Public Citizen v. Nuclear Regulatory Com'n

• Decision Date: 24 July 2009
• Docket Number: No. 07-71868.,No. 07-72555.,07-71868.,07-72555.
• Citation: 573 F.3d 916
• Parties: PUBLIC CITIZEN; San Luis Obispo Mothers for Peace, Petitioners, v. NUCLEAR REGULATORY COMMISSION, Respondent. State of New York, Petitioner, v. Nuclear Regulatory Commission; United States of America, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

573 F.3d 916

PUBLIC CITIZEN; San Luis Obispo Mothers for Peace, Petitioners, v. NUCLEAR REGULATORY COMMISSION, Respondent.

State of New York, Petitioner, v. Nuclear Regulatory Commission; United States of America, Respondents.

No. 07-71868.

No. 07-72555.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2008.

Filed July 24, 2009.

Adina H. Rosenbaum, Public Citizen Litigation Group, Washington, D.C., for the petitioners.

John J. Sipos, Assistant Attorney General, Albany, NY, for the petitioner.

Steven F. Crockett, Special Counsel, Karen D. Cyr, General Counsel, John F. Cordes, Jr., Solicitor, and E. Leo Slaggie, Deputy Solicitor, United States Nuclear Regulatory Commission, Washington, D.C.; Ronald J. Tenpas, Assistant Attorney General, Ronald M. Spritzer, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for the respondents.

David A. Repka, Winston & Strawn, Washington, D.C., for the intervenor-respondent.

Brian Hembacher, Deputy Attorney General, State of California, Los Angeles, CA, for the amici curiae.

On Petition for Review of an Order of the Nuclear Regulatory Commission. NRC Nos. 10CFR, 07-2052.

Before: CYNTHIA HOLCOMB HALL, THOMAS G. NELSON and SIDNEY R. THOMAS, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge THOMAS.

HALL, Senior Circuit Judge:

Petitioners Public Citizen, Inc., San Luis Obispo Mothers For Peace, the State of New York,¹ and amicus State of California ("Petitioners") challenge the Nuclear Regulatory Commission's ("NRC" or "Commission") modification of the Design Basis Threat ("DBT") rule and partial denial of the Committee to Bridge the Gap's ("CBG") petition for rulemaking. Petitioners claim the Commission acted arbitrarily and capriciously and contrary to law by refusing to include the threat of air attacks in the final revised DBT rule. Petitioners also claim NRC violated the National Environmental Policy Act ("NEPA") by not considering the risk of an airborne terrorist attack in its Environmental Assessment ("EA"), and that this risk creates a potentially significant impact on the environment necessitating a full Environmental Impact Statement ("EIS"). We deny the petition.

I. Background

A. The History of the Commission and Development of the "Adequate Protection" Standard

To better understand the complicated history of the DBT Rule, we first outline the role of the NRC itself. In 1954, Congress passed the Atomic Energy Act ("Act"). 42 U.S.C. § 2011 et seq. The Act created the Atomic Energy Commission, later renamed the Nuclear Regulatory Commission, to regulate and develop the use of atomic energy. The Act is "virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives." Siegel v. Atomic Energy Commission, 400 F.2d 778, 783 (D.C.Cir.1968).

When licensing nuclear facilities, the Commission is charged with ensuring that the operation of those facilities is "in accord with the common defense and security and will provide adequate protection to the health and safety of the public." 42 U.S.C. § 2232(a). Although "adequate protection" is not defined in the statute, legislative history "indicate[s] that the Congressional concern with the common defense and security related to such matters as the safeguarding of special nuclear material; the absence of foreign control over the applicant; the protection of Restricted Data; and the availability of special nuclear material for defense needs." Siegel, 400 F.2d at 781 (internal quotations omitted). "The public health and safety standard, in like fashion, was said to be addressed to the overall qualifications of the applicant and the design of the facility to protect plant employees and the public against accidents and their consequences." Id. at 781-782(internal quotations omitted).

The adequate protection standard has also acquired meaning through subsequent case law. Union of Concerned Scientists v. NRC, 824 F.2d 108, 117 (D.C.Cir.1987) (Concerned Scientists I), held that while the Commission could not consider costs in determining the level of adequate protection necessary, it could consider other factors, including the nature and extent of the risks involved. The court declined to establish the scope of those factors, however, instead concluding that "the `adequate protection' standard may be given content through case-by-case application of [the Commission's] technical judgment rather than by a mechanical verbal formula or set of objective standards" set by either NRC or an interpreting court. Union of Concerned Scientists v. NRC, 880 F.2d 552, 558 (D.C.Cir.1989) (Concerned Scientists II).

Concerned Scientists I also made clear that "adequate protection" does not mean "absolute protection," and that the standard "permits the acceptance of some level of risk." 824 F.2d at 114, 118. "Safe is not the equivalent of risk-free." Id. at 118 (internal quotations omitted). The Commission is authorized to impose additional safety measures on licensees above those required by adequate protection, and in doing so may consider the economic costs of those extra measures. Id. Siegel v. Atomic Energy Commission was the first case to challenge whether adequate protection should extend beyond the original congressional concerns to also encompass "the risk of an enemy attack or sabotage against [the] structures." 400 F.2d at 783-784. The Siegel court held that there was no indication that the "Commission was commanded to intrude the possibility of enemy action into the concepts of `the common defense and security' and `the public health and safety.'" Id.

The Siegel case dealt with the Commission's decision declining to require licensees to protect against possible missile attacks on nuclear facilities near Cuba. The court upheld the Commission's newly created "Enemy of the State" rule, which insulated licensees from the requirement that they protect against the effects of attacks or destructive acts by enemies of the United States (foreign governments or other persons) or that they use or deploy weapons incident to U.S. defense activities. 10 C.F.R. § 50.13. The court favorably cited the Commission's rationale animating the Enemy of the State rule: "that [requiring] reactor design features to protect against the full range of the modern arsenal of weapons [is] simply not practicable and that the defense and internal security capabilities of this country constitute, of necessity, the basic `safeguards' as respects possible hostile acts by an enemy of the United States .... [t]he risk of an enemy attack or sabotage against such structures, like the risk of all other hostile attacks which might be directed against this country, is a risk that is shared by the nation as a whole." Id. at 783.

B. The Origin of the Design Basis Threat Rule

The Commission, wholly of its own accord, decided in 1977 to promulgate the first Design Basis Threat ("DBT") rule to protect nuclear power reactors from industrial sabotage. 42 Fed.Reg. 10,836 (Feb. 24, 1977). "Design bases" are, generally speaking, applicant or licensee information which identifies the specific functions to be performed by a structure or system. 10 C.F.R. § 50.2. The "threat" is an adversary characteristic, or what sort of threat against which a licensee should be prepared to defend and engage. 72 Fed.Reg. 12,705, 12,705, 708 (Mar. 19, 2007). The DBT rule challenged in this action, 10 C.F.R. § 73.1, is the purpose and scope section which defines included adversary characteristics. Other regulations implement specific physical protection requirements to address these adversary characteristics once they are included within the scope of the rule. See, e.g., 10 C.F.R. § 73.55(outlining physical protection requirements to protect against radiological sabotage).

The regulation initially protected only against industrial sabotage by individuals and groups with possible inside information and hand-held weapons. But, the regulation stated: "[t]he kind and degree of threat and the vulnerabilities to such threats will continue to be reviewed by the Commission.... the Commission [will] consider changes to meet the changed conditions." 42 Fed.Reg. 10,836, 10,836.

In 1994, the Commission revised the DBT rule in response to an intrusion at a nuclear power plant, the 1993 vehicle bomb attack on the World Trade Center, and intelligence that showed "a conspiracy with ties to the Middle East extremists clearly demonstrated the capability and motivation to organize, plan, and successfully conduct a major vehicle bomb attack," 59 Fed. Reg. 38,889, 38,891 (Aug. 1, 1994). The revised DBT incorporated the threat of adversaries utilizing "a four-wheel drive land vehicle used for transporting personnel and their hand-carried equipment," and "a four-wheel drive land vehicle bomb." Id. The Commission explicitly denied that these changes were necessary to meet the adequate protection standard. Instead, the changes were issued under the Commission's authority to outline additional safety measures as a "matter of prudence" and represented a "substantial increase in protection of the public health and safety." 59 Fed.Reg. 38,889, 38,891, 896; see also Concerned Scientists I, 824 F.2d at 118.

To partially implement the 1994 DBT change, the Commission also revised 10 C.F.R. § 73.55 to require the installation of passive vehicle barriers. These barriers were required to "protect against vehicle intrusion into protected areas," but the Commission believed that, if placed in the correct locations, they could also protect against a vehicle bomb. 59 Fed.Reg. 38,889, 38,891. Because the changes were permissibly made to "provide an additional, substantial increase in the overall protection of the public health and safety," rather than statutorily required to meet the adequate...