Peace v. Nuclear Regulatory Comm'n

• Decision Date: 15 February 2011
• Docket Number: No. 08–75058.,08–75058.
• Citation: 635 F.3d 1109
• Parties: SAN LUIS OBISPO MOTHERS FOR PEACE, Petitioner,v.NUCLEAR REGULATORY COMMISSION; United States of America, Respondents,Pacific Gas and Electric Company, Respondent–Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

635 F.3d 1109

11 Cal. Daily Op. Serv. 2071

2011 Daily Journal D.A.R. 2488

SAN LUIS OBISPO MOTHERS FOR PEACE, Petitioner,

v.NUCLEAR REGULATORY COMMISSION; United States of America, Respondents,Pacific Gas and Electric Company, Respondent–Intervenor.

No. 08–75058.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 2010.Filed Feb. 15, 2011.

Diane Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Washington, D.C., for the petitioner.Charles E. Mullins, United States Regulatory Commission, Washington, D.C., for the respondents.Kathleen M. Sullivan, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for respondent-intervenor PG & E.On Petition for Review of an Order of the Nuclear Regulatory Commission. NRC Nos. CLI–08–01, CLI–08–05, CLI–08–08, CLI–08–26.Before: STEPHEN REINHARDT and SIDNEY R. THOMAS, Circuit Judges, and JANE A. RESTANI, Judge.^*

OPINION

THOMAS, Circuit Judge:

This petition for review asks us to consider whether, in proceedings under the National Environmental Policy Act (“NEPA”), the United States Nuclear Regulatory Commission (“NRC”) must share sensitive security information with parties in a “closed” hearing, when that information is exempted from disclosure by the Freedom of Information Act (“FOIA”). The San Luis Obispo Mothers for Peace (“SLOMFP”) contends that the NRC's statutory obligations under NEPA and the Atomic Energy Act (“AEA”) require the agency to grant such a hearing. SLOMFP also challenges the adequacy of the NRC's Supplemental Environmental Assessment (“SEA”). We deny the petition.

I. BACKGROUND

SLOMFP's petition arises out of NRC proceedings following our remand in San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir.2006) (“ Mothers for Peace ”). This time, SLOMFP seeks review of NRC orders: (1) denying requests for a closed adjudicatory hearing on contentions challenging the NRC's decision not to prepare a full environmental impact statement (“EIS”) and (2) rejecting, either as inadmissible or on the merits, SLOMFP's various contentions regarding the SEA's adequacy under NEPA.

The factual background of the controversy was set forth in our prior decision, see Mothers for Peace, 449 F.3d at 1019–24, and so we shall only briefly review it before turning to post-remand developments relevant to this petition.

A. Mothers for Peace

In Mothers for Peace, SLOMFP and other petitioners sought review of the NRC's approval of a proposed interim spent fuel storage installation (“ISFSI”) at the Diablo Canyon Power Plant (“Diablo Canyon”) owned by Pacific Gas & Electric Company (“PG & E”). We granted the petition to the extent it challenged the NRC's categorical refusal, as a matter of law, to consider the environmental effects of potential terrorist attacks in its NEPA analyses. Mothers for Peace, 449 F.3d at 1028.

In concluding that the NRC had unreasonably interpreted NEPA, we addressed the agency's argument that NEPA's public process was not an appropriate forum for sensitive security issues. 449 F.3d at 1028, 1034–35. While we agreed that “NEPA's requirements are not absolute, and are to be implemented consistent with other programs and requirements,” we rejected the assertion that security considerations “result in some kind of NEPA waiver.” Id. at 1034. Following the Supreme Court's guidance in Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981), we observed that “security considerations may permit or require modification of some ... NEPA procedures” and that a “ Weinberger-style limited proceeding” may be appropriate on remand, Mothers for Peace, 449 F.3d at 1034, but that the NRC's inability to comply with some of NEPA's purposes did not absolve it of its duty to fulfill others. We pointed out, for example, that even where the public cannot access certain information held by the agency, the NRC must nevertheless permit the public to contribute to its decisionmaking process. Id.

Accordingly, we deemed the NRC's EA inadequate under NEPA and remanded for further proceedings. Id. at 1035.

B. Mothers for Peace Remand and NRC's Supplemental EA

On remand, the Commission ordered its staff to prepare a revised EA addressing the likelihood and potential consequences of a terrorist attack at the Diablo Canyon ISFSI site. CLI–07–11, 65 NRC 148 (2007). NRC Staff issued a Draft SEA and Finding of No Significant Impact (“FONSI”) in May 2007 and a Final SEA/FONSI in August 2007.¹ The SEA concludes that “the storage of spent nuclear fuel at the Diablo Canyon ISFSI will not have a significant effect on the quality of the human environment.” Under 10 C.F.R. § 51.31, therefore, the NRC determined that an EIS was unnecessary.

The SEA expands on the October 2003 EA/FONSI we found inadequate in Mothers for Peace. After reviewing the NRC's general post–9/11 security measures and requirements for ISFSIs, the SEA describes the NRC Staff's consideration of the “potential radiological impacts of terrorist acts on spent fuel storage casks,” despite the Commission's belief that the probability of such an act is “very low.” First, it explains that the spent fuel at Diablo Canyon is “adequately protected,” due to the resilient design of spent fuel storage cases, largely non-dispersible nature of the nuclear fuel, as well as Diablo Canyon's “location and low profile,” which make it “a difficult target for a large commercial airliner.” Second, the SEA reviews the NRC's generic analysis of “plausible threat scenarios,” such as a large aircraft impact and ground assaults, and it finds that current security measures at ISFSI's are adequate. The NRC's “screening” of threat scenarios “was informed by information gathered through NRC's regular interactions with the law enforcement and intelligence communities.”

Next, the SEA describes its dose calculations, which began with a comparison between generic ISFSI assessments and the “relevant features of the Diable Canyon ISFSI.” NRC Staff determined that the assumptions in the generic assessments—concerning storage cask design, source term (i.e. amount of radiological material released), and atmospheric dispersion—“were representative, and in some cases, conservative, relative to” Diablo Canyon's “actual conditions.” Using inputs from the generic assessments, Staff found a “projected dose of less than 5 rem for the nearest resident”; using Diablo Canyon's site-specific meteorology and source term “would reduce this projected dose even further.” Even under the “most severe plausible threat scenarios” (ground assault and aircraft impact), the NRC projected the dose to the nearest affected resident as “likely ... well below” 5 rem; in many other scenarios, it would be “substantially less than 5 rem, or none at all.”

Responding to public comments, the SEA also notes, inter alia, that: (1) the specific threat scenarios and source terms were “sensitive information that cannot be disclosed publicly”; (2) Staff selected “plausible” threat scenarios based on information gathered from federal agencies and the intelligence community; (3) a revised dose estimate, not an “early fatalities” indicator, was used to assess environmental impact; and (4) while the probability of an attack could not be readily quantified, it could be “qualitatively assessed to be acceptable.”

C. NRC Proceedings

In a hearing request filed June 28, 2007, SLOMFP submitted five contentions to the NRC, challenging the Draft SEA's adequacy under NEPA. Those contentions remained unchanged by the NRC's Final SEA, published August 30, 2007. SLOMFP requested admission of late-filed Contention 6 on February 27, 2008. SLOMFP's petition for review concerns only Contentions 1, 2, 3, and late-filed Contention 6.

The Commission addressed SLOMFP's initial contentions in CLI–08–01, 67 NRC 1 (2008), by admitting in part Contentions 1(b) and 2 and denying the rest. The NRC admitted Contention 1(b) (“Failure to references sources of scientific data”), insofar as it alleged that Staff failed to provide sources and identify appropriate FOIA exemptions, and ordered staff to prepare a document list and index of FOIA exemptions. The NRC permitted SLOMFP to dispute FOIA claims “based on the index and public record,” but, citing Weinberger, denied it access to exempt materials. The Commission also admitted Contention 2 (“Reliance on hidden and unjustified assumptions”) to the extent it raised concerns that the SEA ignored environmental effects on surrounding land and nonfatal health effects (e.g. latent cancers).

The NRC otherwise denied all contentions. As to the issues raised in this appeal, the NRC denied the following, in whole or in part: Contention 1(a) ( “Failure to define terms or explain methodology”) because SLOMFP did not show that the SEA was insufficient under NEPA and did not otherwise establish an admissible issue; Contention 2 (“Reliance on hidden and unjustified assumptions”) to the extent it reiterated Contention 1(b) or alleged a lack of clarity about the mitigating role of emergency planning; Contention 3 (“Failure to consider credible threat scenarios with significant environmental impacts”) because adjudication of “various hypothetical terrorist attacks against Diablo Canyon ISFSI” is “impracticable” and would require “substantial disclosure of classified and safeguards information.”

In CLI–08–5, 67 N.R.C. 174, 2008 WL 836361 (2008), the NRC responded to admitted Contention 1(b) by directing a presiding officer to review the Staff's FOIA exemptions and the completeness of its reference list. The Commission also rejected SLOMFP's “implicit petition for reconsideration” of its prior refusal (in CLI–08–1) to grant access to FOIA-exempt NEPA documents.

In CLI–08–08, 67 N.R.C. 193, 2008 WL 1915325 (2008), the Commission declined to admit late-filed Contention 6 (“Inappropriate reliance on the ‘Ease’ indicator to exclude reasonably foreseeable and significant environmental impacts”).² The NRC reasoned that Contention 6 was...