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W. Chi. v. United States Nuclear Regulatory Com. - 701 F.2d 632 (7th Cir. 1983)

Rule:

"Piecemealing" or "segmentation" allows an agency to avoid the National Environmental Policy Act ("NEPA") requirement that an Environmental Impact Statement ("EIS") be prepared for all major federal action with significant environmental impacts by segmenting an overall plan into smaller parts involving action with less significant environmental effects. The Supreme Court of the United States has articulated the appropriate standard of review by which to evaluate an agency's decision not to issue an EIS. As long as the agency does not act arbitrarily in refusing to prepare an EIS, the decision lies in its discretion. 

Facts:

In one of two challenges that would later be consolidated for review, petitioner-plaintiff-appellant City of West Chicago (“City”) opposed respondent US Nuclear Regulatory Commission’s (“NRC”) amendment to intervening respondent/defendant Kerr-McGee Corporation’s (“KM”) source materials license. The NRS granted the license amendment to KM for the demolition of buildings and an acceptance for on site storage of contaminated soil. The City sought an injunction against the NRC and KM, challenging the amendment, the NRC's delay in issuing an environmental impact statement (“EIS”) and plan for KM's thorium site, and the lack of notice and a hearing. The second challenge was to the district court's dismissal of the City's mandamus suit for lack of subject-matter jurisdiction. The City petitioned for review of both orders.

Issue:

Did the US Nuclear Regulatory Commission ("NRC") act arbitrarily in deciding not to issue an environmental impact statement ("EIS") before it granted a license amendment authorizing the demolition of buildings at a West Chicago facility that processed thorium and approved the acceptance of contaminated soil for on site storage?

Answer:

No

Conclusion:

On consolidated review of the two orders, the United States Court of Appeals upheld the NRC's order and affirmed the dismissal of the City's mandamus action. As for the first order, the Court first held that the NRC order could not be set aside on procedural grounds. The NRC complied with § 189(a) of the Atomic Energy Act of 1954 (AEA), codified at 42 U.S.C.S. § 2239, 5 U.S.C.S. § 509, due process, and its own regulations because an informal hearing was held and the public interest did not require a formal hearing. Nor was the City prejudiced by the NRC's one-week notice of its rule changes. The City had an opportunity to comment on the NRC's decision not to issue an EIS, which was not an arbitrary or capricious determination. Thus, the NRC complied with 42 U.S.C.S. § 4332.

The Court also affirmed the second order. The Court held that the district court properly dismissed the City's motion for a preliminary injunction. The City could have petitioned NRC to expedite the licensing proceeding and the EIS process.  

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