ELR Citation: ELR 20823
No(s). s. 82-6094, -6200 (2d Cir. Aug 10, 1983)

The Second Circuit reverses the decision of the district court, 12 ELR 20864, which invalidated part of the Department of Transportation's (DOT's) Hazardous Materials Transportation Act (HMTA) regulations governing the highway transport of radioactive materials. The court first rejects the district court's ruling that the HMTA requires DOT to set the safest feasible standards for transportation of hazardous materials and to require shippers to use the safest alternative mode of transportation. Not only does §102 grant DOT the discretion to determine the appropriate level of safety, but §112 authorizes local jurisdictions to impose more stringent regulations if they are not inconsistent with the Act. Nor does the HMTA require DOT to compare modes of transportation. Such an interpretation would conflict with congressional intent to centralize regulation in DOT while retaining the practice of regulating each mode individually. DOT also promulgated the regulations in compliance with the Administrative Procedure Act.

The Second Circuit also rules that DOT complied with §§102(2)(E) and 102(2)(C) ofthe National Environmental Policy Act (NEPA). It did not violate §102(2)(E) by failing to consider barging as an alternative to highway transportation, particularly for New York City. First, since DOT found that it need not prepare an environmental impact statement (EIS) under §102(2)(C), it properly considered a narrower range of alternatives under §102(2)(E). Second, the HMTA authorizes DOT to limit its regulation to highway transportation. And third, the availability of the §112 exemption for local jurisdictions argues against the need for consideration of barging in a nationally applicable rule.

Finally, the court rulesx that DOT properly concluded that the regulations would not have a significant effect on the environment and therefore no EIS was required. DOT was not arbitrary in relying on conservative studies concerning the probability of an accident, including information on the estimated number of shipments, the reliability of the storage casks, human error, and sabotage risks. Nor was DOT arbitrary in failing to analyze in its environmental assessment professional disagreements over consequences of a severe accident. Furthermore, DOT was not required to consider the psychological impact of the regulation in the environmental assessment. The Second Circuit also finds fault with the district court's failure to defer to DOT's risk assessment techniques since it is clear the DOT took the required "hard look" under NEPA. Finally, the court notes that the city of New York may request a non-preemption ruling under §112 of the HMTA and seek judicial review if it is denied.

A dissent would find that because of the possibility of a "worst-case" accident involving nuclear waste transport, the regulations will have a significant effect on the environment justifying preparation of an EIS. The Council on Environmental Quality regulations indicate that a project is significant where it is highly controversial and involves highly uncertain effects or risks, both of which are present here. In addition, the dissent would find the HMTA regulations defective because DOT had had insufficient data concerning shipment numbers, accidents, cask reliability, human error, and sabotage.

Counsel for Appellants
Twila L. Perry, Gaines Givathmey III, Peter C. Salerno; John S. Martin Jr., U.S. Attorney
One St. Andrews Plaza, New York NY 10007
(212) 791-0055

Counsel for Appellants-Intervenors
Harry H. Voigt, Leonard M. Trosten, Mindy A. Buren, Robert S. Garrick
LeBoeuf, Lamb, Leiby & MacRae
520 Madison Ave., New York NY 10022
(212) 715-8000

Counsel for Appellee
Stephen P. Kramer, Barry L. Schwartz; Frederick A.O. Schwarz Jr., Corp. Counsel
Municipal Bldg., 100 Church St., New York NY 10007
(212) 566-3929

Counsel for Appellees-Intervenors
Ezra I. Bialik, Peter H. Schiff; Robert Abrams, Attorney General
Dep't of Law, Two World Trade Ctr., New York NY 10047
(212) 488-4141

Counsel for Amicus Curiae
Peter M. Collins, John G. Gollins
Mid-Atlantic Legal Foundation, Inc.
219 E. 42d St., New York NY 10017
(212) 557-1350

Newman, J., joined by Oakes and Pratt, JJ.