June 12 , 2006

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Ruling May Help Nuclear Fight
Agency faulted for not considering terror attack
By Joe Bauman
Deseret Morning News, UT
June 8, 2006

State officials hope a federal appeals court ruling against the Nuclear Regulatory Commission over a nuclear waste storage site in California could help Utah in its own legal fight against storing nuclear waste in Skull Valley.

In a strongly worded decision issued Friday, the 9th Circuit Court of Appeals found that the NRC failed to analyze adequately the possibility of a terrorist attack against stored nuclear fuel rods at the Diablo Canyon Power Plant, operated by Pacific Gas & Electric in San Luis Obispo County, Calif.

"The case is directly on point," said Denise Chancellor, the Utah assistant attorney general who has crafted legal arguments concerning Private Fuel Storage, the above-ground storage site for high-level nuclear fuel that is planned for Goshute Indian land in Tooele County.

"In the NRC proceeding, the state raised the issue of terrorism and the NRC ruled against the state," she said. When the NRC decided the Diablo Canyon matter, the NRC "relied on the rationale it used on the PFS ruling."

Ninth Circuit decisions are not binding on Utah's case involving the NRC's granting PFS a license, which is pending in the Court of Appeals for the District of Columbia. But the next step for any Ninth Circuit decision is the U.S. Supreme Court, whose rulings apply nationwide.

Also, the Ninth Circuit's reasoning almost certainly will be cited by the state in its present challenge.

"This gives us some good precedence from the Ninth Court that underscores the folly in the NRC's reasoning," said Mike Lee, the governor's general counsel. The decision will "still almost inevitably be considered for its persuasive power."

Petitioners in the Diablo Canyon case are San Luis Obispo Mothers for Peace, the Santa Lucia Chapter of the Sierra Club, and an individual named Peg Pinard. On the other side is the NRC, which was supported in the matter by PG&E.

The appeals court struck down the NRC for failing to comply with federal environmental law that requires agencies to fully analyze environmental impacts of proposed actions. The ruling cited errors in reasoning that the NRC applied in its decision to license Private Fuel Storage.

The NRC ruled against the Diablo petitioners, saying it did not need to analyze the possibility of a terrorist attack because such an attack was too remote and speculative to require a review under the National Environmental Policy Act (NEPA.)

In the Private Fuel Storage matter, the state of Utah contended that the Sept. 11 terrorist attacks "had materially changed the circumstances" under which previous rules were based. It made an attack "both more likely and potentially more dangerous than previously thought," Utah argued.

The Ninth Circuit apparently agrees with Utah.

Even though the NRC said an attack is such a remote possibility it did not need to carry out an analysis in its environmental impact statement, at the same time NRC said the Sept. 11 attack prompted it to carry out a "top to bottom" security review of such facilities, according to the court decision.

"We find it difficult to reconcile" those differing positions, the court wrote. "Here, 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. 11th terrorist threat, while concluding, as a matter of law, that all terrorist threats are 'remote and highly speculative' for NEPA purposes."

The court ordered a reconsideration of earlier court rulings, based on its guidance.

Diane Curran, a Washington, D.C., lawyer representing the petitioners, said if a full analysis of terrorism issues had been carried out, the commission could have considered such factors as requiring that "the stainless steel canisters to hold the fuel could be of a more robust design to withstand the impact of a missile."

Also, pads where canisters would be stored could be built below ground level or with berms. "They also could be scattered on the site so that if someone were successful in attacking one of these things they'd get a smaller number," she said in a telephone interview.

Jason Groenewold, director of the anti-PFS group Healthy Environment Alliance of Utah, charged in an e-mail that the Nuclear Regulatory Commission has "its head in the sand when it comes to the threat of terrorism.

"We hope this ruling will convince federal regulators to finally conduct a thorough assessment of whether a chain-link fence is really adequate to safeguard the health of Utahns from an attack on the nuclear waste Private Fuel Storage wants to store above ground in Skull Valley."

E-mail: bau@desnews.com

http://deseretnews.com/dn/print/1,1442,635213768,00.html