After dismissal of The Los Alamos Study Group’s (the “Study Group”) complaint challenging the United States Department of Energy (“DOE”) and the National Nuclear Security Administration’s (“NNSA”) efforts to construct the new Chemistry and Metallurgy Research Replacement Nuclear Facility (“CMRR-NF”) at Los Alamos, New Mexico – based on the absence of any Environmental Impact Statement (“EIS”) analyzing the facility and its alternatives – the Study Group appealed the decision to the United States Court of Appeals for the Tenth Circuit.  The Study Group claims on appeal that, regardless of promises by the federal defendants to conduct more NEPA paperwork, a major federal action cannot be implemented unless it has been analyzed in an applicable EIS and authorized by a record of decision (“ROD”).

In the Tenth Circuit, the federal defendants filed a motion to dismiss, claiming the appeal was moot because the federal defendants had issued, after the lower court’s decision, a Supplemental EIS (“SEIS”) authorizing the current CMRR-NF project.  The federal defendants stated in the SEIS that, although the original CMRR-NF as analyzed and authorized by a 2003 EIS and 2004 ROD could no longer be built due to significant changes and seismic conditions, this deficiency was cured by the 2011 SEIS authorizing the current iteration of the project.  The Study Group responded to the motion to dismiss by stating that, under NEPA, no federal project can be implemented unless and until an applicable EIS has been performed and no EIS, with an analysis of current alternatives, supported the current project.  The Tenth Circuit sided with the Study Group, denied the motion to dismiss, and directed the parties to proceed to briefing on the merits.  Briefing is now completed, and the matter awaits oral argument.

While the appeal was pending, the Study Group filed yet another suit against the federal defendants, challenging the continual implementation of the project and the absence of reasonable alternatives in the 2011 SEIS.  The federal defendants have answered the complaint in the second suit and the parties were in the process of negotiating pre-trial procedures, when the matter took an unusual turn.

On Monday, February 13, 2012, NNSA abruptly announced that it would be “deferring the construction of the Chemistry and Metallurgical Research Replacement (“CMRR”) facility and meeting plutonium requirements by using existing facilities in the nuclear complex.”  The use of existing facilities by NNSA is an alternative which the Study Group vigorously advocated in the lower court prior to dismissal of the first case, in the Tenth Circuit Court of Appeals, and also in the second suit.  The available facilities, as a reasonable alternative to the 2011-12 CMRR, include sharing workload with Lawrence Livermore National Laboratories and other plutonium-capable facilities.  Moreover, in the event additional storage is needed for plutonium or special nuclear materials, the Device Assembly Facility in Nevada remains available for that purpose.

Since NNSA’s adoption of the Study Group’s position, the relative legal positions of the parties are unclear.  Although NNSA has not abandoned the CMRR project altogether, it has stated the project will be deferred for at least five years (after FY 2013).  Such a deferral would mean CMRR would not be built until at least 2018, some fifteen years after the original 2003 EIS authorizing a much smaller version of the project, and at least seven years after the issuance of the 2011 SEIS seemingly ratifying the NNSA’s decision to build the $6 billion project.  Under these circumstances, the Study Group will likely argue that no further activity can be taken on any aspect of the CMRR facility based on an antiquated EIS that could not possibly consider the myriad alternatives existing today, and certainly not those that will exist in or after 2018.  In this regard, both cases appear ripe for a declaration that a fresh EIS must be performed, together with applicable scoping, prior to any commitment to a project that may or may not be built at some unspecified time in the future.

Thomas M. Hnasko

A federal district judge in New Mexico has dismissed the Los Alamos Study Group’s (the “Study Group’s”) complaint challenging the United States Department of Energy (“DOE”) and the National Nuclear Security Administration’s (“NNSA”) efforts to construct the new Chemistry and Metallurgy Research Replacement Nuclear Facility (“CMRR-NF”) at Los Alamos, New Mexico.

Despite evidence presented by the Study Group that the project had changed so dramatically since the original NEPA analyses, and that defendants had acknowledged in their draft Supplemental Environmental Impact Statement (“SEIS”) that the originally-approved CMRR-NF project could no longer be built, the federal court nonetheless held that the doctrine of “prudential mootness” supported dismissal of the NEPA challenge because defendants had allegedly changed their policies during the lawsuit and were now conducting a SEIS to rectify any NEPA deficiencies with the project.

The Study Group pointed out at the hearing on defendants’ Motion to Dismiss and the Study Group’s Motion for Preliminary Injunction that the eight-year old EIS did not consider, mention, or remotely authorize the existing project.  The evidence presented by the Study Group also demonstrated that defendants had issued final design contracts for their preferred alternative, that those contracts required the final detailed designs for the project to be “construction-ready,” and that defendants were considering no other alternatives to the massive venture.  Moreover, even the draft SEIS produced by the defendants at the hearing acknowledged that the original project, selected from an EIS prepared in 2003, could no longer be built because of seismic conditions and other geologic constraints, and would be discarded as a “no-action” alternative.

The project as originally conceived called for a pit facility to be built no deeper than 50-75 feet below grade.  Based on the criteria examined in 2003, the 2004 ROD stated that:  “The environmental impacts of the preferred alternative” will be “minimal” and “small.”  Since the 2004 ROD, however, the project has undergone substantial changes.  The original budget for the Nuclear Facility was estimated at $350-$550 million.  The CMRR-NF, as now proposed, has changed from a structure to be built to a depth of 50 feet, to a structure requiring an excavation to 125 feet, with the bottom 50-60 feet of the hole filled with concrete.  The concrete now needed is 375,000 cubic yards, up from 3,194 cubic yards as originally estimated.  This is more concrete than was used for the Big-I Interchange in Albuquerque, or for the Elephant Butte Dam in southern New Mexico.  The steel needed is now 18,539 tons, up from 242 tons.  That is roughly the equivalent of the Eifel Tower.  In short, the present iteration of the Nuclear Facility dwarfs the Manhattan Project and will be the largest construction project in the history of the state of New Mexico.

Despite these fundamental changes, the Department of Justice successfully persuaded the District Court that it remained open to alternatives and was not irrevocably committed to the present iteration of the Nuclear Facility.  According to DOJ attorneys, alternatives were being considered because DOE had not yet decided just how deep the hole should be, i.e., whether it should be 125 feet as reported, or whether it could be reduced to around 80 feet.  The Study Group’s counsel countered that this was not an examination of alternatives, but rather design modifications to a single, pre-determined alternative reached without NEPA support.

 The district court accepted the DOJ’s arguments and reasoned that defendants could continue with their present project so long as additional NEPA compliance was achieved after the fact and no physical construction on the project had yet occurred.  The Study Group has appealed to the Tenth Circuit Court of Appeals, where the primary issue will be whether a federal agency may implement a major federal action and avoid an injunction under NEPA by claiming that additional NEPA analyses, through the vehicle of a SEIS, somehow render the already-chosen project compliant with NEPA’s directive that detailed design or construction activities should not take place until an EIS examines viable alternatives and a  ROD authorizes the federal action.

Any questions or comments should be directed to Thomas M. Hnasko.

The Los Alamos Study Group (the “Study Group”) is presently challenging the United States Department of Energy (“DOE”) and the National Nuclear Security Administration’s (“NNSA”) efforts to construct the new Chemistry and Metallurgy Research Replacement Nuclear Facility (“CMRR-NF”) at Los Alamos, New Mexico.

The Study Group’s complaint, in federal district court in Albuquerque, asserts that the project has changed so dramatically that an eight-year old environmental impact statement (“EIS”) does not begin to adequately analyze the environmental impacts of the present iteration of the CMRR-NF, and that defendants’ offer to conduct a supplemental environmental impact statement (“SEIS”) is merely a fait accompli to continue with the detailed planning and initial construction of the massive venture.

In considering the original Nuclear Facility, the federal defendants issued an EIS in 2003, and followed it with a Record of Decision (“ROD”) in 2004. The 2003 EIS addressed a Nuclear Facility to be built no deeper than 50-75 feet below grade. In the years that followed, however, seismic conditions underlying Los Alamos became better understood, and the federal defendants were faced with a project that arguably did not take into account those conditions. There was no discussion in the 2003 EIS of deeper excavation and no reference to a layer of volcanic ash known to underlie the site that would greatly complicate plans to construct at a greater depth, or meet then-known seismic safety criteria. The ROD stated that: “[B]ased on the CMRR EIS, the environmental impacts of the preferred alternative” (built 50 feet or less deep) would be “minimal” and “small.”
 

Moreover, since 2004, the project has seen further fundamental changes. The original budget for the Nuclear Facility was estimated at $350-$500 million. In 2003, the estimate, as reported to Congress, was $600 million. The EIS stated that construction would be completed in 2009; now, it is estimated to conclude in 2022, at a cost approaching $6 billion.

In 2003, NNSA reported that the Nuclear Facility would have 60,000 square feet of Hazard Category 2 space within 200,000 square feet of gross area. The CMRR-NF has now changed from a structure to be built to a depth of 50 feet, to a structure requiring an excavation to 125 feet, with the bottom 50-60 feet of the hole filled with concrete. As a result, the total volume of excavation for the CMRR-NF has increased from about 167,000 cubic yards in 2003, to 579,000-704,000 cubic yards in 2010, a three-to-four fold increase in construction equipment, spoilage, and disposal needs. The volume of soil now remaining to be excavated has increased six-fold.

Additionally, changes in the basic concept of the Nuclear Facility have expanded to include the introduction of the so-called “hotel concept” that would accommodate various unknown future missions, but would require large open floor areas and significant increases in concrete and steel. The concrete now needed is 371,000 cubic yards, up from 3,194 cubic yards. This is more concrete than was used for the Big-I Interchange in Albuquerque, or for the Elephant Butte Dam in southern New Mexico. The steel needed is now 18,539 tons, up from 242 tons. That is roughly the equivalent of the Eifel Tower. In short, the Nuclear Facility dwarfs the Manhattan Project and would be the largest construction project in the history of the State of New Mexico.

The Los Alamos Study Group case is one of first impression, as it is the first to contest the federal defendants’ decision to perform a SEIS as opposed to a new EIS altogether. Unlike a SEIS, an EIS must consider all available alternatives, including refurbishment of existing, under-utilized buildings at Los Alamos, and any other alternative besides the construction of the present iteration of the $6 billion CMRR-NF. Many of those alternatives, rejected in the original 2004 Record of Decision, may now be viable given the significant cost increases in the present version of the Nuclear Facility.

The federal defendants have filed a motion to dismiss based on prudential mootness and other grounds. All pleadings and other filings in the case may be obtained on the Study Group’s website.