’s preferred approach,

surplus plutonium was only to be stored “pending disposi-

tion” through conversion to MOX or immobilization. To be

sure, DOE concluded that it was best to transfer surplus

plutonium from the Rocky Flats nuclear facility in Colo-

rado to SRS — but for the purpose of disposition, not

simply to move the plutonium to a different place. In

addition, the facilities at SRS were to be upgraded and

expanded to accommodate this new burden.

Over the next several years, DOE made further

refinements and adjustments to its policies for surplus

plutonium. In 1998, DOE issued a supplement assessment

in which it analyzed its proposal to ship surplus plutonium

to SRS on an accelerated schedule and to store the pluto-

nium in an existing building at SRS, called KAMS, pend-

ing completion of a new facility specifically designed to

handle the surplus plutonium. Supplement Analysis for

Storing Plutonium in the Actinide Packaging and Storage

Facility and Building 105-K at the Savannah River Site 4

(July 1998). (In January 2001, DOE canceled its plans for

the new facility.) In its 1998 supplement assessment, DOE

specifically explained that the transfer of plutonium to

SRS “would not occur unless DOE decides to immobilize

plutonium at the SRS.” Jd. Subsequently, in a federal

deciding to locate the MOX and immobilization facilities

for processing surplus plutonium at SRS. DOE, Record of

Decision on Final E.I.S. Summary, 65 Fed. Reg. 1608 (Jan.

11, 2001). Both of these decisions kept the basic structure

of the 1997 ROD intact: surplus plutonium would be

shipped to SRS for the purpose of rendering the material

less accessible to anyone — in the U.S. government or

elsewhere — who might wish in the future to use it for

aggressive purposes.

In a February 2002 supplement analysis for storage of

surplus plutonium at SRS, DOE noted that a 1998 sup-

plement analysis on the subject had assumed storage of

surplus plutonium would be “for up to 10 years,” pending

disposition. Supplement Analysis for Storage of Surplus

Plutonium in the KAMS Facility 3, D.O.E./E.1.S.-0229-SA2

(Feb. 2002). The February 2002 supplement assessment

stated that storage of surplus plutonium at SRS may

extend beyond the 10 years previously estimated, but

made it clear that the storage would not be long-term,

noting, “DOE plans to disposition its surplus plutonium as

soon as practical and believes storage in KAMS would be

necessary for less than 20 years.” Jd. at 8. At this time,

then, DOE’s policy continued to be interim storage at SRS

pending disposition.

On February 15, 2002, DOE submitted to Congress a

report Congress had requested on the status of the surplus

plutonium program. The report stated that the agency

rejected the long-term storage approach. NNSA/DOE,

Disposition of Surplus Plutonium at Savannah River Site

4-24-27 (Feb. 15, 2002) (available at http://www.nci.

org/pdf/doe-pu-2142002.pdf). The report also announced

that DOE would eliminate the immobilization component

of the surplus plutonium program and proceed exclusively

by way of the MOX technology. The report provided a

detailed schedule for implementing the MOX processing —

and eventually deactivating it — at SRS.

Two of the options considered in the report, but

rejected, were storage of the surplus plutonium in the six

places where it currently resides, and consolidated storage

in two. One of the disadvantages of the storage approach

was said to be, “The U.S. plutonium disposition mission

and parallel Russian disposition effort would not be

achieved. Russian plutonium would remain subject to

increasing risk of theft or diversion.” Id. at 4-24. Another

disadvantage of the storage approach was said to be,

“While the technologies for storing plutonium currently in

use throughout the complex are considered mature, there

is no experience for very long-term storage of pits and non-

pit plutonium.” Jd. Yet another disadvantage of the stor-

age approach came under the category, “sensitivities.” For

the storage in place option, the report stated: “Both South

Carolina and Colorado would strongly oppose this option.”

Id. As to “sensitivities” if there were consolidated storage,

the report stated:

South Carolina would view this option as a fail-

ure to provide a pathway out of SRS for surplus

plutonium brought there for disposition (assum-

ing that SRS was selected as one of the consoli-

dation sites). Therefore, this option can be

expected to be strongly opposed by the State of

South Carolina and challenged in the courts.

This option would likely require additional

NEPA review and public meetings. [Id. at 4-26,

emphasis added. ]

As of February 2002, then, this is where things stood.

DOE’s formal policy remained the one first announced five

years before. Surplus plutonium was to be either con-

verted to fuel or immobilized and placed in a geologic

repository. Pending this activity, surplus plutonium was to

be shipped to SRS for interim storage. Transfer of pluto-

nium to SRS and interim storage of it there were to occur

for the purpose of disposition. DOE had, in its report to

Congress, proposed that the immobilization program be

canceled, but at that time it did not issue a formal decision

to undertake this proposal. In the report to Congress,

moreover, DOE specifically rejected the idea of transfer-

ring plutonium to SRS independent of disposition. All this

changed in April 2002.

b. DOE’s Reversal of Course

Beginning in 2001, Governor Jim Hodges of South

Carolina became concerned about DOE’s plans for transfer

of surplus plutonium to, and long-term storage of this

plutonium at, SRS. He embarked upon a correspondence

with the Secretary of DOE, Spencer Abraham, in which he

stated his concerns about shipping plutonium to SRS and

sought DOE’s assurance that the agency would meet its

commitment to process, then remove, the surplus pluto-

nium sent to SRS and not use the state as a permanent

disposal ground for plutonium. This correspondence

culminated in an extraordinary letter from Secretary

Abraham to Governor Hodges on April 11 of this year.

Along with that letter, Secretary Abraham sent a

draft record of decision to Governor Hodges and an agree-

ment, which he asked the Governor to sign, indicating his

consent to the approach of the draft record of decision. The

decision proposed by DOE committed the agency to ensur-

_ ing a credible “exit strategy” for plutonium brought into

South Carolina and provided specific dates by which DOE

would remove the plutonium from the State if DOE’s

commitments had not been met. In signing the agreement

proffered by Secretary Abraham, Governor Hodges would

have been agreeing not to file any legal challenge against

the Secretary's decisions concerning SRS and surplus

plutonium.

In the April 11, 2002 letter itself, Secretary Abraham

wrote:

As I have indicated in our various personal meet-

ings and phone conversations, I appreciate your

concerns that any plutonium that comes into the

State have a credible pathway out. That is why

when we spoke on February 23, I personally as-

sured you that our new approach would not

transport any plutonium to South Carolina

unless our plans for fabricating it into MOX fuel

were progressing in a fashion that assured that

it would be able to be disposed of through this

process.

Letter from Secretary Abraham to Governor Hodges of

4/11/02, App. 103. Additionally, Secretary Abraham stated

in the same letter that DOE had made a:

commitment to maintain a pathway out of South

Carolina for any plutonium brought into the

State, including firm dates by which such mate-

rial would be removed from the State if DOE, for

any reason, were to be unable to secure the fund-

ing necessary to build the MOX facility.

Id., App. 104. Secretary Abraham coupled his offer of a

pathway out of South Carolina with a warning about what

would happen if Governor Hodges did not sign the agree-

ment:

I am prepared to authorize issuance of this Rec-

ord of Decision immediately upon receiving a

signed agreement from you... . If you are unable

to accept this agreement, I will proceed to take

the steps I believe necessary to meet our national

security and environmental cleanup objectives.

Consistent with applicable law, on April 15, I

will authorize issuance of an amended Record of

a F

Decision that does not incorporate the terms of

the attached agreement and will direct issuance

of the requisite 30-day notice of our intent to be-

gin shipping.

Id., App. 102 and 106-107. Thus Secretary Abraham

threatened Governor Hodges that if he did not sign the

agreement Abraham had profferred, none of the qualifica-

tions and contingencies provided for in the agreement and

the draft record of decision would be recognized.

Governor Hodges, however, insisted that DOE make

the agreement legally enforceable, and this DOE would

nat do. Thus DOE and Governor Hodges did not execute

an agreement concerning the shipment of plutonium to

SRS.

On April 19, 2002, DOE issued an amended ROD in

final form. DOE, Amended Record of Decision, Surplus

Plutonium Disposition Program, 67 Fed. Reg. 19432 (Apr.

19, 2002). It was dramatically different from the draft

DOE had sent to Governor Hodges eight days earlier. The

amended ROD announced the “immediate implementation

of consolidated long-term storage at the Savannah River

Site (SRS) of surplus non-pit plutonium now stored sepa-

rately at the Rocky Flats Environmental Technology Site

(RFETS) and SRS. .. .” Jd. at 19432.

Whereas Secretary Abraham had guaranteed that the

shipment of surplus plutonium to SRS was strictly tied

with processing it there, the amended ROD stated:

In addition to achieving the ultimate goal of

permanent disposition of surplus plutonium ma-

terials, DOE independently needs to improve the

configuration of the storage system for these ma-

terials pending disposition. These improvements

will allow DOE to significantly reduce storage

costs, expedite closure and cleanup of sites and

facilities in its nuclear complex, and enhance the

security of these materials. [Jd. at 19433, empha-

sis added. ]

Secretary Abraham had made good on his threat to Gov-

ernor Hodges: because the Governor had refused to sign

an agreement DOE conceded — indeed, insisted — was

legally unenforceable, DOE withdrew all of the protections

it had been prepared to provide to South Carolina to

assure implementation of DOE’s long-standing surplus

plutonium disposition policy and replaced them with a .

decision making South Carolina the nation’s only consoli-

dated, long-term storage site for weapons-grade pluto-

nium.

4. Proceedings Below

Shortly after DOE announced its new policy for

surplus plutonium, Governor Hodges sued Secretary

Abraham and DOE in federal district court in South

Carolina, alleging that the agency had failed adequately to

analyze the consequences of and alternatives to its deci-

sion under the National Environmental Policy Act (NEPA)

and that its reversal of policy course was arbitrary and

capricious under the Administrative Procedure Act (APA).

Governor Hodges’ NEPA and APA claims reflected

two very different lines of attack. His NEPA claims as-

serted that DOE had violated NEPA by failing to prepare

either an environmental assessment (prepared in cases in

which the need for an environmental impact statement is

unclear) or a supplemental environmental impact state-

ment in coming to its new decisions concerning surplus

plutonium. Complaint 7{ 71-84. In his APA claim, on the

other hand, Governor Hodges contended that DOE’s

reversal of course on surplus plutonium in April 2002 was

arbitrary and capricious, not because of DOE’s treatment

of environmental issues but because DOE’s abrupt change

of policy was itself arbitrary and capricious. Complaint

17 89-93.

The district court denied Governor Hodges’ motion for

a preliminary injunction against DOE’s plutonium ship-

ments into South Carolina and at the same time granted

summary judgment in favor of DOE. In this decision, the

district judge completely subsumed the APA claim within

the NEPA claim; she asked only whether DOE’s decisions

concerning the development of NEPA documents were

arbitrary and capricious, not whether the decision an-

nounced on April 19 was itself arbitrary and capricious.

Finding no meritorious NEPA claim, the judge granted

judgment for DOE without separate discussion of the APA.

The Fourth Circuit followed a similar path. After

rejecting the Governor’s NEPA claims, the appeals court

rejected the APA claim as well:

Governor Hodges also maintains that the DOE’s

decisionmaking process violated the Administra-

~tive Procedure Act (the “APA”). Under the APA,

we must uphold an agency decision if it is sup-

ported by “substantial evidence,” and is not “ar-

bitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A), (E). In conducting our review under

the APA, “we perform only the limited, albeit

important, task of reviewing agency action to de-

termine whether the agency conformed with con-

trolling statutes, and whether the agency has

committed a clear error of judgment.” Maryland

Dep’t of Human Res. v. United States Dep’t of Ag-

ric., 976 F.2d 1462, 1475 (4th Cir. 1992) (internal

quotations and citations omitted). In view of the

DOE’s compliance with NEPA, the Governor's

APA challenge is also without merit.

Hodges v. Abraham, 300 F.3d 432, 449 n. 17 (4th Cir.

2002) (emphasis added). The Fourth Circuit’s holding was

no accident: the Department of Justice had, in its brief on

appeal, argued on behalf of just this result, stating flatly

that the Governor had “no independent APA cause of

action in this case” and that “(t]he APA here is simply the

means for effectuating judicial review under the NEPA

statute, which creates a purely procedural statute.” Brief

for the Federal Appellees, Hodges v. Abraham, No. 02-

1639 (4th Cir.), at 56-57.

In holding that compliance with NEPA excuses

compliance with the APA, the Fourth Circuit parted

company with the relevant statutory language, and with

this Court’s established precedents and those of other

lower courts, on a matter of great importance to the State

of South Carolina and to the nation as a whole.

On the NEPA issue, the Fourth Circuit determined

that it was not necessary for DOE to prepare an environ-

mental assessment for its new decision because DOE had

decided that its previous environmental analyses covered

its changed decision. On this point, too, the Fourth Circuit

erred.

REASONS FOR GRANTING THE PETITION

1. The Department of Energy, perversely, treated its

“consultation” with South Carolina, required by Congress

emcees

in the National Defense Authorization Act of FY2002, as

an opportunity to dangle one approach to the problem of

surplus plutonium before South Carolina’s eyes and then

to snatch that approach away when South Carolina failed

to jump at it. By refusing to review Governor Hodges’

claim that the Department’s decision was arbitrary and

capricious under the APA, merely because the court had

found that the Department had complied with an entirely

separate statute, NEPA, the Fourth Circuit gave its stamp

of approval to the Department's petulant treatment of a

sovereign State. The Fourth Circuit’s legal error in conflat-

ing NEPA and the APA is plain; its decision conflicts with

decisions of this Court and of other circuits; and it has

ratified the Department of Energy’s rush to judgment on a

matter of great national importance. This Court should

grant the Governor's petition for a writ of certiorari.

a. By its literal terms, NEPA disclaims any congres-

sional intent to supplant other federal statutes. Other

environmental standards, and requirements of coordina-

tion or consultation with, and recommendations or certifi-

cation of, other Federal or State agencies, are explicitly

preserved by the statute. 42 U.S.C. § 4334. In addition,

NEPA provides that “[t]he policies and goals set forth in

this chapter are supplementary to those set forth in

existing authorizations of Federal agencies.” 42 U.S.C.

§ 4335. Where the executive branch finds that existing

regulatory programs are inadequate for the purposes of

environmental protection, it is encouraged to make “rec-

ommendations for legislation” to fix the problem. 42 U.S.C.

§ 4341. These provisions together leave no doubt that

NEPA supplements, but does not supplant, other statutory

regimes.

Nothing in the statute remotely suggests that the

APA is an exception to this rule. The Fourth Circuit's

holding that compliance with NEPA implies compliance

with the APA thus flouts the plain language of NEPA.

Indeed, as explained next, not only does the statute itself

give no hint whatsoever of an intent to repeal the APA in

cases where NEPA implies, but this Court's decisions

strongly confirm that NEPA and the APA are two differ-

ent, independently applicable, statutes.

b. Ina series of decisions handed down in the decade

or so after NEPA was enacted, this Court made plain that

the APA and NEPA create two different statutory regimes.

In fact, it would not be an overstatement to say that the

interaction between the APA and NEPA was the predomi-

nant question. in the early NEPA cases heard by this

Court. These cases resoundingly affirmed what is plain

from the statutory text: NEPA did not amend or repeal the

APA.

In its very first encounter with NEPA, this Court

concluded that the statutory language “indicates that

NEPA was not intended to repeal by implication any other

statute.” United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669, 694 (1973); see

also Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289,

319 (1975).

In Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 435 U.S. 519 (1978), this Court

unanimously rejected the argument that NEPA somehow

enlarged the procedures otherwise required by the APA.

“We search in vain,” the Court said, “for something in

NEPA which would mandate such a result.... Thus, it is

clear NEPA cannot serve as the basis for a substantial

revision of the carefully constructed procedural specifica-

tions of the APA.” Id. at 548.

Although Vermont Yankee is famous for its holding

that NEPA did not add to the requirements of the APA,

the case stands equally for the proposition that nothing in

NEPA subtracts from APA requirements.’ The Court

concluded that the Atomic Energy Commission had satis-

fied NEPA’s requirements, id. at 549-55, but remanded

the case to the Court of Appeals to review the question

whether the agency had violated the APA by issuing a

decision unsupported by the administrative record. Id. at

549. Nowhere did the Court intimate that the agency’s

compliance with NEPA implied compliance with the APA,

and its remand to the appeals court for further review

under the APA signals just the opposite conclusion.

This Court’s other leading NEPA cases reaffirm this

result. In the per curiam opinion in Strycker’s Bay

Neighborhood Council v. Karlen, 444 U.S. 223 (1980), the

Court summarily reversed a Second Circuit decision

requiring a federal agency to give “determinative weight”

to environmental considerations pursuant to NEPA. Id. at

227. The Court also hinted, however, that it might have

reached a different result — and certainly would have

granted plenary review — if it had thought that the agency

had acted “arbitrarily or capriciously.” Jd. at 228 n. 2.

Because the court below had not found this to be the case,

the Court rested with its NEPA analysis. The decision

* Similarly, in Bennett v. Spear, 520 U.S. 154, 175 (1997), this

Court held that the Endangered Species Act does not supplant APA

requirements. -

plainly recognizes, as Vermont Yankee did, that federal

agencies’ compliance with NEPA does not excuse compli-

ance with the APA’s constraints on arbitrary agency

action.

In short, the Fourth Circuit departed from this

Court’s long- and clearly established precedents by ending

its analysis with NEPA and refusing to go on to consider

whether the Department of Energy had violated the APA.

Perhaps even more surprising than the Fourth Circuit’s

erroneous decision is the fact that the United States asked

for it: in responding to Governor Hodges’ APA claim in its

appellate brief, the Department of Justice asked the court

to reject the Governor’s attempt to “smuggle” arbitrary

and capricious review into NEPA, and stated flatly that

the Governor had “no independent APA cause of action in

this case. The APA here is simply the means for effectuat-

ing judicial review under the NEPA statute, which creates

a purely procedural statute.” Brief for the Federal Appel-

lees, Hodges v. Abraham, No. 02-1639 (4th Cir.), at 56-57.

The Department of Justice is thus as confused as the

Fourth Circuit is. NEPA simply does not supplant the

APA. Even if a federal agency complies with NEPA, it

must still comply with the APA by issuing decisions that

are neither arbitrary nor capricious.

NEPA and the APA are, to be sure, linked in the

following way: the APA provides the statutory basis and

standard of review for judicial review of agency analysis

undertaken pursuant to NEPA. But agency action that

complies with NEPA can nevertheless violate the APA by

being arbitrary and capricious, where the agency operates

under legal constraints that arise outside NEPA. Here, the

authority under which DOE set surplus plutonium policy —

including nonproliferation agreements and the National

Defense Authorization Act of Fiscal Year 2002, Pub. L. No.

107-117, § 3155, 115 Stat. 1012, 1378 (2001) — nowhere

made South Carolina’s disagreement with federal pluto-

nium policy a relevant consideration in setting that policy.

Indeed, the National Defense Authorization Act of Fiscal

Year 2002 specifically required DOE to} consult with South

Carolina and to describe its plans for an exit strategy for

the plutonium sent to SRS for disposition. Nevertheless,

Governor Hodges’ simple disagreement with Secretary

Abraham figured profoundly in Secretary Abraham’s April

2002 decisions concerning surplus plutonium. By relying

on a consideration that the laws under which he operated

deemed irrelevant, Secretary Abraham acted arbitrarily

and capriciously according to this Court’s well-settled

jurisprudence of administrative law.

_¢. The Fourth Circuit’s decision also parted company

with decisions from other federal circuits. The court’s error

lay not in applying an APA standard of review to the

NEPA claims in this case, but in concluding that the APA

spoke only to the NEPA claims raised here and not to the

issue of whether DOE had acted arbitrarily within the

meaning of other relevant laws. The notion that the APA

might constrain agency action outside the context of

NEPA, even in settings where NEPA also applies, is so

well accepted in other circuits that it is hard to find

explicit statements to this effect. Plenty of evidence exists,

however, to-conclude that the Fourth Circuit’s ruling on

this issue is out of line with precedents from other lower

federal courts.

Particularly telling in this regard are the many cases

from other courts confronting claims based on multiple

statutes governing natural resources. In numerous cases

concerning conflicts regarding natural resources, one finds

plaintiffs invoking not only NEPA, but also the Endan-

gered Species Act, the National Forest Management Act,

and others. Claims under these latter statutes typically

invoke the APA, and courts other than the Fourth Circuit

have consistently heard both the claims under NEPA and

the claims asserting violations of the APA through actions

under other statutes. See, e.g., Native Ecosystems Council

v. Dombeck, 2002 U.S. App. LEXIS 18845 (9th Cir. Sept.

17, 2002) (reviewing separately claims arising under

NEPA, National Forest Management Act, and Endangered

Species Act); Environmental Defense Fund, Inc. v. U.S.

Environmental Protection Agency, 485 F.2d 780 (D.C. Cir.

1973) (holding that NEPA claims, and APA claims arising

out of agency’s actions under Federal Insecticide, Fungi-

cide and Rodenticide Act, must be heard in D.C. Circuit);

Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d

1011 (2d Cir. 1983) (finding violations of NEPA and of

APA through actions under Clean Water Act). Other

courts have not held, as the Fourth Circuit did, that NEPA

compliance necessarily implies APA compliance.

In sum, the lower federal courts routinely consider

legal claims under the APA even where NEPA also ap-

plies. The Fourth Circuit’s square holding that compliance

with NEPA perforce implies compliance with the APA is a

clear departure from the approach of other circuits.

d. Few issues in the modern era have so challenged

the delicate balance between the States and the federal

government as has the disposal of the dangerous and

persistent byproducts of the nuclear age. This Court has

insisted upon respectful treatment of the states by the

federal government even where the “pressing national

problem” of radioactive waste disposal is concerned, New

nar

York v. United States, 505 U.S. 144, 187 (1992), and it has

worked to preserve state authority wherever it can. See

Pacific Gas & Electric Co. v. State Energy Resources

Conservation and Development Comm’n, 461 U.S. 190

(1983) (upholding California’s refusal, on economic

grounds, to license new nuclear power plants in the

absence of a solution to the problem of nuclear waste).

This case, unhappily, reflects shockingly cavalier

treatment of a State by the federal government. Because

Governor Hodges would not sign the agreement proffered

to him by the Department of Energy, the Department

turned around and reversed course on an issue of great

national importance. Whereas in February of this year the

Department reported to Congress that long-term storage

independent of disposition was unacceptable, and whereas

the Department was willing as of April 11 of this year to

condition transfer of plutonium to South Carolina on the

disposition of that plutonium and its removal from South

Carolina upon disposition, by April 19 the Department

had completely disconnected disposition from transfer of

plutonium to, and storage of plutonium in, South Carolina,

and had removed any assurances it had previously

thought sensible concerning an “exit strategy” for the

plutonium brought to South Carolina. All this because the

Governor had not acceded to the Department’s demand for

his signature on what the Department conceded was not a

legally enforceable agreement. Nothing in the nonprolif-

eration agreements upon which the Department’s work

initially built, nor in the National Defense Authorization

Act of Fiscal Year 2002, which refined the Department’s

instructions concerning surplus plutonium, makes the

Governor’s disinclination to sign the agreement proffered

to him by Secretary Abraham a relevant consideration in

the development of the nation’s policies concerning surplus

defense plutonium.

Indeed, it would hardly suit the system of “dual

sovereignty” established by the Constitution, see Federal

Maritime Commission v. South Carolina State Ports

Authority, 122 S.Ct. 1864, 1870 (2002), nor would it

respect the principle that “States, upon ratification of the

Constitution, did not consent to become mere appendages

of the Federal Government,” id., but instead “ ‘entered the

Union ‘with their sovereignty intact,’” Blatchford v. Native

Village of Noatak, 501 U.S. 775, 779 (1991), to conclude

that DOE may, without fear of legal reprisal, retaliate

against a State for its expression of disapproval of federal

policy by fundamentally reworking the structure of that

policy in a way that disadvantages the State in question.

The Administrative Procedure Act was designed to

prevent just the kind of arbitrary and capricious action

DOE exhibited here. It is no less arbitrary or capricious to

consider factors not relevant to the agency’ mission —

such as the honest disagreement of the Governor of a

sovereign State with a proposed federal policy — than it is

to fail to consider factors that are relevant to the agency’s

mission. Overton Park, supra, 401 U.S. at 416. The Fourth

Circuit erred in refusing even to address the question

whether the Department’s high-handed and dispropor-

tionate reaction to Governor Hodges’ qualms about the

long-term storage of plutonium in his State was arbitrary

and capricious within the meaning of the APA.

2. The Fourth Circuit’s error in finding that compli-

ance with NEPA implies compliance with the APA was

compounded by the fact that its finding regarding NEPA

compliance was also erroneous. Thi, part of the court’s

decision is also out of step with this Court’s precedents,

and the Fourth Circuit’s clear legal error ratified DOE’s

unreflective reversal of course on a matter of such great

national importance that the Court should grant review of

this question as well.

a. The Fourth Circuit found that DOE had complied

with NEPA based on DOE’s representation that docu-

ments prepared prior to its April 2002 decision adequately

demonstrated that its April 2002 reversal of course would

not cause significant environmental consequences, trigger- |

ing new NEPA obligations.

This Court has made clear that federal agencies have

a continuing obligation to analyze the environmental

consequences of, and alternatives to, their major propos-

als. By focusing agency attention on the environmental

consequences of agency action, “NEPA ensures that the

agency will not act on incomplete information, only to

regret its decision after it is too late to correct.” Marsh v.

Oregon Natural Resources Council, 490 U.S. 360, 371

(1989). “It would be incongruous with this approach to

environmental protection, and with the Act’s manifest

concern with preventing uninformed action,” the Court

has observed, “for the blinders to adverse environmental

effects, once unequivocally removed, to be restored prior to

the completion of agency action simply because the rele-

vant proposal has received initial approval.” Jd. Thus, the

mere fact that DOE had previously prepared NEPA

reports on its surplus plutonium program did not excuse it

from preparing new reports when the agency profoundly

altered its policy course.

b. In April of this year, DOE changed its policy

regarding surplus plutonium in two very large ways: First,

it decided that transfer of surplus plutonium to, and long-

term storage of this plutonium at, SRS would no longer be

dependent on disposition of this plutonium. The plutonium

could, in other words, stay at SRS indefinitely — indeed,

forever — without. doing violence to DOE’s new policy.

Second, DOE canceled the immobilization portion of its

plutonium program and decided to rely exclusively on

MOX processing for disposition. Both of these abrupt

policy changes had significant potential consequences for

the environment, and yet neither has been evaluated

under NEPA by DOE.

Starting with the decision to disconnect storage at

SRS from disposition, this choice makes SRS the nation’s

only indefinitely long-term storage site for surplus pluto-

nium. Much ink has been spilled in this case over whether

DOE evaluated storage of plutonium at SRS for 10, 20, or

50 years, with the Fourth Circuit concluding (erroneously,

in our view) that DOE had adequately considered the

environmental consequences of plutonium storage at SRS

for up to 50 years. But this fine parsing of the relevant

temporal period misses the larger and more important

point: nothing in DOE’s April 2002 Record of Decision

makes 50 years the outer limit for storage of surplus

plutonium at SRS. Plutonium could be stored at SRS until

kingdom come and the April 2002 decision would have

nothing to say about it.

If DOE had come to this decision right off the bat, in

its 1997 Record of Decision which started this whole

process, there is no doubt that it would have been required

to prepare an EIS. DOE’s own NEPA regulations deem the

storage of high-level nuclear waste to be “categorically

included” within NEPA’s EIS requirements; that is, an

EIS is normally required for this category of decisions. 10

C.F.R. § 1021.400 (Subpart D, Appendix D-10). To allow

DOE, as the Fourth Circuit did, to make this same deci-

sion without an EIS merely because the agency had

analyzed other decisions in previous EIS’s is nonsensical.

Turning to DOE’s reversal of course on immobiliza-

tion, DOE itself in April 2002 recognized that it would

need to conduct further NEPA review of the consequences

of canceling immobilization, insofar as this decision

necessitates the processing of more impure plutonium

through the MOX facility. DOE, Amended Record of

Decision, Surplus Plutonium Disposition Program, 67 Fed.

Reg. 19435 (April 19, 2002). DOE cannot make a decision

first and then analyze its environmental consequences

later. In ratifying DOE’s decision to do just this, the

Fourth Circuit once again parted company with other

circuits. See Metcalf v. Daley, 214 F.3d 1135 (9th Cir.

2000) (requiring federal agencies to consider environ-

mental consequences of allowing Makah Indian Tribe to

hunt whales before coming to its decision on whale hunt-

ing); Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989)

(Breyer, J.) (in explaining that NEPA documents must be

prepared before decision on agency action is made, the

court observes: “[g]iven the realities, the farther along the

initially chosen path the agency has trod, the more likely

it becomes that any later effort to bring about a new

choice, simply by asking the agency administrator to read

some new document, will prove an exercise in futility”).

c. The decision to make SRS the nation’s consoli-

dated long-term storage facility for surplus plutonium is

too important a decision to be made without at least an

environmental assessment. The Defense Nuclear Facilities

Safety Board, an independent organization established

by Congress to provide oversight of DOE, has raised

questions whether the KAMS facility at SRS where the

storage will take place is capable of accomplishing this

mission. In a letter of November 21, 2001, the Defense

Nuclear Facilities Safety Board stated the KAMS facility

“is an aged facility and was never intended to provide

more than interim storage.” App. 117. Similarly, in a

report of February, 2002, it stated, “... KAMS is an aged

facility with no confinement features for potentially

extended storage of plutonium.” App. 122. Before South

Carolina indeed becomes the Yucca Mountain of the East,

DOE should be required to analyze the environmental

consequences of its new policy and to explore alternative,

safer arrangements for plutonium storage at SRS.

€é

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

WILLIAM L. WANT ' LISA HEINZERLING

171 Church St., Suite 300 Counsel of Record

Charleston, SC 29401 Georgetown University

(843) 723-5148 Law Center

600 New Jersey Ave., NW

Chief Legal Counsel Washington, DC 20001

Office of the Governor (202) 662-9115

P.O. Box 11829 o

Columbia, SC 29211

(803) 734-6313

STEPHEN P. BATES

September 2002

~ wo

HODGES V. ABRAHAM

APPENDIX FOR CERT PETITION

SE CE SI ieirninctntcsecincininnsinistinssinnnni App.

South Carolina District Court Opinion ............ App.

Statutes and Regulations Involved................... App.

Letter of April 11, 2002 from Secretary of

Energy Spencer Abraham to Governor Jim

BEOGIOD GF HOUR CRTOTIIIR, cccccccesonsscecosesscccnssesesee App.

Proposed Agreement (Attachment to April 11,

EE BND ccricstncvintnntinntinincioncdninmmnmemaialan App.

Letter of November 21, 2001 from Defense

Nuclear Facilities Safety Board to Secretary of

eS Be iviccernenicesibniiteiasemae App.

Excerpt from Twelfth Annual Report to Con-

gress, Defense Nuclear Facilities Safety Board

SEA: Sere cicukchianeacnennessacnannasnchniansatbiiebiadaas App.

121

App. 1

300 F.3d 432 (4th Cir. 2002)

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 02-1639

JIM HODGES, Governor of the State of South

Carolina, in his official capacity,

Plaintiff-Appellant,

versus

SPENCER ABRAHAM, Secretary of the Depart-

ment of Energy, in his official capacity; UNITED

STATES DEPARTMENT OF ENERGY,

Defendants-Appellees,

and

MEDIA GENERAL OPERATIONS, INCORPO-

RATED, d/b/a Morning News (Florence), WBTW,

WSPA, WCBD and WJBF; Aiken Communica-

tions, Incorporated, d/b/a The Standard (Aiken);

OSTEEN PUBLISHING COMPANY, INCOR-

PORATED, d/b/a The Item (Sumter); EAST

COAST NEWSPAPERS, INCORPORATED, d/b/a

Island Packet, d/b/a The Herald (Rock Hill), d/b/a

The Beaufort Gazette; THE EVENING POST

PUBLISHING COMPANY, d/b/a The Post and

Courier (Charleston); COLUMBIA NEWSPA-

PERS, INCORPORATED, d/b/a The State (Co-

lumbia); THE SUN PUBLISHING COMPANY,

INCORPORATED, d/b/a Sun News; THE NEW

YORK TIMES COMPANY, d/b/a The Herald-

Journal (Spartanburg); INDEPENDENT PUB-

LISHING COMPANY, INCORPORATED, d/b/a

Anderson Independent-Mail; LANDMARK

COMMUNITY NEWSPAPERS OF SOUTH

App. 2

CAROLINA, d/b/a The Lancaster News; JEF-

FERSON-PILOT COMMUNICATIONS COM-

PANY, d/b/a WCSC; PACIFIC AND SOUTHERN

: COMPANY, INCORPORATED, d/b/a WLITX;

THE SOUTH CAROLINA PRESS ASSOCIA-

TION; SOUTH CAROLINA BROADCASTERS;

ASSOCIATED PRESS; LEE ENTERPRISES, IN-

CORPORATED, d/b/a The Times and Democrat,

Parties in Interest,

and

David R. Black, individually and on behalf of a

class of Citizens of the State of South Carolina;

David G. Cannon, individually and on behalf of a

class of citizens of the State of South Carolina;

Hugh Car] Gooding, individually and on behalf of

a class of citizens of the State of South Carolina;

Edward Lemon, individually and on behalf of a

class of citizens of the State of South Carolina,

Movants.

ENVIRONMENTALISTS, INCORPORATED,

Amicus Curiae.

Appeal from the United States District Court for the

District of South Carolina, at Aiken. Cameron McGowan

Currie, District Judge. (CA-02-1426-1-22)

Argued July 10, 2002 Decided Aug. 6, 2002

ARGUED: William LeRoy Want, Charleston, South

Carolina, for Appellant. Jeffrey Bossert Clark, Deputy

Assistant Attorney General, Environment and Natural

Resources Division, United States Department of Justice,

Washington, D.C., for Appellees. ON BRIEF: Stephen P.

Bates, Office of the Governor, Columbia, South Carolina,

for Appellant. Thomas L. Sansonetti, Assistant Attorney

App. 3

General, Gregory D. Page, Lisa E. Jones, Environment

and Natural Resources Division, United States Depart-

ment of Justice, Washington, D.C.; J. Strom Thurmond,

Jr., United States Attorney, Robert F. Daley, Jr., Assistant

United States Attorney, Christie Newman Barrett, Assis-

tant United States Attorney, Columbia, South Carolina;

Lee L. Otis, General, Marc Johnston, Office of General,

Department Of Energy, Washington, D.C., for Appellees.

Ruth Thomas, Pro Se, for Amicus Curiae.

Affirmed by published opinion. Judge KING wrote the

opinion, in which Judge WIDENER and Judge NIE-

MEYER joined.

KING, Circuit Judge.

Jim Hodges, the Governor of South Carolina, has

appealed the June 13, 2002, Order of the district court,

which awarded summary judgment to the United States

Department of Energy and its Secretary, Spencer Abraham

(collectively, the “DOE”). Governor Hodges contends that

the DOE has failed to comply with the National Environ-

mental Policy Act (“NEPA”) in connection with its transfer

of surplus plutonium from Colorado to South Carolina. In

response, the DOE maintains that Governor Hodges lacks

standing to pursue this case and that, in any event, it has

complied with the mandate of NEPA. As explained below,

we conclude that, although the Governor possesses stand-

ing to maintain this action, NEPA has not been contra-

vened. We therefore affirm.

In 1995, the DOE began to consider the issues of

whether and how to close its Rocky Flats Environmental

App. 4

Technology Site near Denver, Colorado (“Rocky Flats”). In

order to carry out such a closing, the DOE must transfer

the plutonium at Rocky Flats to other DOE sites for

storage and eventual disposition.’ As such, the DOE

considered utilizing its Savannah River Site (the “SRS”),

located near Aiken, South Carolina, for the storage and

disposition of the Rocky Flats plutonium. It prepared

various NEPA compliance documents and materials

analyzing and explaining the potential use of SRS for

these purposes. After nearly seven years of study, the DOE

announced, in its April 19, 2002, Amended Record of

Decision (the “April 19 ROD”), that six metric tons’ of

surplus plutonium will be transferred from Rocky Flats to

SRS for long-term storage.

On May 1, 2002, Governor Hodges initiated this

lawsuit, seeking to enjoin the DOE from shipping the

Rocky Flats plutonium into the Palmetto State. He main-

tained that the DOE violated NEPA in failing to properly

consider the environmental consequences of its April 19

ROD, and that it had failed to comply with NEPA proce-

dures prior to issuance of the ROD. On cross-motions for

summary judgment, the district court rejected the posi-

tions of Governor Hodges in their entirety, and it declined

' Plutonium is a highly radioactive, metallic element that exists in

approximately fifteen different variations. The explosive triggers (i.e.,

pits) at the core of modern nuclear weapons are largely composed (at

least 93%) of a particular type of plutonium — Plutonium 239. In

discussing this “weapons-grade” plutonium, we refer to it simply as

plutonium.

* A metric ton weighs approximately 2,204.6 pounds.

App. 5

to award injunctive relief against the DOE: Hodges v.

Abraham, CA No. 1:02-1426-22, Memorandum Opinion

and Order, (D.S.C. June 17, 2002) (the “Opinion”).‘ On

appeal, the DOE contends, for the first time, that Gover-

nor Hodges lacks standing to pursue his claims in this

case. Before analyzing the standing question (which

implicates our jurisdiction in this proceeding) and the

merits of Governor Hodges’s appeal, we will review the

pertinent facts and legal principles governing the NEPA

issues presented.”

II.

The events giving rise to this dispute began over fifty

years ago, with the advent of nuclear technology and

* After being unsuccessful in district court, Governor Hodges

sought an injunction pending appeal and a stay pending appeal from

that court. When these requests were denied, the Governor sought an

injunction pending appeal in this Court. By Order of June 20, 2002, we

denied the Governor’s request for such an injunction. However, we

expedited his appeal and heard oral argument in Abingdon, Virginia, on

July 10, 2002.

* Acknowledging the urgency of this proceeding, the district court

rendered its decision orally from the bench on June 13, 2002, advising

that it would file a written decision shortly thereafter. The court filed

its Opinion on June 17, 2002.

* Certain national and local media were Parties in Interest in the

district court, in connection with an effort by the DOE to seal certain

parts of its administrative record. On June 14, 2002, the district court

granted in part the DOE’s request to seal. That ruling is not at issue in

this appeal. In addition, several citizens of South Carolina sought to

intervene in the district court on behalf of themselves and other

residents of South Carolina. The court denied their motion on June 4,

2002, and that ruling is also not before us.

App. 6

nuclear weapons. During the Cold War — from the late

1940s to the late 1980s — the United States and the Soviet

Union engaged in a nuclear arms race, and they produced

thousands of nuclear weapons powered by tons of pluto-

nium. Following the demise of the Soviet Union and the

end of the Cold War, our country and the post-Soviet

government of Russia acted both bilaterally and unilater-

ally to reduce their nuclear weapons stockpiles. In Janu-

ary 1994, they issued a Joint Statement Between the

United States and Russia on NonProliferation of Weapons

of Mass Destruction and Means of their Delivery, which

established the mutual goal of “safe, secure, long-term

storage and disposition of surplus fissile materials.” In

order to demonstrate our nation’s commitment to this goal,

President Clinton, on March 1, 1995, unilaterally an-

nounced that a total of 38.2 metric tons of our plutonium

was no longer necessary for defense purposes, and that it

therefore constituted “surplus plutonium.” In September

2000, the United States and Russia formally pledged in

writing that each would dispose of thirty-four metric tons

of surplus plutonium. Agreement Between the Government

of the United States of America and the Government of the

Russian Federation Concerning the Management and

Disposition of Plutonium Designated as No Longer Re-

quired for Defense Purposes and Related Cooperation.

Pursuant to this Agreement, each country committed to

* The use of the terms “surplus” and “non-surplus” in referring to

plutonium have no technical or scientific significance. Surplus pluto-

nium is that which our Government has determined to be unnecessary

for the national defense, while non-surplus plutonium remains essen-

tial.

App. 7

“seek to begin operation of facilities [to dispose of the

surplus plutonium]... not later than December 31, 2007.”

In this country, the responsibility for monitoring,

storing, and disposing of nuclear materials, including

plutonium, necessarily rests with the federal Government,

specifically the DOE. 42 U.S.C. §§ 7112(10), 7133(a)(8).

Since the President’s 1995 pledge, the DOE has studied

and explored several options aimed at determining the

most effective way to fulfill its responsibility to store and

.. dispose of our nation’s surplus plutonium. Throughout this

effort, the DOE has been subject to the requirements of

NEPA, a statute enacted in 1969 to ensure that environ-

mental concerns play a role in government decisionmak-

ing.

NEPA establishes “a national policy of protecting and

promoting environmental quality.” Hughes River Water-

shed Conservancy v. Glickman, 81 F.3d 487, 443 (4th

Cir.1996). Although NEPA does not place substantive

requirements on federal agencies, it requires them to

follow certain procedures prior to undertaking any “pro-

posed action,” “proposal,” or “project” that may affect the

environment. Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

Once the proper NEPA procedures are completed, i.e., “the

adverse environmental effects of the proposed action are .

adequately identified and evaluated,” a federal agency is

entitled to “decid[e] that other values outweigh the envi-

ronmental costs.” Jd. As the Supreme Court has observed,

App. 8

“NEPA merely prohibits uninformed — rather than unwise

— agency action.” Id. at 351, 109 S.Ct. 1835.

The purpose of NEPA is two-fold. First, it ensures that

an “agency, in reaching its decision, will have available,

and will carefully consider, detailed information concern-

ing significant environmental impacts.” Id. at 349, 109

S.Ct. 1835. In other words, NEPA guarantees that an

agency will take “a ‘hard look’ at environmental conse-

quences” before making a decision that may affect the

environment. Jd. at 350, 109 S.Ct. 1835 (quoting Kleppe uv.

Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49

L.Ed.2d 576 (1976)). Second, compliance with NEPA

procedures “ensures that relevant information about a

proposed project will be made available to members of the

public so that they may play a role in both the decision-

making process and the implementation of the decision.”

Hughes River, 81 F.3d at 443. .

Pursuant to Section 102 of NEPA, a federal agency

must prepare an environmental impact statement (“EIS”)

for every “recommendation or report on proposals for ...

major Federal actions significantly affecting the quality of

the human environment.” 42 U.S.C. § 4332(C). The Coun-

cil on Environmental Quality (“CEQ”), a governmental

body created by NEPA for the purpose of advising the

President on environmental matters, has promulgated

extensive regulations to aid federal agencies in determin-

ing whether a proposed action might significantly affect

the quality of the human environment. 40 C.F.R. § 1500.3

(providing that CEQ guidelines are binding on all federal

agencies); 10 C.F.R. §§ 1021.100-103 (incorporating CEQ

App. 9

guidelines into DOE regulations).’ In determining whether

an environmental impact is significant, the CEQ regula-

tions require agencies to consider both the “context” and

the “intensity” of the potential impact of a proposed action,

with the former focusing on the affected geographical

region and its interests, and the latter looking to the

severity of the proposal’s environmental impact. 40 C.FR.

§ 1508.27. If, in the circumstances, it is unclear whether

an KIS is necessary, the agency is obliged to complete what

is known as an environmental assessment (“EA”), which is

a “concise public document” reviewing and analyzing

whether an EIS is required. 40 C.F R. § 1508.9.

A federal agency’s responsibilities under NEPA do not

end with the preparation of an EIS. If an agency’s plans

change, or if the circumstances surrounding a project are

altered, NEPA obligations may be triggered. As the Su-

preme Court has observed, “[i]t would be incongruous with

[NEPA’s] approach to environmental protection ... for the

blinders to adverse environmental effects, once unequivo-

cally removed, to be restored prior to completion of agency

action simply because the relevant proposal has received

initial approval.” Marsh v. Oregon Natural Res. Council,

490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).

The CEQ regulations mandate that a federal agency prepare

a supplemental environmental impact statement (“SEIS”) if

“[t]he agency makes substantial changes in the proposed

action that are relevant to environmental concerns,” or if

" The CEQ requires each federal agency to adopt its own proce-

dures for implementing NEPA requirements. 40 C.F.R. § 1507.3. The

CEQ’s NEPA regulations are found at 40 C.F.R., pts. 1500-08, while the

DOE’s regulations implementing NEPA are found at 10 C.F.R., pt. 1021.

App. 10

“(t]here are significant new circumstances or information

relevant to environmental concerns and bearing on the

proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1). In

addition, the DOE’s regulations for the implementation of

NEPA provide that it “shall prepare [an SEIS] if there are

substantial changes to [a] proposal or significant new

circumstances or information relevant to environmental

concerns.” 10 C.F.R. § 1021.314(a). If it is unclear whether

an SEIS is required in connection with one of its projects,

the DOE is obliged to prepare what is called a supplement

analysis (“SA”). 10 C.F.R. § 1021:314(c). Under the DOE’s

regulations, an SA must contain sufficient information for

the DOE to determine (1) whether an existing EIS should

be supplemented, (2) whether a new EIS should be pre-

pared, or (3) whether no further NEPA documentation is

necessary. 10 C.FR. § 1021.314(c)(2). In sum, NEPA

requires the DOE, before undertaking a proposed action or

altering an existing one, to examine the environmental

consequences thereof.”

In the wake of the President’s 1995 pledge that the

United States would dispose of 38.2 metric tons of surplus

plutonium, the DOE began exploring its options with

respect to the storage and disposition of the surplus

plutonium at Rocky Flats. The DOE’s continuing effort to

* Under its regulations, DOE is not required to study the environ-

mental effects of a proposed action when that action fits a categorical

exclusion, i.e., an activity that the DOE has already determined to be

environmentally inconsequential. 10 C.F.R. § 1021.410.

App. 11

comply with NEPA included the following statements,

analyses, and records of decision:

* in December 1996, the Storage and Disposi-

tion of Weapons-Usable Fissile Materials Final

Programmatic Environmental Impact Statement

(the “1996 PEIS”)’

° in July 1998, the Supplement Analysis for

Storing Plutonium in the Actinide Packaging and

Storage Facility and Building 105-K at the Sa-

vannah River Site (the “1998 SA”):

* in November 1999, the Surplus Plutonium

_ Disposition Final Environmental Impact State-

ment (the “November 1999 EIS”);

* in January 2000, the Record of Decision for

the Surplus Plutonium Disposition Final Envi-

ronmental Impact Statement (the “2000 ROD”);

¢ in January 2001, the Amended Record of De-

cision (the “2001 ROD”);

* in February 2002, the Supplement Analysis

for Storage of Surplus Plutonium Materials in

the K-Area Material Storage Facility at the Sa-

vannah River Site (the “2002 SA”):

e in April 2002, the Amended Record of Deci-

sion (the April 19 ROD).

We now turn to the contents and conclusions of these

NEPA materials.

° A programmatic environmental impact statement is a “broad-

scope EIS . . . that identifies and assesses the environmental impacts of

a DOE program.” 10 C.F.R. § 1021.104(b).

App. 12

In December 1996, the DOE issued its 1996 PEIS,

which studied various alternatives for the storage and

disposition of this country’s surplus and non-surplus

plutonium. One of the goals of the 1996 PEIS was the

reduction of the number cf sites utilized by the DOE as

federal storage facilities for plutonium. Toward that end,

the 1996 PEIS proposed closing Rocky Flats and transfer-

ring its plutonium to other DOE sites. The DOE’s pre-

ferred alternative contemplated, inter alia, the possibility

of building three new facilities at SRS and the prompt

transfer of some of the Rocky Flats plutonium to the new

SRS facilities. The additional SRS facilities contemplated

by the 1996 PEIS were:

(1) A plutonium storage facility known as

the Actinide Packaging and Storage Facility

(“APSF”). The decision to build APSF had actu-

ally been made in 1995, and its original purpose

was to stabilize, package, and store materials al-

ready located at SRS. 60 Fed.Reg. 65,800 (Dec.

12, 1995). The 1996 PEIS, however, proposed

modifying the construction plans for APSF to al-

low for the receipt of plutonium from Rocky

Flats.

(2) A facility that could dispose of surplus

plutonium through “immobilization.” The process

of immobilization calls for surplus plutonium to

be placed “in glass or ceramic material for dis- |

posal in a geologic repository pursuant to the

Nuclear Waste Policy Act.” 62 Fed.Reg. 3014 |

(Jan. 21, 1997). In 1996, SRS already had waste-

processing facilities that could be dedicated to

immobilization, but the 1996 PEIS contemplated

modifying those facilities or constructing new

App. 13

ones to handle the immobilization of some of the

nation’s surplus plutonium.

(3) A facility to convert surplus plutonium

into mixed oxide fuel (“MOX Fuel”). The 1996

PEIS proposed utilizing a MOX Fuel disposition

strategy in conjunction with immobilization, by

which surplus plutonium would be mixed with

uranium dioxide and burned “in existing[ ] do-

mestic, commercial reactors, with subsequent

disposal of the spent fuel in a geologic repository

pursuant to the Nuclear Waste Policy Act.” 62

Fed.Reg. 3014 (Jan. 21, 1997). As with immobili-

zation, the 1996 PEIS did not rule out simply

modifying existing buildings at SRS to create the

MOX Fuel fabrication facility.

Although the preferred alternative of the 1996 PEIS

addressed only the short-term storage of surplus pluto-

nium at SRS pending its disposition, the 1996 PEIS also

studied other options. One such proposal was to upgrade

the contemplated APSF to handle the long-term storage of

surplus plutonium from several DOE sites, including

Rocky Flats, for up to fifty years pending its disposition.

In July 1998, the DOE prepared the 1998 SA, an-

nouncing that it could save the Government approxi-

mately $1.3 billion by closing Rocky Flats in 2006, four

years earlier than had been previously contemplated.

Prior to closing Rocky Flats, however, it was necessary for

the DOE to transfer all of that facility’s plutonium to other

DOE sites. This planned plutonium transfer was compli-

cated by the fact that the APSF, which was to serve as the

SRS storage facility for the plutonium from Rocky Flats,

App. 14

was not scheduled to be completed by the time such

plutonium shipments were to commence. The 1998 SA

consequently analyzed whether an existing building at

SRS - Building 105-K, also known as KAMS (“SRS-

KAMS”) — could be expanded and modified for interim

storage of the Rocky Flats plutonium for a period of up to

ten years. The 1998 SA concluded that there would be no

environmentally significant difference in storing the Rocky

Flats plutonium at SRS-KAMS for up to ten years, rather

than (as the 1996 PEIS had contemplated) at APSF. Thus,

in the 1998 SA, the DOE concluded that no further NEPA

study or documentation was necessary with respect to the

temporary storage of the Rocky Flats plutonium at SRS-

KAMS.

In its November 1999 EIS, the DOE took the next step

in the NEPA process leading to the present controversy, by

examining how to dispose of up to fifty metric tons of

plutonium.” Specifically, the November 1999 EIS analyzed

the utilization of a “hybrid approach” to surplus plutonium

disposition, whereby thirty-three metric tons of plutonium

would be converted into MOX fuel and seventeen metric

tons would be immobilized. Thereafter, on January 11,

The November 1999 EIS stated that this fifty metric tons

included “[the] 38.2 [metric tons] of weapons-grade plutonium already

declared by the President as excess to national security needs, ...

weapons-grade plutonium that may be declared surplus in the future,

as well as weapons-usable, reactor-grade plutonium that is surplus to

the programmatic and national defense needs of DOE.” The six metric

tons from Rocky Flats, which is at issue in this proceeding, was

included in the fifty metric tons referred to in the November 1999 EIS.

App. 15

2000, the DOE issued its 2000 ROD, announcing that it

intended to pursue the hybrid disposition approach stud-

ied in the November 1999 EIS. 65 Fed.Reg. 1608 (Jan. 11,

2000). Pursuant thereto, SRS was designated as the site

for both the immobilization facility and the MOX Fuel

facility. The 2000 ROD provided, however, that “[t]he

construction of new facilities for the disposition of surplus

U.S. plutonium would not take place unless there is

significant progress on plans for plutonium disposition in

Russia.” Jd. at 1620.

In January 2001, the DOE again altered its plans. In

the 2001 ROD, it abandoned its plan to construct the

APSF at SRS; and it instead decided to modify an existing

building at SRS for the interim storage of surplus pluto-

nium, pending its disposition. 66 Fed.Reg. 7888 (Jan. 26,

2001). As we have noted, the DOE, in its 1998 SA, had

contemplated storage of the Rocky Flats plutonium at the

SRS-KAMS facility for up to ten years. With the cancella-

tion of the APSF project, however, the DOE recognized

that it might be necessary to store surplus plutonium in

the SRS-KAMS facility for a longer period of time, and it

then proceeded to assess the feasability of long-term

plutonium storage at SRS-KAMS. As a result, the DOE

issued the 2002 SA. The DOE therein examined whether

the long-term storage of plutonium at SRS-KAMS created

any new environmental impacts not previously considered

in the 1996 PEIS and the 1998 SA, and it determined that

none existed. The DOE therefore concluded that the “safe

storage of surplus plutonium in KAMS can continue

beyond 10 years pending disposition,” and that no further

NEPA study was necessary. 2002 SA at 8.

App. 16

During 2001, the schedule for design, construction,

and operation of the immobilization facility at SRS was

delayed indefinitely by budgetary constraints. The DOE

thereafter announced, inter alia, in its April 19 ROD: (1)

that it was cancelling its plans to immobilize plutonium at

SRS; and (2) that SRS-KAMS had been selected as the

consolidated long-term storage site for the surplus pluto-

nium at Rocky Flats. 67 Fed.Reg. 19,432 (Apr. 19, 2002).

The April 19 ROD also stated that the prospect of dispos-

ing of surplus plutonium by converting it into MOX Fuel

was still under consideration by the DOE and would be

determined after further study. In reaching the decisions

set forth in the April 19 ROD, the DOE expressly relied on

the fact that it had “reviewed the [1996] PEIS and related

Supplement Analyses and ... determined that the analy-

ses remain valid for the decisions announced herein.” Jd.

at 19,434. Observing that those analyses had explored the

impact of the long-term storage of plutonium at SRS

generally, and at SRS-KAMS in particular, the DOE

concluded that the environmental effects of the long-term

storage of the Rocky Flats plutonium at SRS-KAMS had

been adequately considered. Jd. The DOE therefore de-

termined that it need not perform any further study of the

environmental consequences of its decision. Upon issuance

of the April 19 ROD, the DOE indicated that it would

immediately begin shipment of the Rocky Flats plutonium

to SRS.

On May 1, 2002, Governor Hodges filed his complaint

against the DOE in the District of South Carolina. The

Governor sought a declaratory judgment that the DOE’s

a |

App. 17

April 19 ROD contravened NEPA, and he also sought an

injunction prohibiting the DOE from transferring surplus

plutonium from Rocky Flats to SRS. Following a hearing

conducted in Aiken on June 13, 2002, the district court

orally ruled against the Governor. In so doing, the court

granted the DOE’s motion for summary judgment and

declined to enjoin the DOE’s transfer of the Rocky Flats

plutonium to SRS. Four days later, the court filed its

Opinion, reducing its bench ruling to writing.”

Governor Hodges then filed a timely appeal from the

adverse rulings of the district court. He also moved for an

injunction pending appeal, seeking to have us enjoin the

DOE from shipping the Rocky Flats plutonium to SRS

during his appeal. By Order of June 20, 2002, we declined

to award the Governor such an injunction, and we expe-

dited this proceeding. On appeal, Governor Hodges main-

tains that the DOE failed to comply with NEPA before

issuing its April 19 ROD, and he requests that we enjoin

the DOE from shipping the Rocky Flats plutonium to SRS

until the DOE has fulfilled its NEPA obligations.” In

" According to media reports issued prior to the district court’s

Opinion, Governor Hodges asserted that he would lie down in the

highway to block any shipment of plutonium into South Carolina. After

the court rejected his request for injunctive relief, the Governor issued

an executive order declaring that the “transportation of plutonium on

South Carolina roads and highways is prohibited.” The court, on June

18, 2002, issued a permanent injunction against the Governor, prohibit-

ing him from interfering with the DOE’s plutonium shipments “into or

through South Carolina.” Dep’t of Energy v. Hodges, C.A. No. 1:02-2078-

22, Order (D.S.C. June 18, 2002). We are not called on to address any

issues concerning that injunction.

* In his complaint, Governor Hodges asserts that the April 19 ROD

makes SRS the nation’s long-term storage site for surplus plutonium,

and he seeks an injunction prohibiting the DOE from shipping “any

(Continued on following page)

App. 18

response, the DOE asserts that Governor Hodges lacks

standing to initiate and pursue this case, and that it has

complied with NEPA.”

III.

Because our jurisdiction has been called into question,

we must, before turning to the merits of Governor

Hodges’s appeal, first examine whether he possesses the

necessary standing to pursue this action. While the DOE

did not raise the issue of standing in the district court,

standing to sue is a jurisdictional issue of constitutional

dimensions, and it may be raised and addressed for the

first time on appeal. Steel Co. v. Citizens for a Better

Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210

(1998).

surplus plutonium from Rocky Flats or anywhere else to SRS unless

and until DOE complies with applicable law.” The April 19 ROD,

however, dealt solely with the shipment and storage of the six metric

tons of Recky Flats plutonium. As such, we are called on to address only

that decision.

* This dispute does not relate to the storage of nuclear waste at

Yucca Mountain, Nevada. The Yucca Mountain facility is intended to

serve aS a permanent repository for spent nuclear fuel and high-level

radioactive waste, while this case involves the storage of surplus

weapons-grade plutonium.

‘ The DOE initially raised the issue of standing on July 2, 2002,

when it submitted its brief on appeal. Governor Hodges was thereby

first able to respond to the issue in his reply brief of July 5, 2002. In

these circumstances, interests of professional courtesy and judicial

efficiency dictate that the DOE should have communicated its intention

to challenge standing more promptly. That said, we appreciate the

diligence and able assistance of all counsel in this expedited proceeding.

c—-——-

App. 19

Pursuant to Article III of the Constitution, federal

courts may only adjudicate actual cases and controver-

sies.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315,

82 L.Ed.2d 556 (1984). The standing doctrine is designed

to ensure that federal litigants possess a sufficiently

personal stake in the outcome of any litigation they

pursue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,

112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Valley

Forge Christian College v. Americans United for Separa-

tion of Church & State, Inc., 454 U.S. 464, 473, 102 S.Ct.

752, 70 L.Ed.2d 700 (1982) (observing that federal courts

are not “publicly funded forums for the ventilation of

public grievances or the refinement of jurisprudential

understanding”). As spelled out by the Supreme Court, the

“irreducible constitutional minimum of standing contains

three elements.” Defenders of Wildlife, 504 U.S. at 560, 112

S.Ct. 2130. In order to possess standing to sue, a plaintiff

must show (1) that he has suffered an “injury in fact that

is (a) concrete and particularized and (b) actual or immi-

nent, not conjectural or hypothetical”; (2) that his injury is

“fairly traceable to the challenged action of the defendant”;

and (3) that his injury will likely be redressed by a favor-

able decision. Friends of the Eartk, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180-81; 120-S.Ct. 693,

145 L.Ed.2d 610 (2000) (quotation and citation omitted);

‘* The constitutional underpinning of the doctrine of standing to

sue is found in Section 2 of Article III of the Constitution of the United

States, which provides in pertinent part that:

The judicial Power shall extend to all Cases ... arising un-

der this Constitution, the Laws of the United tes,and—

Treaties made ... under their Authority ... [and] to Con-

troversies to which the United States shall be a Party[.]

App. 20

Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130.

In this case, Governor Hodges is plainly capable of satisfy-

ing the last two elements of the standing test enunciated

by the Court. The DOE asserts, however, that the Gover-

nor falls short on the first element, because he has not

suffered an “injury in fact” as a result of the DOE’s pro-

posed actions.

The DOE contends that Governor Hodges’s sole

interest in this action derives from his responsibility to

protect the health and well-being of the residents of South

Carolina, and that this lawsuit is therefore a parens

patriae action. See Alfred L. Snapp & Son, Inc. v. Puerto

Rico ex rel. Barez, 458 U.S. 592, 600-02, 102 S.Ct. 3260, 73

L.Ed.2d 995 (1982) (observing that parens patriae suit is

one in which state asserts injury to well-being of its

populace). The Supreme Court has clearly established that

a parens patriae action cannot be maintained against the

Federal Government. Jd. at 610 n. 16, 102 S.Ct. 3260;

Massachusetts v. Mellon, 262 U.S. 447, 485-86, 43 S.Ct.

597, 67 L.Ed. 1078 (1923) (“(I]t is no part of [a state’s] duty

or power to enforce their rights in respect of their relations

with the federal government. In that field it is the United

States, and not the state, which represents them as parens

patriae.”). As such, if Governor Hodges seeks only to

protect the health and well-being of the residents of South

Carolina, his action is of the parens patriae variety, and it

may not be pursued.

Governor Hodges maintains, however, that the inter-

ests underlying his challenge to the DOE are not simply in

protecting the well-being of South Carolinians. Rather, he

contends that he has suffered an injury to his procedural

rights, and that such an injury is sufficient to provide him

with standing to sue. Pursuant to the Court’s decision in

App. 21

Defenders of Wildlife, a person entitled to a “procedural

right,” e.g., the right to have the Executive observe proce-

dures mandated by law, can thereby possess Article III

standing “without meeting all the normal standards for

redressability and immediacy.” 504 U.S. at 572 n. 7, 112

S.Ct. 2130. A plaintiff only possesses such standing,

however, if “the procedures in question are designed to

protect some threatened concrete interest of his that is the

ultimate basis of his standing.” Jd. at 573 n. 8, 112 S.Ct.

2130. In addition, such an interest must be one that falls

within the “zone of interests” that the challenged statute

is designed to protect. Clarke v. Sec. Indus. Ass’n, 479 U.S.

388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987) (“The

essential inquiry is whether Congress intended for a

particular class of plaintiffs to be relied upon to challenge

agency disregard of the law.”).

Governor Hodges contends that he possesses a

“threatened concrete interest” deriving from his proprie-

tary interest and control, as Governor, over vast swaths of

land and natural resources owned by South Carolina,

including the State’s highways, its streams, and its wood-

lands. In addition, the Governor notes that, under the

South Carolina Pollution Control Act, S.C.Code § 48-1-10

et seq., he bears official responsibility for preserving the

State’s groundwater, and that under the Safe Drinking

Water Act, 42 U.S.C. §§ 300f-300j, he has a similar duty to

preserve and protect public drinking water. Governor

Hodges maintains that these interests are all threatened

by the DOE’s uninformed shipment of plutonium into

South Carolina and its proposed storage of such plutonium

at SRS. He therefore contends that he has shown a suffi-

cient procedural injury to accord him standing, in his

capacity as Governor, to sue the DOE.

App. 22

Thus, whether Governor Hodges possesses standing to

sue the DOE turns on whether his asserted proprietary

interests in the land, streams, and drinking water of

South Carolina are sufficiently concrete to qualify as the

bases for a recognized procedural right. As Justice Scalia

observed in Defenders of Wildlife, an individual living next

to the proposed site for a federally licensed dam would

possess standing to challenge a failure to comply with

NEPA, while an individual living across the country from

the dam would not possess any such standing. 504 U.S. at

572 n. 7, 112 S.Ct. 2130. It is uncontroverted that at least

one state highway runs through SRS, and that several

streams and wildlife habitats are located near SRS. In

these circumstances, the Governor, in his official capacity,

is essentially a neighboring landowner, whose property is

at risk of environmental damage from the DOE’s activities

at SRS. Governor Hodges therefore has a concrete interest

that NEPA was designed to protect; as such, he is not

merely pursuing a parens patriae action, and he possesses

the requisite standing to enforce his procedural rights

under NEPA.

Because Governor Hodges has standing to initiate and

maintain his NEPA challenges to the DOE’s actions, we

possess jurisdiction, pursuant to 28 U.S.C. § 1291, to

consider his appeal. We therefore turn to the merits

thereof.

IV.

We review de novo an award of summary judgment by

a district court. Shaw v. Stroud, 13 F.3d 791, 798 (4th

Cir.1994). In reviewing an agency’s efforts to comply with

NEPA, we are required to perform a two-step analysis.

App. 23

First, we examine whether the agency took a “hard look”

at a proposed project’s environmental effects before acting.

Hughes River Watershed Conservancy v. Glickman, 81 F.3d

437, 443 (4th Cir.1996). In essence, we assess whether “the

adverse environmental effects of the proposed action [have

been] adequately identified and evaluated” prior to final

decisionmaking. Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d

351 (1989). If we are satisfied that the agency has taken

the mandated “hard look” at the environmental effects of a

proposed agency action, we must then consider whether

the agency’s conclusions are arbitrary or capricious.

Hughes River, 81 F.3d at 443. Thus, in conducting our

NEPA inquiry, we must “make a searching and careful

inquiry into the facts and review whether the decision [of

the agency at the time it was made] was based on consid-

eration of the relevant factors and whether there has been

a clear error of judgment.” City of Alexandria v. Fed.

Highway Admin., 756 F.2d 1014, 1017 (4th Cir.1985)

(internal quotations and citations omitted). If the agency

has followed the proper procedures, and if there is a

rational basis for its decision, we will not disturb its

judgment.

In his assertion that the DOE failed to comply with

NEPA, Governor Hodges raises three separate conten-

tions. Two of these contentions are of a substantive nature,

while the third involves a procedural point. First, he

maintains that the 2002 SA failed to fully evaluate the

risks of long-term storage of surplus plutonium at SRS-

KAMS. Second, the Governor contends that the 2002 SA

only considered the potential effects of storing plutonium

App. 24

at SRS- KAMS for up to twenty years, rather than evalu-

ating the fifty-year storage period selected by the DOE in

its April 19 ROD. Finally, as a procedural matter, the

Governor asserts that the DOE failed to complete the

required NEPA documents before issuing the April 19

ROD.

Before proceeding to address the specific contentions

of Governor Hodges, it bears emphasizing that NEPA is an

“action-forcing” statute. It requires federal agencies to

identify and evaluate the environmental consequences of

their proposed actions. Robertson, 490 U.S. at 350, 109

S.Ct. 1835; Hughes River, 81 F.3d at 443. Under NEPA, an

agency is obliged to take a “hard look” at a proposal’s

environmental consequences before deciding to proceed;

however, once it has taken such a look, the agency is not

obligated to choose any particular course of action. Robert-

son, 490 U.S. at 350, 109 S.Ct. 1835. Moreover, if the

agency has taken the required “hard look,” we must defer

to it unless its decisions were arbitrary or capricious.

Hughes River, 81 F.3d at 443. Therefore, in assessing the

merits of Governor Hodges’s contentions, we must consider

whether the DOE adequately identified and evaluated,

prior to its April 19 ROD, the environmental consequences

of storing the Rocky Flats plutonium at SRS-KAMS. If we

conclude that the DOE acted properly in that connection,

we must then determine whether the decisions it premised

on that analysis were arbitrary or capricious. ™

* The DOE asserts that its decisionmaking with respect to the

storage and disposition of plutonium implicates foreign policy and

(Continued on following page)

App. 25

In most instances, the DOE will discharge its NEPA

responsibility to take a “hard look” at potential environ-

mental consequences by completing, prior to undertaking

a proposed action, either an EIS, an SEIS, an EA, or an

SA. However, in order to make an “initial determination

about whether a change or new information meets the

threshold of ‘significance’ or ‘uncertainty’ needed to require

further environmental documentation,” the DOE may also

review and consider previously-issued NEPA documents.

See Piedmont Envtl. Council v. United States Dep’ of

Transp., 159 F.Supp.2d 260, 270-71 (W.D.Va.2001). In

essence, the DOE is entitled to conduct a preliminary

inquiry into whether the environmental impact of a

change in an existing proposal is even possibly significant.

If the DOE concludes, based on such a preliminary inquiry,

that the environmental effect of the change is clearly

insignificant, it has taken the “hard look” required by

NEPA, and no further NEPA documentation is necessary.

See Idaho Sporting Congress Inc. v. Alexander, 222 F.3d

562, 566 (9th Cir.2000) (concluding that agency may use

national security concerns. As such, it contends that our review of the

NEPA compliance issues should be more deferential than our normal

standard of review. See Envtl. Defense Fund, Inc. v. Massey, 986 F.2d

528, 535 (D.C.Cir.1993); cf. Hamdi v. Rumsfeld, 296 F.3d 278, 2002 WL

1483908, slip op. at 5 (4th Cir.2002) (“(IJn the context of foreign

relations and national security ... a court’s deference to the political

branches of our national government is considerable.”). As the D.C.

Circuit has explained, the Government, in such circumstances, “may

avoid the EIS requirement where U.S. foreign policy interests outweigh

the benefits derived from preparing an EIS.” Jd. Because we are

satisfied, applying our normal standard of review, that the DOE did not

contravene NEPA, we need not consider whether foreign policy and

national security considerations warrant some heightened deference to

the DOE’s decisions.

App. 26

“non-NEPA environmental evaluation procedures” to

determine “whether new information or changed circum-

stances require the preparation of a supplemental EA or

EIS”); Price Rd. Neighborhood Ass’n v. United States Dep’t

of Transp., 113 F.3d 1505, 1510 (9th Cir.1997). The DOE’s

authority to conduct such a review is limited; it may only

conduct such a preliminary inquiry to determine whether

it is possible that the altered proposal’s environmental

impact will be significant. Idaho Sporting Congress, 222

F.3d at 566. If “the environmental impacts resulting from

the design change are significant or uncertain, as com-

pared with the original design’s impacts,” then the DOE

must complete additional NEPA documentation. Price, 113

F.3d at 1508-09.

In his first contention on the merits, Governor Hodges

maintains that the DOE failed to adequately consider the

risks of long-term storage of the Rocky Flats plutonium at

SRS-KAMS. Contrary to his position, however, the 2002

SA evaluated whether the long-term storage of surplus

plutonium at SRS-KAMS would create any environmental

consequences not considered by the DOE in its earlier

NEPA compliance documents. In performing this evalua-

tion, the 2002 SA explicitly incorporated the DOE’s 1996

PEIS and its 1998 SA, as well as other NEPA materials

relating to the potential environmental effects of surplus

plutonium being shipped into South Carolina and stored

at SRS. See 40 C.F.R. § 1502.21 (permitting incorporation

of materials by reference to “cut down on bulk without

impeding agency and public review of the action”). By its

1996 PEIS, the DOE had examined various options for the

long-term storage of surplus plutonium, including its

App. 27

possible storage at the proposed APSF facility at SRS for

up to fifty years. And the 1998 SA had explored whether

temporary storage of the surplus plutonium at SRS-

KAMS, for a period of up to ten years, would create any

environmental consequences not contemplated in the 1996

PEIS. In the 2002 SA, the DOE examined whether storage

of surplus plutonium at SRS-KAMS for a period longer

than ten years would create any additional impacts on the

environment or would increase the risk of a nuclear

accident. 2002 SA at 5-6. After performing this evaluation,

the DOE concluded in the negative, stating that:

The potential impacts from the storage of surplus

plutonium materials in the KAMS facility at

SRS, pending final disposition, are not signifi-

cantly different than or are bounded by the im-

7 pacts identified in the [1996 PEIS]. °

Id. at 8 (emphasis added).

In view of the foregoing, Governor Hodges has failed

to identify any particular risk arising from the long-term

storage of surplus plutonium at SRS-KAMS that was not

addressed by the 2002 SA or the NEPA materials incorpo-

rated by reference therein. As such, we must conclude that

the DOE, in the 2002 SA, fulfilled its NEPA obligations by

taking a “hard look” at the risks of long-term plutonium

storage at SRS-KAMS.

Governor Hodges next contends that the 2002 SA only

contemplated storage of the Rocky Flats plutonium at

SRS-KAMS for a period of twenty years, rather than for a

period of fifty years. In support of this contention, he

points to its statement that the “DOE plans to [dispose of]

App. 28

its surplus plutonium as soon as practical and believes

storage in KAMS would be necessary for less than 20

years.” Id. Although this provision suggests that the DOE

hoped (and perhaps continues to hope) to dispose of the

surplus plutonium within twenty years, this isolated

statement, standing alone, does not resolve the question of

whether the DOE had analyzed the potential environ-

mental consequences of plutonium storage at SRS-KAMS

for a longer period. Indeed, the 2002 SA specifically

analyzed the environmental impact of plutonium storage

at SRS-KAMS for up to fifty years. See id. at 5-6 (“For the

SRS workforce, storage operations at KAMS will add 0.13

Latent Cancer Fatality (LCF) for up to 50 years... .”).

Moreover, and importantly, the 2002 SA incorporated the

1996 PEIS into its assessment and findings, and it explic-

itly compared the 1996 PEIS’s study of long-term storage

of surplus plutonium at APSF (for up to fifty years) with

the DOE’s new plan to store the plutonium at SRS-KAMS.

We therefore find ourselves in agreement with the district

court, which concluded after careful analysis that “it is

clear that the fifty-year impacts of storage in general, and

storage at KAMS, in particular, were examined.” Opinion

at 26.

Governor Hodges’s final contention on appeal is that,

even if the DOE substantively examined the environ-

mental effects of its proposed action, it failed to comply

with NEPA’s procedures in connection with its April 19

ROD. As the district court properly observed, “the April 19

ROD decouples storage and disposition, taking away a

precondition to storage of Rocky Flats plutonium at SRS

which had been found in all prior RODs (approval of SRS

App. 29

for the immobilization facility).” Id. at 23. The Governor

asserts that this change in the DOE’s proposal — from

storage at SRS-KAMS pending disposition to storage at

SRS-KAMS without regard to disposition — required the

DOE to prepare and file another NEPA compliance docu-

ment, such as an SA. He maintains that the DOE was

required to examine whether this change in its proposal

created any significant environmental impacts not previ-

ously studied, and that it had therefore failed to take a

“hard look” at the environmental consequences of its April

19 ROD.

In fact, however, the DOE properly explored, prior to

issuance of the April 19 ROD, whether the decoupling of

plutonium storage from plutonium disposition created any

new environmental concerns. The April 19 ROD specifi-

cally referenced those earlier NEPA compliance materials,

and it explained the analyses they had made. After noting

that the 1998 SA had analyzed the impact of storage of the

Rocky Flats plutonium at SRS-KAMS for a period of ten

years, the April 19 ROD made the following pertinent

observation:

[T]he storage of surplus plutonium in the KAMS

facility could extend beyond the 10-year period

_ estimated in [the 1998 SA]. Therefore, DOE pre-

pared [the 2002 SA] ... which evaluated the po-

tential for storage beyond 10 years at the KAMS

facility. That SA concluded that potential impacts

from the continued storage of surplus plutonium

in the KAMS facility at SRS for this additional

period are not substantially different from those

addressed in the original analysis of storage in

APSF contained in [the 1996 PEIS].

App. 30

67 Fed.Reg. 19,434 (Apr. 19, 2002). As this provision

makes clear, the DOE, prior to issuing its April 19 ROD,

conducted a preliminary inquiry by examining its previous

NEPA documents, and it concluded that its decision to

decouple the storage of surplus plutonium from the dispo-

sition clearly did not create any significant environmental

impacts. Idaho Sporting Congress, 222 F.3d at 566; Pied-

mont Envtl. Council, 159 F.Supp.2d at 270-71. As such,

because it was apparent that the proposed change did not

create a new environmental picture from that previously

studied, the DOE decided that no further NEPA documen-

tation was necessary. In these circumstances, we are

satisfied that the DOE took a “hard look” at the environ-

mental consequences of its proposed course of action prior

to promulgating its April 19 ROD. Idaho Sporting Con-

gress, 222 F.3d at 566 (recognizing limited role for non-

NEPA environmental evaluation procedures to determine

whether supplemental! EA or EIS is required). Therefore,

because the DOE has complied with the requirements of

NEPA, and because its decision to place the Rocky Flats

plutonium in long-term storage at SRS-KAMS was neither

arbitrary nor capricious, we will not disturb it.”

‘’ Governor Hodges also maintains that the DOE’s decisionmaking

process violated the Administrative Procedure Act (the “APA”). Under

the APA, we must uphold an agency decision if it is supported by

“substantial evidence,” and is not “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A), (E). In conducting our review under the APA, “we perform

only the limited, albeit important, task of reviewing agency action to

determine whether the agency conformed with controlling statutes, and

whether the agency has committed a clear error of judgment.” Mary-

land Dep't of Human Res. v. United States Dep’t of Agric., 976 F.2d

1462, 1475 (4th Cir. 1992) (internal quotations and citations omitted). In

(Continued on following page)

App. 31

VI.

Pursuant to the foregoing, Governor Hodges’s NEPA

challenge is without merit and the district court’s award of

summary judgment to the DOE is affirmed.

AFFIRMED.

view of the DOE’s compliance with NEPA, the Governor’s APA chal-

lenge is also without merit.

App. 32

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

AIKEN DIVISION

Jim Hodges, Governor of the

State of South Carolina, in His

Official Capacity,

hcaaaiaaas CIVIL ACTION

NO. 1:02-1426-22

Spencer Abrahan, Secretary

of the Department of Energy, in

His Official Capacity and the

United States Department of

Energy,

)

Defendants.

MEMORANDUM OPINION AND

ORDER GRANTING DOE’S MOTION

FOR SUMMARY JUDGMENT AND DENYING

GOVERNOR HODGES’ MOTION FOR

A PRELIMINARY INJUNCTION

(Filed Jun. 17, 2002)

TABLE OF CONTENTS

SE NITE eennsiscnnssspisnverecvecsnensarecseteppaaineaea 3

a cic cane vadovsncipscvenrsieenaseehetinitommmeae 5

I. DOE’S MOTION FOR SUMMARY JUDG-

MENT ON HODGES’ COMPLAINT ........... 5

A. National Environmental Policy Act

IND sbiviskxinaconciiuyesavessemsiacboveaasomaneelie 6

App. 33

B. Standard of Review Under Adminis-

trative Procedure Act (APA)............... 10

C. History of NEPA Compliance in this

Nee ilcidssnpcckvineersnscseovsceece 12

Re RE MD BMEED 000 cc ccnecceccssnevseeess 14

2. July 1998 Supplement Analysis ...... 15

3. February 2002 Supplement Analy-

ee cdesdnarkassuhecsvesvevevesesee 17

4. April 19, 2002 Amended Record of

EN 19

D. Analysis of NEPA Compliance............ 20

II. HODGES’ MOTION FOR PRELIMINARY

Nee TN aresavsnebscsenenesesvseseeess 26

A. Likelihood of Irreparable Harm to

Na iiivasadanenseasssensnsecsees 27

B. Likelihood of Harm to Defendant...... 31

1. DOE’s Arguments as to Harm to

DOE Caused by Injunction............ 31

a. Foreign Policy Interests ............ 32

b. National Security Interests....... 34

c. Costs and Delay in Rocky Flats

Nee i duskcharsskewnhsensevses 34

2. Hodges’ Arguments as to Harm to

DOE Caused by Injunction............ 35

a. Foreign Policy Interests ............ 35

b. National Security Interests....... 37

c. Costs & Delay in Rocky Flats

eet ibaidceseteesentesconsesce 38

3. Court’s Analysis of Harm to DOE

if Injunction Granted ..................... 39

App. 34

a. Harm to Foreign Policy Inter-

IEE pxcidshn imine vaeinuievehes taken alenansenses 39

b. Harm to National Security ........ 41

c. Substantial Additional Costs

and Delay in Rocky Flats

III wits vig ubevaawascaceavassauesesensces 42

d. Disruption of Planned Activi-

Ce I beets rmctntcarectsaunedeecumens 42

e. Conclusion as to Harm to De-

SING gah tar tanseat ciel eueenesensrearsans 42

C. Balance of Harms to Parties............... 43

D. Likelihood of Success on the Merits.. 44

i ee een 45

F. The Equitable Balance........................ 45

na cs enssrcuacocuen ccs anseusuaciesiibiscavecmeareracs 45

INTRODUCTION

Plaintiff Jim Hodges, the Governor of South Carolina

(Hodges), initiated this action on May, 1, 2002, challenging

the April 19, 2002, Amended Record of Decision (April 19,

2002 ROD) by Defendants, Spencer Abraham, Secretary of

the Department of Energy and the United States Depart-

ment of Energy (collectively DOE), to, inter alia, transfer

six metric tons of surplus plutonium from Rocky Flats

Environmental Technology Site (“Rocky Flats”) to the

Savannah River Site (“SRS”) in South Carolina for long-

term storage. Specifically, Hodges asserts that the April

19, 2002 ROD was issued in violation of both the Na-

tional Environmental Policy Act, 42 U.S.C. §§ 4321-4370d

(NEPA), and the Administrative Procedure Act, 5 U.S.C.

§ 702 et seq. (APA).

App. 35

This matter came before the court for hearing on June

13, 2002, on Hodges’ motion for preliminary injunction and

DOE’s motion for summary judgment on the complaint. At

the conclusion of the hearing, the court ruled from the

bench, granting DOE’s motion for summary judgment and

denying Hodges’ motion for a preliminary injunction.’ Two

other pending motions were also ruled on orally at the

time of the hearing and have been dealt with by separate

orders: DOE’s motion for summary judgment on its coun-

terclaim; and DOE’s motion to seal certain portions of the

record.

At the time of the hearing DOE had indicated an intent to

begin immediate shipments of the Rocky Flats plutonium

to SRS as early as June 15, 2002. DOE has since agreed

to defer shipments to no sooner than June 22, 2002.

The long-term storage addressed by the April 19, 2002

ROD is independent of any plan to process the surplus

plutonium for disposition (at SRS or elsewhere). Prior to

April 19, 2002, existing RODs addressed storage pending

disposition under a hybrid approach consisting of both

immobilization and a program for converting the pluto-

nium to Mixed Oxide Fuel (MOX). Prior RODS also placed

conditions on transfer of Rocky Flats plutonium to SRS

relative to insuring transfer would not occur unless an

‘ The court stated its intention to prepare a written order as soon

as possible.

? DOE initially indicated that the first shipment might be sent on

or after May 15, 2002. DOE subsequently agreed to defer shipment

until on or after June 15, 2002, in order to allow this court to receive

full briefing on these motions.

App. 36

immobilization facility was to be located in South Caro-

lina. The most recent ROD, however, cancels plans for

immobilization. It also acknowledges that plans for the

MOX conversion process are no longer certain as cancella-

tion of immobilization has resulted in the need to redesign

MOX with a concomitant need to perform proper environ-

mental studies of the new MOX process as required by

NEPA.’ Thus, the storage authorized by the challenged

April 19, 2002 ROD must be analyzed as approval of long-

term storage which might extend indefinitely.

In his complaint, Hodges argues that the April 19,

2002 ROD is illegal because: (1) no proper environmental

analysis of the potential impact of the currently planned

long-term storage has been conducted as required by

NEPA (first cause of action); (2) no supplemental environ-

mental impact statement (SEIS) was prepared to address

the changes relative to an earlier Environmental Impact

Statement (EIS) (second cause of action); (3) prior RODS

which imposed conditions on storage of additional surplus

plutonium at SRS have not been properly amended to

* Prior environmental studies and RODS covered both MOX and

immobilization. At the time of those studies and decisions, certain

categories of surplus plutonium were considered inappropriate for MOX

processing. In cancelling the immobilization program, DOE also decided

to modify MOX to process these previously excluded categories of

plutonium. All parties agree that these modifications require new

environmental studies under NEPA. Thus, DOE, at present, still hopes

to implement MOX at some time in the future. It cannot, however, state

at this time if and when it will be able to do so.

* If DOE had not designated the current ROD as selection of the

alternative of long-term storage at SRS, it ran the risk of a determina-

tion of improper segmentation under NEPA. See, e.g., South Carolina ex

rel. Campbell v. O'Leary, 64 F.3d 892, 898 (4th Cir. 1995).

App. 37

eliminate the conditions (third cause of action); (4) the

decision contained in the ROD violates the APA as it is

arbitrary and capricious; and (5) the manner in which the

decision was made violates the APA because it violates the

due process rights of the State.’

DISCUSSION

I. DOE’S MOTION FOR SUMMARY JUDGMENT

ON HODGES’ COMPLAINT

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” FED. R.

Civ. P. 56(c). It is well established that summary judgment

should be granted “only when it is clear that there is no

dispute concerning either the facts of the controversy or

the inferences to be drawn from those facts.” Pulliam Inv.

Co. v. Cameo Properties, 810 F. 2d 1282, 1286 (4th Cir.

1987).

The party moving for summary judgment has the

burden of showing the absence of a genuine issue of

material fact, and the court must view the evidence before

it and the inferences to be drawn therefrom in the light

most favorable to the nonmoving party. United States v.

* The complaint also challenged transport of the plutonium in a

particular form of container for which DOE was seeking a national

security waiver. That issue is now moot as DOE is no longer seeking

the waiver.

App. 38

Diebold, Inc., 369 U.S. 654, 655 (1962). When the defen-

dant is the moving party and the plaintiff has the ultimate

burden of proof on an issue, the defendant must identify

the parts of the record that demonstrate the piaintiff lacks

sufficient evidence. The nonmoving party, here the plain-

tiff, must then go beyond the pleadings and designate

“specific facts showing that there is a genuine issue for

trial.” FED. R. Civ. P. 56(e); see also generally Celotex Corp.

v. Catrett, 477 U.S. 317 (1986).

A party “cannot create a genuine issue of material fact

through mere speculation or the building of one inference

upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.

1985). Therefore, “[mJere unsupported speculation ... is

not enough to defeat a summary judgment motion.” Ennis

v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55,

62 (4th Cir. 1995). |

In ruling on summary judgment in the present case,

the court must also bear in mind the standard of review

applicable to the underlying action which is conducted

under Section 706 of the Administrative Procedure Act

(APA) and provides in part that “a reviewing court shall

... hold unlawful and set aside agency action, findings,

and conclusions found to be — (A) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). Further, the Fourth Circuit has

clarified:

In determining whether agency action violates

§ 706(2)(A) of the APA, we perform only the lim-

ited, albeit important, task of reviewing agency

action to determine whether the agency con-

formed with controlling statutes, and whether

the agency has committed a clear error of judg-

ment.... [T]he ultimate standard of review is a

App. 39

narrow one. The court is not empowered to sub-

stitute its judgment for that of the agency.

Zeneca, Inc. v. Shalala, 213 F.3d 161, 167 (4th Cir. 2000)

(internal quotations and citations omitted). See also infra

“Standard of Review Under Administrative Procedure

Act.”

A. National Environmental Policy Act

(NEPA)

The National Environmental Policy Act (NEPA)

“declares a national policy of protecting and promoting

environmental quality.” Hughes River Watershed Conser-

vancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996). See

also 42 U.S.C. §§ 4321, 4331 (a) (stating that NEPA’s

policy is “to use all practicable means and measures... to

create and maintain conditions under which man and

nature can exist in productive harmony”); Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 348 (1989).

To ensure that environmental quality is protected and

promoted, NEPA requires federal agencies undertaking

projects that will affect the environment to follow certain

procedures. Thus, “it is well settled that NEPA does not

mandate that agencies reach particular substantive

results,” only that agencies follow certain procedures

befere taking action. Hughes, 81 F.3d at 443. “If the

adverse environmental effects of the proposed action are

adequately identified and evaluated, [agencies are] not

constrained by NEPA from deciding that other values

outweigh the environmental costs.” Robertson, 490 U.S. at

350.

Procedurally, NEPA requires that federal agencies

prepare an environmental impact statement (EIS) “in

App. 40

every recommendation or report on proposals for . . . major

Federal actions significantly affecting the quality of the

human environment.” See 42 U.S.C. § 4332(2)(C). In

determining whether a proposed action might significantly

affect the quality of the human environment and necessar-

ily be studied in an EIS, the Council on Environmental

Quality (CEQ) requires agencies to consider both the

significance of the “context” and the “intensity” of the

proposed action. Considering a proposed action in context

means:

that the significance of an action must be ana-

lyzed in several contexts such as society as a

whole (human, national), the affected region, the

affected interests, and the locality. Significance

varies with the setting of the proposed action.

For instance, in the case of a site-specific action,

significance would usually depend upon the ef-

fects in the locale rather than the world as a

whole. Both short- and long-term effects are rele-

vant.

40 C.FR. § 1508.27(a). Evaluating the intensity of the

proposed action refers to the “severity of impact.” Id.

§ 1508.27(b). CEQ regulations also provide several factors

to consider when determining the “severity of the impact”

* The Council on Environmental Quality, created for the purpose of

researching and advising the President on environmental matters, see

42 U.S.C. §§ 4341-47, has issued guidelines for implementing NEPA.

These guidelines are to be followed by all federal agencies. See Andrus

v. Sierra Club, 442 U.S. 347, 358 (1979). The specific CEQ regulations

at issue here are explicitly incorporated into DOE’s regulations. See 10

C.F.R. §§ 1021.100-103 (1992).

ee ee

App. 41

or intensity of the proposed action. The court finds the

following factors most relevant to this case:

(1) Impacts that may be both beneficial and

adverse. A significant effect may exist even

if the Federal agency believes that on bal-

ance the effect will be beneficial.

(2) The degree to which the proposed action af-

fects public health and safety.

(4) The degree to which the effects on the

quality of the human environment are

likely to be highly controversial.

(5) The degree to which the possible effects on

the human environment are highly uncer-

tain or involve unique or unknown risks. _

(8) The degree to which the action ... may

cause loss or destruction of significant sci-

entific, cultural, or historical resources.

(10) Whether the action threatens a violation of

Federal, State, or local law or require-

ments imposed for the protection of the en-

vironment.

Id. §§ 1508.28(b)(1)-(2), (4)-(5), (8), (10). Courts have

viewed the presence of one or more of these factors as an

indication that an agency should prepare an EIS. See

Public Serv. Co. of Colo. v. Andrus, 825 F. Supp. 1483,

1495 (D. Idaho 1993) (quoting LaFlamme v. FERC, 852

F.2d 389, 398 (9th Cir. 1988)).

An EIS serves two purposes: (1) when deciding

whether to take a proposed action, an EIS ensures that an

agency will carefully consider the project’s environmental

effects, and (2) an EIS ensures that the public will re-

ceived [sic] relevant information about a proposed project

App. 42

and play a role in both the decision making process and

the implementation of a decision. See 40 C.F.R. §§ 1500.1

(b) (“NEPA procedures must insure that environmental

information is available to public officials and citizens

before decisions are made and before actions are taken. .. .

Accurate scientific analysis, expert agency comments, and

public scrutiny are essential to implementing NEPA.”),

1502.1 (stating that an EIS must “provide full and fair

discussion of significant environmental impacts and shall

inform the decision makérs and the public of reasonable

alternatives”); Robertson, 490 U.S. at 349; Hughes, 81 F.3d

at 443. To serve these dual aims, every environmental

impact statement must include:

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be

implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the main-

tenance and enhancement of long-term

productivity, and

(v) any irreversible and irretrievable commit-

ments of resources which would be in-

volved in the proposed action should it be

implemented.

42 U.S.C. § 4332(2)(C)(i)-(v).

Once an EIS is prepared, an agency must continue to

give careful consideration to the proposed project’s

environmental consequences, and sometimes submit a

supplemental EIS (SEIS). CEQ regulations determine

App. 43

when an agency must prepare a SEIS. Those regulations

require a SEIS when “(i) [t]he agency makes substantial

changes in the proposed action that are relevant to

environmental concerns; or (ii) [there are significant new

circumstances or information relevant to environmental

concerns and bearing on the proposed action or its

impacts.” 40 C.F.R. § 1502.9(c)(1)(i) & (ii).

DOE also has its own regulations to address when a

SEIS should be prepared. Those regulations state that

“DOE shall prepare a supplemental EIS if there are

substantial changes to the proposal or significant new

circumstances or information relevant to environmental

concerns, as discussed in 40 C.F.R. 1502.9(c)(1).” 10 C.F.R.

§ 1021.314(a). In the Fourth Circuit, moreover, “substan-

tial” changes in a proposed project or “significant” new

circumstances or information will be found to be present

when there is a “seriously different picture of the environ-

mental impact of the proposed project from what was

previously envisioned.” Hickory Neighborhood Defense

League v. Skinner, 893 F.2d 58, 63 (4th Cir. 1990) (internal

quotation marks omitted) (emphasis added in the origi-

nal); see also Marsh v. Or. Nat'l Res. Council, 490 U.S. 360,

374 (1989). Significance can be viewed in either quantita-

tive or qualitative terms. See Envtl. Defense Fund v.

Marsh, 651 F.2d 983, 996 (5th Cir. 1981) (finding that

plaintiffs failed to offer evidence that environmental

impacts would differ significantly in “either quantity or

quality”); Vine Street Concerned Citizens, Inc. v. Dole, 630

F Supp. 24, 29 (E.D. Pa. 1985) (evaluating whether

projected increase in traffic was “quantitatively or qualita-

tively” different from that considered in original EIS).

Thus, the principal factor an agency should consider in

exercising its discretion whether to prepare an SEIS

+ tm «lal

App. 44

because of new information or substantial changes is the

extent to which the new information or substantial

changes present a seriously different picture of the likely

quantitative or qualitative environmental consequences

associated with the proposed action not envisioned by the

origina! EIS.

If it is unclear whether a SEIS is required, DOE

regulations require the preparation of a Supplement

Analysis (SA). A SA “shall discuss the circumstances that

are pertinent to deciding whether to prepare a supplemen-

tal EIS,” (ze., applicable CEQ regulations found in

40 C.F.R. § 1502.9(c)(1)i) & (ii)), and “contain sufficient

information for DOE to determine whether: (i) {aJn exist-

ing EIS should be supplemented; (ii) [a] new EIS should be

prepared; or (iii) [nJo further NEPA documentation is

required.” See 10 C.FR. §§ 1021.314(c)(1), (2)(i)-(iii).

Furthermore, “DOE shall make the determination and the

related Supplement Analysis available to the public for

information.” See id. § 1021.314(c)\(3). If DOE decides to

take action on a proposal covered by an EIS, then DOE

must prepare a Record of Decision to make available to the

public. See id. §§ 1021.314(d), 315(b)(d).

B. Standard of Review Under Administrative

Procedure Act (APA)

The standard of review for an agency’s decision not to

prepare a SA or SEIS is provided by the Administrative

Procedure Act (APA), 5 U.S.C. §§ 701 et seg. See 5 U.S.C.

§ 706(2)(A) (giving court the power to “hold unlawful and

set aside agency action, findings, and conclusions found to

be ... arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law”); Marsh, 490 U.S. at

ee |

App. 45

375-76. See also 5 U.S.C. § 702 (providing a right to

judicial review to persons “adversely affected or aggrieved”

by federal agency action within the meaning of a relevant

statute such as NEPA). In reviewing an agency's decision

not to prepare a SA or SEIS, a court must “ensure that the

agency has adequately considered and disclosed the

environmental impact of its actions and that its decision is

not arbitrary or capricious.” Baltimore Gas & Elec. v. Nat'l

Res. Defense Council, Inc., 462 U.S. 87, 97-98 (1983). Thus,

the court must make two decisions: (1) whether the agency

took a “hard look” at the substantial changes to the pro-

posal or significant new circumstances or information

related to environmental concerns, and (2) whether the

agency’s decision not to prepare a SA or SEIS was arbi-

trary or capricious. See Hughes, 81 F.3d at 443 (citing

Marsh, 490 U.S. at 385). A decision within an agency’s

discretion is entitled to deference and a court may not

substitute its own judgment for that of the agency. See

Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976).

Within these bounds, however, a court “must make a

searching and careful inquiry into the facts and a review

of whether the decision [at the time it was made] was

based on a consideration of the relevant factors and

whether there has been a clear error of judgment” or

rather, a rational basis exists for the agency's decision. See

City of Alexandria, Va. v. Fed. Highway Admin., 756 F.2d

1014, 1017 (4th Cir. 1985) (internal quotation marks

omitted); Sierra Club v. U.S. Army Corps of Eng'rs, 772

F.2d 1043, 1050-51 (2d Cir. 1985) (citing Bowman Transp.,

Inc. v. Ark.-Best Freight Sys, Inc., 419 U.S. 281, 290

(1974)).

Generally, “an agency takes a sufficient hard look

when it obtains opinions from its own experts, obtains

App. 46

opinions from experts outside the agency, gives careful

scientific scrutiny and responds to all legitimate concerns

that are raised.” Hughes River Watershed Conservancy v.

Johnson, 165 F.3d 283, 288 (4th Cir. 1999) (Hughes River

II) (internal quotations omitted). The court is not,

however, required to accept an agencys conclusory

statements in an EA or an EIS. Lower Alloways Creek Tp.

v. Public Serv. Elec. & Gas Co., 687 F.2d 732, 741 (3d Cir.

1982) (“An agency cannot ... avoid its statutory

responsibilities under NEPA merely by asserting that an

activity it wishes to pursue will have an insignificant

effect on the environment.”).

It is undisputed that in reviewing DOE’s decision not

to prepare a SA, a SEIS, or another EIS, the court makes

its decision based on the administrative record and in light

of the above discussed legal standards. In NEPA cases,

however, courts have also allowed extraneous evidence in

narrow circumstances such as when the evidence: (1)

explains technical information or agency action not ade-

quately explained in record; (2) shows an agency failed to

consider relevant evidence; or (3) shows an agency, in bad

faith, failed to include information it considered in the

record. See Webb v. Gorsuch, 699 F.2d 157, 159 n.2 (4th

Cir. 1983) (considering several affidavits and reports

which were not made part of the “record” in determining

whether the agency action was arbitrary or capricious)

(citing County of Suffolk v. Sec’y of the Interior, 562 F.2d

1368, 1384 (2d Cir.1977), and cases cited therein)).

App. 47

C. History of NEPA Compliance in this Ac-

tion

The decisions challenged in this action are DOE's

decisions, as stated in the April 19, 2002 ROD, to: (1)

cancel plans to build any immobilization facilities (at SRS

or elsewhere); (2) select “the alternative of immediate

implementation of consolidated long-term storage at [SRS]

of surplus plutonium now stored separately at [Rocky

Flats] and SRS;” and (3) “[ultilize the KAMS facility for

consolidated long-term storage of surplus plutonium.” 67

Fed. Reg. at 19432 & 19435 (Def. Ex. F). Only the latter

two decisions are discussed here.”

Hodges argues that these decisions are illegal because

DOE has not complied with NEPA’s requirements for

proper study of the environmental impacts of either: (1)

long-term storage of Rocky Flats plutonium at SRS; or (2)

use of the KAMS facility for long-term storage. DOE

7 “KAMS'refers to the “K-Area Materials Storage” facility which is

located in Building 105K. See infra July 1998 Supplement Analysis.

®° The court has concluded that the cancellation of immobilization is

not, in and of itself, subject to challenge under NEPA. Rather, the

significance of cancellation of immobilization is that it either means

that plutonium slated for immobilization would remain in long-term

storage or would require processing by other means not yet studied.

DOE has announced its decision to study processing this additional

plutonium into MOX fuel. This has led to placement of the previously

studied and approved MOX fuel process on hold, to allow for redesign

and corresponding NEPA review. The net effect of these two decisions is

that, unless and until a new MOX (or other) process has undergone

proper review and been accepted as the proper course of action by DOE,

it must be presumed that any storage at SRS is long-term storage.

Thus, this analysis focuses on the latter two decisions: to move Rocky

Flats plutonium to SRS for long-term storage and to use the KAMS

facility for that storage.

App. 48

responds that it has adequately studied both aspects of the

present decision, pointing to the following evidence of

NEPA compliance:

December 1996 PEIS-— “Storage and Dispo-

sition of Weapons-

Usable Fissile Ma-

terials Final Pro-

grammatic

Environmental

Impact Statement”

(1996 S&D PEIS) -

Def. Ex. B (Sum-

mary) & H (Vol. I);

July 1998 SA —- “Supplement Analysis for

Storing Plutonium in the

Actinide Packaging and

Storage Facility and Build-

ing 105-K at the Savannah

River Site” (July 1998 SA) -

Def. Ex. I;

February 2002 SA — “Supplement Analysis

for Storage of Surplus

Plutonium Materials

in K-area Material

Storage Facility at

SRS” (February 2002

SA) - Plaintiff Ex. 16,

Defendant Ex. K.

See DOE’s June 10, 2002 Reply at 3 (stating that “the

question before the court is fairly simple. Does this combi-

nation of the 1996 PEIS and the two Supplement Analyses

(SA) demonstrate that DOE evaluated the environmental

impacts of its proposed action as required by NEPA?”).

These documents are summarized below.

App. 49

1. The 1996 S&D PUS

The 1996 S&D PEIS studied a variety of alternatives

for storage and disposition of a range of nuclear materials

stored at various sites throughout the country. Among the

alternatives studied was the “No Action” alternative of

leaving all materials at their present locations. This

alternative was compared to various consolidation alterna-

tives which would have involved SRS ranging from trans-

fer of Rocky Flats surplus plutonium to SRS up to

“collocation” of all of DOE’s surplus plutonium and highly

enriched uranium (HEU) at SRS.

In places, the summary of this EIS distinguishes

between the studied plans for nonsurplus and surplus

plutonium, referring to plans for long-term storage of up to

fifty years only as to nonsurplus plutonium and “storage

pending disposition” for surplus plutonium. E.g., S-2, S-4,

S.6. See also Vol. I at 1-5. Nonetheless, when read in their

entirety, it appears from both the summary and the full

PEIS that in-depth consideration was given to various

long-term storage options for surplus plutonium under

circumstances such as the present: where disposition was

intended but could not be assumed to be available due to

various uncertainties as to development and approval of

the necessary technology.’ E.g., S-42 to S-43, Vol. lat 1-6 &

° Although generally programmatic in scope, this EIS considered

“the maximum site impacts that would result at [each of the sites under

consideration, including] SRS from combining the Preferred Alternative

for storage with the Preferred Alternative for disposition at each of

these sites.” S-25. See also S-27 to S-42 (discussing the various catego-

ries of environmental impact of the combined alternatives on each of

the different potential sites). Site specific cumulative impacts were also

addressed under various alternatives including Long-Term Storage

(Continued on following page)

App. 50

1-12. It also appears that whatever storage was considered

was assumed to be for a period of up to fifty years. E.g.,

Vol. I, Chart at 2-166.

Nonetheless, as to all long-term storage alternatives,

the PEIS presumes that a new facility known as the

Actinide Packaging and Storage Facility (APSF) would be

built at SRS. E.g., S-7 (stating surplus plutonium from

Rocky Flats brought to SRS would be stored in “an ex-

panded, planned new facility” which refers to the “planned

new [APSF] ... upon completion”); S-18 (discussing No

Action alternative of leaving all materials at their current

sites with the materials being stored in “modified or new

facilities ... designed to operate for up to 50 years”). This

assumption is, presumably, based on an earlier decision,

made in 1995, to build the APSF at SRS in order to stabi-

lize, package and store materials already located at SRS.”

Thus, the references in the PEIS to an “expanded, planned

new facility” for receipt of the Rocky Flats materials

recognize that modifications would be required to the

already planned APSF to accommodate the added materi-

als from Rocky Flats. See also S-16 (noting that “any

new facility construction deemed necessary to maintain

safe, secure storage would be addressed in appropriate,

individual site-spevific EISs”); S-19 (discussing potential

Alternatives and the identified Preferred Alternative. S-43 (listing

areas for which impacts were identified as to each site as to the long-

term storage alternatives).

Environmental Impact Statement, Administrative Record Item 33;

December 19, 1995 Record of Decision and Notice of Preferred Alterna-

tives for the Interim Management of Nuclear Materials EIS, 60 Fed.

Reg. 65300, Administrative Record Item 32.

App. 51

construction of an entirely different facility if plutonium

from all sites was brought to SRS — “collocation” option).

2. July 1998 Supplement Analysis

The impetus for the July 1998 SA was DOE’s desire to

begin shipments from Rocky Flats to SRS before the APSF

facility would be completed.’ To that end, this SA ad-

dresses “use of Building 105-K at SRS for plutonium

storage in addition to changes to the conditions estab-

lished in the January 1997 Record of Decision.” SA at 1. In

addition to use of Building 105-K (KAMS), this SA ad-

dresses “processing plutonium from [Rocky Flats] in the F-

Area (FB-Line) at SRS for declassification purposes, and

packaging this declassified material at SRS to meet DOE’s

long-term storage standard.” SA at 2. See also SA at 6

(discussing use of FB-Line for declassification); SA at 10

(estimating declassification would require four years using

the FB-Line).

As to KAMS, this SA provides:

Portions of Building 105-K would be modi-

fied to enable safe, secure plutonium storage.

Safeguards and security features would be up-

graded, criticality monitoring devices would be

installed, structural features would be inspected

and repaired, and roof vents would be added and

doors would be modified. Several areas of the

" The July 1998 SA acknowledges, nonetheless, that early

movement of Rocky Flats surplus plutonium to SRS is only one of a

number of modified actions necessary to allow early closure of Rocky

Flats. SA at 3-4. Some of these other actions required NEPA review. SA

at 4.

App. 52

facility would be decontaminated and excess

equipment would be removed to provide addi-

tional floor space.

SA at 5 (also providing specifics as to certain modifica-

tions). See also SA at 19 (estimating that the modifications

would require 18 months to complete). The July 1998 SA

also provides: “Once APSF is operating, DOE could trans-

fer RFETS material from Building 105-K to the APSF to

allow for operational flexibility. The plutonium from

RFETS ... would remain in storage at the APSF and

Building 105-K pending disposition.” SA at 6. See also SA

at 9 (noting maximum storage capacity in Building 105-K

is 15 metric tons). The radiological risks of storage in

Building 105-K were evaluated for a ten year period. SA at

17.

This SA concludes:

The impacts of the proposed action on many

resource areas are comparable to the impacts

identified in the Storage and Disposition PEIS’s

Preferred Alternative. The proposed action would

result in a higher level of waste generation and

electrical usage. ... However, these increases are

well within the SRS’s waste treatment capabili-

ties and electrical capacity. ... The Supplemen-

tal Analysis shows that the proposed action does

not make a substantial change to environmental

concerns evaluated in the Storage and Disposi-

tion PEIS. Also, the proposed action does not

present significant new circumstances or infor-

mation relevant to the environmental concerns

evaluated in the Storage and Disposition PEIS.

SA at 23-24.

App. 53

3. February 2002 Supplement Analysis

The proposed action addressed by the February 2002

Supplement Analysis is to:

continue with the previous decision to store sur-

plus plutonium from [Rocky Flats] in KAMS

pending disposition. In addition, DOE is propos-

ing to use the KAMS facility for interim storage

of surplus plutonium from other DOE sites, as

needed. The storage of surplus plutonium mate-

rials in KAMS could extend beyond the 10 years

estimated in the [July 1998 SA]. KAMS would

serve as an interim storage facility pending dis-

position of the materials. DOE would also main-

tain the SRS Surveillance Program and the K-

Area Structural Assessment Program to provide

the basis for continued safe storage of the sur-

plus plutonium materials beyond 10 years in the

KAMS facility.

SA at 3.

The February 2002 SA describes the July 1998 SA as

supporting storage of up to 15 metric tons of surplus

plutonium in KAMS for up to 10 years, pending construc-

tion of APSF. It acknowledges that DOE cancelled plans to

build APSF in January 2001, substituting plans to (1)

install stabilization and packaging capability in Building

235-F; (2) use existing vault space in the same building;

(3) use space in the FB-Line for interim storage pending

final disposition; and (4) continue to use existing vault

space in Building 105-K.”. This SA also refers to the

subsequent decision to install stabilization and packaging

facilities on the FB-Line. SA at 3.

This SA undertakes to compare the increased risks

posed by extended use of KAMS to the risks previously

App. 54

considered in the above referenced PEIS and SA. It states

that the radioactive waste estimates originally provided

for storage at APSF for up to fifty years

would not significantly change for KAMS for two

reasons. First, storage at KAMS-does not involve

opening the 9975 shipping containers or other-

wise exposing the facility areas or personnel to

radioactive contamination. Secondly, the ex-

pected periodic maintenance and surveillance

operations involving the 9975 shipping contain-

ers do not exceed the anticipated handling opera-

tions previously analyzed for APSF.

SA at 5. It also finds “no significant additional radiological

impacts to either the general public or non-involved

workers beyond 10 years from normal storage operations

in KAMS.” Id.

As to the risk of harm in the event of an accident, the

February 2002 SA relies on the evaluation in the 1998 SA

which found that “accident impacts associated with KAMS

would be at least three orders of magnitude greater than

the potential impacts from APSF” due to the lack of a

HEPA filtration system. SA at 6. Nonetheless, because the

risk of such an accident is viewed as very small, this SA,

as the one before it, finds the difference in magnitude of

harm from any accident (1000 times greater) does not

justify further study through a new EIS. SA at 6.

Structural considerations are also addressed, includ-

ing specific concerns which had been raised by the Defense

Nuclear Facilities Safety Board (DNFSB). The February

2002 SA contains a fairly technical discussion of wall

thickness and characteristics, noting some concerns and

an inability to make “an accurate determination of the

remaining life of the structure.” SA at 7. Rather than

App. 55

finding this to require further study before a decision was

made, this SA indicates that the issue will be addressed

through “follow-up condition surveys of the Building 105-K

structures every five years to assure safe storage at KAMS

beyond 10 years.”

The February 2002 SA also relies on the protection

provided by the combination of the 3013 storage contain-

ers and the 9975 shipping containers. It notes that the

9975 shipping containers “were qualified for a minimum

10-year life.” It, therefore, requires “periodic surveillance

of the Celotex packing material as well as the O-ring

seals.” This will be accomplished by removing ten contain-

ers per quarter, transporting them to the FB-line, opening

them for inspection and maintenance, then resealing them

and returning them to KAMS. SA at 7.

Based on this discussion, the SA concludes:

The potential impacts from the storage of

surplus plutonium materials in the KAMS facil-

ity at SRS, pending final disposition, are not sig-

nificantly different than or are bounded by the

impacts identified in the preferred storage alter-

native for SRS in the S&D PEIS. There are no

significant non-radiological impacts for storage

in KAMS. The radiological impacts from normal

storage operations at KAMS are not significantly

different than those previously analyzed for

APSF. The potential radiological accident im-

pacts from KAMS are still small and comparable

to the impacts identified for the Preferred Alter-

native in the Storage and Disposition PEIS. For

a loss of confinement inside KAMS, an unfiltered

release would result. However, the APSF/B 105-

K SA results show that potential accident im-

pacts at KAMS are still small (less than 1 LCF)

App. 56

and have a low frequency of occurrence (less than

1.0E-3 event per year).

A review of these radiological impact analy-

ses (IMNM EIS, S&D PEIS, and APSF/B 105-K

SA) allows DOE to conclude that potential im-

pacts for the storage of surplus plutonium mate-

rials at KAMS are similar and not significantly

different than the impacts for APSF. To further

mitigate the potential risks, DOE expects to re-

duce the annual frequency of the release of ra-

dioactive material to less than 1.0E-6 through

the application of engineered and administrative

controls. The engineered and administrative con-

trols include the implementation of surveillance

programs for the 3013 containers inside the 9975

shipping containers and for the structure of

Building 105-K. These results demonstrate that

safe storage of surplus plutonium in KAMS can

continue beyond 10 years pending disposition.

DOE plans to disposition its surplus plutonium

as soon as practical and believes storage in

KAMS would be necessary for less than 20 years.

SA at 8 (emphasis added).

4. April 19, 2002 Amended Record of De-

cision

Through its Amended ROD, DOE makes three revi-

sions to its prior RODs which directly affect SRS. First, it

cancels plans for immobilization. Second, it selects “the

alternative of immediate implementation of consolidated

long-term storage at [SRS] of surplus plutonium now

stored separately at [Rocky Flats] and SRS.” 67 Fed. Reg.

at 19432. Third, it determines to “[uJtilize the KAMS

App. 57

facility for consolidated long-term storage of surplus

plutonium.” 67 Fed. Reg. at 19435.

DOE explains the relationship between the first two

decisions as follows: “Cancellation of the immobilization

facility and selection of this storage alternative remove the

basis for the contingency contained in the previous RODs

conditioning transport of non-pit surplus plutonium from

[Rocky Flats] to SRS for storage on the selection of SRS as

the site for the immobilization facilities, and those RODS

are so amended.” Jd. While the storage decision is ex-

pressly stated to be long-term, DOE, nonetheless, indi-

cates that it is pursuing a MOX disposition strategy as

discussed in its recent report to Congress. Id. However,

“No final decisions regarding the MOX portion of the

program will be made until [proper NEPA] reviews are

completed.” Id.

D. Analysis of NEPA Compliance

The 1996 PEIS appears to fully address the environ-

mental considerations relevant to longterm storage of

plutonium at SRS, including storage of additional pluto-

nium from Rocky Flats, for a period of up to fifty years.

Although that storage was intended to be “pending dispo-

sition,” the 1996 PEIS recognized that disposition could

not be assumed during that period. Thus, the situation

studied was similar to the present, where the environ-

mental analysis must assume that long-term storage is

required, even though DOE intends to implement one or

more disposition technologies, because the disposition

technology has not been approved.

App. 58

In addition, DOE prepared two subsequent Supple-

ment Analyses both of which concluded that a Supplemen-

tal EIS was not required. The first, issued in July 1998,

approved short-term use of KAMS (up to ten years) await-

ing completion of APSF, in order to allow earlier shipment

of Rocky Flats plutonium. The second, issued in February

2002, expressly addressed longer-term use which DOE

referred to as “interim storage” (SA at 8) and stated, in the

conclusion, was not likely to extend beyond twenty years

(SA at 8).

At the hearing, counsel for Hodges conceded that the

July 1998 Supplement Analysis was adequate to support

the decision to utilize KAMS, under the conditions ad-

dressed in that SA: short-term use of KAMS to store Rocky

Flats and SRS plutonium until APSF was completed.

Further, there is no suggestion that any challenge was

made to the July 1998 SA at the time it was issued or to

the subsequent ROD” which relied on it. Neither, appar-

ently, was there any challenge to a later EIS completed in

November 1999 which relied on the July 1998 SA.”

Hodges does, however, contend that the February

2002 SA failed to adequately consider the risks of long-

term use of KAMS. Hodges also argues that, at the least,

DOE cannot rely on the February 2002 SA to support its

April 19, 2002 ROD authorizing long-term storage of up to

fifty years because the 2002 SA presumes storage pending

* Amended ROD for the Storage and Disposition of Weapons-

Usable Fissile Materials, 63 Fed. Reg. 43386 (August 13, 1998).

'* See Surplus Plutonium Disposition Final Environmental Impact

Statement (SPD EIS), DOE/EIS-0283, (November 1999). Def. Ex. C

(Summary) and D (Vol. I).

App. 59

disposition (referred to as “interim storage” in this SA) and

may be read to address only a twenty-year period. SA at 3

& 8. DOE responds that this is an overly narrow reading

of the February 2002 SA because the actual factors consid-

ered looked at risks over a fifty-year period.

In this regard, DOE directs the court to specific

portions of the 2002 SA addressing various criteria on a

fifty-year basis (e.g., the expected useful life of the 3013

containers). See Defendant’s Reply [in support of] Defen-

dant’s Motion for Summary Judgment at 7. Hodges has

not countered with direction to any evidence that the

evaluation was not adequate to cover the fifty-year period

challenged in the April 19, 2002 ROD.

In an affidavit filed in support of Hodges’ motion for a

preliminary injunction, Plaintiff’s expert, Dr. Allison

Macfarlane, refers, generically, to the risks of delay in

disposition including an unspecified increase in the “po-

tential for accidents (including criticality events), and the

potential for exposure to workers and the public.”

Macfarlane May 3, 2002 Affidavit (Macfarlane I) { 16.

Macfarlane also notes that the recent decision “will result

in the storage of large quantities of plutonium at [SRS]

while it awaits use.” Macfarlane I 7 21 (also noting that

prior decisions coupled disposition and storage). Similarly,

she points to the cancellation of APSF, replacement with

plans to use facilities in building 235-F, then replacement

of that plan with a decision to use the F'B-Line as raising

concerns. E.g., Macfarlane I 23-24. She does not, how-

ever, provide specific information on which this court can

rely to conclude that DOE failed to consider some specific

App. 60

inadequacy in the changed plans which now envision long-

term storage.“ Rather, she raises a series of questions

without pointing to specific inadequacies in the plans and

procedures. Jd. 926. The most specific concern which

Macfarlane addresses is the lack of clarity in the record as

to whether the FB-Line has been completed, as this is a

function she contends the latest ROD presumes to be in

place. Id. { 2.

In a subsequent affidavit, Macfarlane addresses the

specific risks posed by storage of plutonium in more detail.

Macfarlane Affidavit signed June 4, 2002 (Macfarlane II).

This affidavit does not, however, address how the current

plans for storage are inadequate or, more particularly, how

they present significant changes relative to circumstances

previously considered in EISs or SAs. E.g., Macfarlane 11

q{ 16-21. She does, however, again identify the one spe-

cific concern as to whether the stabilization and packaging

facilities at FB-Line have been completed. Id. ¥ 21.

The court inquired into this issue during the hearing.

After hearing the testimony of Allen Gunter, DOE’s SRS

Plutonium Program Manager, the court finds that the

February 2002 SA studied using stabilization and packag-

ing capability then existing in Building 235-F pending

installation of the stabilization and packaging facilities at

FB-Line. Consequently, Dr. Macfarlane’s one _ specific

concern was resolved.

‘* Most of Macfarlane’s more specific concerns relate to potential

impacts from the modified MOX procedure. These concerns are not,

however, at issue as the MOX process is currently undergoing NEPA

review.

App. 61

Hodges’ primary argument is that DOE overstepped

the outer bounds of its discretion in deciding to rely on the

2002 SA to support the decision made in the April 19, 2002

ROD. This is because the 2002 SA expressly refers only to

storage pending disposition (or “interim storage”) and

contains language concerning a period not likely to exceed

twenty years. By contrast the April 19 ROD decouples

storage and disposition, taking away a precondition to

storage of Rocky Flats plutonium at SRS which had been

found in all prior RODs (approval of SRS for the immobili-

zation facility),’° and makes SRS the location for long-term

®’ Some, if not all, of the prior Records of Decision relating to

transfer of the Rocky Flats plutonium to SRS placed as a precondition

to transfer that SRS be approved as the site for the immobilization

facility. E.g., January 21, 1997 Record of Decision for the Storage and

Disposition of Weapons-Usable Fissile Materials Final Programmatic

Environmental Impact Statement, 62 Fed. Reg. 3014, 3027. See also

July 1998 Supplement Analysis for Storing Plutonium in the Actinide

Packaging and Storage Facility and Building 105-K at the Savannah

River Site at 2 & 4 (recognizing that selection of SRS as the immobiliza-

tion facility site is a precondition to shipment of plutonium from Rocky

Flats). A subsequent decision approved SRS for three related disposi-

tion facilities: MOX, immobilization, and pit disassembly. See January

11, 2000, Record of Decision for the Surplus Plutonium Disposition

Final Environmental Impact Statement, 65 Fed. Reg. 1608.

The record does not reflect how this precondition came to be placed in

the earlier RODS, but the court presumes it was a negotiated provision

to allay South Carolina’s fears that it might become the permanent

repository for the surplus plutonium and, perhaps, to dissuade the

State from opposing the decisions at issue. DOE has, itself, acknowl-

edged the legitimacy of the State’s presumed view that commitments

had been made to it not to transfer surplus plutonium to SRS unless

the State received the benefits associated with location of the process-

ing facilities in the state. See DOE/NNSA Report to Congress, February

2002 at 3-5,4-20,4-25,4-27 and 5-2. Presumably these benefits would be

not only fiscal, but would provide some assurance that stored surplus

plutonium would ultimately be removed from the state.

(Continued on following page)

App. 62

storage (for up to fifty years) of Rocky Flats surplus

plutonium. :

Certainly the April 19, 2002 ROD contains changes

from the prior RODS, which contemplated only storage

pending disposition, with the presumption that at least

one (if not three) disposition technology facilities would be

operated at SRS.” In fact, the last ROD to address disposi-

tion assumed that SRS would be the location for three

disposition facilities: MOX processing, immobilization, and

pit disassembly and conversion. See January 11, 2000,

Record of Decision for the Surplus Plutonium Disposition

Final Environmental Impact Statement, 65 Fed. Reg. 1608

— Def. Ex. D. However, the query is not whether the

planned program changed, but whether those changes

present a “seriously different picture of the environmental

impact of the proposed project from what was previously

Be that as it may, Hodges’ challenge to DOE’s April 19, 2002 ROD is

not premised on breach of a negotiated prior ROD or agreement not to

challenge an earlier EIS, as likely it cannot be. It is premised on the

legal inadequacy of NEPA compliance.

* There have, in fact, been such a complicated series of changes in

the RODS since APSF was originally approved that it is difficult to

keep them straight. After considering construction of the APSF in a

1995 ROD, and relying on expansion of that building for storage of the

Rocky Flets plutonium in the 1996 EIS and 1997 ROD, then approving

short term use of KAMS (pending construction of ASPF) through the

July 1998 SA and August 1998 ROD, DOE then issued a November

1999 EIS which based portions of its analysis on the presumption that

APSF might not ever be constructed. Following that, on January 11,

2000, DOE issued another ROD which selected SRS as the site for three

disposition facilities: MOX, immobilization, and pit disassembly and

conversion. It was the next ROD, published on January 26, 2001, that

canceled APSF, replacing it with a patchwork of facilities. The net

effect of use of those facilities was, however, considered in the February

2002 SA and adopted in the April 19, 2002 ROD.

App. 63

envisioned.” Hickory Neighborhood Defense League uv.

Skinner, 893 F.2d 58, 63 (4th Cir. 1990). This court con-

cludes that they do not.

DOE has shown that it specifically analyzed the

potential environmental impacts of long-term storage of

surplus plutonium at SRS in its 1996 EIS,1998 SA and

2002 SA. Hodges has failed to controvert DOE’s detailed

citations to the administrative record.

DOE notes, for instance, that the 1996 S&D EIS

“analyzed the long-term storage of ‘surplus’ plutonium

‘Pending Disposition’” with such storage to be accom-

plished “under both the National Academy of Science’s

‘Stored Weapons Standard’ and DOE’s ‘Criteria for Safe

Storage of Plutonium Metals and Oxides.’” Defendant's

Reply at 4-5 (citing Def. Ex. B at S-2 to S-4). The storage

standards at issue and impacts considered both addressed

fifty-year periods. Defendant’s Reply at 5 (citing Def. Ex. B

at S-4, Def. Ex. H at 2-155 to 2-235, especially citing pages

2-166 & 2-170). This court agrees that the 1996 S&D PEIS

studied long-term storage of surplus plutonium, including

from Rocky Flats, for up to fifty years at SRS.”

Likewise DOE directs the court to specific sections of

the July 1998 SA which considered the same criteria for

use of KAMS for up to ten years. Defendant’s Reply at 6

(citing Def. Ex. I at 2-4 and K at 1 & 3-8). As to the critical

inquiry, whether the February 2002 SA considered storage

” At oral argument, Hodges did not appear to seriously dispute

this contention or that adequate NEPA study was made of use of KAMS

for at least the ten years addressed in the July 1998 SA.

App. 64

of up to fifty years, despite its reference to “interim stor-

age” and its conclusion suggesting storage of up to twenty

years, DOE points the court to various portions of the SA

indicating that the impacts were studied for a period of

fifty years. Defendant’s Reply at 7 (citing Def. Ex. K at 5-

7). While the references to “interim storage” and not

expecting storage to exceed twenty years present some

ambiguity as to the purpose for which the February 2002

SA was prepared, this court concludes, as discussed below,

that DOE clearly did consider impacts over a fifty-year

period. Thus, this court cannot conclude that DOE was

arbitrary and capricious in determining that a new SA o

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