ELR Citation: ELR 20164
No(s). s. 07-71868, -72555 (9th Cir. Jul 24, 2009)

The Ninth Circuit denied a petition for review of the NRC's refusal to include the threat of air attacks in its revised "design basis threat" rule, initially promulgated to protect nuclear power reactors from industrial sabotage. In March 2007, NRC revised the rule to increase the range of threats included within the rule's scope, including attacks by multiple groups through multiple entry points, individuals willing to kill or be killed, water vehicles and water-based vehicle bomb assaults, and cyber attacks. Although Congress directed NRC to "consider" air-based attacks in revising the rule, the NRC ultimately determined that the threat of an air-based attack was beyond the rule's scope. Due to NRC's failure to include air-based attacks in the rule, petitioners filed suit. In promulgating the rule, NRC reasonably concluded that the rule's scope only reaches those threats that a private force can reasonably be expected to defend against. Applying this standard of reasonable expectation, the NRC did not act arbitrarily nor capriciously in concluding that air-based threats were beyond the scope of the rule. When facing an attack from a vehicle, a private force can engage those persons who seek to intrude upon the facility. The same cannot be said of air attacks. Moreover, the Atomic Energy Act requires the NRC to ensure that the operation of nuclear facilities "will provide adequate protection to the health and safety of the public." Here, the NRC adequately explained that the public health and safety was adequately protected through mitigation measures and active defense by other federal agencies. In addition, NRC did not err in failing to prepare an EIS under NEPA.