NRC denies terrorist measures petition

NRC denies Mothers For Peace petition requesting review of measures to protect against terrorist attacks.

NRC denies petition on terrorism

The NRC issued a denial of the Intervenors' petition asking for more protective measures against terrorism. The concluding statement issued November 21, 2002, says

(Note: the NRC uses the term 'SLOMFP' to refer to all twelve petitioners: Lorraine Kitman; San Luis Obispo County Supervisor Peg Pinard and the Avila Valley Advisory Council; and the San Luis Obispo Mothers for Peace, representing itself and eight other organizations.)

The Commission denies SLOMFP's petition to suspend this proceeding or, in the alternative, to adopt interim safety measures.

The following text is from the NRC order (Docket No. 72-26-ISFSI, CLI-02-23):

On September 9, 2002, a group of 11 intervention petitioners and one additional group filed, directly with the Commission, a petition to suspend this proceeding pending comprehensive review of the adequacy of design and operation measures to protect against terrorist attack and other acts of malice or insanity. The Commission denies the petition for the reasons we give below.


SLOMFP has requested that the Commission suspend the ISFSI licensing proceeding pending the implementation of new and more rigorous measures to protect the public from the threat of a terrorist attack or other acts of malice or insanity against the Diablo Canyon nuclear complex. In the alternative, it requests expansion of the scope of the ISFSI license proceeding to consider what interim measures should be imposed during the commission’s deliberation about longer-term measures. The gravamen of the petition, according to SLOMFP that the Commission may not license the ISFSI unless and until it improves protection of the entire Diablo Canyon nuclear complex from terrorist attacks or other acts of malice or insanity. SLOMFP declares an urgent need for protective measures because it sees the risk already posed as significant and unacceptable, and the planned ISFSI, SLOMFP maintains, would compound the attractiveness and vulnerability of the Diablo Canyon complex to attacks. The ISFSI, in SLOMFP’s estimation, cannot be viewed in isolation from the existing operation of the two power plants. Moreover, SLOMFP contends that the NRC’s design basis threat is inadequate and the compensatory measures the Commission has recently required do not correct this deficiency.

The relief SLOMFP seeks from the Commission is fourfold: (1) complete a comprehensive review of the adequacy of NRC safety requirements to protect against the terrorist threat; (2) suspend the pending ISFSI license proceeding while the NRC conducts its review; (3) expand the scope of the pending proceeding to allow consideration of interim measures (if the Commission declines to suspend the proceeding); and (4) provide for public participation in considering new requirements. SLOMFP provides a list of interim measures it requests that we adopt.

Below we consider and reject SLOMPF's request to suspend the Diablo Canyon ISFSI proceeding. As for SLOMFP's other requests, we consider them beyond the scope of this adjudication. We note, however, that some of what SLOMPF seeks already has taken place. For example, we have undertaken a comprehensive review of our security rules and policies. Consequently, we have adopted (recently) interim security measures for ISFSIs. SLOMFP also seeks public participation on security-related issues, but the Atomic Energy Act already provides for appropriate public participation, for both licensing actions and rulemakings. SLOMFP is free to make its positions known during this adjudication (as they relate to this proceeding) and in any rulemakings that emerge from our comprehensive security review. We are referring SLOMFP's current petition (and attachments) to the NRC staff for appropriate consideration as the staff continues its review of security measures.

A. Nature of the Petition

Before responding to the merits of the filing that is now before us, we shall attempt to characterize it. The petitioners themselves reject characterization of their request as a petition for rulemaking or enforcement. Although SLOMFP desires that we ultimately strengthen our physical protection regulations -- a matter more appropriate for a generic rulemaking petition – SLOMFP’s immediate objectives are site-specific, rather than generic, and thus inappropriate for a rulemaking petition. We also take SLOMFP at its word that it is not requesting enforcement relief under 10 C.F.R. 2.206.

SLOMFP also requested relief extending to the two Diablo Canyon power plants and to power plants and ISFSIs at other sites. The 10 C.F.R. Part 50 Diablo Canyon power plant licenses are not at issue in this 10 C.F.R. Part 72 proceeding. And SLOMFP’s even broader requests involving other licensees are also not cognizable in this individual adjudicatory proceeding.

According to SLOMFP, it brings its petition under the Atomic Energy Act’s provisions which prohibit licensing actions that would pose unreasonable risk to public health and safety or be inimical to the common defense and security. SLOMFP states that it has brought the Petition directly to the Commission because only the Commission has the authority to determine what measures, beyond current regulatory requirements, must be imposed to meet the AEA’s standard for protection of the public.

Because SLOMFP's request does not fit comfortably in any specific category, we will treat it as a general motion brought under the procedural requirements of 10 C.F.R. 2.730. Such a motion should initially be addressed to the Presiding Officer when a proceeding is pending, and the Commission does not encourage participants in adjudicatory proceedings to attempt to bypass the Board by filing motions or petitions directly with the Commission. Nevertheless, because we have ultimate supervisory control over our proceedings, we choose here to address the merits of SLOMFP’s petition.

B. Merits of the Petition

By not suspending operating licenses in the 14 months that have elapsed since the terrorist attacks of September 11, 2001, the Commission has implicitly concluded that continued operation of power plants and ISFSIs does not pose an imminent risk to the public health and safety and is not inimical to the common defense and security. Last year we enunciated the considerations we apply to pending licensing proceedings to decide whether to postpone them to await ongoing review of the agency’s terrorism-related policies.

[W]e consider whether moving forward with the adjudication will jeopardize the public health and safety, prove an obstacle to fair and efficient decisionmaking, or prevent appropriate implementation of any pertinent rule or policy changes that might emerge from our important ongoing evaluation of terrorism-related policies.

We have expressly denied direct requests for suspensions and/or dismissals of licensing actions in Private Fuel Storage, Savannah River, and McGuire. Private Fuel Storage is a 10 C.F.R. Part 72 proceeding involving an application to build an ISFSI much larger than the proposed Diablo Canyon ISFSI. An intervenor, the State of Utah, requested that the licensing proceeding be stopped until applicable laws and regulations can be brought into conformity with present realities. Utah asked the Commission to stay proceedings until Congress and the Commission revise the law and regulations to account for the increased threat of domestic terrorism. We denied Utah’s request. The Commission determined that moving forward with the proceeding would neither present a threat to public health and safety nor interfere with our ongoing regulatory review, and halting it would interfere with our goal of adjudicatory efficiency.

Here, SLOMFP has not advanced any arguments that alter our perception that immediate suspension of licensing proceedings is unwarranted. Indeed, we continue to believe that licensing proceedings can move forward in parallel with our security review and the interim compensatory measures we have ordered:

The Commission believes that its response to [the September 11, 2001 terrorist attacks has been expeditious and that the current safeguards and physical security programs provide for a very high level of security at NRC-licensed facilities. However, in the aftermath of the terrorist attacks and the continuing uncertainly about future terrorist intentions, we have commenced a thorough review of our safeguards and physical security programs, from top to bottom, including those applicable to independent spent fuel storage installations. The review will include a comprehensive examination of the programs’ basic underlying assumptions.

There certainly is no reason to believe that any danger to public health and safety would result from mere continuation of this adjudicatory proceeding. The instant licensing proceeding is in its early stages and, even if the NRC approves the requested ISFSI license, construction is not scheduled to begin until early 2004 and loading of the first casks will not occur until 2006.

On the other hand, suspending this proceeding would prove an obstacle to fair and efficient decisionmaking. As always, we balance the applicants’ and licensees’ interest in a prompt decision on their application against the petitioners interest in an opportunity for a hearing. In the instant case, the petitioners have requested a hearing and have proffered eight contentions, including the contention that the applicant has failed to address the environmental impacts of destructive acts of malice or insanity. The other seven contentions have little or no relationship to terrorism. For example, the petitioners have advanced five technical contentions that are not linked to terrorism: (1) inadequate seismic analysis; (2) insufficient financial qualifications; (3) license applicant is not the real party in interest; (4) inadequate description of financial relationships between corporate entities; and (5) insufficient description of construction and operation costs. Further, they have presented two environmental contentions, failure to fully describe the purposes of the proposed action and failure to evaluate the environmental impacts of transportation at the end of the license term, that are, at most, peripherally related to terrorism. Nevertheless, SLOMFP asks the Commission to postpone action on all of the other issues while the Commission completes its thorough assessment of the post-September 11, 2001 implications of terrorism.

However, it is not sensible to postpone consideration and resolution of various safety and environmental issues having little or nothing to do with the Commission’s ongoing review of security requirements. The Commission supervises its adjudicatory docket with a view toward sound case management. Efficient and expeditious decisionmaking is particularly important in this case, as PG&E has stated that, to preserve the capability for a full core off-load, it needs to operate the proposed ISFSI at the beginning of 2006. Accordingly, PG&E has requested issuance of the license by the end of 2003 and filed its license application two years ahead of its target date. Congress has recognized the need for and encouraged spent fuel storage at reactor sites and, to this end, has even mandated an expedited hearing process.

Lastly, moving forward with this adjudication will not prevent appropriate implementation of any rule or policy changes arising from our ongoing evaluation of terrorism-related policies. SLOMFP may have an opportunity to file late contentions in this proceeding or reopen the record, if policy or rule changes take place and the timing is appropriate. And every license the Commission issues is subject to the possibility of additional requirements. The Commission can modify license requirements by rule, regulation, or order; and changes can be applicable to both applicants and licensees. Thus, as in Private Fuel Storage, holding up these proceedings is not necessary to ensure that the public will realize the full benefit of our ongoing regulatory review at the Diablo Canyon facility.

In summary, the instant licensing proceeding neither conflicts with the Commission’s ongoing review of terrorism-related matters nor forecloses the implementation of potential new rules. And both national policy and the principles of sound case management militate against suspending this ISFSI proceeding in its early stages.

C. Conclusion

The Commission denies SLOMFP’s petition to suspend this proceeding or, in the alternative, to adopt interim safety measures.

For the Commission
Annette L. Vietti-Cook
Secretary of the Commission
Dated at Rockville, Maryland, this 21st day of November 2002