On January 16, 2007 the United States Supreme Court refused to hear Pacific Gas & Electric's (PG&E) appeal backed by the Bush Administration for a review of the San Francisco-based 9th Circuit Federal Court of Appeals' decision concerning the environmental impacts of nuclear terrorism. The lower court had ruled that the U.S. Nuclear Regulatory Commission (NRC) must hear the case of the San Luis Obispo Mothers for Peace, Sierra Club and Peg Pinard, collectively MFP, as a requirement of the National Environmental Policy Act (NEPA).
(652.5782) NIRS - The Mothers For Peace (MFP) had challenged the construction license for a dry cask radioactive waste storage system at California's Diablo Canyon nuclear power plant on the consequences of a successful terrorist attack. The NRC dismissed the hearing request by a similar Order that has been applied in earlier National Environmental Policy Act (NEPA) hearing requests including a NIRS challenge to license extensions for Duke Power's Catawba and McGuire nuclear power stations. In all those cases, the federal agency concluded, just over a year after the 9/11 attacks, that terrorism was "too speculative and remote" to be applied in any of its site-specific proceedings.
PG&E had argued to the high court that an environmental impact statement on the consequences of terrorism isn't required under federal law and "would place an unnecessary and duplicative burden" on the power company.
The Supreme Court justices' decision, without comment, opens the door to further legal actions where NRC dismissed public challenges on the environmental impacts of terrorist attacks and acts of sabotage at nuclear power plants. The ruling potentially effects seven additional licensing hearings including 20-year license extensions for the Oyster Creek, Palisades, Pilgrim and Vermont Yankee nuclear power stations and challenges to an Early Site Permit application for new construction at Mississippi's Grand Gulf nuclear power plant, an application to construct and operate an industrial irradiator in Hawaii, and the state of Utah's appeal of the NRC license handed to Private Fuel Storage for an Away-From-Reactor nuclear dump in Tooele County, Utah. NIRS was involved in two of those seven legal challenges.
"After the events of September 11, 2001, it is only reasonable that the significant health and environmental risks of terrorist attacks be considered when designing and building nuclear facilities," said MFP spokesperson Jane Swanson. The NRC must now issue a new environmental assessment addressing the impacts of an intentional attack on the proposed radioactive waste dump. The focus of MFP is to require a new environmental assessment that would not only evaluate consequences but consideration of hardening onsite storage of nuclear waste by building berms around more robust casks that are dispersed over the reactor site. "We're looking for real design alternatives, not just more fences and guns," said Diane Curran, attorney for MFP.
Like many nuclear power stations in the United States, Diablo Canyon's two reactor units are running out of storage space for irradiated fuel rods in densely packed nuclear waste storage pools. While the court ruling bars PG&E from off loading the nuclear waste from the pools into storage casks until it complies with a hearing it does not halt the construction of the onsite storage facility itself. Current onsite nuclear waste storage designs in the United States consist of a variety of cask designs that are openly congregated on concrete pads.
Within days after the Supreme Court decision, a NRC licensing board dismissed a legal challenge by the Massachusetts Attorney General for a hearing on the consequences of a successful terrorist attack on the nuclear waste storage pool in Vermont Yankee nuclear power station. The nuclear waste laden pool of the General Electric Mark I Boiling Water Reactor is six to ten stories up in the reactor building outside primary containment. The NRC licensing board ruled that the nuclear waste contention and terrorist concerns were beyond the scope of the hearing.
The licensing board's decision against Massachusetts signals NRC's intentions to ignore the Supreme Court's rejection in the other legal circuits.
Meanwhile, the NRC Commissioners voted on January 29, 5-0, to reject requirements for nuclear power plants to defend against September 11th style attacks. Commission Chair Dale Klein claimed that the nation's nuclear power plants are structurally robust and can withstand any aircraft attack without significant consequences. The Commission also rejected requirements for nuclear power plants to have enough defense forces to repel a ground or water borne attack by a force of 19 suicidal attackers coordinated in four teams, the equivalent force that successfully attacked the World Trade Center and Pentagon on September 11, 2001.
Source and contact: Paul Gunter at NIRS Washington
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