New Jersey AG Rabner Announces 3rd Circuit Court Challenge to NRC Ruling on Oyster Creek

N.J. Contends Impact of Terrorist Strike Should be Considered In Relicensing Review

April 25, 2007 -- TRENTON -- New Jersey Attorney General Stuart Rabner announced today that New Jersey has filed a petition with the federal Third Circuit Court of Appeals challenging a finding by the Nuclear Regulatory Commission (NRC) that it need not consider the impact of a terrorist attack as part of its relicensing review of the Oyster Creek nuclear power plant in Lacey Township, Ocean County.

At issue is a February 26, 2007 decision by the NRC rejecting New Jersey's contention that, within the Oyster Creek relicensing process, an analysis of the potential impact of a terrorist strike at the plant should be a required component. The decision affirmed an earlier one by the NRC's Atomic Safety & Licensing Board, which held that no such analysis was required.

Attorneys for the Division of Law, acting on behalf of the Department of Environmental Protection, have argued before the NRC that there should be an in-depth analysis of the likely environmental consequences of a terrorist attack at Oyster Creek. They have contended that, in accordance with federal law, any relicensing study of Oyster Creek should include consideration of the environmental consequences of an aircraft attack on the plant's reactor , the vulnerability to attack of the plant's spent fuel pool, and the viability of current measures designed to protect against these dangers, among other issues.

The NRC maintains that New Jersey has raised purely 'speculative' and 'theoretical' concerns. Attorney General Rabner said the State disagrees, and that it intends to underscore inconsistencies between NRC rhetoric in this case and its actual oversight of nuclear power plants.

"It is difficult to reconcile the NRC's actions with its stated position on the Oyster Creek matter," said Rabner. "On the 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."

Rabner noted that the federal Ninth Circuit Court of Appeals, in a California case decided last June involving an advocacy group's lawsuit against the NRC, observed a similar inconsistency between NRC's legal arguments and its antiterrorist directives.

In that case, San Luis Obispo Mothers for Peace argued that an analysis of the potential impact of a terrorist attack should be required as part of the licensing review for a proposed independent fuel storage installation at the Diablo Canyon nuclear power plant run by Pacific Gas & Electric Company in San Luis Obispo.

The Ninth Circuit decided in favor of Mothers for Peace. In doing so, it found that, as a matter of law, the NRC erred in determining that the National Environmental Policy Act does not require NRC to consider the potential impact of terrorist attacks at nuclear facilities. Subsequently, Pacific Gas & Electric petitioned the U.S. Supreme Court to hear the case, but the Court refused.

DEP Commissioner Lisa P. Jackson, emphasizing that the state has a responsibility to protect public health and the environment, said, ”Our primary concern is the potential for harm to human health and the environment. In fact, the DEP currently maintains an environmental monitoring system that detects even the smallest increases in radioactivity from the nuclear power plants in New Jersey. If the NRC intends to block states from considering the environmental consequences of a terrorist attack, then they are obligated to assess that danger themselves."

Source: New Jersey Attorney General

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