Asbury Park Press: N.J. FILES APPEAL OF RULING ON REACTOR

April 26, 2007

N.J. FILES APPEAL OF RULING ON REACTOR
Aim: Make NRC weigh attack risk

LACEY - The state of New Jersey filed a petition with the 3rd U.S. Circuit Court of Appeals on Wednesday calling for the impact of a potential terrorist attack to be considered in the relicensing review of the Oyster Creek nuclear power plant.

"Our primary concern is the potential for harm to human health and the environment," Department of Environmental Protection Commissioner Lisa P. Jackson said in a statement.

The U.S. Nuclear Regulatory Commission could determine as early as next month whether to renew the plant's operating license for 20 years. If it is renewed, it will become the nation's first nuclear power plant to operate longer than 40 years. If the license is not renewed, the plant will close in 2009.

With the petition, the state is challenging the NRC's Feb. 26 decision rejecting New Jersey's contention that an analysis of the potential impact of a terrorist attack should be included in the relicensing review.

The NRC's Atomic Safety and Licensing Board made the same decision earlier.

Both state officials and renewal opponents have questioned the safety of a water-filled pool where spent nuclear fuel is temporarily stored at Oyster Creek. It is located 119 feet above the ground in the metal-roofed reactor building. Some critics and nuclear power experts say this makes it susceptible to an airborne attack.

"On one hand, the NRC has imposed extensive security requirements on nuclear power plants since 9/11 to guard against attacks. On the other hand, it continues to insist that, from a legal perspective, the likelihood of such an attack is merely theoretical, and not worthy of analysis as part of the relicensing process," state Attorney General Stuart Rabner said in a statement.

Oyster Creek spokeswoman Leslie Cifelli said "we agree with the long-standing position of the NRC and agree that terrorism was taken into account in their general environmental impact statement."

NRC spokesman Neil Sheehan said: "We have not yet had an opportunity to review the lawsuit and therefore would not be able to comment on it at this point. However, we will be responding in due course."

Calif. case cited

Rabner compared New Jersey's case with one decided by the 9th Circuit Court of Appeals in favor of a California activist group last June. The San Luis Obispo Mothers for Peace pushed for the NRC to consider the potential impact of a terrorist attack on the licensing review for an independent fuel storage installation at Diablo Canyon nuclear power plant in that city, according to the Attorney General's Office.

The court ruled that the NRC made a mistake in determining that the National Environmental Policy Act does not require it to consider terrorist attacks at nuclear facilities.

Pacific Gas & Electric Co., which runs that plant, petitioned the U.S. Supreme Court to consider the case, but it rejected the request.

In a brief to the Supreme Court appealing the 9th Circuit ruling, the NRC stated: "An agency's precautionary choice to protect against a highly improbable event hardly increases the casual connection between the agency's action and the event, much less the likelihood of the event occurring."

New Jersey's action Wednesday drew praise from activist groups opposing the relicensing.

"We are proud of what the state is doing. This is a major issue that needs to be addressed for safety," said Janet Tauro, a member of the activist group Grandmothers, Mothers and More for Energy Safety, or GRAMMES.

Tauro said New Jersey is setting a precedent that other states will follow when the licenses of their plants are to be reviewed.

She also said the plant is "a very potent nuclear weapon if an attack occurred there."

Paul Gunter, director of the Reactor Watchdog Project for the Nuclear Information and Resource Service in Takoma Park, Md., said the group fully supports the state's efforts to get hearings on "a host of issues with regard to terrorism and the . . . vulnerability of Oyster Creek's design."

Optimistic opponent

Richard Webster, staff attorney and lecturer in law at the Rutgers Environmental Law Clinic, said he's "very happy" with the state's decision.

"We think that the issue of terrorist attack upon the spent fuel pool needs to be addressed," said Webster, who represents a coalition of six activist groups, including NIRS and GRAMMES, opposed to the proposed relicensing.

"This is . . . another step toward getting something done about it," he said.

"The NRC should have made more serious efforts already to actually mitigate the problem," he said. "Because they haven't, we're glad the state is stepping into the breech."

Webster said he thinks the state's chances of prevailing are very good, since the "9th Circuit has already said that terrorism is a foreseeable problem and therefore you have to assess it."

Environmental writer Todd B. Bates contributed to this story, which also contains material from previous Asbury Park Press stories.