In the United States Court of Appeals For the Ninth Circuit No. 08-75058 SAN LUIS OBISPO MOTHERS FOR PEACE, Petitioner V. UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents PACIFIC GAS & ELECTRIC COMPANY lntervenor-Respondent PETITION TO REVIEW A FINAL DECISION OF THE U.S. NUCLEAR REGULATORY COMMISSION PETITIONER'S EXCERPTS OF RECORD VoL 1 of 2 Pages 1 to 184 Diane Curran Anne Spielberg Matthew Fraser Harmon, Curran, Spielberg & Eisenberg, L.L.P. 1726 M St. N.W., Suite 600 Washington, D.C. 20036 202/328-3500 Attorneys for Petitioner Dated February 9, 2009 In the United States Court of Appeals For the Ninth Circuit No. 08-75058 SAN LUIS OBISPO MOTHERS FOR PEACE, Petitioner V. UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents PACIFIC GAS & ELECTRIC COMPANY Intervenor-Respondent PETITION TO REVIEW A FINAL DECISION OF THE U.S. NUCLEAR REGULATORY COMMISSION PETITIONER'S EXCERPTS OF RECORD VoL 2 of 2 Pages 185 to 405 Diane Curran Anne Spielberg Matthew Fraser Harmon, Curran, Spielberg & Eisenberg, L.L.P. 1726 M St. N.W., Suite 600 Washington, D.C. 20036 202/328-3500 Attorneys for Petitioner Dated February 9, 2009 INDEX OF EXERPTS OF RECORD - Volume I Agency Orders on Review Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-26, __ NRC _, (October 23, 2008) ............. I Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation); CLI-08-08, 67 NRC 193 (2008) .............................. 28 Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-05, 67 NRC 174 (2008) ......................34 Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-01, 67 NRC 1 (2008) .................................. 37 Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-07-11,65 NRC 148 (2007) ............................. 53 Environmental Assessment and Relevant Reference Documents Nuclear Regulatory Commission, Notice of Issuance of Addendum to the Supplement to the Environmental Assessment for the Diablo Canyon Independent Spent Fuel Storage Installation, 72 Fed. Reg. 64252 (November 15, 2007) .............. 55 Supplement to the Environmental Assessment and Final Finding of No Significant Impact Related to the Construction and Operation of the Diablo Canyon Independent Spent Fuel Storage Installation (August 2007) ............. 56 E-mail/Letter from Diane Curran to Chief, Rulemaking, Directives, and Editing Branch, NRC, Re: "Comments on Supplement to Diablo Canyon Environmental A ssessm ent" (July 2, 2007) .......................................................................................... 86 Supplement to the Environmental Assessment and Draft Finding of No Significant Impact Related to the Construction and Operation of the Diablo Canyon Independent Spent Fuel Storage Installation (May 2007) ........ 87 Memorandum from Jack R. Strosnider, NRC, to Roy P. Zimmerman, NRC, Re: "Framework Assessments of Spent Fuel Storage Casks and Transportation Packages and Radioactive Material Transportation Packages" (December 9, 2005) ...... 103 Memorandum from Luis A. Reyes, NRC, to the NRC Commissioners Re: "Decision-Making Framework for Materials and Research and Test Reactor Vulnerability Assessments," SECY-04-0222 (November 24, 2004) .............................. 143 i INDEX OF EXERPTS OF RECORD - Volume 2 Relevant Docket Entries San Luis Obispo Mothers for Peaccs Response to NRC Staff's Motion for Summary Disposition of Contention I(B) (April 26, 2008) ......................... 185 Affidavit of James Randall Hall, Shana Helton, and Paul Kelley, Jr. (April 11, 2008), Attachment I ofj3 Attachments to NRC Staff's Motion fior Summary Disposition of San Luis Obispo Maothers for Peace's Contention lh(b) (April 18. 2008)) (not included) ........................................................... 188 San Luis Obispo Mothers for Peace's Detailed Summary of Facts, Data, and Arguments on Which it Intends to Rely at Oral Argument (April 14, 2008) ................. 194 Attachments / and 2 can be.found as Attachments I and 2 to San Luis Obispo Mothers for Peace's Contentions and Request.for a Hearing Regarding Diablo Canyon EnvironmentalAssessment Supplement (June 28, 2007), p. 333 and 350. respectively. Attachment 3: Second Declaration ofl)r. Gordon R. Thompson on Behalf of San Luis Obispo Mothers for Peace in Support of Contention 2 Regarding the Construction and Operation of the Diablo Canyon Independent Spent Fuel S torage Installation (April 200 8) .............................................................................. 22 8 San Luis Obispo Mothers for Peace's Request for Admission of Late-Filed Contention 6 Regarding Diablo Canyon Environmental A ssessm ent Supplem ent (February 27, 2008) ........................................................... ...254 San Luis Obispo Mothers for Peace's Response to NRC Staffs Vaughn Index (February 20, 2008) ............................................................................... 263 San Luis Obispo Mothers for Peace's Response to NRC Staff's Supplement to the Environmental Assessment and Finding of No Significant Impact for the Diablo Canyon Independent Fuel Storage Installation (O ctober 1, 2007) ............................................................................ 275 San Luis Obispo Mothers for Peace's Reply to PG&E's and NRC Staffs Oppositions to SLOMFP's Contentions and Request for a Hearing Regarding Diablo Canyon Environmental Assessment Supplement (July 18, 2007) ...................... 289 San Luis Obispo Mothers for Peace's Contentions and Request for a Hearing Regarding Diablo Canyon Environmental Assessment Supplement (June 28, 2007) ..... 315 Attachment 1: Declaration of Dr. Gordon R. Thompson in Support of San Luis Obispo Mothers for Peace's Contentions Regarding the Diablo Canyon Environmental Assessment Supplement (June 27, 2007) ........................... 333 Attachment 2: Dr. Gordon Thompson, "Assessing Risks of Potential Malicious Actions at Commercial Nuclear Facilities: The Case of a Proposed Independent Spent Fuel Storage Installationat the Diahlo Can),on Site" (June 27. 2007) .......... 350 ii UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS Dale E. Klein, Chairman Gregory B. Jaczko Peter B. Lyons Kristine L. Svinicki In the Matter of PACIFIC GAS and ELECTRIC CO. Docket No. 72-26-ISFSI (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation) CLI-08-26 MEMORANDUM AND ORDER 1 This proceeding is a reopening, on remand from the Ninth Circuit, of a proceeding to license an independent spent fuel storage installation (ISFSI) at the site of the Diablo Canyon nuclear power plant in California. In February of last year, we directed the NRC Staff to prepare a revised environmental assessment, pursuant to the Ninth Circuit's remand and the National Environmental Policy Act (NEPA), addressing "the likelihood of a terrorist attack at the Diablo 2 Canyon ISFSI site and the potential consequences of such an attack." The NRC Staff 1 San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), cert. denied, 127 S.Ct. 1124 (2007). 2 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-07-11, 65 NRC 148, 149 (2007). 00 0 001 2 responded to our direction by preparing draft3 and final4 environmental assessment supplements (the latter taking into account public comments) and a finding of no significant impact. The Staffs supplemental assessment led San Luis Obispo Mothers for Peace (SLOMFP) to request a hearing and to file five proposed contentions,5 which the Staff' and the Pacific Gas and Electric Company (PG&E) 7 opposed. In January of this year, we issued an order admitting limited portions of two of the contentions proposed by SLOMFP. 8 We delegated to a previously-designated presiding officer the resolution of one of these, Contention 1(b), a Freedom of Information Act (FOIA)-based claim on the availability and withholding of certain documents (or portions of documents) underlying the NRC Staffs NEPA findings.9 The presiding officer resolved Contention 1(b) on an unopposed NRC Staff motion for summary disposition. 10 We retained jurisdiction over Contention 2, and on July 1, 2008, we heard oral argument on it under 10 C.F.R. § 2.1109 (10 3 Supplement to the Environmental Assessment and Draft Findingof No Significant Impact Related to the Constructionand Operation of the Diablo Canyon Independent Spent Fuel Storage Installation, 72 Fed. Reg. 30,398 (May 31, 2007) (Draft EA Supplement). 4 Supplement to the EnvironmentalAssessment and Final Findingof No Significant Impact Related to the Constructionand Operation of the Diablo Canyon Independent Spent Fuel Storage Installation(Aug. 2007) (Final EA Supplement), available as ADAMS Accession No. ML072400303. 5 San Luis Obispo Mothers for Peace'sContentions and Request for a Hearing Regarding Diablo Canyon Environmental Assessment Supplement (June 28, 2007) (SLOMFP Petition), with attachment: Thompson, Gordon R., Assessing Risks of PotentialMalicious Actions at Commercial Nuclear Facilities:The Case of a ProposedSpent Fuel Storage Installationat the Diablo Canyon Site (June 27, 2007) (Thompson Report). 6 NRC Staff's Answer to Contentions Submitted by San Luis Obispo Mothers for Peace (July 13, 2007). 7 Pacific Gas and