In what could be a precedent-setting case, New Jersey and a coalition of citizens are fighting renewal of the license for the nation's oldest operating nuclear power plant.
Their concern: The structural design of the 1960s-era Oyster Creek nuclear generating station is a security risk because, among other things, it stores highly radioactive spent fuel rods above ground. They argue that makes it vulnerable in the event of a terrorist attack from the air.
Their contention, if proved, could lead the Nuclear Regulatory Commission to deny for the first time a nuclear generating station's request for a license renewal after its original 40-year license expires. It could also set a new standard for the NRC, which currently does not take terrorism into account when it decides whether to renew a nuclear plant's license.
In fact, the NRC recently ruled the "possibility of a terrorist attack ... is speculative" and therefore "beyond the scope" of relicensing proceedings.
The state of New Jersey is appealing that ruling, arguing that the threat of terrorism is not speculative at all but a danger that must be addressed. Terrorism experts agree.
"From a policy perspective, it's absolutely critical that the relicensing procedures take into account the vulnerability from man-made attacks," says Michael Greenberger, director of the University of Maryland's Center for Health and Homeland Security in Baltimore. "It's the height of folly ... for the [NRC] to say that it's not going to consider seriously the vulnerability of the oldest plants when everybody knows these facilities are high-level targets."
Oyster Creek is located in the densely populated Jersey Shore, a fast-growing area in the most densely populated state. That's one of the things that prompted Janet Tauro to join the fight to close the plant when its license expires in 2009.
"It's an obsolete design," she says. "There are almost 3,000 pounds of highly radioactive rods stored 70 feet in the air in a cooling pool of water protected only by a thin metal roof. It's way too vulnerable."
The owners of Oyster Creek, who have applied for a license renewal to operate another 20 years, deny the plant is obsolete and note the metal roof above the spent fuel rods is "a heavily reinforced steel structure."
"Oyster Creek is required to meet every single safety standard and regulation as every plant, no matter what the age," says Oyster Creek spokesman Pete Resler. "The station has been continually upgraded: We put in the most modern safety systems and equipment."
The clash hints at the challenge of addressing electricity needs as well as environmental concerns about greenhouse gases, which nuclear power plants don't emit. It also shows the challenges faced in this post-9/11 world by the NRC, which has recently come under fire from some members of Congress for what they see as not taking the threat of terrorism seriously enough.
NRC officials say they do take the threat extremely seriously and since 9/11 have taken "numerous steps" to ensure all plants are secure. It's something that is dealt with on a daily basis, they say, not in the context of whether a plant is too old to operate safely - which is what the relicensing procedure is designed to address.
"The fact remains that security at a nuclear power plant is independent of the length of its license. It doesn't matter if a plant operates for five years, 15, or 20: It will have to meet the security requirements that are placed upon it by the NRC," says Scott Brunell, an NRC spokesman. "To attempt to address security for a plant that is seeking relicensing is an attempt to judge a plant on a snapshot that is not going to apply in the future one way or another."
The State of New Jersey sees things very differently. It argues that Oyster Creek's age and design are the very things that present serious security risks, and that those issues can best be addressed during the relicensing process. In its appeal of the NRC ruling, New Jersey's attorney general calls the design "comparatively unreliable and vulnerable." The appeal also argues that a terrorist attack is not just speculative and that the NRC's own actions prove that.
"There would be no need for the Commission to require extensive steps to guard against terrorist attack if the chances of an attack were only speculative," the appeal states.
The NRC has yet to rule on the appeal. In the meantime, a coalition of citizens' groups is lending its support to the state's stand.
"Security's not just a day-to-day concern. In this case, it is a structural issue as well," says Richard Webster, an attorney at the Rutgers Environmental Law Clinic in Newark, which represents the citizens' coalition. "The structure of the plant doesn't protect against this type of attack. If it was being built from scratch today, it could be designed to protect against one."
Oyster Creek officials disagree, saying their plant can sustain a direct hit by an aircraft.
"We're certainly able to defend the facility," says Mr. Resler. "The Electric Power Research Institute [a nonprofit company backed by the power industry] also did a study and found that even if such an event did occur, which is an extremely remote possibility, that there would not be a catastrophic release of radioactivity. These structures are designed for safety with multiple barriers to protect the fuel."
But Ms. Tauro is not convinced. She points to a recent study by the National Academy of Sciences' National Research Council, done at the request of Congress. It found that "successful terrorist attacks on spent fuel pools [at some nuclear power plants,] though difficult, are possible" and that "a propagating fire in a pool could release large amounts of radioactive materials."
"Oyster Creek is within 10 minutes of seven airports, both local and major," she says. "This plant should be retired. Its time has come."