ML061740572

Comment (9) of Jon Block, on Behalf of Citizens Awareness Network, on the Environmental Scoping Process for the Vermont Yankee Nuclear Power Station License Renewal Application

ML061740572
Person / Time
Site:	Vermont Yankee
Issue date:	06/23/2006
From:	Block J Citizens Awareness Network
To:	Office of Administration
References
71FR20733 00009
Download: ML061740572 (42)

Text

From: Jon Block <jonb@sover.net>

To: <VermontYankeeEIS@nrc.gov>, Deb Katz <deb@nukebusters.org>, Chris Nord<chrisnord@netzero.net>

Date: Fri, Jun 23, 2006 3:12 PM

Subject:

Citizens Awareness Network's Scoping Comments on EIS for proposed VY License Renewal in Docket 50-271 Attached hereto are scoping comments on the EIS for the proposed VY License Renewal in Docket 50-271 in both WP12 and PDF formats. Also attached is a copy of /S//an IIL-luis IIO//bispo

//M//others For IIP//eace

v. NRC/, _ F.3d _, Docket No. 03-74628 (9th Cir. 2006). The file is called "Mothers v. NRC.PDF" and the contents are referenced in the scoping comments.If you have any difficulty receiving this transmission or opening and using the attached PDF files, please contact sender immediately.

Thank you.Jonathan M. Block Attorney at Law 94 Main Street P.O. Box 566 Putney, VT 05346 802-387-2646 (office)jonb@sover.net

///V//P ý-DD E5-0 647:5VA) Sf 5 z kH- ~~T3 dr~ 9~~~2"S Jonathan M. BlockAttorneyat Law94 Main StreetP.O. Box 566Putney, VT. 05346-0566802-387-2646 (vox) -2667 (fax)jonb@sover.netJune 23, 2006Chief, Rules and Directives BranchDivision of Administrative ServiceMail Stop T-6D59United States Nuclear Regulatory CommissionWashington, D.C. 20555via email to

VermontYankeeEIS@nrc.govRE:Citizens Awareness Networks Written Comments on the Scope of the EIS forProposedLicense Renewal of the Vermont Yankee Nuclear Power Station, Vernon,Vermont, NRC Docket Number 50-271, Scoping Process Notice,71FR 20733(4/21/2006).The following comments are provided to supplement oral comments of Deb Katz,Executive Director, and Chris Nord, Vice President, of Citizens Awareness Network, made during the public scoping meeting at the Latchis Theatre, Brattleboro,Vermont, on June 7, 2006. The live comments and the comments below are made pursuant to the regulations governing preparation of Environmental Impact Statementsunder 10 C.F.R. Part 51. CAN specifically requestedtoparticipate in makingcommentsonthis matter following direct contact by the NRC.

Background of the Commenting OrganizationCitizens Awareness Network [CAN] is a non-profit Massachusetts corporationthat isconcerned with all environmental impacts of the nuclear fuel chain. CAN has members in Connecticut, Massachusetts, New Hampshire, New York, and Vermont. CAN members utilizethe resources of the Connecticut River and Deerfield River ecosystems for living, working, Citizens Awareness Network Comments re: Scope of EIS For ENVY License Renewal, Dkt. 50-271(June 23, 2006) Page 2 of 8aesthetic, recreational and sport-fishing purposes in the areas affected by the proposedrelicensingof the Vermont Yankee Nuclear Power Station, Vernon, Vermont. Executive DirectorofCAN,Deborah B. Katz, P.O. Box 83, Shelburne Falls, MA 01370-0083, (413) 339-5781, has authorized these comments and representation of CAN in this matter for the limited purposes of filing supplemental written comments on the proper scope of the EIS in thismatter.

CommentsCAN contends that the following are proper subjectsofenvironmental concern thatshould be fully investigated prior to renewal of the Vermont Yankee license to operate:

1.Subjectsto includein a supplementto the GEIS forVermontYankeeandanalyze in depth:1.1Accumulation of low-level radioactive waste on site.

1.2Accumulation of chemical wastes on site.

1.3Extent of on and off site contamination due to radioactivematerials, chemicalsand other VY waste in on and off sitelocations,including, but not limited to disposal in the Brattleboro and other area landfillsthatare nowpartof the Windham Solid Waste ManagementDistrict and/or out of state landfills utilized by the WSWMD.1.4Extent of site contamination due to chemical and other hazardous wa stes,including, but not limited to PCB contamination in paint, accumulated TCE, PERC and other organic solvents, lead, and asbestos.1.5Extentof groundwater contamination on (and beneath) site, including, but not Citizens Awareness Network Comments re: Scope of EIS For ENVY License Renewal, Dkt. 50-271(June 23, 2006) Page 3 of 8limited to tritium contamination.1.6Extent of any off-site groundwater contamination, including, but not limited totritium contamination of drinking water wells and other off site ground water locations.1.7Extent ofradionuclide inventory and location of radioactive waste accumulatedin on-site disposal locations for contaminated silt, sand, soil, sewage and other materials.Rationale for including 1.1 - 1.7 within the scope of an EIS for Vermont Yankee licenserenewal:WereVermont Yankee to be denied renewal of its license, shut down in 2012, and thenbegin to undergo decommissioning, each of the listed environmental concerns would be considered in the decommissioning process. In the event that Vermont Yankee is given anadditional twenty years (or less) of operation under license renewal,nowisthe time to access the above listedenvironmental issues in order to inventory and fully analyze the extent of these problems at the originally contemplated end-of-life forthis reactor. This inventory and analysis isappropriate,asthe useandimproperdisposalofmany ofthe environmentalhazards listed above, along withon-sitedisposalof constructionwasteduringconstructionof the facility, werecommonly accepted and customary business and industrial practices during a majorportion of the original license period. Moreover, there is ample evidence in the publicly available records for Vermont Yankee that numerous spillsoccurredduring operationsunder the original licenseand the facility engaged in shoddy record keeping to document the extent and location of such Citizens Awareness Network Comments re: Scope of EIS For ENVY License Renewal, Dkt. 50-271(June 23, 2006) Page 4 of 8 1 The following is just a tiny sample of what a real inspection of records might disclose--let alonean actually complete and comprehensive inspection of the entire reactor facility and grounds. It was,perforce, based on the use of the NRC Public Document collection through ADAMS on line.This form of record access is slow, inaccurate and entirely hit-or-miss--yet there is still someevidence of a pattern of environmental contamination--on and off the VY site--that an EIS shouldevaluate:Failure to keep records of spills, unusual events and spread of contaminated material Accession # 9903240281 (Excerpt of a letter from Clifford J. Andersen, Chief, NRC ProjectsBranch 5, Division of Reactor Projects, to Gregory Maret, VY Director of Operations, re: NRCIntegrated Inspection Report 50-271/99-01 (March 16, 1999) (We also reviewed your recent effortsto update your records of spills or other unusual occurrences involving the spread of contaminationin and around the facility for decommissioning planning purposes. Our review found that in somecases, documentation was not sufficiently detailed to fully assess some locations with respect to therequirements of 10 CFR 50.75 relative to its impact on decomm issioning.) (Emphasis added.)Accession # 9508140119 (Abstract excerpt) Findings of Inspection 50-271/95-18 of VermontYankee Nuclear Power Station, on June 20 to 22, 1995. This inspection consisted of observationsregarding the Vermont Yankee Nuclear Corporations controls for radioactive materials andcontamination, surveys and monitoring, including review of the following: audits, appraisals andassessments; radioactive surveys and monitoring; radioactive materials and contamination controls;and other related items. During the inspection, one violation of the Tech Specs was identifiedregarding failure to effectively control personnel access to high radiation areas. (....) A weakness wasidentified in maintaining records for events or incidents including spills of radioactive materials thatare important to decommissioning. Continued management attention is necessary to ensure thatthese records are maintained and available for eventual decommissioning of the facility. (Emphasisadded.)Permitting on-site disposal of radioactively contaminated silt, sand, and septic sludge Accession # 9706200266(Abstract) The NRC concludes that the plant site radiological conditionsthat would result from the onsite disposal of slightly contaminated silt material (as proposed by thelicensee under 10CFR20.2002) and the previously approved onsite disposal of slightly contaminatedseptic waste material are within the applicable boundary conditions for the disposal of licensedmaterial. (Emphasis added.)Tritium in sewage system from unknown causes Accession #9111180022, Findings of Safety Inspection 50-271/91-24 of Vermont Yankee NuclearPower Station on September 8 to October 15, 1991 (abstract) (Root cause and corrective actiondeterminations have not been fully effective in resolving the issue of tritium in the sewage system.)(Emphasis added.)Offsite disposal of radioactive sludge and licensed material Accession #8807250386, Findings of Inspection 50-271/88-09 of Vermont Yankee Nuclear PowerStation on June 20 to 24, 1988 (abstract) (review of VY offsite disposal of sewage waste containingevents. Thus, including a complete inventory and analysis of all theitemsinthelist within the 1

Citizens Awareness Network Comments re: Scope of EIS For ENVY License Renewal, Dkt. 50-271(June 23, 2006) Page 5 of 8licensed material during the period of January to May 1988. During the inspection, one unresolveditem was identified regarding the potential improper disposal of licensed material.) (Emphasis added).Spills of radioactively contaminated liquidsADAMS # ML0209303370, Reportable Event Number: 27319 (May 31, 1994) (220 gallons ofreactor coolant were discharge into the RB floor drain system. [C]ontamination surveys near thesupplemental fuel pool cooling system (located directly below the RWCU system) identifiedapproximately 30kcpm/100sqcm general area and 800 mRad-beta near one floor drain indicatingthat the floor drain backed up when the relief valve lifted. Lower levels of radioactiveconcentrations have also been identified on most areas in the RB. The licensee identified a fewgallons of reactor coolant and RWCU demineralizer resin in the vicinity of the floor drain.)(Emphasis added.)Accession # 8711100481 (LER documenting a 2,000 gallon spill which was communicated throughthe floor drain system and which resulted in contaminating local areas of the Reactor Building withminor seepages through the interface between the Reactor Building Refuel Floor Paneling and theReactor Building exterior walls ... detected.) (Emphasis added.)

See 2http://www.nrc.gov/reactors/operating/ops-experience/grndwtr-contam-tritium.html. This isthe NRC response (to date) to the tritium petition filed with the NRC by NIRS, UCS, CAN and manyother participating organizations.scope of the EIS forVermontYankeelicenserenewalmakes good practical sense based on thehistorical record for this licensee.Further,asthe NRC is aware, tritium contamination--which 2is a part of the historical record for this facility--hasbecomeamajor issue at reactor sites across the country. Thus,onand offsite tritiumcontaminationdue to past (and continued) operation of the VermontYankee Nuclear Power Station should be thoroughly investigated, including allsources and pathways on and off site, toassureif the NRC renews VYs license it will notpermit continued radioactive contamination of groundwa ter.1.8Unique potential for a fuel-pool fire in a GE Mark-I-type Boiling Water Reactor[BWR] due to acts of sabotage and/or terrorism.Rationale: See written comments of CAN VP, Chris Nord, below.

Citizens Awareness Network Comments re: Scope of EIS For ENVY License Renewal, Dkt. 50-271(June 23, 2006) Page 6 of 81.9The nature andextentofenvironmental harm due to a fuel-pool fire at VermontYankee caused by acts of sabotage and/or terrorism.Rationale: See written comments of CAN VP, Chris Nord, below.Written Comments of Chris Nord, Vice President, Citizens Awareness Network:I hereby incorporate by reference myoralcomments at the June 7 meeting inBrattleboro, and set forth additionally as follows:1) TheNRCmustrequire thatEntergy returntotheoriginalDesignBasis for Spent FuelPool (SFP) rack configuration - that is Low-Density racking, which ensures a redundant safety component to SFP cooling. [A low-density pool w ill theoretically survive a Loss ofCoolant (LOCA) accident without catching fire or going critical, due to ambient air-cooling].

Continuation of the High-Density scheme amounts to the sacrifice of an engineered protection forthe public - and NRC's own Design Basis - for the sake of an economically driven expediency. This is an issue that could have dire consequences on the natural and humanenvironment in and about the Vermont YankeeNuclear Power Station in the event of a terrorist attackand/or act of sabotage against the SFP. Following the recent 9th Circuitdecision,San Luis Obispo Mothers For Peace v. NRC, ___ F.3d ___, Docket No. 03-74628 (9thCir. 2006) (a copy of which is attached heretofor your convenience), such consideration isproperly within the scope of an EIS for theproposed license renewal of Vermont Yankee. It must be noted that NRC regulations on license renewal and related guidance documents, including those relating to the scope of the EIS, were all prepared prior to 9/11.

Citizens Awareness Network Comments re: Scope of EIS For ENVY License Renewal, Dkt. 50-271(June 23, 2006) Page 7 of 82)Because muchof current inventory of SF must be removed for Low-Density Storage,NRC must create and enforce regulationsregarding robust storage of this out-of-water inventory,per Dr. Gordon Thompsons supporting declaration of the contentions of the Stateof Massachusetts in the matterof the relicensing of Vermont Yankee. See ADAMS location file: ML061640065 (legal and factual arguments, contention), at Pp.5-50 (which areincorporatedby reference herein); see also reports and declarations of Dr. Gordon Thompson and Dr. Jan Beyea, attached thereto, which are incorporated herein by reference. The evidence in the cited contention filing makes it clear that failuretoplace the fuel in robust storage could have dire consequences on thenatural and human environment in and about the Vermont Yankee Nuclear Power Station inthe event of a terrorist attack and/or act of sabotage against the SFP. Following the recent 9th Circuit Decision of the Mothers and Others case,such consideration is properly within the scope of an EIS for the proposed license renewal of Vermont Yankee.3)Inlightof the unquestionable vulnerability of the GE Mark-I type-BWRs to airborneterrorist attack (and the accessibilityof Vermont Yankee from Canadian airspace), and because of the catastrophic consequences of such an attack,theNRCmust expand the scope of emergency preparedness out to the boundaries ofthe IngestionPathway-a 50 radius. I hereby incorporate by reference my comments at the NRCs Plymouth, Massachusetts, meeting earlier in the spring (for Pilgrim), at the Brattleboro meeting, and in a meeting with NH Governor LynchofNew HampshireonJune13,2006,inwhichIrecommendedthatthe EPZ be extended to 50 miles. Governor Lynch acknowledged that his Capitoliswithin the 50-mile

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITS AN L UIS O BISPO MOTHERSFOR P EACE; S ANTA L UCIA CHAPTEROFTHE S IERRA C LUB; P EG P INARD , No. 03-74628 Petitioners, NRC No.P ACIFIC G AS AND E LECTRIC CLI-03-01;C OMPANY , CLI-02-23 Intervenor, OPINION v.N UCLEAR R EGULATORY C OMMISSION;U NITED STATESOF A MERICA , Respondents.On Petition for Review of an Order of the Nuclear Regulatory Commission Argued and Submitted October 17, 2005-San Francisco, California Filed June 2, 2006Before: StephenReinhardt and SidneyR.Thomas,Circuit Judges, and JaneA.Restani,* Chief Judge, United States Court of International Trade Opinion by Judge Thomas

• The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.

6063 COUNSEL Diane Curran, Harmon, Curran, Spielberg & Eisenberg, L.L.P., Washington, D.C., for the petitioners.

Charles E. Mullins, United States Nuclear Regulatory Com-mission, Washington, D.C., for the respondents.

David A. Repka, Winston & Strawn, L.L.P., Washington, D.C., for respondent-intervenor PG&E.

Sheldon L. Trubatch, Esq., Offices of Robert K. Temple, Esq., Chicago, Illinois, for amicus San Luis Obispo County.

Kevin James, California Department of Justice, Oakland, Cal-ifornia, for amicus States of California, Massachusetts, Utah

and Washington.

Jay E. Silberg, Shaw Pittman, L.L.P., Washington, D.C., for amicus Nuclear Energy Institute.

OPINION THOMAS, Circuit Judge:

This case presents the question, inter alia , as to whether the likely environmental consequences of a potential terrorist 6067 S AN L UIS O BISPO M OTHERS v. NRC attack on a nuclear facility must be considered in an environ-mental review required under the National Environmental

Policy Act. The United States Nuclear Regulatory Commis-

sion ("NRC") contends that the possibility of a terrorist attack

on a nuclear facility is so remote and speculative that the

potential consequences of such an attack need not be consid-ered at all in such a review. The San Luis Obispo Mothers for

Peace and other groups disagree and petition for review of the

NRC's approval of a proposed Interim Spent Fuel Storage

Installation. We grant the petition in part and deny it in part.

I The NRC is an independent federal agency established by the Energy Reorganization Act of 1974 to regulate the civilian

use of nuclear materials. Intervenor Pacific Gas and Electric

Company ("PG&E") filed an application with the NRC under

10 C.F.R. Part 72 for a license to construct and operate an

Interim Spent Fuel Storage Installation ("Storage Installation" or"ISFSI") at PG&E's Diablo Canyon Power Plant ("Diablo

Canyon") in San Luis Obispo, California. The NRC granted

the license. The question presented by this petition for review

is whether, in doing so, the NRC complied with federal stat-

utes including the National Environmental Policy Act of 1969

("NEPA"), 42 U.S.C. §§4321-4437, the Atomic Energy Act of 1954 ("AEA"), 42 U.S.C. §§2011-2297g, and the Admin-istrative Procedure Act ("APA"), 5 U.S.C. §§551-706.

NEPA establishes a "national policy [to] encourage produc-tive and enjoyable harmony between man and his environ-

ment," and was intended to reduce or eliminate environmental

damage and to promote "the understanding of the ecological

systems and natural resources important to" the United States.

Dept. of Transp. v. Pub. Citizen , 541 U.S. 752, 756 (2004)(quoting 42 U.S.C. §4321).The Supreme Court has identified NEPA's"twin aims" as "plac[ing] upon an agency the obliga-

tion to consider every significant aspect of the environmental

impact of a proposed action[, and] ensur[ing] that the agency6068S AN L UIS O BISPO M OTHERS v. NRC will inform the public that it has indeed considered environ-mental concerns in its decisionmaking process."

Baltimore Gas & Elec. Co. v. Natural Res. Def. Counsel, Inc., 462 U.S.

87, 97 (1983).

Rather than mandating particular results, NEPA imposes on federal agencies procedural requirements that force consider-

ation of the environmental consequences of agency actions.

Pub. Citizen , 541 U.S. at 756. At NEPA's core is the require-ment that federal agencies prepare an environmental impact

statement ("EIS"), or:

include in every recommendation or report on pro-posals for legislation and other major Federal actions

significantly affecting the quality of the human envi-

ronment, a detailed statement by the responsible offi-

cial on-(i) the environmental impact of the

proposed action, (ii) any adverse environmental

effects which cannot be avoided should the proposal

be implemented, (iii) alternatives to the proposed

action, (iv) the relationship between local short-term uses of man's environment and the maintenance and

enhancement of long-term productivity, and (v) any

irreversible and irretrievable commitments of

resources which would be involved in the proposed

action should it be implemented.

Id. at 757 (quoting 42 U.S.C. §4332(2)(C)).

As an alternative to the EIS, an agency may prepare a more limited environmental assessment ("EA") concluding in a

"Finding of No Significant Impact" ("FONSI"), briefly pre-

senting the reasons why the action will not have a significant

impact on the human environment.

Id.at 757-58 (citing 40C.F.R. §§1501.4(e), 1508.13). If, however, the EA does not

lead to the conclusion that a FONSI is warranted, the agency

remains obligated to prepare an EIS.

Id.at 757. 6069 S AN L UIS O BISPO M OTHERS v. NRC While NEPA requires the NRC to consider environmental effects of its decisions, the AEA is primarily concerned with

setting minimum safety standards for the licensing and opera-

tion of nuclear facilities. The NRC does not contest that the

two statutes impose independent obligations, so that compli-

ance with the AEA does not excuse the agency from its NEPA obligations. The AEA lays out the process for consid-

eration of the public health and safety aspects of nuclear

power plant licensing, and requires the NRC to determine

whether the licensing and operation of a proposed facility is

"in accord with the common defense and security and will

provide adequate protection to the health and safety of the public." 42 U.S.C. §2232(a).

The NRC is not, however, required to make this determina-tion without assistance; federal law provides a framework for

hearings on material issues that interested persons raise by specific and timely petition. 42 U.S.C. §2239(a); 10 C.F.R.

§§2.308-.348; 5 U.S.C. §§551-706. The initial hearing is

held before a three-person Atomic Safety and Licensing Board ("Licensing Board"). 10 C.F.R. §2.321. The Licensing

Board's findings and decision constitute the agency's initial

determination, although a party may file a petition for review

with the Commission within 15 days of the Licensing Board's decision. 10 C.F.R. §2.341. If the petition is granted, the

Commission specifies the issues to be reviewed and the par-ties to the review proceedings, 10 C.F.R. §2.341(c)(1), and renders a final decision. 10 C.F.R. §2.344. A party may then

petition this court for review of the Commission's final deci-sion. 28 U.S.C. §2344.

II With this general statutory background, we turn to the facts underlying the petition for review. On December 21, 2001, PG&E applied to the NRC pursuant to 10 C.F.R. Part 72 for

a license to construct and operate a Storage Installation at

Diablo Canyon. The Storage Installation would permit the6070S AN L UIS O BISPO M OTHERS v. NRC necessary and on-site storage of spent fuel, the byproduct of the two nuclear reactors at that site. PG&E expects to fill its

existing spent fuel storage capacity at Diablo Canyon some-

time this year. Therefore, unless additional spent fuel storage

capacity is created, the Diablo Canyon reactors cannot con-

tinue to function beyond 2006.

PG&E proposes to build a dry cask storage facility. The basic unit of the storage system is the Multi-Purpose Canister

("Canister"), a stainless steel cylinder that is filled with radio-

active waste materials and welded shut. The Canisters are loaded into concrete storage overpacks that are designed to

permit passive cooling via the circulation of air. The storage

casks, or the filled Canisters loaded into overpacks, are then

placed on one of seven concrete pads. The Storage Installation

would house a total of 140 storage casks, 2 more than the 138

projected to be required for storage of spent fuel generated at

Diablo Canyon through 2025.

On April 22, 2002, the NRC published a Notice of Oppor-tunity for Hearing. Under the regulatory scheme, interested

parties could then request a hearing or petition for leave to intervene. 10 C.F.R. §2.309(a). A written hearing request, which must contain the contentions the party wants litigated

at the hearing, will be granted if the petitioner has standing, and has posed at least one admissible contention.

1 Id.On July 19, 2002, the San Luis Obispo Mothers for Peace, a non-profit corporation concerned with Diablo Canyon's 1 In order to be admissible, a contention must: be set forth with particu-larity, 10 C.F.R. §2.309(f)(1); provide a specific statement of the disputed issue of law or fact, 10 C.F.R. §2.309(f)(1)(i); provide the basis for the contention, 10 C.F.R. §2.309(f)(1)(ii); demonstrate that the issue is within

the scope of the proceeding, 10 C.F.R. § 2.309(f)(1)(iii); demonstrate that

the issue is material to the findings the NRC must make, 10 C.F.R.

§2.309(f)(1)(iv); provide supporting references and expert opinions, 10 C.F.R. §2.309(f)(1)(v); and provide sufficient information to show the existence of a genuine issue of law or fact, 10 C.F.R. §2.309(f)(1)(vi).

6071 S AN L UIS O BISPO M OTHERS v. NRC local impact, the Sierra Club, a non-profit corporation con-cerned with national environmental policy, and Peg Pinard, an

individual citizen, (collectively "Petitioners") submitted a

hearing request and a petition to intervene, asserting conten-

tions for admission.

In Licensing Board Proceeding LBP-02-23, 56 NRC 413

("LBP 02-23"), the Atomic Safety and Licensing Board

addressed the admissibility of the July 19 petition's five Tech-

nical and three Environmental Contentions.

2 One Technical Contention, TC-1, dealing with the state of PG&E's finances, was deemed admissible; the acceptance of at least one conten-

tion meant that the petition was granted. Although the Licens-

ing Board deemed two Environmental Contentions, EC-1, dealing with the failure to address environmental impacts of

terrorist or other acts of malice or insanity, and EC-3, dealing

with the failure to evaluate environmental impacts of trans-

portation of radioactive materials 3 inadmissible, the Licensing Board nonetheless referred the final ruling as to the admissi-

bility of these two contentions to the NRC, "in light of the 2 Technical Contention Number One ("TC-1") alleged Inadequate Seis-mic Analysis. TC-2 alleged PG&E's Financial Qualifications Are Not

Demonstrated. TC-3 alleged PG&E May Not Apply for a License for a

Third Party. TC-4 alleged Failure to Establish Financial Relationships

Between Parties Involved in Construction and Operation of Installation.

TC-5 alleged Failure to Provide Sufficient Description of Construction and Operation Costs. Environmental Contention Number One ("EC-1")

alleged Failure to Address Environmental Impacts of Destructive Acts of

Malice or Insanity. EC-2 alleged Failure to Fully Describe Purposes of

Proposed Action or to Evaluate All Reasonably Associated Environmental

Impacts and Alternatives. EC-3 alleged Failure to Evaluate Environmental

Impacts of Transportation.

3 Because the Storage Installation is not a permanent repository, this contention assumes the eventual transport of the materials stored there to

a permanent site. Among the materials submitted to support the contention

were some dealing with possible terrorist or other malicious attacks on the

spent fuel while in transit. The ruling on the contention was "referr[ed]

. . . to the Commission to the extent terrorism and sabotage matters are

proffered in support of its admission." 56 NRC at 453. 6072S AN L UIS O BISPO M OTHERS v. NRC Commission's ongoing 'top to bottom' review of the agency's safeguards and physical security programs." 56 NRC at 448.

In a memorandum and order, CLI-03-1, 57 NRC 1 ("CLI 03-01"), the NRC accepted the Licensing Board's referral of

its decision to reject the environmental contentions related to

terrorism. Although the Commission affirmed the Licensing

Board's rejection of the contentions, it based its decision on

a different rationale. The NRC relied on four prior decisions

in which it held that the NEPA does not require a terrorism

review.4 These decisions, most particularly Private Fuel Stor-age , CLI-02-25, 56 NRC 340 (2002), outlined four reasons for this holding: (1) the possibility of terrorist attack is too far

removed from the natural or expected consequences of agency action to require study under NEPA; (2) because the risk of

a terrorist attack cannot be determined, the analysis is likely

to be meaningless; (3) NEPA does not require a "worst-case"

analysis; and (4) NEPA's public process is not an appropriate

forum for sensitive security issues. The NRC concluded:

Our decision today rests entirely on our understand-ing of NEPA and of what means are best suited to

dealing with terrorism. Nonetheless, our conclusion

comports with the practical realities of spent fuel

storage and the congressional policy to encourage

utilities to provide for spent fuel storage at reactor

sites pending construction of a permanent repository.

Storage of spent fuel at commercial reactor sites

offers no unusual technological challenges. Indeed, it has been occurring at Diablo Canyon for many 4 Those cases include:

Private Fuel Storage, L.L.C., CLI-02-25, 56 NRC 340 (2002) (Storage Installation);

Duke Cogema Stone & Webster (Mixed Oxide Fuel Fabrication Facility), CLI-02-24, 56 NRC 335 (2002);

Domin-ion Nuclear Connecticut, Inc. (Nuclear Power Station), CLI-02-27, 56 NRC 367 (2002); and Duke Energy Corp. (Nuclear Power Station), CLI-02-26, 56 NRC 358 (2002). All four cases were decided on December 18, 2002.6073 S AN L UIS O BISPO M OTHERS v. NRC years and will continue whether or not we license the proposed Installation.

57 NRC at 7.

In September of 2002, prior to the NRC's decision on the first petition, Petitioners submitted a second petition, this time

requesting suspension of the Storage Installation licensing

proceeding pending comprehensive review of the adequacy of

Diablo Canyon's design and operation measures for protec-

tion against terrorist attack and other acts of malice or insan-

ity. Unlike the July 19 petition, this one addressed security

measures for the entire Diablo Canyon complex, not merely

the Storage Installation. Petitioners explained that 10 C.F.R.§2.335, which prohibits challenges to any NRC rule or regu-

lation in an adjudicatory proceeding involving initial or

renewal licensing, prevented the raising of contentions con-

testing the adequacy of NRC safety requirements protecting

against terrorist or other malicious attacks on the entire com-

plex in the July 19 Petition. Petitioners also stated that 10 C.F.R. §72.32 prevented them from raising emergency plan-

ning contentions in the earlier petition. Thus, Petitioners

insisted that the second petition "d[id] not constitute a request

for rulemaking, nor . . . for enforcement action," and instead

defined it, without reference to any particular hearing-

granting provision of the regulations, as "a request for actions

that are necessary to ensure that any licensing decision made

by the Commission with respect to the proposed Diablo Can-

yon Installation complies with the Commission's statutory

obligations under the Atomic Energy Act."

In a memorandum and order, CLI-02-23, 56 NRC 230

("CLI 02-23"), the NRC denied the September 2002 petition.

Because the petition did not, according to the NRC, "fit com-

fortably in any specific category, [the Commission] treat[ed]

it as a general motion brought under the procedural require-ments of 10 C.F.R. §2.730."

5 In rejecting the petition, the 5Since renumbered as 10 C.F.R. §2.323, this regulation provides, sim-ply, for "motions".6074S AN L UIS O BISPO M OTHERS v. NRC Commission reasoned that by not suspending operating licenses at installations and power plants following the Sep-

tember 11, 2001 terrorist attacks, it had demonstrated its

implicit conclusion that the continued operation of these facil-

ities neither posed an imminent risk to the public health, nor

was inimical to the common defense. Further, the Commis-

sion concluded that because it had already initiated a thorough

review of its safeguards and physical security program, there

was no reason to suspend the Diablo Canyon licensing pro-

ceeding to address the terrorism-related concerns raised by the

Petitioners. It stated that "[t]here certainly is no reason to

believe that any danger to public health and safety would

result from mere continuation of this adjudicatory proceed-

ing," given that the proceeding was in its initial stages, that

construction was not scheduled to begin for several years, and

that the Petitioners would be able to comment on any changes in the rules resulting from the Commission's ongoing review

of terrorism-related matters if and when they were to occur.

In a memorandum and order, CLI-03-12, 58 NRC 185 (2003) ("CLI 03-02"), the NRC denied the petitions for

agency review of the Licensing Board's decisions that "cumu-

latively, rejected challenges to [the PG&E] Installation appli-

cation." This denial thus became a final order, reviewable by this court on petition for review. 28 U.S.C. §2344.

In October of 2003, the Spent Fuel Project Office of the NRC's Office of Material Safety and Safeguards released its

Environmental Assessment Related to the Construction and

Operation of the Diablo Canyon Independent Spent Fuel Stor-

age Installation. The 26-page document contains the NRC's conclusion"that the construction, operation, and decommis-

sioning of the Diablo Canyon Installation will not result in

significant impact to the environment," and therefore that "an

[EIS] is not warranted for the proposed action, and pursuant

to 10 C.F.R. [§] 51.31, a Finding of No Significant Impact is

appropriate."

6075 S AN L UIS O BISPO M OTHERS v. NRC The EA is not devoid of discussion of terrorist attacks.

Indeed, the document contains the Commission's response to

a comment submitted by the California Energy Commission

in response to an earlier draft that "there is no discussion in

the EA of the potential destruction of the casks or blockage

of air inlet ducts as the result of sabotage or a terrorist attack

. . . [nor is there] a description of how decisions are being

made regarding the configuration, design and spacing of the casks, the use of berms, and the location of the ISFSI to mini-

mize the vulnerability of the ISFSI to potential attack." The

NRC responded:

In several recent cases, . . . the Commission has determined that an NRC environmental review is not

the appropriate forum for the consideration of terror-

ist acts. The NRC staff considers the security of

spent fuel as part of its safety review of each applica-

tion for an ISFSI license. In addition to reviewing an

ISFSI application against the requirements of 10

CFR Part 72, the NRC staff evaluates the proposed

security plans and facility design features to deter-

mine whether the requirements in 10 CFR Part 73, "Physical Protection of Plants and Materials," are

met. The details of specific security measures for

each facility are Safeguards Information, and as

such, can not be released to the public.

The NRC has also initiated several actions to fur-ther ensure the safety of spent fuel in storage. Addi-

tional security measures have been put in place at

nuclear facilities, including ISFSIs currently storing

spent fuel. These measures include increased secur-

ity patrols, augmented security forces and weapons, additional security posts, heightened coordination

with law enforcement and military authorities, and

additional limitations on vehicular access. Also, as

part of its comprehensive review of its security pro-

gram, the NRC is conducting several technical6076S AN L UIS O BISPO M OTHERS v. NRC studies to assess potential vulnerabilities of spent fuel storage facilities to a spectrum of terrorist acts.

The results of these studies will be used to determine

if revisions to the current NRC security requirements

are warranted.

Petitioners argue that, in denying their petitions, the NRC violated the AEA, the APA, and NEPA. Although we reject

the AEA and APA claims, we agree with Petitioners that the

agency has failed to comply with NEPA. We have jurisdiction

over those final orders of the NRC made reviewable by 42 U.S.C. §2239, which includes final orders entered in licens-ing proceedings, under 28 U.S.C. §2342(4).

III We turn first to Petitioners' AEA argument. Specifically, Petitioners argue that the NRC violated its regulations imple-

menting the AEA, as well as the AEA's hearing provisions, when it denied Petitioners a hearing on whether NEPA

required consideration of the environmental impact of a ter-

rorist attack on the Storage Installation; they also argue that

the NRC violated the AEA's hearing provisions in denying

Petitioners a hearing on post-September 11th security mea-

sures for the entire Diablo Canyon complex. Both of these

challenges fail.

A[1] The NRC did not violate the AEA or its implementing regulations when it failed to explain its rejection of Petition-

ers' contentions by addressing each of their arguments. Noth-

ing in the regulations or the AEA requires the NRC to provide

such an explanation.

Section 189(a) of the AEA grants public hearing rights "upon the request of any person whose interest may be affect-ed" by an NRC licensing proceeding. 42 U.S.C. §2239.The 6077 S AN L UIS O BISPO M OTHERS v. NRC NRC public hearing regulations, at 10 C.F.R. §2.309,"pro-mulgated pursuant to the AEC's 6 power to make, promulgate, issue, rescind, and amend such rules and regulations as may

be necessary to carry out the purposes of" the AEA, 12 U.S.C.

§2201(p), specify the procedures required of both petitioners

and the NRC in making and deciding hearing petitions.

[2] Petitioners correctly observe that the NRC, in its deci-sion, did not discuss whether Petitioners satisfied the regula-

tory standard. They are mistaken, however, in their

unsupported contention that this omission amounts to the

agency's failure to follow its own regulations and thus is "re-

versible error." The regulations simply do not require the

NRC to explain its decisions in any particular manner.

Although the NRC regulations are specific and demanding in

what they require of petitioners, they demand far less of the

NRC in responding to a petition: the regulations require only

a timely "decision."

See10 C.F.R. §2.714(i) ("Decision on request/petition. The presiding officer shall, within 45 days after the filing of answers and replies .. . issue a decision on

each request for hearing/petition to intervene."). Because Peti-tioners do not claim that the NRC violated this requirement, we must reject this challenge.

B[3] The NRC's denial of a hearing on whether NEPA requires consideration of the environmental effects of a terror-

ist attack on the Storage Installation did not violate the AEA's

hearing provisions.

[4] Petitioners contend that the NRC relied on an improper ground in denying their request for a hearing on whether 6 In 1974, Congress eliminated the Atomic Energy Commission

("AEC"). Regulatory functions went to the NRC, and promotional func-

tions to the Energy Research and Development Administration.

SeeEnergy Reorganization Act of 1974, 42 U.S.C. §5814.6078S AN L UIS O BISPO M OTHERS v. NRC NEPA requires the Commission to consider the environmen-tal impacts of terrorism - namely, the ground that it had

determined in earlier decisions that NEPA imposes no such obligation.Thus, Petitioners do not challenge the substantive

validity or coherence of those earlier opinions in making their

AEA claim, but rather the reliance upon a prior determination of the merits in order to reject a petition presenting the same

issues. As such, Sierra Club v. NRC , 862 F.2d 222 (9th Cir.

1988), on which Petitioners rely, does not apply. In that case, the NRC rejected the petitioners' contentions as lacking in

reasonable specificity, and yet went on to analyze the merits

of those supposedly unacceptable contentions.

Id.at 228.Here, however, where the agency is rejecting the contentions

as contrary to a prior decision, the "merits" and the reason for

the inadmissibility of the contention collapse. Put differently, the NRC did not reach the merits of the petition as much as

it assessed the issues raised against issues resolved by prior

decisions. We hold that in doing so, the Commission com-

plied fully with the AEA. To hold otherwise would unduly

restrict the agency's evaluation of hearing petitions, by requir-

ing it to grant a hearing on issues it has already resolved

whenever a petitioner claims to have new evidence. We can

find, and Petitioners point to, nothing in the AEA that would

require this result.

C[5] The NRC's denial of a hearing on security measures for Diablo Canyon as a whole also did not violate the AEA. Peti-

tioners argue that the AEA requires the NRC to grant petition-

ers a hearing on all issues of material fact, including the

security of the entire Diablo Canyon complex. Petitioners

therefore conclude, citing Union of Concerned Scientists v.

NRC , 735 F.2d 1437 (D.C. Cir. 1984), that the NRC violated the AEA when it denied a hearing on that issue.

Petitioners' argument misreads Union of Concerned Scien-tists , in which the D.C. Circuit held only that the agency can-6079 S AN L UIS O BISPO M OTHERS v. NRC not by rule presumptively eliminate a material issue from consideration in a hearing petition.

Union of Concerned Sci-entists requires the agency to consider a petition; it does not require that the agency grant it.

The NRC in CLI 02-23 did not deny that security require-ments for the entire complex might need to be upgraded, but

rather maintained that a licensing proceeding hearing (and one regarding an installation, not the entire complex) was not the

correct forum in which to address the issue. The Commission

directed Petitioners to participate in a rulemaking or to raise

their concerns in a hearing then pending before the Licensing

Board. Petitioners contend that these alternative fora are illu-

sory, and that rejection of their petition amounted to the

denial of any opportunity to participate in the consideration of

post-9/11 security measures for the Diablo Canyon complex.

Petitioners argue "[i]f the NRC were going to resolve Peti-tioners' concerns that grossly inadequate security made the

Diablo Canyon facility vulnerable to terrorist attacks generi-

cally, through a rulemaking, such a rulemaking would have

been initiated as a result of the 'comprehensive security

review' undertaken by the NRC." Thus, Petitioners argue that

it would have been futile to submit a rulemaking petition.

This argument must fail, as Petitioners did not use the avail-

able procedures for initiating a rulemaking. Petitioners cannot

complain that NRC failed to institute a rulemaking they never

requested.

[6] Given that rulemaking may have been an avenue for Petitioners' participation, had they chosen to pursue it, their

argument that they had no forum in which to raise their con-

tentions loses its force. However, even were Petitioners cor-

rect in their assertion that they were unfairly denied the

opportunity to participate in a rulemaking proceeding, the

argument that the Licensing Board hearing was similarly illu-

sory would fail. In fact, Petitioners were attempting to use the

present Storage Installation licensing proceeding as a means6080S AN L UIS O BISPO M OTHERS v. NRC of launching a much broader challenge to the Diablo Canyon complex. The NRC correctly observes that a petition alleging

that existing NRC regulations are "grossly inadequate to pro-

tect against terrorist attack, and therefore must be supple-mented by additional requirements" cannot in fact be raised

before the Licensing Board, which cannot hear challenges to

NRC rules. The limited scope of licensing proceedings does

not, however, amount to the arbitrary denial of a forum, as

Petitioners claim. While Petitioners could have raised site-

specific issues "relating to the 'common defense and securi-ty'" that were not controlled by existing rules or regulations

to the Licensing Board, they are not entitled to expand those

proceedings to include the entire complex, and issues already

covered by agency rules.

D In short, the NRC did not violate the AEA in denying the petitions for a hearing. Neither the AEA nor its implementing

regulations required the NRC to grant Petitioners a hearing on

whether NEPA required a consideration of the environmental

impact of a terrorist attack on the Storage Installation or the

security measures adopted for the entire Diablo Canyon com-

plex.IV[7] The NRC's reliance on its own prior opinions in its decision in this case does not violate the APA's notice and

comment provisions. Petitioners argue that the decisions in

CLI 03-01 and PFS amount to the announcement "of a gen-eral policy of refusing to consider the environmental impacts

of terrorist attacks in Environmental Impact Statements." Peti-

tioners rely on Mada-Luna v. Fitzpatrick , 813 F.2d 1006, 1014 (9th Cir. 1987) to claim that this policy depends on fac-

tual determinations not found subsequent to an evidentiary

proceeding, and constitutes a "binding substantive norm," the

promulgation of which, without a public hearing, violates the 6081 S AN L UIS O BISPO M OTHERS v. NRC APA notice and comment provisions contained in 5 U.S.C.§§553(b), (c).

7 The flaw in Petitioners' argument is the mis-taken assertion that the NRC's decisions were factual and not

legal. If the NRC's conclusion that terrorism need not be

examined under NEPA were factual, then Petitioners would

be correct that its determination would have to comply with

APA rulemaking requirements, including notice and com-

ment, or else the agency would have to permit petitioners to

challenge it in every proceeding where it was disputed.

[8] That NEPA does not require consideration of the envi-ronmental impacts of terrorism is a legal, and not a factual, conclusion.

Cf. Greenpeace Action v. Franklin , 14 F.3d 1324, 1331 (9th Cir. 1993) (reasoning that a challenge to the ade-

quacy of an EA turned on factual, not legal, principles where

both NEPA's applicability and the requirements it imposed

were uncontested);

see also Alaska Wilderness Recreation &

Tourism Ass'n v. Morrison , 67 F.3d 723, 727 (9th Cir. 1995)(noting that although "challenges to agency actions which

raise predominantly legal, rather than technical questions, are

rare," the court was there required to address "just such a

challenge"). Petitioners' analysis is therefore inapposite. The agency has the discretion to use adjudication to establish a

binding legal norm.

See Sec. & Exch. Comm'n v. Chenery

, 332 U.S. 194, 199-203 (1947) ("[T]he choice made between

proceeding by general rule or by individual, ad hoc litigation, is one that lies primarily in the informed discretion of the

administrative agency."). We therefore agree with the NRC's

characterization in its brief to this court: having come to the

legal conclusion that NEPA does not require consideration of

the environmental consequences of terrorist attacks, "[w]hen 7U.S.C. §553(b) states that "[g]eneral notice of proposed rulemaking shall be published in the Federal Register," and outlines the requirements that such notice must meet. 5 U.S.C. §553(c) states that after such notice

has been given, "the agency shall give interested persons an opportunity

to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation."6082S AN L UIS O BISPO M OTHERS v. NRC petitioners in this case presented a proposed contention seek-ing an EIS that analyzed the impacts of possible terrorist acts

at the proposed Diablo Canyon Installation, the NRC reason-

ably concluded that this request was sufficiently similar to the

request in PFS to justify the application of that decision here."

V Although we hold that the agency did not violate the APA when it relied on the prior resolution of a legal issue through adjudication, we come to a different conclusion as to that

determination's compliance with NEPA. Because the issue

whether NEPA requires consideration of the environmental

impacts of a terrorist attack is primarily a legal one, we

review the NRC's determination that it does not for reason-

ableness.See Alaska Wilderness Recreation & Tourism Ass'n

, 67 F.3d at 727 (reviewing predominately legal issue for rea-

sonableness because "it makes sense to distinguish the strong

level of deference we accord an agency in deciding factual or

technical matters from that to be accorded in disputes involv-

ing predominately legal questions");

Ka Makani'o Kohala Ohana, Inc. v. Water Supply , 295 F.3d 955, 959 n.3 (9th Cir.

2002) ("Because this case involved primarily legal issues . . .

based on undisputed historical facts, we conclude that the

'reasonableness' standard should apply to this case.").

Here, the NRC decided categorically that NEPA does not require consideration of the environmental effects of potential

terrorist attacks. In making this determination, the NRC relied

on PFS , where it "consider[ed] in some detail the legal ques-tion whether NEPA requires an inquiry into the threat of ter-

rorism at nuclear facilities." 56 NRC 340, 343 (2002). In that

case, intervenor State of Utah filed a contention claiming that

the September 11 terrorist attacks "had materially changed the

circumstances under which the Board had rejected previously

proffered terrorism contentions by showing that a terrorist

attack is both more likely and potentially more dangerous

than previously thought."

Id.at 345. The NRC concluded that 6083 S AN L UIS O BISPO M OTHERS v. NRC even following the September 11th attacks, NEPA did not impose such a requirement, reasoning:

In our view, an EIS is not an appropriate format to address the challenges of terrorism. The purpose of

an EIS is to inform the decisionmaking authority and

the public of a broad range of environmental impacts

that will result, with a fair degree of likelihood, from

a proposed project, rather than to speculate about

'worst-case' scenarios and how to prevent them.

Id.at 347. The NRC determined that four grounds "cut[] against using the NEPA framework" to consider the environmental

effects of a terrorist attack: (1) the possibility of a terrorist

attack is far too removed from the natural or expected conse-

quences of agency action; (2) because the risk of a terrorist

attack cannot be determined, the analysis is likely to be mean-

ingless; (3) NEPA does not require a "worst-case" analysis;

and (4) NEPA's public process is not an appropriate forum for

sensitive security issues.

Id.at 348. We review each of these four grounds for reasonableness, and conclude that these

grounds, either individually or collectively, do not support the

NRC's categorical refusal to consider the environmental

effects of a terrorist attack.

A[9] The Commission relied first on finding that the possibil-ity of a terrorist attack is too far removed from the natural or

expected consequences of agency action.

Id.at 347. Section 102 of NEPA requires federal agencies to prepare "a detailed

statement . . . on the environmental impact" of any proposed

major federal action "significantly affecting the quality of the human environment." 42 U.S.C. §4332(1)(C)(i). The ques-

tion thus becomes whether a given action "significantly

affects" the environment. 6084S AN L UIS O BISPO M OTHERS v. NRC The NRC claims that the appropriate analysis of Section 102 is that employed by the Supreme Court in Metropolitan Edison Co. v. People Against Nuclear Power , 460 U.S. 766, 773 (1983). In Metropolitan Edison , the Court noted that "[t]o determine whether Section 102 requires consideration of a

particular effect, we must look to the relationship between that effect and the change in the physical environment caused

by the major federal action at issue," looking for "a reason-

ably close causal relationship . . . like the familiar doctrine of

proximate cause from tort law." 460 U.S. at 774. The Com-

mission claims that its conclusion that the environmental

impacts of a possible terrorist attack on an NRC-licensed

facility is beyond a "reasonably close causal relationship" was

a reasonable application of this "proximate cause" analogy.

The problem with the agency's argument, however, is that Metropolitan Edison and its proximate cause analogy are inapplicable here. In Metropolitan Edison , the petitioners argued that NEPA required the NRC to consider the potential

risk of psychological damage upon reopening the Three Mile

Island nuclear facilities to those in the vicinity. Noting that

NEPA is an environmental statute, the Supreme Court held

that the essential analysis must focus on the "closeness of the

relationship between the change in the environment and the

'effect' at issue." 460 U.S. at 772.

The appropriate analysis is instead that developed by this court in NoGwen Alliance v. Aldridge , 855 F.2d 1380 (9thCir.1988). In NoGwen , the plaintiffs argued that NEPA required the Air Force to consider the threat of nuclear war in

the implementation of the Ground Wave Emergency Network

("GWEN"). We held "that the nexus between construction of

GWEN and nuclear war is too attenuated to require discussion

of the environmental impacts of nuclear war in an [EA] or

[EIS]." 855 F.2d at 1386.

[10] The events at issue here, as well as in Metropolitan Edison and NoGwen , form a chain of three events: (1) a major 6085 S AN L UIS O BISPO M OTHERS v. NRC federal action; (2) a change in the physical environment; and (3) an effect.

Metropolitan Edison was concerned with the relationship between events 2 and 3 (the change in the physi-

cal environment, or increased risk of accident resulting from

the renewed operation of a nuclear reactor, and the effect, or

the decline in the psychological health of the human popula-

tion). The Court in Metropolitan Edison explicitly distin-guished the case where the disputed relationship is between

events 1 and 2: "we emphasize that in this case we are consid-

ering effects caused by the risk of accident. The situation

where an agency is asked to consider effects that will occur

if a risk is realized, for example, if an accident occurs . . . is

an entirely different case."

Id. at 775 n.9. In NoGwen , we fol-lowed the Court's admonition and, in addressing the relation-

ship between events 1 and 2, we held that the Metropolitan Edison analysis did not apply "because it discusse[d] a differ-ent type of causation than that at issue in this case . . . [which]

require[d] us to examine the relationship between the agency

action and a potential impact on the environment."

Id. at 1386.NoGWEN relied on our decision in Warm Springs Dam Task Force v. Gribble , 621 F.2d 1017, 1026 (9th Cir. 1980), which held that "an impact statement need not discuss remote

and highly speculative consequences." Applying that standard

to the plaintiffs' claims that the military GWEN system's

installation would "increase the probability of nuclear war,"

and"that GWEN would be a primary target in a nuclear war,"

we held both propositions to be "remote and highly specula-

tive," and, therefore, NEPA did not require their consider-

ation.[11] In the present case, as in NoGwen , the disputed rela-tionship is between events 1 and 2 (the federal act, or the

licensing of the Storage Installation, and the change in the

physical environment, or the terrorist attack). The appropriate

inquiry is therefore whether such attacks are so "remote and

highly speculative" that NEPA's mandate does not include

consideration of their potential environmental effects. 6086S AN L UIS O BISPO M OTHERS v. NRC

[12] The NRC responds by simply declaring without sup-port that, as a matter of law, "the possibility of a terrorist

attack . . . is speculative and simply too far removed from the

natural or expected consequences of agency action to require

a study under NEPA." 56 NRC at 349. In doing so, the NRC

failed to address Petitioners' factual contentions that licensing

the Storage Installation would lead to or increase the risk of

a terrorist attack because (1) the presence of the Storage Installation would increase the probability of a terrorist attack

on the Diablo Canyon nuclear facility, and (2) the Storage

Installation itself would be a primary target for a terrorist

attack. We conclude that it was unreasonable for the NRC to

categorically dismiss the possibility of terrorist attack on the

Storage Installation and on the entire Diablo Canyon facility

as too "remote and highly speculative" to warrant consider-

ation under NEPA.

[13] In so concluding, we also recognize that the NRC's position that terrorist attacks are "remote and highly specula-

tive," as a matter of law, is inconsistent with the government's

efforts and expenditures to combat this type of terrorist attack

against nuclear facilities. In the PFS opinion, the NRC

emphasized the agency's own post-September 11th efforts

against the threat of terrorism:

At the outset, however, we stress our determination, in the wake of the horrific September 11th terrorist

attacks, to strengthen security at facilities we regu-

late. We currently are engaged in a comprehensive

review of our security regulations and programs, act-

ing under our AEA-rooted duty to protect "public

health and safety" and the "common defense and

security." We are reexamining, and in may cases

have already improved, security and safeguards mat-

ters such as guard force size, physical security exer-

cises, clearance requirements and background

investigations for key employees, and fitness-for-

duty requirements. More broadly, we are rethinking 6087 S AN L UIS O BISPO M OTHERS v. NRC the NRC's threat assessment framework and design basis threat. We also are reviewing our own infra-

structure, resources, and communications.

Our comprehensive review may also yield perma-nent rule or policy changes that will apply to the pro-

posed PFS facility and to other NRC-related

facilities. The review process is ongoing and cumu-

lative. It has already resulted in a number of

security-related actions to address terrorism threats

at both active and defunct nuclear facilities.

56 NRC at 343. Among these actions is the establishment of an Office of Nuclear Security and Incident Response, "re-

sponsible for immediate operational security and safeguards

issues as well as for long-term policy development[,] work[-

ing] closely with law enforcement agencies and the Office of

Homeland Security[,] . . . coordinat[ing] the NRC's ongoing

comprehensive security review."

Id.at 344-45.

We find it difficult to reconcile the Commission's conclu-sion that, as a matter of law, the possibility of a terrorist attack

on a nuclear facility is "remote and speculative," with its

stated efforts to undertake a "top to bottom" security review

against this same threat. Under the NRC's own formulation of the rule of reasonableness, it is required to make determina-

tions that are consistent with its policy statements and proce-

dures. Here, it appears as though the NRC is attempting, as a

matter of policy, to insist on its preparedness and the serious-

ness with which it is responding to the post-September 11th

terrorist threat, while concluding, as a matter of law, that all

terrorist threats are "remote and highly speculative" for NEPA

purposes.8 8 The view that a terrorist attack is too speculative to be a required part of NEPA review would seem to be inconsistent with the NRC's pre-9/11

security procedures. Since 1977, the NRC has required licensed plants to

have a security plan that is designed to protect against a "design basis6088S AN L UIS O BISPO M OTHERS v. NRC

[14] In sum, in considering the policy goals of NEPA and the rule of reasonableness that governs its application, the

possibility of terrorist attack is not so "remote and highly

speculative" as to be beyond NEPA's requirements.

B[15] The NRC's reliance upon the second PFSfactor,that the Risk of a Terrorist Attack Cannot be Adequately Deter-

mined, 56 NRC at 350, is also not reasonable. First, the

NRC's dismissal of the risk of terrorist attacks as "unquantifi-

able" misses the point. The numeric probability of a specific

attack is not required in order to assess likely modes of attack, weapons, and vulnerabilities of a facility, and the possible

impact of each of these on the physical environment, includ-

ing the assessment of various release scenarios. Indeed, this

is precisely what the NRC already analyzes in different con-

texts. It is therefore possible to conduct a low probability-high

consequence analysis without quantifying the precise proba-

bility of risk. The NRC itself has recognized that consider-

ation of uncertain risks may take a form other than quantitative"probabilistic" assessment. In its "Proposed Pol-

icy Statement on Severe Accidents and Related Views on

Nuclear Reactor Regulation," 48 Fed.Reg. 16,014 (1983), the

Commission stated that:

threat" for radiological sabotage.

See General Accounting Office, Nuclear Regulatory Commission: Oversight of Security at Commercial Nuclear

Power Plants Needs to be Strengthened , GAO-030752 (2003) at 6. "The design basis threat characterizes the elements of a postulated attack, including the number of attackers, their training, and the weapons and tac-

tics they are capable of using."

Id.Thus, the NRC-even before the terrorist attacks of 9/11-did not con-sider such attacks too "remote and speculative" to be considered in agency

planning. To the contrary, the agency has long required analysis of means and methods of hypothetical attacks against specific facilities, with the

goal of establishing effective counter-measures.

6089 S AN L UIS O BISPO M OTHERS v. NRC In addressing potential accident initiators (including earthquakes, sabotage, and multiple human errors)

where empirical data are limited and residual uncer-tainty is large , the use of conceptual modeling and scenario assumptions in Safety Analysis Reports will

be helpful. They should be based on the best quali-fied judgments of experts , either in the form of sub-jective numerical probability estimates or qualitative assessments of initiating events and casual [sic]

linkages in accident sequences

.48 Fed.Reg. at 16,020 (emphasis added).

[16] No provision of NEPA, or any other authority cited by the Commission, allows the NRC to eliminate a possible envi-

ronmental consequence from analysis by labeling the risk as

"unquantifiable."

See Limerick Ecology Action, Inc. v. NRC

, 869 F.2d 719, 754 (3rd Cir. 1989) (J. Scirica, dissenting)

(finding no "statutory provision, no NRC regulation or policy

statement, and no case law that permits the NRC to ignore any

risk found to be unquantifiable"). If the risk of a terrorist

attack is not insignificant, then NEPA obligates the NRC to

take a "hard look" at the environmental consequences of that risk.The NRC's actions in other contexts reveal that the

agency does not view the risk of terrorist attacks to be insig-

nificant. Precise quantification is therefore beside the point.

Even if we accept the agency's argument, the agency fails to adequately show that the risk of a terrorist act is unquantifi-

able. The agency merely offers the following analysis as to

the quantifiability of a potential terrorist attack:

The horrors of September 11 notwithstanding, it remains true that the likelihood of a terrorist attack

being directed at a particular nuclear facility is not

quantifiable. Any attempt at quantification or even

qualitative assessment would be highly speculative.

In fact, the likelihood of attack cannot be ascertained6090S AN L UIS O BISPO M OTHERS v. NRC with confidence by any state-of-the-art methodology.

That being the case, we have no means to assess, usefully, the risks of terrorism at the PFS facility.

56 NRC at 350. The agency nonetheless has simultaneously shown the ability to conduct a "top to bottom" terrorism

review. This leaves the Commission in the tenuous position

of insisting on the impossibility of a meaningful, i.e. quantifi-

able, assessment of terrorist attacks, while claiming to have

undertaken precisely such an assessment in other contexts.

Further, as we have noted, the NRC has required site-specific

analysis of such threats, involving numerous recognized scenar-

ios.9[17] Thus, we conclude that precise quantification of a risk is not necessary to trigger NEPA's requirements, and even if

it were, the NRC has not established that the risk of a terrorist

attack is unquantifiable.

C The NRC's third ground, that it is not required to conducta"worst-case" analysis, is a non sequitur. Although it is a true

statement of the law, the agency errs in equating an assess-

ment of the environmental impact of terrorist attack with a

demand for a worst-case analysis.

The Council on Environmental Quality ("CEQ") regula-tions, 40 C.F.R. §§1500.1 - 1518.4, promulgated with the

"purpose [of] tell[ing] federal agencies what they must do to

comply with [NEPA] procedures and achieve the goals of 9 The NRC's assertion that a risk of terrorism cannot be quantified is also belied by the very existence of the Department of Homeland Security

Advisory System, which provides a general assessment of the risk of ter-

rorist attacks.

See , e.g., World Market Research Centre, Global Terrorism Index 2003/4 (offering a probabilistic risk assessment of terrorist activities

over a 12-month period).

6091 S AN L UIS O BISPO M OTHERS v. NRC

[NEPA]," have been interpreted by the Supreme Court as "en-titled to substantial deference."

Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 355 (citing Andrus v. Sierra Club , 442 U.S. 347, 358 (1979)). These regulations mandated worst-case analyses until 1986, when CEQ replaced the for-mer 40 C.F.R. §1502.22, requiring an agency, when relevant

information was either unavailable or too costly to obtain, to

include in the EIS a "worst-case analysis and an indication of

the probability or improbability of its occurrence," with the

new and current version of the regulation, which requires an agency to instead deal with uncertainties by including within

the EIS "a summary of existing credible scientific evidence

which is relevant to evaluating the reasonable foreseeable sig-

nificant adverse impacts on the human environment, and . . .

the agency's evaluation of such impacts based upon theoreti-

cal approaches or research methods generally accepted in the scientific community." 40 C.F.R. §§1502.22(b)(3), (4). The

current requirement applies to those events with potentially

catastrophic consequences "even if their probability of occur-

rence is low, provided that the analysis of impacts is sup-

ported by credible scientific evidence, is not based on pure

conjecture, and is within the rule of reason." 40 C.F.R.

§1502.22 (b)(4). The Supreme Court held in Robertson that the amendment of the regulations had nullified the worst-case

analysis requirement. 490 U.S. at 355; Edwardsen v. U.S.

Dep't of Interior , 268 F.3d 781, 785 (9th Cir. 2001).

The Commission is therefore correct when it argues that NEPA does not require a worst-case analysis. It is mistaken, however, when it claims that "Petitioners' request for an anal-

ysis of [the environmental effects of] a successful terrorist

attack at the Diablo Canyon ISFSI approximates a request for

a 'worst-case' analysis that has long since been discarded by

the CEQ regulations . . . and discredited by the Federal

courts." According to the NRC, "[m]aking the various

assumptions required by [P]etitioners' scenario requires the NRC to venture into the realm of 'pure conjecture.'" We dis-

agree.6092S AN L UIS O BISPO M OTHERS v. NRC

[18] An indication of what CEQ envisioned when it imposed the worst-case analysis requirement can be gleaned

from a 1981 CEQ memorandum, Forty Most Asked Questions

Concerning CEQ's National Environmental Policy Act Regu-

lations, reprinted at 46 FR 18026-01 (March 23, 1981). CEQ

answered one of those questions, "[w]hat is the purpose of a

worst-case analysis? How is it formulated and what is the

scope of the analysis?" with the following:

The purpose of the analysis is to . . . cause agenciesto consider th[]e potential consequences [of agency

decisions] when acting on the basis of scientific

uncertainties or gaps in available information. The

analysis is formulated on the basis of available infor-

mation, using reasonable projections of the worst

possible consequences of a proposed action.

For example, if there are scientific uncertainty and gaps in the available information concerning the

numbers of juvenile fish that would be entrained in

a cooling water facility, the responsible agency must

disclose and consider the possibility of the loss of

the commercial or sport fishery. In addition to an

analysis of a low probability/catastrophic impact

event, the worst-case analysis should also include a

spectrum of events of higher probability but less

drastic impact.

46 FR 18026, 18032. While it is true that the agency is not required to consider consequences that are "speculative,"

10 the 10 Because we disagree with the agency's interpretation of worst-case analysis, we do not reach the agency's characterization of the possibility of terrorist attack as "speculative." We note, however, that this character-

ization stands out as contrary to the vigilant stance that Americans are

encouraged to take by the Department of Homeland Security.

See www.dhs.gov/dhspublic/display?theme=29 (urging that "[a]ll Americans

should continue to be vigilant" and noting that "[t]he country remains at

an elevated risk . . . for terrorist attack.")

6093 S AN L UIS O BISPO M OTHERS v. NRC NRC's argument wrongly labels a terrorist attack the worst-case scenario because of the low or indeterminate probability

of such an attack. The CEQ memo, by including as worst-case

scenarios events of both higher and lower probability, reveals

that worst-case analysis is not defined solely by the low prob-

ability of the occurrence of the events analyzed, but also by

the range of outcomes of those events.

See also Greater Yel-lowstone Coalition v. Flowers , 321 F.3d 1250, 1260 (10th Cir. 2003) (citing a witness's testimony that the loss of bald

eagle nesting sites was both "likely" and "a worst-case sce-

nario"). Petitioners do not seek to require the NRC to analyze

the most extreme (i.e., the "worst") possible environmental

impacts of a terrorist attack. Instead, they seek an analysis of

the range of environmental impacts likely to result in the

event of a terrorist attack on the Storage Installation. We

reject the Commission's characterization of this request as a

demand for a worst-case analysis.

D[19] The NRC's reliance on the fourth PFS factor, that it cannot comply with its NEPA mandate because of security

risks, is also unreasonable. There is no support for the use of

security concerns as an excuse from NEPA's requirements.

While it is true, as the agency claims, that NEPA's require-

ments are not absolute, and are to be implemented consistent

with other programs and requirements, this has never been

interpreted by the Supreme Court as excusing NEPA's appli-

cation to a particularly sensitive issue.

See Weinberger v.

Catholic Action of Hawaii , 454 U.S. 139 (1981) (holding that the Navy was required to perform a NEPA review and to fac-

tor its results into decisionmaking even where the sensitivity

of the information involved meant that the NEPA results

could not be publicized or adjudicated).

Weinberger can sup-port only the proposition that security considerations may per-

mit or require modification of some of the NEPA procedures, not the Commission's argument that sensitive security issues

result in some kind of NEPA waiver. 6094S AN L UIS O BISPO M OTHERS v. NRC The application of NEPA's requirements, under the rule of reason relied on by the NRC, is to be considered in light of

the two purposes of the statute: first, ensuring that the agency

will have and will consider detailed information concerning

significant environmental impacts; and, second, ensuring that

the public can both contribute to that body of information, and can access the information that is made public.

Pub. Citizen, 541 U.S. at 768. To the extent that, as the NRC argues, certain

information cannot be publicized, as in Weinberger , other statutory purposes continue to mandate NEPA's application.

For example, that the public cannot access the resulting infor-

mation does not explain the NRC's determination to prevent

the public from contributing information to the decisionmak-ing process. The NRC simply does not explain its unwilling-

ness to hear and consider the information that Petitioners seek

to contribute to the process, which would fulfill both the

information-gathering and the public participation functions

of NEPA. These arguments explain why a Weinberger-style limited proceeding might be appropriate, but cannot support

the NRC's conclusion that NEPA does not apply. As we

stated in NoGWEN:"There is no 'national defense' exception to NEPA . . . 'The Navy, just like any federal agency, must

carry out its NEPA mandate to the fullest extent possible and

this mandate includes weighing the environmental costs of the

[project] even though the project has serious security implica-tions.'" 855 F.2d at 1384 (quoting Concerned About Trident

v. Rumsfeld , 555 F.2d 817, 823 (D.C. Cir. 1977)).

E[20] In sum, none of the four factors upon which the NRC relies to eschew consideration of the environmental effects of

a terrorist attack satisfies the standard of reasonableness. We

must therefore grant the petition in part and remand for the

agency to fulfill its responsibilities under NEPA.

[21] Our identification of the inadequacies in the agency's NEPA analysis should not be construed as constraining the 6095 S AN L UIS O BISPO M OTHERS v. NRC NRC's consideration of the merits on remand, or circumscrib-ing the procedures that the NRC must employ in conducting

its analysis. There remain open to the agency a wide variety

of actions it may take on remand, consistent with its statutory

and regulatory requirements. We do not prejudge those alter-

natives. Nor do we prejudge the merits of the inquiry. We

hold only that the NRC's stated reasons for categorically

refusing to consider the possibility of terrorist attacks cannot

withstand appellate review based on the record before us.

We are also mindful that the issues raised by the petition may involve questions of national security, requiring sensitive

treatment on remand. However, the NRC has dealt with our

nation's most sensitive nuclear secrets for many decades, and

is well-suited to analyze the questions raised by the petition

in an appropriate manner consistent with national security.

VI We deny the petition as to the claims under the AEA and the APA. However, because we conclude that the NRC's

determination that NEPA does not require a consideration of

the environmental impact of terrorist attacks does not satisfy

reasonableness review, we hold that the EA prepared in reli-

ance on that determination is inadequate and fails to comply

with NEPA's mandate. We grant the petition as to that issue

and remand for further proceedings consistent with this opin-

ion.PETITION GRANTED IN PART; DENIED IN PART; REMANDED.6096S AN L UIS O BISPO M OTHERS v. NRC c:\temp\GW}00001.TMP Page 1 Mail Envelope Properties (449C3D1E.C69 : 8 : 56425)

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