Partial NEPA victory re Uranium Processing Facility in TN

September 25, 2019

Re: http://orepa.org/wp-content/uploads/2019/09/OREPA-Ruling.pdf

Dear colleagues --

We want to heartily congratulate the parties and attorneys in this partial National Environmental Policy Act (NEPA) victory. Any NEPA victory, partial or otherwise, in a large national security case is worthy of praise.

The operative parts of the decision are formally at the end of the document. The judge explains her decision in plain language on pp. 6-7:

   For the reasons explained in this Opinion, the Court has reached the following conclusions.
In Defendents' favor, the Court finds they have not improperly segmented the Y-12 Modernization
Plan, and that a new environmental impact statement is not required in light of the changed cir-
cumstances that resulted from NNSA's decision to downsize the UPF and implement the Extended
Life Program. But in favor of the Plaintiffs, the Court finds that Defendents have acted arbitrarily
and capriciously in applying all sixty-nine categorical exclusions at issue and in their failure to
properly evaluate the environmental impacts resulting from USGS's increased seismic hazard fore-
cast for East Tennessee.

   Consequently, both motions for summary judgment will be denied in part and granted in
part. The 2016 Supplement Analysis, the 2016 Record of Decision, and the 2018 Supplement
Analysis will accordingly be set aside and remanded to the agency for further NEPA analysis.

As substantially prevailing, Plaintiffs' attorneys will be awarded fees and costs, which will be substantial, certainly hundreds of thousands of dollars. This is an important victory as well.

Rejecting the validity of the 2011 site-wide environmental impact statement (SWEIS), the two supplement analyses (SAs) and the 2016 Record of Decision (ROD) and all the categorical exclusions (CXs) is excellent and helpful.

Remanding the question of whether to prepare a new SWEIS to the National Nuclear Security Administration (NNSA) is a bit weak, but how can NNSA avoid a new or supplemental SWEIS at Y-12 at this point?

Unfortunately, construction can continue. The words "injunctive" and "injunction" do not appear in the decision except once in a citation. I am unfamiliar with the case overall; I imagine that the question of injunctive relief was resolved earlier.

Of note, the attorneys involved (Lawton and Fettus) are the same as those threatening litigation over the lack of a programmatic EIS (PEIS) for plutonium pit production. NRDC as a plaintiff in the UPF case, with its very deep pockets (now to be replenished), and Nuclear Watch, as plaintiffs, plus the content of present decision, will add credibility to the already very credible threat of winning litigation against NNSA over its inappropriate decision to proceed with pit production at two sites without a PEIS. The two main arguments for a PEIS are very strong, as we have written on many occasions (see below) to all involved at NNSA and in Congress, and there are one or two other good arguments as well which have since arisen.

As far as litigation over the lack of a PEIS for pit production is concerned, it is a ripe fruit available for plucking. I think NNSA will now, if they have not done so already, be forced start a PEIS. If they are very dumb they will lose another lawsuit, with greater consequences than this one, and they will lose even more time in their pit program. Time will tell how dumb they are.

Also, the revelations of August make the lack of an adequate SWEIS at LANL more egregious than ever.

Lawmakers should try to take this all on board and act accordingly in their current negotiations, including New Mexico lawmakers.

Greg

Our own NEPA warnings on pit production have been these, best read in reverse chron order as they have evolved somewhat:

• Pit production recommendations & considerations, Memo to NNSA Administrator Lisa Gordon-Hagerty, Apr 6, 2018 (paragraphs 15-18)

• Comments on the “Draft Environmental Assessment [EA] of Proposed Changes for Analytical Chemistry [AC] and Materials Characterization [MC] at the Radiological Laboratory/Utility/Office Building [RLUOB], Los Alamos National Laboratory [LANL], Los Alamos, New Mexico [NM],” Apr 25, 2018

• Legal concerns regarding NNSA’s pit production plans, Memo to LGH, Feb 5, 2019

• National Environmental Policy Act (NEPA) compliance for plutonium pit production, letter to Senator Udall, Jul 8, 2019

• Comments on the Draft Supplement Analysis of the Complex Transformation Supplement Programmatic Environmental Impact Statement, (DSA-CTSPEIS), Aug 12, 2019
        – Addendum to comments, Aug 14, 2019