FOE’s manipulative legal strategy for closing nuclear reactors

During a recent discussion on James Conca’s article titled Are California’s Carbon Goals Kaput?, Paul Gunter of Beyond Nuclear accused Conca of trying to revise history. Gunter’s comment includes a lengthy interpretation of the events surrounding the closure of San Onofre from the point of view of a man who has been a professional antinuclear activist for close to four decades.

William Rodgers, a man who has over 20 years of experience in nuclear and hydoelectric power operations, design and project management with a focus on reusable fuel issues, responded to Gunter’s opinionated interpretation with the following comment referencing publicly available documents about the situation. (Rodgers gave me permission to lightly edit his comment for clarity and to reprint it here with full credit. He also asked me to state that his comments are not indicative of the opinions of his employer or its positions on nuclear power issues.)

Mr. Gunter,

There is someone who is practicing revisionist history. But it isn’t Dr. Conca.

It is you.

You stated in your comment the following:

“It was the NRC’s Atomic Safety Licensing Board unanimous decision to disallow SCE the experimental restart the reactor as unsafe”

The Atomic Safety Licensing Board determined that the SCE testing process was a de facto license amendment based on the directions of the Confirmatory Action Letter (CAL) provided by the NRC commission. They did not state the restart process was unsafe. The NRC did not state the restart was unsafe. No one except professional intervenors like you have stated the restart process was unsafe.

The letter from the ALSBP discusses many things but here are several critical quotes:

“We do not presume to supervise or to direct the NRC Staff in the performance of its CAL duties, including its review of the adequacy and safety of SCE’s restart plan; rather, the scope of our authority is limited to adjudicating the issue referred by the Commission — i.e., whether this CAL process constitutes a de facto license amendment proceeding”

“If, pursuant to the CAL process, the NRC Staff were to authorize SCE to operate Unit 2 at a power limit not to exceed 70%, this condition would result in a deviation from the technical specification requirement that tube integrity be maintained over the “full range of normal operation conditions” up to 100%. Such a deviation from a technical specification requires a license amendment, thus converting this CAL process to a de facto license amendment proceeding.”

“In sum, we conclude that SCE’s Unit 2 Restart Plan, if implemented, would (1) grant SCE authority to operate without the ability to comply with all technical specifications; (2) grant SCE authority to operate beyond the scope of its existing license; and (3) grant SCE authority to operate its replacement steam generators in a manner that constitutes a test or experiment that meets the criteria in 10 C.F.R. § 50.59(c)(2)(viii) for seeking a license amendment. For these three independent reasons, this CAL process constitutes a de facto license amendment proceeding that is subject to a hearing opportunity under section 189a of the AEA.”

So nowhere did the ALSB state the process was unsafe. They stated that, based on the direction provided to SCE from the CAL written by the Commission, the restart process would be an unevaluated condition and outside the existing tech specs in force at that time. The ASLB did not describe an unsafe condition, but an unevaluated condition that is therefore subject to the 50.59 license amendment process.

This, of course, was the goal of professional intervenors like you. Force SCE into a full license amendment process to lock up the restart process for years since a public comment period would be required by the legal process the NRC and the utilities must follow. The legal strategy rests on using the current set of rules and laws, not to ensure safe operation as they were meant to be utilized, but to force a nuclear power plant to shut down. This is a fully developed legal strategy that is backed by an established war chest and documented intent.

With the restart process locked up court for years, SCE would continue to bleed money. Then a case could be made in front of the California Public Utilities Commission by you and other professional intervenors that SCE was not in compliance of various state requirements. This would then allow you and others to make a consumer complaint to the CPUC and continue to delay the restart process even further.

SCE saw that handwriting on the wall and decided to shut SONGS down. Since they could install natural gas plants which will allow them to pass along all fuel costs to the consumer without a huge legal fight from you and other professional intervenors plus gain tax credits for wind and solar power, the board of SCE decided that was the best course of action for its stockholders. Notice I said stockholders not ratepayers. The ratepayers were up the creek the minute you and your group of professional intervenors stepped in and scrambled the restart process.

And I haven’t even touched on the fact that a special NRC board was set up in Region IV for SCE while Ft. Calhoun had equally serious issues but did not face the same political fights as did SCE. Why? Because Nebraska does not have rabid anti-nuclear representatives as does California in the form of Sen. Boxer and Rep. Waxman.

So if anyone is trying to revise history it is you Mr. Gunter.

Additional Background

Rodgers provided me with some additional background to support a more complete understanding of his comment. I have added a few thoughts of my own to his.

The NRC 10 CFR 50.59 is the standard design review process that every nuclear facility must follow. Most suggested changes to plant designs do not trigger any of the criteria listed in 50.59 (c)(2) and the designs are implemented through the 50.59 review procedures at each plant based on their license design documents and technical specifications.

In the instances where a change to the plant design, FSAR or tech specs is required, a license amendment is then prepared for submittal to the NRC. The license amendment process is generally performed at the plant-NRC level without reaching the public comment stage.

However, the 10CFR codes allow any person whose interests may be affected by a proceeding and who desires to participate to file a written request for hearing. The 50.59 process is fairly well defined between the NRC and the power plants and includes routine documentation, forms and methodology that are used by plant personnel, NRC staff and intervenors alike.

Professional, often publicly-funded, antinuclear groups frequently participate in the public review process.

In the case of the San Onofre intervention, the Friends of the Earth took the lead for antinuclear activists and filed a petition to force the plant to file a license amendment to implement its committed corrective actions as documented in the Confirmatory Action Letter process.

Friend of the Earth’s (FOE’s) legal standing with the NRC to intervene in the CAL review process rested on the fact that many FOE members lived in the San Clemente area and that those FOE members could be harmed by the restart. The petition that the organization filed professed a belief that even a small amount of leaked radiation from the steam generators posed a great risk to those members, the general public and the environment. Here is a quote from the petition highlighting the dramatic adjectives used to portray the supposedly tragic consequences of a steam generator u-tube leak.

Lastly, Petitioner’s risk of harm is great. The public must be assured that San Onofre Units 2 and 3 can be operated in a manner that provides for adequate safety. FOE represents a substantial number of people who live within range of any radioactivity released from San Onofre. Whether the licensee is required to fully correct the safety risks created by the replacement steam generators could profoundly affect FOE’s members’ health, safety, environmental quality, and economic well-being. The damage that could follow from a malfunction resulting from a failure to understand and correct the problems with the San Onofre steam generators could be catastrophic. As the world has seen at the sites of several nuclear plant disasters, even a small risk of such an event amounts to a great harm.

The beliefs expressed in that paragraph are contradicted by the documented history of steam generator u-tube leaks, including the one at San Onofre. No one has ever been exposed to a hazardous dose of radiation as a result of those previous steam generator tube leaks; the 82 gallon-per-day leak that happened at San Onofre in January 2012 would have given the hypothetical “most exposed person” a dose of 5.2E-7 mSv. The Health Physics Society states that doses less than 50-100 mSv cause a risk that is “too small to be observed or is nonexistent.”

The radiation dose from the San Onofre tube leak would have needed to be magnified by a factor of a billion in order to cause any harm large enough to be observed. Even at that level, the harm would only be statistical and in the form of a small increase in the possibility of contracting cancer sometime in the subsequent decades.

FOE, while only meeting an expansive interpretation by the NRC of a “person whose interests may be affected” classification, was not seeking satisfactory resolution to the testing process. FOE was manipulating the legal tools provided by the code of federal regulations along with the assumption that “there is no safe dose of radiation” to force an onerous, costly, and indefinite-length legal process upon SCE and SONGS.

The organization’s strategic goal in filing the petition to delay plant restart was to raise the cost of keeping SONGS in a condition that would eventually allow a restart. The legal strategy employed by FOE forced SCE to analyze the situation within a financial and legal framework not typically required of nuclear power facilities during major component modifications in order to determine the future of SONGS and the best course of action for the SCE stockholders.

The decision that the board of directors made to destroy the plant protected the financial interests of stockholders under the existing rules governing the company’s electricity rates and obligations. Though outside observers may dislike the notion that corporate boards act to protect stockholders, that is what their fiduciary responsibilities require them to do.

Here is a quote from the FOE website that proudly states its goal of closing operable nuclear power plants.

Friends of the Earth’s nuclear campaign works to reduce risks for people and the environment by supporting efforts to close existing nuclear reactors and fighting proposals to design and build new reactors and use federal funds to underwrite such initiatives.

That statement clearly supports a contention that the actions taken in the case of San Onofre were based on achieving a plant shutdown, not protecting public health and safety. In fact, the quite predictable result of closing the plant has been to harm public health and safety by increasing air pollution, raising the cost of producing and distributing electricity, and increasing the risk of electricity outages.

Rodgers provided this additional dislaimer:

Additionally, while I have a working knowledge of the 50.59 and the 72.48 screening and evaluation processes, my assessment is from the view of an outsider to the events of SCE and SONGS as I was not nor have I been directly employed by SCE or SONGS. And there are always details that I am willing to learn in the interest of furthering my knowledge of the inner workings of the licensing of nuclear power.

Confirmatory Action Letter CAL 4-12-001, dated March 27, 2012
FOE petition – Ayres Law Group dated June 18, 2012
ASLB Memorandum and Order LBP 13-07 dated May 13, 2013
FOE SONGS Petition status

Antinuclear activists are too modest

Jim Conca has published a couple of recent posts on about the premature closure of nuclear power plants in the United States. One titled Are California’s Carbon Goals Kaput? focuses on some of the environmental aspects of the San Onofre debacle; the other, titled Closing Vermont Nuclear Bad Business for Everyone focuses on the […]

Read more »

Purposeful price pumping by constraining supply

James Conca recently published a commentary on Forbes titled Closing Vermont Nuclear Bad Business For Everyone. A major thrust of Conca’s initial post was highlighting the rapidly rising prices of electricity in New England that are being driven by an increasing reliance on natural gas as reliable power generators like the Vermont Yankee nuclear plant […]

Read more »

Antinuclear activists don’t like continued storage rule

Several of the usual suspects — including Dr. Mark Cooper, Dr. Arjun Makhijani, and Diane Curran — have banded together to assert their opinion that the NRC’s recently issued NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, violates the following provision of the Atomic Energy Act of 1954. In connection with […]

Read more »

Continuing conversation with NRC Chairman Macfarlane

On September 11, 2014, the American Nuclear Society hosted a roundtable discussion for nuclear bloggers with Allison Macfarlane, the Chairman of the Nuclear Regulatory Commission. The meeting was broadcast as a webinar, but there were also seats available in the conference room from which Dr. Macfarlane and Margaret Harding (the ANS moderator) were running the […]

Read more »

Crowd sourced analysis of a Lovins sales pitch

I’ve had the pleasure of experiencing an Amory Lovins talk in person three times. Each time, I left the venue with the feeling that an agnostic must have had after attending an Elmer Gantry revival. The audience for two of the events should have been more skeptical — those talks were part of a series […]

Read more »

Amory Lovins-speak: Three misleading statements in a 15 second sound bite

I had the opportunity to be in the audience during the above talk. You might notice my impolite interjections; I have often been accused of being very poor at hiding my real reactions and feelings. There is a reason why I stopped playing poker during game nights on the USS Stonewall Jackson. I was losing […]

Read more »

Amory Lovins continues Sowing Confusion About Renewable and Nuclear Energy

On August 5, 2014, Amory Lovins published a commentary on titled Sowing Confusion About Renewable Energy. He was responding to an opinion piece published in the July 26, 2014 issue of The Economist that was based on a working paper titled The Net Benefits of Low and No-Carbon Electricity Technologies written by Charles R. […]

Read more »

Atomic Insights Radar July 20-26 2014

It’s been a busy week, but the following stories appeared on the Atomic Insights radar and are being tracked for additional information. President Obama has revealed the names of the people that he intends to submit to the Senate for confirmation as NRC commissioners to replace the recently retired Commissioner Apostolakis and soon-to-depart Commissioner Magwood. […]

Read more »

Additional evidence re: nonproliferation & antinuclear alliance

After posting Nonproliferation is a disguised antinuclear energy effort, I received the following comment via email. The author has given me permission to share it, with attribution. I know John Holdren well and this article in spot on. John does not weigh energy poverty very high and weighs nuclear weapons proliferation exceedingly highly. This dominates […]

Read more »

Nonproliferation is a disguised antinuclear energy effort

I stumbled across a 1983 article titled Nuclear power and nuclear weapons: the connection is dangerous that is the clearest piece of evidence I’ve found to prove that many of the basic talking points of the nuclear nonproliferation crowd are actually aimed at slowing, halting and reversing the use of nuclear energy. These efforts have […]

Read more »

Atomic Show #217 – Michael Mariotte, President NIRS

At the suggestion of a long time Atomic Insights contributor and Atomic Show listener, I invited Michael Mariotte for a guest appearance on the Atomic Show. In the small world made up of active nuclear advocates and people adamantly opposed to nuclear energy, Mariotte and his organization are famous — or infamous, depending on one’s […]

Read more »