Dissenting Opinion Supports MFP Challenge in Terrorist Case

Although Contention 2 was denied by the NRC Commissioners, Commissioner Gregory Jaczko wrote an 8 page opinion in support of the MFP position.

San Luis Obispo Mothers for Peace
October 23, 2008

For immediate release
Contact: Jane Swanson, spokesperson
phone (805) 595-2605


Today the Nuclear Regulatory Commissioners denied the San Luis Obispo Mothers for Peace’s Contention 2, as argued before the Commission July 1, 2008, that the Nuclear Regulatory Staff is obligated under the National Environmental Policy Act (NEPA) to do a thorough Environmental Impact Statement on the effects of a terrorist attack on the dry cask facility at the Diablo Canyon nuclear plant.

A strong dissenting opinion from Commissioner Gregory Jaczko fully supports the position of San Luis Obispo Mothers for Peace (MFP). Commissioner Jaczko criticizes the 8 page Environmental Assessment for failing to consider land contamination resulting from a terrorist attack. He is also critical of the secrecy surrounding documents the NRC Staff relied upon in reaching its conclusion that a successful terrorist attack would have “no significant impact”. He points out that, while there is no need to reveal sensitive information to the general public, a closed hearing could have been held “ to share information to appropriately cleared individuals”.

MFP attorney Diane Curran and expert Witness Gordon Thompson both have the necessary security clearances. Commissioner Jaczko concludes that the Commission’s decision “presents a false choice between protecting sensitive information and meeting our responsibilities under NEPA.”

MFP has not yet made a decision on how it will respond to the Commission ruling, but spokesperson Jane Swanson states that “ Mothers for Peace will consider all options for continuing to defend the ruling of the Ninth Circuit of the United States Court of Appeals. The court ruled (June, 2006) that the NRC Staff must study the environmental effects of a terrorist attack. The NRC has not complied with that order for the reasons spelled out in the dissenting opinion.”

(This is decision document if you are unable to locate it on the NRC website)


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. In response, the NRC Staff produced an extremely abbreviated environmental study, devoting just a few pages to its conclusion that the impacts of an attack would be insignificant.

MFP's expert witness, Dr. Gordon Thompson of the Institute for Resource and Security Studies, contends 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.

Today’s hearing is unprecedented in that appeals within the NRC are normally heard before an Atomic Safety and Licensing Board, which then reports to the Commissioners. Oral arguments before the Commissioners have not been conducted in at least the past decade.

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. Further background is available at http://mothersforpeace.org.