2009-02-11 Mothers for Peace takes NRC back to federal court for flaunting federal laws

Attorney Diane Curran accuses the NRC of illegal secrecy and of refusing to comply with federal laws.

February 11, 2009

Contact: Jane Swanson, spokesperson
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The San Luis Obispo Mothers for Peace (MFP) on February 9, 2009 filed an Initial Brief with the Ninth Circuit of the United States Court of Appeals. Attorney Diane Curran accuses the NRC of illegal secrecy and of refusing to comply with the National Environmental Policy Act (NEPA) and the Atomic Energy Act (AEA).

MFP asserts that, in approving a license for the Diablo Canyon Spent Fuel Storage Installation (“ISFSI” or dry cask storage facility), the NRC should have granted MFP a closed hearing on the adequacy of the NRC’s Environmental Assessment (EA), which was a mere eight pages in length. The NRC claimed that security considerations ruled out a hearing, even though at a closed hearing only those with the required security clearance would be present. MFP attorney Diane Curran has the necessary clearance.

MFP also accuses the NRC of unlawfully using secret criteria to deny the possible environmental impacts of an attack on the dry casks at Diablo Canyon.

The NRC illegally ruled that there was no requirement to do a complete Environmental Impact Statement, claiming irrationally that even a successful terrorist attack would have “no significant impact” on the environment.

The NRC violated both NEPA and a June, 2006 ruling by the Ninth Circuit Court in favor of MFP when the regulators excluded from consideration credible attack scenarios on the dry casks at Diablo Canyon that could have devastating environmental impacts. Under NEPA, environmental impacts that are “reasonably foreseeable” and have “catastrophic consequences, even if their probability of occurrence is low” must be taken into account.

According to MFP spokesperson Jane Swanson, "Mothers for Peace has been a vigilant advocate for safety and environmental protection at Diablo Canyon for over three decades. We do not accept the NRC's view that the only group it must consult about how to address the impacts of an attack on the Diablo Canyon facility is Pacific Gas and Electric Company. As neighbors of the plant who would be severely impacted by a successful attack, we are entitled to be part of the decision-making process."

SUMMARY OF THE ARGUMENT The following is the complete wording of pages 29 - 32 of the Initial Brief, which has a total length of 95 pages. The more detailed legal arguments are on pages 33 – 55. The complete brief will soon be accessible on the NRC website and at mothersforpeace.org.

In San Luis Obispo Mothers for Peace, this Court [the Ninth Circuit of the U.S. Court of Appeals] overturned an NRC decision which refused, as a matter of law, to consider the environmental impacts of attacks in its licensing decisions for proposed nuclear facilities. On remand, the NRC prepared a supplemental EA for the Diablo Canyon ISFSI that purported to consider all “plausible” attacks on the facility, yet reached the patently absurd conclusion that the environmental effects of an attack on the facility would be negligible. The EA Supplement gave no indication that the NRC had addressed credible attack scenarios involving penetration of a storage module and ignition of a fire in the spent fuel, leading to the airborne release of a large quantity of radioactive cesium, widespread land contamination, and potentially devastating environmental and health effects.

No longer able to claim that an environmental analysis of attack impacts was not legally required, the Commission now attempted to erect an impregnable legal barrier to any criticisms of its decision not to prepare an EIS regarding the environmental impacts of an attack on the Diablo Canyon ISFSI: the Commission refused to admit for a hearing any contentions that questioned whether it had given adequate consideration to attack scenarios that could cause significant adverse environmental impacts, on the ground that to admit such a contention would require the NRC to unlawfully disclose to SLOMFP sensitive security information protected by federal law.

While federal law does prohibit unrestricted public disclosure of sensitive security information, however, it contains no prohibition against the disclosure of sensitive security information to interested parties in a closed and protected hearing. The NRC had a statutory obligation, under NEPA, to fully consider environmental issues in its decision-making process by granting SLOMFP the closed hearing to which it was entitled under the AEA.

While SLOMFP was entitled to a closed hearing on its criticisms of the EA Supplement, sufficient information was available in the public record to show that the NRC had violated NEPA by categorically refusing to consider the reasonably foreseeable and significant environmental impacts of an attack on the Diablo Canyon ISFSI, applying irrational and sometimes secret criteria to avoid consideration of those impacts. The public record shows that in preparing the EA Supplement, the NRC Staff arbitrarily screened out attacks that would not cause immediate fatalities, even though the dominant impact of an attack on a spent fuel storage facility would be land contamination and ensuing long-term illnesses and economic effects. The NRC also screened out consideration of attacks that were time consuming or demanded significant resources, thus arbitrarily and irrationally excluding consideration of reasonably foreseeable attacks with a greater level of sophistication.

The public record also showed that the entire case was tainted by the Commission’s categorical threshold determination that the potential for any attack on the Diablo Canyon ISFSI is remote and speculative. In making that determination, the Commission repeated, almost word-for-word, the same rationale whose reasonableness was rejected by this Court in San Luis Obispo Mothers for Peace. The Commission further showed that it attached little meaning to the concept of a “plausible” attack scenario as used in the EA Supplement when it was revealed in CLI-08-26 that a promised review of the NRC Staff’s selection of plausible attack scenarios in the EA Supplement amounted to nothing more than ad hoc reviews by individual Commissioners.

Finally, the EA Supplement is fatally defective because it completely fails to justify the NRC’s refusal to prepare an EIS. The record of the proceeding contains no evidence that the NRC gave reasoned consideration to the reasonably foreseeable potential for an attack on the Diablo Canyon ISFSI that could cause severe environmental contamination. As Commissioner Jaczko noted in his dissent from CLI-08-26, the public statements made by the Staff in the EA Supplement and in the course of the proceeding were evasive and circular. Id., slip op. at 26 (ER 26). The need to protect sensitive security information does not excuse such a basic lack of public accountability under NEPA.

The Court should order the NRC to comply with NEPA and the AEA by granting SLOMFP a closed hearing on the adequacy of the EA Supplement. The Court should also reverse the NRC’s finding of no significant impact with respect to attacks on the Diablo Canyon ISFSI, because the NRC relied on arbitrary and unlawful criteria for screening out consideration of reasonably foreseeable environmental impacts, and because the EA Supplement utterly failed to provide a “convincing statement” of the NRC’s reasons for refusing to prepare an EIS. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, (9th Cir. 1998), cert. denied sub. nom. Malheur Lumber Co. v. Blue Mountains Biodiversity Project, 527 U.S. 1003 (1999).

BACKGROUND The precedent-setting case began in 2002, when the NRC refused to evaluate the environmental impacts of an attack on the proposed dry cask facility before issuing a permit to Pacific Gas & Electric Co. (PG&E) to store spent fuel on the site. In 2006, the Ninth Circuit of the U.S. Court of Appeals ordered the NRC to do such a study in compliance with the National Environmental Policy Act (NEPA). In response, the NRC Staff produced an extremely abbreviated 8-page environmental assessment that claimed the impacts of a successful attack would be “insignificant”. MFP's expert witness, Dr. Gordon Thompson of the Institute for Resource and Security Studies, contended that the agency’s technical analysts erred by assuming a cask could be punctured without also recognizing that its contents could be ignited, allowing a large quantity of radioactive cesium and other contaminants to become airborne and transported over a broad geographic area. The resulting damage to public health and the environment would cost billions of dollars.

MFP, an all-volunteer non-profit group, has challenged NRC regulatory practices as applied to Diablo Canyon since 1973, and has litigated issues related to sabotage and terrorism since 1976.