Review of Terrorist Threat to Reactor Ordered

Since Sept. 11, 2001, President Bush and other federal officials have frequently warned that the nation’s nuclear power plants are vulnerable to terrorist attack.

But when the Nuclear Regulatory Commission took up a proposal to expand spent nuclear fuel storage facilities at the Diablo Canyon nuclear plant, the agency said the possibility of a terrorist assault was so “speculative” that no environmental review was needed.

On Friday, however, a federal appeals court in San Francisco ordered the agency to conduct such a review of the possible consequences of a terrorist attack on the expansion at the Pacific Gas & Electric Co. facility on the Central Coast near San Luis Obispo.

In a 3-0 decision, the U.S. 9th Circuit Court of Appeals ruled that the commission violated federal environmental laws by failing to undertake the review.

The appeals court held that it was unreasonable for the agency to declare “without support” that “the possibility of a terrorist attack

The Diablo Canyon case is one of five in which the commission said no environmental analysis of a terrorist threat was necessary in licensing a nuclear plant, according to court documents, but the first to generate a decision from a federal appeals court.

The ruling could have “a very important impact” on other licensing decisions around the country, said physicist Edwin Lyman, a senior staff scientist at the Union of Concerned Scientists in Washington, who has served as an expert witness in Nuclear Regulatory Commission proceedings. “Ultimately, this decision will make Americans safer,” he said.

Jeff Lewis, a PG&E; spokesman, said the firm might appeal. He said the decision “does not affect” current operations at Diablo Canyon and would have no effect on the construction schedule of the fuel storage casks there. He also said the plant “currently meets all NRC mandated security requirements.”

David McIntyre, a commission spokesman, said agency attorneys were still reviewing the decision and would have no immediate comment.

The court, in its decision, cited the commission’s own statements about attempts to shore up security at the plants after the 2001 terror attacks. In one instance, the agency had said it was “reexamining, and in many cases have already improved, security and safeguards matters” such as the size of guard forces at nuclear plants, clearance requirements and background investigations for key employees, as well as the design of plants.

The commission even set up an “Office of Nuclear Security and Incident Response,” the court noted.

Judge Sidney Thomas wrote in the opinion, “We find it difficult to reconcile the commission’s conclusion” in the Diablo Canyon case “that as a matter of law, the possibility of a terrorist attack on a nuclear facility is ‘remote and speculative,’ with its stated efforts to undertake a ‘top to bottom’ security review against this same threat.”

Thomas added: “It appears as though the NRC is attempting, as a matter of policy, to insist on its preparedness and the seriousness with which it is responding to the post-Sept. 11 terrorist threat, while concluding, as a matter of law, that all terrorist threats are ‘remote and highly speculative.’ ”

The court spurned the commission’s contention that it could not comply with federal environmental laws in this instance because of security risks. “There is no support for the use of security concerns as an excuse” to deviate from the law, Thomas wrote, quoting an earlier 9th Circuit decision that held “there is no ‘national defense’ exception to the National Environmental Policy Act.”

Thomas acknowledged that the public may not be entitled to hear the agency’s analysis of possible terrorist threats at a nuclear power plant. But he said that “does not explain the NRC’s determination to prevent the public from contributing information to the decision-making process” as the San Luis Obispo Mothers for Peace attempted to do in this case.

Friday’s decision “is really meaningful,” said Jane Swanson of the anti-nuclear group that filed the case.

“The terrorist attacks of Sept. 11, 2001, have removed any shred of credibility from the NRC’s stance that terrorist attacks on nuclear facilities are ‘speculative’ events that cannot be predicted,” Washington attorney Diane Curran, who represents the Mothers for Peace, said during her oral argument in October.

Curran emphasized that under the expansion plan, 140 spent fuel storage casks are to be placed on an exposed hillside overlooking the Pacific Ocean. “The effect of a terrorist attack on the steel casks could be devastating,” Curran warned in her argument. “Our expert study found that if only two casks were breached, an area more than half the size of the state of Connecticut could be rendered uninhabitable.” Mothers for Peace suggested that the commission consider fortifying the casks, or putting them in bunkers, or scattering the cask storage pads over the site so that they would not present one large target.

Friday’s ruling was hailed by California Atty. Gen. Bill Lockyer as “a victory for communities that live in the shadow of Diablo Canyon, and for the health of California’s residents and the environment.”

“President Bush and administration officials make constant public statements about the terrorist threats. Yet the NRC in this case concluded the danger of a terrorist attack on a nuclear facility is so minimal that the environmental effects of an attack did not have to be considered,” added Lockyer, whose office filed a friend-of-the court brief on behalf of California, Utah, Washington and Wisconsin.

California’s brief cited numerous statements of federal officials after 9/11 about the possibility of attacks on nuclear plants, including an alert released by the Nuclear Regulatory Commission on Jan. 23, 2002, which warned of the potential for an attack by terrorists who planned to crash a hijacked airliner into a nuclear facility. Four months later, a spokesman for the Office of Homeland Security said, “We know that Al Qaeda has been gathering information and looking at nuclear facilities and other critical infrastructure as potential targets.”