San Luis Obispo Peace v. Nuclear Regulatory

• Citation: 449 F.3d 1016
• Decision Date: 02 June 2006
• Docket Number: No. 03-74628.,03-74628.
• Parties: SAN LUIS OBISPO MOTHERS FOR PEACE; Santa Lucia Chapter of the Sierra Club; Peg Pinard, Petitioners, Pacific Gas and Electric Company, Intervenor, v. NUCLEAR REGULATORY COMMISSION; United States of America, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

449 F.3d 1016

SAN LUIS OBISPO MOTHERS FOR PEACE; Santa Lucia Chapter of the Sierra Club; Peg Pinard, Petitioners, Pacific Gas and Electric Company, Intervenor, v. NUCLEAR REGULATORY COMMISSION; United States of America, Respondents.

No. 03-74628.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 17, 2005.

Filed June 2, 2006.

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Diane Curran, Harmon, Curran, Spielberg & Eisenberg, L.L.P., Washington, D.C., for the petitioners.

Charles E. Mullins, United States Nuclear Regulatory Commission, Washington, D.C., for the respondents.

David A. Repka, Winston & Strawn, L.L.P., Washington, D.C., for respondent-intervenor PG & E.

Sheldon L. Trubatch, Esq., Offices of Robert K. Temple, Esq., Chicago, IL, for amicus San Luis Obispo County.

Kevin James, California Department of Justice, Oakland, CA, for amicus States of California, Massachusetts, Utah and Washington.

Jay E. Silberg, Shaw Pittman, L.L.P., Washington, D.C., for amicus Nuclear Energy Institute.

On Petition for Review of an Order of the Nuclear Regulatory Commission. NRC No. CLI-03-01; CLI-02-23.

Before REINHARDT and THOMAS, Circuit Judges, and JANE A. RESTANI,^* Chief Judge, United States Court of International Trade.

THOMAS, Circuit Judge.

This case presents the question, inter alia, as to whether the likely environmental consequences of a potential terrorist attack on a nuclear facility must be considered in an environmental review required under the National Environmental Policy Act. The United States Nuclear Regulatory Commission ("NRC") contends that the possibility of a terrorist attack on a nuclear facility is so remote and speculative that the potential consequences of such an attack need not be considered at all in such a review. The San Luis Obispo Mothers for Peace and other groups disagree and petition for review of the NRC's approval of a proposed Interim Spent Fuel Storage Installation. We grant the petition in part and deny it in part.

I

The NRC is an independent federal agency established by the Energy Reorganization Act of 1974 to regulate the civilian use of nuclear materials. Intervenor Pacific Gas and Electric Company ("PG & E") filed an application with the NRC under 10 C.F.R. Part 72 for a license to construct and operate an Interim Spent Fuel Storage Installation ("Storage Installation" or "ISFSI") at PG & E's Diablo Canyon Power Plant ("Diablo Canyon") in San Luis Obispo, California. The NRC granted the license. The question presented by this petition for review is whether, in doing so, the NRC complied with federal statutes including the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4437, the Atomic Energy Act of 1954 ("AEA"), 42 U.S.C. §§ 2011-2297g, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706.

NEPA establishes a "national policy [to] encourage productive and enjoyable harmony between man and his environment," and was intended to reduce or eliminate environmental damage and to promote "the understanding of the ecological systems and natural resources important to" the United States. Dept. of Transp. v. Pub. Citizen, 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 42 U.S.C. § 4321). The Supreme Court has identified NEPA's "twin aims" as "plac[ing] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action[, and] ensur[ing] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).

Rather than mandating particular results, NEPA imposes on federal agencies procedural requirements that force consideration of the environmental consequences of agency actions. Pub. Citizen, 541 U.S. at 756, 124 S.Ct. 2204. At NEPA's core is the requirement that federal agencies prepare an environmental impact statement ("EIS"), or:

include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Id. at 757, 124 S.Ct. 2204 (quoting 42 U.S.C. § 4332(2)(C)).

As an alternative to the EIS, an agency may prepare a more limited environmental assessment ("EA") concluding in a "Finding of No Significant Impact" ("FONSI"), briefly presenting the reasons why the action will not have a significant impact on the human environment. Id. at 757-58, 124 S.Ct. 2204 (citing 40 C.F.R. §§ 1501.4(e), 1508.13). If, however, the EA does not lead to the conclusion that a FONSI is warranted, the agency remains obligated to prepare an EIS. Id. at 757, 124 S.Ct. 2204.

While NEPA requires the NRC to consider environmental effects of its decisions, the AEA is primarily concerned with setting minimum safety standards for the licensing and operation of nuclear facilities. The NRC does not contest that the two statutes impose independent obligations, so that compliance with the AEA does not excuse the agency from its NEPA obligations. The AEA lays out the process for consideration of the public health and safety aspects of nuclear power plant licensing, and requires the NRC to determine whether the licensing and operation of a proposed facility 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).

The NRC is not, however, required to make this determination without assistance; federal law provides a framework for hearings on material issues that interested persons raise by specific and timely petition. 42 U.S.C. § 2239(a); 10 C.F.R. §§ 2.308-.348; 5 U.S.C. §§ 551-706. The initial hearing is held before a three-person Atomic Safety and Licensing Board ("Licensing Board"). 10 C.F.R. § 2.321. The Licensing Board's findings and decision constitute the agency's initial determination, although a party may file a petition for review with the Commission within 15 days of the Licensing Board's decision. 10 C.F.R. § 2.341. If the petition is granted, the Commission specifies the issues to be reviewed and the parties to the review proceedings, 10 C.F.R. § 2.341(c)(1), and renders a final decision. 10 C.F.R. § 2.344. A party may then petition this court for review of the Commission's final decision. 28 U.S.C. § 2344.

II

With this general statutory background, we turn to the facts underlying the petition for review. On December 21, 2001, PG & E applied to the NRC pursuant to 10 C.F.R. Part 72 for a license to construct and operate a Storage Installation at Diablo Canyon. The Storage Installation would permit the necessary and on-site storage of spent fuel, the byproduct of the two nuclear reactors at that site. PG & E expects to fill its existing spent fuel storage capacity at Diablo Canyon sometime this year. Therefore, unless additional spent fuel storage capacity is created, the Diablo Canyon reactors cannot continue to function beyond 2006.

PG & E proposes to build a dry cask storage facility. The basic unit of the storage system is the Multi-Purpose Canister ("Canister"), a stainless steel cylinder that is filled with radioactive waste materials and welded shut. The Canisters are loaded into concrete storage overpacks that are designed to permit passive cooling via the circulation of air. The storage casks, or the filled Canisters loaded into overpacks, are then placed on one of seven concrete pads. The Storage Installation would house a total of 140 storage casks, 2 more than the 138 projected to be required for storage of spent fuel generated at Diablo Canyon through 2025.

On April 22, 2002, the NRC published a Notice of Opportunity for Hearing. Under the regulatory scheme, interested parties could then request a hearing or petition for leave to intervene. 10 C.F.R. § 2.309(a). A written hearing request, which must contain the contentions the party wants litigated at the hearing, will be granted if the petitioner has standing, and has posed at least one admissible contention.¹ Id.

On July 19, 2002, the San Luis Obispo Mothers for Peace, a non-profit corporation concerned with Diablo Canyon's local impact, the Sierra Club, a non-profit corporation concerned with national environmental policy, and Peg Pinard, an individual citizen, (collectively "Petitioners") submitted a hearing request and a petition to intervene, asserting contentions for admission.

In Licensing Board Proceeding LBP-02-23, 56 NRC 413 ("LBP 02-23"), the Atomic Safety and Licensing Board addressed the admissibility of the July 19 petition's five Technical and three Environmental Contentions.² One Technical Contention, TC-1, dealing with the state of PG & E's finances, was deemed admissible; the acceptance of at least one contention meant that the petition was granted. Although the Licensing Board deemed two Environmental Contentions, EC-1, dealing with the failure to address environmental impacts of terrorist or other acts of malice or insanity, and EC-3, dealing with the failure to evaluate environmental impacts of transportation of radioactive materials³ inadmissible, the Licensing Board nonetheless referred the final ruling as to the admissibility of these two contentions to the NRC, "in light of the Commission's ongoing `top to bottom' review of the agency's safeguards and physical security programs." 56 NRC at...