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

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