ML061740572
| ML061740572 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| 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. Block Attorney at Law 94 Main Street P.O. Box 566 Putney, VT. 05346-0566 802-387-2646 (vox)
-2667 (fax) jonb@sover.net June 23, 2006 Chief, Rules and Directives Branch Division of Administrative Service Mail Stop T-6D59 United States Nuclear Regulatory Commission Washington, D.C. 20555 via email to: VermontYankeeEIS@nrc.gov RE:
Citizens Awareness Networks Written Comments on the Scope of the EIS for Proposed License Renewal of the Vermont Yankee Nuclear Power Station, Vernon, Vermont, NRC Docket Number 50-271, Scoping Process Notice, 71 FR 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 Statements under 10 C.F.R. Part 51. CAN specifically requested to participate in making comments on this matter following direct contact by the NRC.
Background of the Commenting Organization Citizens Awareness Network [CAN] is a non-profit Massachusetts corporation that is concerned with all environmental impacts of the nuclear fuel chain. CAN has members in Connecticut, Massachusetts, New Hampshire, New York, and Vermont. CAN members utilize the 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 8 aesthetic, recreational and sport-fishing purposes in the areas affected by the proposed relicensing of the Vermont Yankee Nuclear Power Station, Vernon, Vermont. Executive Director of CAN, 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 this matter.
Comments CAN contends that the following are proper subjects of environmental concern that should be fully investigated prior to renewal of the Vermont Yankee license to operate:
1.
Subjects to include in a supplement to the GEIS for Vermont Yankee and analyze in depth:
1.1 Accumulation of low-level radioactive waste on site.
1.2 Accumulation of chemical wastes on site.
1.3 Extent of on and off site contamination due to radioactive materials, chemicals and other VY waste in on and off site locations, including, but not limited to disposal in the Brattleboro and other area landfills that are now part of the Windham Solid Waste Management District and/or out of state landfills utilized by the WSWMD.
1.4 Extent of site contamination due to chemical and other hazardous wastes, including, but not limited to PCB contamination in paint, accumulated TCE, PERC and other organic solvents, lead, and asbestos.
1.5 Extent of 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 8 limited to tritium contamination.
1.6 Extent of any off-site groundwater contamination, including, but not limited to tritium contamination of drinking water wells and other off site ground water locations.
1.7 Extent of radionuclide inventory and location of radioactive waste accumulated in 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 license renewal:
Were Vermont Yankee to be denied renewal of its license, shut down in 2012, and then begin to undergo decommissioning, each of the listed environmental concerns would be considered in the decommissioning process. In the event that Vermont Yankee is given an additional twenty years (or less) of operation under license renewal, now is the time to access the above listed environmental issues in order to inventory and fully analyze the extent of these problems at the originally contemplated end-of-life for this reactor. This inventory and analysis is appropriate, as the use and improper disposal of many of the environmental hazards listed above, along with on-site disposal of construction waste during construction of the facility, were commonly accepted and customary business and industrial practices during a major portion of the original license period. Moreover, there is ample evidence in the publicly available records for Vermont Yankee that numerous spills occurred during operations under the original license and 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 alone an 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 some evidence of a pattern of environmental contamination--on and off the VY site--that an EIS should evaluate:
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 Projects Branch 5, Division of Reactor Projects, to Gregory Maret, VY Director of Operations, re: NRC Integrated Inspection Report 50-271/99-01 (March 16, 1999) (We also reviewed your recent efforts to update your records of spills or other unusual occurrences involving the spread of contamination in and around the facility for decommissioning planning purposes. Our review found that in some cases, documentation was not sufficiently detailed to fully assess some locations with respect to the requirements of 10 CFR 50.75 relative to its impact on decommissioning.) (Emphasis added.)
Accession # 9508140119 (Abstract excerpt) Findings of Inspection 50-271/95-18 of Vermont Yankee Nuclear Power Station, on June 20 to 22, 1995. This inspection consisted of observations regarding the Vermont Yankee Nuclear Corporations controls for radioactive materials and contamination, surveys and monitoring, including review of the following: audits, appraisals and assessments; radioactive surveys and monitoring; radioactive materials and contamination controls; and other related items. During the inspection, one violation of the Tech Specs was identified regarding failure to effectively control personnel access to high radiation areas. (....) A weakness was identified in maintaining records for events or incidents including spills of radioactive materials that are important to decommissioning. Continued management attention is necessary to ensure that these records are maintained and available for eventual decommissioning of the facility. (Emphasis added.)
Permitting on-site disposal of radioactively contaminated silt, sand, and septic sludge Accession # 9706200266(Abstract) The NRC concludes that the plant site radiological conditions that would result from the onsite disposal of slightly contaminated silt material (as proposed by the licensee under 10CFR20.2002) and the previously approved onsite disposal of slightly contaminated septic waste material are within the applicable boundary conditions for the disposal of licensed material. (Emphasis added.)
Tritium in sewage system from unknown causes Accession #9111180022, Findings of Safety Inspection 50-271/91-24 of Vermont Yankee Nuclear Power Station on September 8 to October 15, 1991 (abstract) (Root cause and corrective action determinations 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 Power Station on June 20 to 24, 1988 (abstract) (review of VY offsite disposal of sewage waste containing events. Thus, including a complete inventory and analysis of all the items in the list within the 1
Citizens Awareness Network Comments re: Scope of EIS For ENVY License Renewal, Dkt. 50-271 (June 23, 2006) Page 5 of 8 licensed material during the period of January to May 1988. During the inspection, one unresolved item was identified regarding the potential improper disposal of licensed material.) (Emphasis added).
Spills of radioactively contaminated liquids ADAMS # ML0209303370, Reportable Event Number: 27319 (May 31, 1994) (220 gallons of reactor coolant were discharge into the RB floor drain system. [C]ontamination surveys near the supplemental fuel pool cooling system (located directly below the RWCU system) identified approximately 30kcpm/100sqcm general area and 800 mRad-beta near one floor drain indicating that the floor drain backed up when the relief valve lifted. Lower levels of radioactive concentrations have also been identified on most areas in the RB. The licensee identified a few gallons 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 through the floor drain system and which resulted in contaminating local areas of the Reactor Building with minor seepages through the interface between the Reactor Building Refuel Floor Paneling and the Reactor Building exterior walls... detected.) (Emphasis added.)
See 2
http://www.nrc.gov/reactors/operating/ops-experience/grndwtr-contam-tritium.html. This is the NRC response (to date) to the tritium petition filed with the NRC by NIRS, UCS, CAN and many other participating organizations.
scope of the EIS for Vermont Yankee license renewal makes good practical sense based on the historical record for this licensee.
Further, as the NRC is aware, tritium contamination--which 2
is a part of the historical record for this facility--has become a major issue at reactor sites across the country. Thus, on and off site tritium contamination due to past (and continued) operation of the Vermont Yankee Nuclear Power Station should be thoroughly investigated, including all sources and pathways on and off site, to assure if the NRC renews VYs license it will not permit continued radioactive contamination of groundwater.
1.8 Unique 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 8 1.9 The nature and extent of environmental harm due to a fuel-pool fire at Vermont Yankee 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 my oral comments at the June 7 meeting in Brattleboro, and set forth additionally as follows:
- 1) The NRC must require that Entergy return to the original Design Basis for Spent Fuel Pool (SFP) rack configuration - that is Low-Density racking, which ensures a redundant safety component to SFP cooling. [A low-density pool will theoretically survive a Loss of Coolant (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 for the 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 human environment in and about the Vermont Yankee Nuclear Power Station in the event of a terrorist attack and/or act of sabotage against the SFP. Following the recent 9th Circuit decision, San Luis Obispo Mothers For Peace v. NRC, ___ F.3d ___, Docket No. 03-74628 (9th Cir. 2006) (a copy of which is attached hereto for your convenience), such consideration is properly within the scope of an EIS for the proposed 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 8
- 2) Because much of current inventory of SF must be removed for Low-Density Storage, NRC must create and enforce regulations regarding robust storage of this out-of-water inventory, per Dr. Gordon Thompsons supporting declaration of the contentions of the State of Massachusetts in the matter of the relicensing of Vermont Yankee. See ADAMS location file: ML061640065 (legal and factual arguments, contention), at Pp. 5-50 (which are incorporated by 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 failure to place the fuel in robust storage could have dire consequences on the natural and human environment in and about the Vermont Yankee Nuclear Power Station in the 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) In light of the unquestionable vulnerability of the GE Mark-I type-BWRs to airborne terrorist attack (and the accessibility of Vermont Yankee from Canadian airspace), and because of the catastrophic consequences of such an attack, the NRC must expand the scope of emergency preparedness out to the boundaries of the Ingestion Pathway - 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 Lynch of New Hampshire on June 13, 2006, in which I recommended that the EPZ be extended to 50 miles. Governor Lynch acknowledged that his Capitol is within the 50-mile
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SAN LUIS OBISPO MOTHERS FOR PEACE; SANTA LUCIA CHAPTER OF THE SIERRA CLUB; PEG
- PINARD, No. 03-74628 Petitioners, NRC No.
PACIFIC GAS AND ELECTRIC CLI-03-01;
- COMPANY, CLI-02-23 Intervenor, OPINION v.
NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents.
On Petition for Review of an Order of the Nuclear Regulatory Commission Argued and Submitted October 17, 2005San Francisco, California Filed June 2, 2006 Before: Stephen Reinhardt and Sidney R. Thomas, Circuit Judges, and Jane A. 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 SAN LUIS OBISPO MOTHERS 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 NRCs 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&Es 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 NEPAs 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 agency 6068 SAN LUIS OBISPO MOTHERS 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 NEPAs 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 mans 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 40 C.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 SAN LUIS OBISPO MOTHERS 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 Boards findings and decision constitute the agencys initial determination, although a party may file a petition for review with the Commission within 15 days of the Licensing Boards 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 Commissions 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 the 6070 SAN LUIS OBISPO MOTHERS 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 Canyons 1In 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 SAN LUIS OBISPO MOTHERS 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 petitions five Tech-nical and three Environmental Contentions.
2 One Technical Contention, TC-1, dealing with the state of PG&Es 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 2Technical Contention Number One (TC-1) alleged Inadequate Seis-mic Analysis. TC-2 alleged PG&Es 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.
3Because 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.
6072 SAN LUIS OBISPO MOTHERS v. NRC
Commissions ongoing top to bottom review of the agencys 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 Boards referral of its decision to reject the environmental contentions related to terrorism. Although the Commission affirmed the Licensing Boards 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) NEPAs 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 4Those 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 SAN LUIS OBISPO MOTHERS 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 NRCs 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 Canyons 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 Commissions 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.
6074 SAN LUIS OBISPO MOTHERS 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 Commissions 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 Boards 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 NRCs 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 NRCs 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 SAN LUIS OBISPO MOTHERS v. NRC
The EA is not devoid of discussion of terrorist attacks.
Indeed, the document contains the Commissions 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 technical 6076 SAN LUIS OBISPO MOTHERS 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 AEAs 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 AEAs 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 SAN LUIS OBISPO MOTHERS v. NRC
NRC public hearing regulations, at 10 C.F.R. § 2.309, pro-mulgated pursuant to the AECs 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 agencys 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. See 10 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 NRCs 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 AEAs hearing provisions.
[4] Petitioners contend that the NRC relied on an improper ground in denying their request for a hearing on whether 6In 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. See Energy Reorganization Act of 1974, 42 U.S.C. § 5814.
6078 SAN LUIS OBISPO MOTHERS 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 agencys 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 NRCs 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 SAN LUIS OBISPO MOTHERS 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 means 6080 SAN LUIS OBISPO MOTHERS 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 NRCs reliance on its own prior opinions in its decision in this case does not violate the APAs 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 SAN LUIS OBISPO MOTHERS 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 NRCs decisions were factual and not legal. If the NRCs 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 NEPAs applicability and the requirements it imposed were uncontested); see also Alaska Wilderness Recreation &
Tourism Assn 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. Commn 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 NRCs 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.
6082 SAN LUIS OBISPO MOTHERS 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 determinations 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 NRCs determination that it does not for reason-ableness. See Alaska Wilderness Recreation & Tourism Assn, 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 Makanio 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 SAN LUIS OBISPO MOTHERS 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) NEPAs 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 NRCs 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.
6084 SAN LUIS OBISPO MOTHERS 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 agencys 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 (9th Cir. 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 SAN LUIS OBISPO MOTHERS 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 Courts 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 systems 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 NEPAs mandate does not include consideration of their potential environmental effects.
6086 SAN LUIS OBISPO MOTHERS 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 NRCs position that terrorist attacks are remote and highly specula-tive, as a matter of law, is inconsistent with the governments efforts and expenditures to combat this type of terrorist attack against nuclear facilities. In the PFS opinion, the NRC emphasized the agencys 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 SAN LUIS OBISPO MOTHERS v. NRC
the NRCs 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 NRCs ongoing comprehensive security review. Id. at 344-45.
We find it difficult to reconcile the Commissions 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 NRCs 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 8The view that a terrorist attack is too speculative to be a required part of NEPA review would seem to be inconsistent with the NRCs 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 basis 6088 SAN LUIS OBISPO MOTHERS 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 NEPAs requirements.
B
[15] The NRCs reliance upon the second PFS factor, that the Risk of a Terrorist Attack Cannot be Adequately Deter-mined, 56 NRC at 350, is also not reasonable. First, the NRCs 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 NRCeven before the terrorist attacks of 9/11did 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 SAN LUIS OBISPO MOTHERS 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 NRCs 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 agencys 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 ascertained 6090 SAN LUIS OBISPO MOTHERS 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 NEPAs requirements, and even if it were, the NRC has not established that the risk of a terrorist attack is unquantifiable.
C The NRCs third ground, that it is not required to conduct a 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 9The NRCs 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 SAN LUIS OBISPO MOTHERS 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 agencys 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.
Dept 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.
6092 SAN LUIS OBISPO MOTHERS 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 CEQs 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 agencies to 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 10Because we disagree with the agencys interpretation of worst-case analysis, we do not reach the agencys 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 SAN LUIS OBISPO MOTHERS v. NRC
NRCs 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 witnesss 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 Commissions characterization of this request as a demand for a worst-case analysis.
D
[19] The NRCs 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 NEPAs requirements.
While it is true, as the agency claims, that NEPAs 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 NEPAs 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 Commissions argument that sensitive security issues result in some kind of NEPA waiver.
6094 SAN LUIS OBISPO MOTHERS v. NRC
The application of NEPAs 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 NEPAs application.
For example, that the public cannot access the resulting infor-mation does not explain the NRCs 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 NRCs 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 agencys NEPA analysis should not be construed as constraining the 6095 SAN LUIS OBISPO MOTHERS v. NRC
NRCs 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 NRCs 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 nations 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 NRCs 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 NEPAs 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.
6096 SAN LUIS OBISPO MOTHERS v. NRC
c:\\temp\\GW}00001.TMP Page 1 Mail Envelope Properties (449C3D1E.C69 : 8 : 56425)
Subject:
Citizens Awareness Network's Scoping Comments on EIS for proposed VY License Renewal in Docket 50-271 Creation Date Fri, Jun 23, 2006 3:11 PM From:
Jon Block <jonb@sover.net>
Created By:
jonb@sover.net Recipients nrc.gov TWGWPO03.HQGWDO01 VermontYankeeEIS netzero.net chrisnord (Chris Nord) nukebusters.org deb (Deb Katz)
Post Office Route TWGWPO03.HQGWDO01 nrc.gov netzero.net nukebusters.org Files Size Date & Time MESSAGE 644 Friday, June 23, 2006 3:11 PM TEXT.htm 1916 CAN_ENVY_EIS_Written_Scoping_Comments.wpd 58243 CAN_ENVY_EIS_Written_Scoping_Comments.pdf 129856 Mothers_v_NRC.pdf 67777 Mime.822 355561 Options Expiration Date:
None Priority:
Standard ReplyRequested:
No Return Notification:
None Concealed
Subject:
No Security:
Standard Junk Mail Handling Evaluation Results Message is eligible for Junk Mail handling This message was not classified as Junk Mail
c:\\temp\\GW}00001.TMP Page 2 Junk Mail settings when this message was delivered Junk Mail handling disabled by User Junk Mail handling disabled by Administrator Junk List is not enabled Junk Mail using personal address books is not enabled Block List is not enabled