UPF lawsuit moved from DC to Knoxville

 

The federal lawsuit that asks for an environmental review of the new multi-building design for the Uranium Processing Facility at the Y-12 National Security Complex has been transferred from Washington, D.C., to Knoxville.

The transfer of the civil complaint had been requested in September by the defendants, U.S. Energy Secretary James Richard “Rick” Perry and Frank G. Klotz, former administrator of the National Nuclear Security Administration. The NNSA is an agency within the U.S. Department of Energy that manages nuclear weapons programs and facilities, including Y-12, among other activities.

United States District Judge Dabney L. Friedrich, who was assigned the case in December, granted the motion to transfer the lawsuit from the District of Columbia to U.S. District Court for the Eastern District of Tennessee, which includes the Knoxville division, on March 23.

The 44-page federal lawsuit, which was filed in U.S. District Court in Washington, D.C., on July 20, argues that a new environmental impact statement should be prepared for the new design for the UPF, the largest federal construction project in Tennessee since World War II. The plaintiffs allege that the NNSA’s decision to use several new buildings for the UPF, rather than just one, and continue to use some old buildings at Y-12 for some nuclear weapons work is risky because the old buildings could collapse during a major earthquake, possibly leading to a nuclear accident that could release radiological materials.

Federal officials denied that allegation and others in a 29-page response filed September 29. They’ve called some allegations vague, ambiguous, or speculative, and they have said that safety and technical analyses are under way at Y-12. Some buildings may require seismic upgrades, depending upon evaluation results, and an Extended Life Program is meant to ensure that two buildings—Building 9215 and Building 9204-2E—will safely support future operations, federal officials said.

Before Friedrich’s transfer order last month, the seven plaintiffs had listed at least eight reasons for filing their complaint in the District of Columbia. They said the decision that they are challenging, the multi-building UPF, was made by a federal agency in the Washington, D.C., area; the named defendants are (or were) located there; and the information that the NNSA allegedly failed to consider originated in other federal agencies in the nation’s capital. The plaintiffs also said the important issues raised in the litigation—issues regarding the safety of the nation’s nuclear weapons program—are “issues of overriding national significance and interest,” which favored keeping the case in Washington, D.C.

The plaintiffs also said their attorneys are located in the Washington, D.C., area, which would greatly reduce costs for the nonprofit organizations involved in the lawsuit, and the District of Columbia court regularly resolves cases that, like this one, involve administrative records and challenges filed under the National Environmental Policy Act and the Administrative Procedure Act, including challenges regarding nuclear defense facilities located across the country.

The plaintiffs include three public interest organizations and four Oak Ridge and Knoxville residents: Oak Ridge Environmental Peace Alliance; Nuclear Watch of New Mexico; Natural Resources Defense Council of Washington, D.C.; Ed Sullivan of Oak Ridge; and Ralph Hutchison, Jack Carl Hoefer, and Linda Ewald, all of Knoxville.

But the defendants, Perry and Klotz, who are represented by government attorneys, had asked to move the lawsuit to East Tennessee in September.

“This question should be decided in the Eastern District of Tennessee, where the Y-12 Complex is located,” the government said in a September 28 memorandum supporting its motion to transfer.

The government argued in October that the claims raised in the lawsuit exclusively concern local environmental effects.

“The matters at issue in this case are local at every turn,” the government attorneys said. “The challenged environmental review documents were prepared locally, the public outreach of the project occurred entirely in Tennessee, and critically, the facilities and environmental effects of the project are entirely local to the Oak Ridge area.”

The government rejected the argument that the lawsuit was a challenge to the nation’s nuclear weapons program, saying instead that it is a NEPA case concerning local environmental impacts.

“At its heart, this case is a NEPA case that concerns the sufficiency of the environmental review completed for a local construction and upgrade project at the Y-12 Complex in Oak Ridge,” the defendants said.

 

The transfer

Evaluating whether to move the case, Friedrich said a district court may transfer a civil action to another federal district or division for the convenience of parties and witnesses, and in the interest of justice. The only limitation to the court’s authority to transfer a case is a requirement that the case “might have been brought” in the district or division to which the defendant is seeking the transfer.

In evaluating the transfer, the court has to consider convenience, fairness, and public and private interests. Among the factors are the plaintiff’s choice of forum, the defendant’s choice of forum, and the location where the claims arose. Other public and private factors include the relative ease of access to sources of proof, the availability of compulsory processes for those who are unwilling to attend, the possibility of viewing the sites at issue, administrative difficulties, and “all other practical problems that make trial of a case easy, expeditious, and inexpensive,” Friedrich said. There is also a local interest in having “localized controversies decided at home,” the judge said.

An impact on national policies can be a factor, but it can be outweighed by other factors favoring transfer.

In this case, the plaintiffs could have filed their complaint in the Eastern District of Tennessee, but they preferred to have it heard in the District of Columbia, Friedrich said.

“The question is whether transferring this case to the Eastern District of Tennessee is in the interest of justice,” she said. “To make this determination, the court will weigh the various private and public interest factors that courts typically consider in deciding whether to transfer a case.”

While the plaintiffs would like it heard in Washington, D.C., the defendants would prefer to have the case heard in East Tennessee, Friedrich said. And that’s where the underlying claims principally arose, the judge said.

“Not surprisingly, the specific harms identified in the complaint are local in nature,” she said. Friedrich said the plaintiffs primarily seek to protect the local environment and local communities from alleged harm caused by the production of nuclear weapon components at Y-12.

She cited the work that had been completed locally. The key policy work that led to a 2016 Supplement Analysis and 2016 Amended Record of Decision, which are being challenged in this lawsuit, occurred in Oak Ridge, and NNSA staff and contractors prepared those documents in Oak Ridge, Friedrich said. And all public outreach, comments, and responses related to an earlier Final Site-Wide Environmental Impact Statement of 2011 took place in Oak Ridge, she said.

Despite those ties, though, the plaintiffs had argued that there are overriding national interests that favored keeping the case in Washington, D.C.

“At bottom, plaintiffs argue that by failing to consider various risks relating to the Y-12 Complex, including warnings from other federal agencies regarding the Y-12 Complex’s structural vulnerabilities in the event of an earthquake, and facility decontamination and decommissioning delays, defendants are jeopardizing the nation’s national security,” Friedrich said.

She agreed that a direct challenge to the overall safety and administration of the nation’s nuclear program would “give rise to national interests that would tilt the scales” in favor of plaintiffs’ choice of forum.

“But this case concerning the modernization of a single building plan at one nuclear site in Oak Ridge, Tennessee does not, particularly where the policy was generated locally, and the alleged harms most affect individuals who live within close proximity to the Y-12 Complex,” Friedrich said. “While risks associated with air, soil, and water radiological contamination have the potential of subjecting communities to great peril, particularly in the event of a major earthquake, these impacts will be felt principally within a 50-mile radius of the Y-12 Complex.”

The plaintiffs’ choice of forum (the District of Columbia) was further diminished by the fact that they themselves are more closely connected to Tennessee than Washington, D.C., Friedrich said. Five of the seven plaintiffs are from Tennessee, one is from New Mexico, and only one (Natural Resources Defense Council) has an office in Washington, D.C., but it’s principal place of business is in New York City.

Some of the plaintiffs’ attorneys and the named defendants are located in Washington, D..C., but that doesn’t tilt the balance in favor of keeping the case there, Friedrich said.

“This is a ‘garden variety’ APA (Administrative Procedure Act) case,” she said. It is expected to be resolved based on the administrative record without witness testimony.

Granting the motion to transfer, Friedrich said private and public interest factors both weigh in favor of moving the case to East Tennessee.

“There is a substantial local interest in having this action decided in Tennessee,” she said. “The potential health and environmental effects in the locality of the Y-12 Complex and its surrounding areas present unique hazards that gravely impact residents in the Eastern District of Tennessee.”

 

UPF project timeline

Friedrich’s opinion and order included background timeline information about UPF and the lawsuit filed over the project.

Y-12 was built to enrich uranium for atomic weapons as part of the top-secret Manhattan Project during World War II, and it remains the nation’s primary site for processing and storing highly enriched uranium used in nuclear weapons.

In 2011, Friedrich said, the NNSA reported that the continuing operation of Y-12 was hindered by buildings that are old, oversized, and inefficient; are costly to maintain; and don’t have an “inherent value for future missions.” Modernizing this “old, oversized, and inefficient infrastructure” was a key strategic goal of Y-12 and consistent with NNSA strategic planning and previous NEPA documents, the judge wrote.

So, NNSA produced a Final Site-Wide Environmental Impact Statement, or Site-Wide EIS, for Y-12 in February 2011. It analyzed the potential environmental impacts of five alternative plans to modernize the 811-acre plant. Among the alternatives was a plan to use a single new building for a uranium processing facility, which could house work now done in older buildings on the west side of Y-12.

The NNSA issued a Record of Decision on July 20, 2011, that authorized the construction of that single-structure Uranium Processing Facility at Y-12.

But almost five years later, Friedrich wrote, the NNSA changed course and chose to upgrade existing buildings and construct multiple smaller buildings rather than proceed with the approved plan to construct a single-structure Uranium Processing Facility. The design changed as the total estimated cost of the UPF rose to between $10 billion and $12 billion. Officials expect the new multi-building design to help keep the UPF cost at $6.5 billion or less.

Under the revised approach, some enriched uranium work would continue in existing, but upgraded, processing facilities, while the rest of the work would be done in several new buildings. The new buildings would be much smaller than the single-structure UPF approved in 2011, and they would each be constructed to meet safety and security requirements appropriate to the building’s functions. That was one way the new design was expected to help control costs.

Friedrich said the NNSA characterized the new multi-building approach as a hybrid of two alternatives that had been analyzed in the Site-Wide EIS in 2011. On April 16, 2016, the NNSA issued a Supplement Analysis for the Site-Wide EIS, which concluded that the NNSA did not have to produce a new or supplemental environmental impact statement under NEPA after the design change.

Then, on July 5, 2016, the NNSA issued an Amended Record of Decision that approved changes to the earlier Record of Decision from July 20, 2011. The changes reflected the authorization of upgrades to existing buildings at Y-12 and separating the single-structure UPF into several smaller buildings, Friedrich said.

But after learning about the amended plan, the Oak Ridge Environmental Peace Alliance and Nuclear Watch of New Mexico sent a letter to Klotz, the former NNSA administrator, asking the agency to prepare an environmental impact statement addressing the revised UPF design.

They later sent a petition to NNSA and DOE asserting that the NNSA’s Amended Record of Decision on July 5, 2016, was a significant change from the earlier Record of Decision in 2011, Friedrich said. The two groups claimed that the Supplement Analysis on April 16, 2016, failed to consider critical information from other agencies. That information included updated seismic hazard maps from the U.S. Geological Survey, concerns expressed by the Defense Nuclear Facilities Safety Board over structural viability at Y-12 during a possible seismic event, and a DOE Inspector General report that discussed the risks posed by facility degradation at NNSA sites.

The NNSA denied the petition from Oak Ridge Environmental Peace Alliance and Nuclear Watch of New Mexico on December 22, 2016, and the plaintiffs filed the lawsuit in 2017.

“Specifically, plaintiffs seek an order vacating NNSA’s 2016 Supplement (Analysis) and 2016 Amended Record of  Decision and remanding those decisions to NNSA to prepare either a Supplemental Environmental Impact Statement or a new Site-Wide Environmental Impact Statement regarding the new design for the Uranium Processing Facility at the Y-12 Complex,” Friedrich said.

 

Next steps

The primary issue raised by the lawsuit, the question of a new environmental impact statement, has yet to be decided. The March 23 opinion and order from Friedrich primarily concerned the motion to transfer that was filed by the government in September.

It wasn’t immediately clear Thursday morning what the next steps are for the lawsuit in the Eastern District of Tennessee. The case didn’t appear to be publicly available yet in an electronic filing system available online for the Eastern District of Tennessee.

In the meantime, one federal official has said that the filing of the lawsuit did not change construction plans. The NNSA announced March 23, the same day that Friedrich announced her transfer decision, that construction had been authorized for the three main buildings, including one for enriched uranium operations, at UPF.

UPF is expected to be completed by 2025.

More information will be added as it becomes available.

See the civil complaint filed in U.S. District Court in Washington, D.C., on July 20, 2017, here.

See the DOE and NNSA response from September 29, 2017, here.

See the notice of the amended record of decision published in the Federal Register on July 12, 2016, here.

See the motion to transfer filed September 28, 2017, here.

See the opposition to the motion to transfer filed October 12, 2017, here.

See a defendants’ memorandum filed in support of the motion to transfer on October 19, 2017, here.

See Friedrich’s opinion and order transferring the case to East Tennessee on March 23, 2018, here.

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