Monday, March 22, 2004
A.G. Says NRC Should Address Diablo Canyon Terror Risks
Lockyer Files Amicus Brief Asking Ninth Circuit to Require Study Sought by Environmental Groups
From Staff and Wire Service Reports
Attorney General Bill Lockyer filed an amicus brief Friday supporting a bid to force the Bush administration to address terrorism risks before approving a storage facility for radioactive waste at the Diablo Canyon nuclear power plant in San Luis Obispo.
The brief challenges the U.S. Nuclear Regulatory Commission’s ruling that it did not have to consider potential terrorism during hearings over the proposed facility.
“This administration, and this president, constantly remind us of the terrorist threat,” Lockyer said in a statement. “And yet, in this case, they say the danger is so remote they can deny Californians their right to know the environmental effects of a terrorist attack on a nuclear facility.”
Lockyer filed the brief with the Ninth U.S. Circuit Court of Appeals in San Francisco on behalf of California. It was joined by Massachusetts, Utah and Washington.
The NRC ruling was challenged by the group San Luis Obispo Mothers for Peace and the Sierra Club. In a brief filed Monday, the groups assert the Ninth Circuit has jurisdiction to review the NRC action under the Hobbes Act, the Atomic Energy Act, and the Administrative Procedures Act.
Spent Fuel Storage
Built in 1985, the Diablo Canyon facility is owned and operated by Pacific Gas & Electric Co., which has applied for a license to store spent radioactive fuel in dry casks onsite.
The Nuclear Regulatory Commission has said it believes the Diablo Canyon facility is secure and that it has passed the agency’s security tests and inspections.
In the amicus brief, Lockyer noted that the NRC found the possibility of a terrorist attack on the proposed facility was too remote to require discussion in PG&E’s environmental report.
“Factually, this conclusion is at odds with statements made by the President, members of his cabinet, and other federal officials, and is belied by actions taken by the NRC itself, since September 11, 2001,” Lockyer wrote. “Moreover, this conclusion is contrary to the letter and spirit of the National Environmental Policy Act—.”
The attorney general pointed out that the NRC relied on its conclusion, reached in another matter, that the possibility of a terrorist attack was “speculative and simply too far removed from the natural or expected consequences of agency action to require a study under NEPA.”
That conclusion, he asserted, “ignores that fact that licensing any nuclear facility—whether a reactor, a spent fuel pool, or a dry cask spent fuel storage facility—near a community both makes the community a more likely terrorist target and makes the consequences of a successful terrorist attack far more devastating to the community.”
Lockyer argued that the NRC’s claim the risk of terrorism was not “quantifiable” was contradicted by numerous statements by public officials, including an alert issued by the NRC itself in January of 2002. That alert warned nuclear power plant operators of the potential for an attack in which an airliner would be crashed into a plant.
Though the alert asserted the report of a planned attack was uncorroborated, Lockyer said, it described it as “already planned” by three suspected al-Qaeda operatives who were trying to recruit non-Arabs for the mission.
The NRC also issued an alert citing heightened terror risks for nuclear plants in May of 2002, Lockyer said, citing news reports.
Also citing news reports, Lockyer noted that Energy Secretary Spencer Abraham announced last May that the Palo Verde nuclear power plant in Arizona might have been targeted by terrorists, prompting Arizona Gov. Janet Napolitano to send National Guard troops to provide additional security.
Prediction Called Routine
The NRC acted last April to strengthen the standard applicable to nuclear power plants for defending themselves against attack, Lockyer said.
Those statements and others “demonstrate that federal agencies do, in fact, routinely predict the degree and scope of the risk of terrorism confronting the nation, and particular infrastructure facilities—including nuclear facilities—within the nation, at specific points in time,” the attorney general asserted.
Under NEPA, Lockyer said, a court can require the NRC to conduct an analysis of terror risks posed by the planned project if there is a “substantial question” as to whether it would have a significant effect on the environment either by making a terrorist attack more likely or by increasing the consequences of such an attack.
Citing Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002), Lockyer said the Ninth Circuit has held that an agency acts arbitrarily and capriciously if it has “entirely failed to consider an important aspect of the problem.”
The case is San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Commission, 03-74628.
Copyright 2004, Metropolitan News Company