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Beyond Nuclear appeals scandalous NRC rule that has long undermined NEPA to facilitate new reactor construction

Beyond Nuclear has filed multiple appeals at the U.S. Circuit Court of Appeals for the District of Columbia -- the second highest court in the land -- in opposition to Detroit Edison's proposed new Fermi 3 atomic reactor, and the construction/operation license recently rubber-stamped by the U.S. Nuclear Regulatory Commission (NRC).

Terry Lodge, an attorney based in Toledo, serves as legal counsel for Beyond Nuclear.

One of the appeals represents the first legal challenge ever to a scandalous NRC rule change eight years ago that effectively undermined the National Environmental Policy Act (NEPA).

The Orwellian redefinition of a single word that bulldozed NEPA

Bloomberg's Elliot Blair Smith broke the story on September 25, 2007 in an article entitled "Nuclear Utilities Redefine One Word to Bulldoze for New Plants."

"By redefining 'construction' to exclude excavation, road building and the erection of some cooling towers, the NRC could reduce its oversight without violating" previous court orders, the article reported. With only the reactor and its primary safety systems and structures included as "construction" in NRC reviews, "pre-construction" could begin right away on the "property and structures around it" -- "excavation, road building and the erection of some cooling towers" -- without the preparation of a bothersome environmental impact statement (EIS), as required by NEPA, and affirmed by federal court rulings, for over 40 years.

The bad news is, nuclear utilities and their contractors have since taken advantage of this NRC regulatory retreat to break ground on proposed new reactors long before EISs have been completed, and COLAs (combined Construction and Operating License Applications) have been approved. The badly over budget and behind schedule Vogtle 3 & 4 new reactor construction project in GA is a case in point, as is the Summer 2 & 3 new reactor construction project in SC.

As previously reported by Beyond Nuclear, the troubled Vogtle 3 & 4 project puts many billions of dollars of federal taxpayer, and GA ratepayer, funding at risk.

The good news is, most of the other three-dozen proposed new reactors back in 2007 have been outright cancelled (including Calvert Cliffs 3 in MD, featured in the Bloomberg article above), or indefinitely suspended. An exception to that is Fermi 3 in MI, which slogs forward.

Developments in the Limited Work Authorization Rule

Although NRC went through the motions of accepting public comments, it then blew them off, giving industry lobbyists what they wanted.

On Nov. 17, 2006, Nuclear Information Resource Service (NIRS) and Public Citizen submitted comments to NRC "Re: Supplemental Proposed Rule for Licenses, Certifications, and Approvals for Nuclear Power Plants" (regarding changes to regulations under Title 10, Code of Federal Regulations, Part 52). The groups challenged the new definition of the word "construction," arguing that any form of excavation or construction should be considered to constitute construction activities, and should therefore be excluded from the scope of a "pre-construction," Limited Work Authorization (LWA) permit. However, their comments fell on deaf ears at the agency, and the NEPA-gutting rule change was instituted, as it remains to the present day.

See NRC's April 17, 2007 press release announcing "FINAL RULES ON LIMITED WORK AUTHORIZATIONS."

On October 9, 2007, NRC published its "Limited Work Authorizations for Nuclear Power Plants, Final Rule."

On March 31, 2008, NRC requested further public comment regarding additional changes to its "Limited Work Authorization" rules.

Humpty Dumpty on the Merrifield-Go-Round: NRC-industry collusion and the revolving door

As the Bloomberg article explained, industry has NRC Commissioner Jeffrey Merrifield to thank for this Orwellian gutting of long-established NEPA requirements. In one of the worst instances of the NRC-industry revolving door ever, Merrifield went to work right away as a senior vice president for the Shaw Group, at around six times or more his previous NRC salary, after the "redefinition of the word 'construction'" he made happen. He had also just chaired an NRC task force that further "streamlined" new reactor construction regulations to industry's benefit.

The Shaw Group, later absorbed into Chicago Bridge and Iron (CB&I), has had a major hand in troubled new reactor construction projects, as at Vogtle 3 & 4 in GA. In fact, as reported by the Wall Street Journal, CB&I is embroiled in controversy regarding billion dollar cost overruns, and years-long schedule delays, which could lead to legal battles with nuclear utilities over liability for missed start up dates and skyrocketing price tags.

As reported by BloombergBusiness in Jan. 2015, Merrifield has since moved on to Pillsbury Winthrop Shaw Pittman LLP, a law firm specializing in nuclear reactor licensing.

As reported by the NRC Office of Inspector General (OIG) on Sept. 17, 2009 (see pages 9 to 20, of 28, on the PDF counter), the U.S. Attorney for the Southern District of Maryland declined to press charges against Merrifield for his conflict of interest, despite clear transgressions of conflict of interest laws and regulations.

The OIG concluded:

"OIG determined that from April 2007 until June 2007, Merrifield was directly involved in employment negotiations with three companies -- Shaw, Westinghouse, and GE -- that could have potentially benefitted financially from his votes...These votes occurred during the specific timeframes in which Merrifield was negotiating with the three companies.

OIG found that Merrified did not report on his July 2007 SF 278 required information related to his acceptance of Shaw's job offer and his non-Government travel-related reimbursements totaling $3,552.47 from Shaw and GE."

Despite the OIG furnishing the report to NRC Chairman Jaczko "for whatever action you deem appropriate," no action was taken.

Former NRC Commissioner Jeffrey MerrifieldSuch "public service" by an NRC Commissioner like Merrifield (photo, left) amounts to serving the public -- its health, safety, and the environment -- up for dinner to the nuclear power industry.

The injured public has long turned to absurdist literature to describe such ill treatment by NRC and industry. John Gofman included an "Alas, in Atomic Blunderland" essay in his classic anti-nuclear exposé Irrevy. Environmental intervenors in new reactor license and old reactor extension proceedings have likewise cited Lewis Carroll. 

Merrifield's Nukespeak on behalf of industry harkens back to a conversation between Alice and Humpty Dumpty in Through the Looking Glass:

"When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean -- neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master -- that's all."

(At a presentation to a large assembly of senior managers at NRC, Beyond Nuclear's Kevin Kamps spoke about the Merrifield revolving door scandal, calling it the Merrifield-Go-Round. After the presentation, several NRC senior managers approached Kevin, and said they agreed with him about the Merrifield scandal. Kamps had been invited to the event -- as counterpoint to a speaker from the industry lobby Nuclear Energy Institute -- to represent the public interest, regarding the issue of public confidence (or lack thereof!) in the NRC.)

In mid-2012, the Japanese Parliament concluded, in its first independent investigation since it was formed after World War II, that the root cause of the Fukushima Daiichi nuclear catastrophe that began on 3/11/11 was collusion between industry, regulator, and government officials.

A June 2011 AP investigation revealed that such collusion, between NRC and industry, exists in spades in the U.S.

An artist's rendition of the proposed new Fermi 3 ESBWR (in blue), proposed to be built on the Fermi 1 meltdown site, next to Fermi 2, on the Lake Erie shoreline in southeast MI.Fermi 3 and its transmission line corridor

But Fermi 3 plods ahead, trampling NEPA, threatened and endangered species, and their critical habitat in the process. Fermi 3 is a new General Electric-Hitachi ESBWR (so-called "Economic Simplified Boiling Water Reactor"), proposed by Detroit Edison to be built atop the site of the 1966 Fermi 1 "We Almost Lost Detroit" partial meltdown, immediately next to the Fermi 2 GE Mark I BWR (a super-sized Fukushima Daiichi design, nearly as big as Fukushima Daiichi Units 1 & 2 put together).

Significantly, in Elliot Blair Smith's 2007 article cited above, the Winston and Strawn law firm figures prominently in the redefintion of the word "construction" under NRC regulations. In fact, Winston and Strawn attorney David Repka claims to have come up with the idea in the first place. Winston and Strawn is Detroit Edison's law firm in the Fermi 3 licensing proceeding, and Repka has been one of their senior legal counsel. In addition, the article mentions General Electric's (GE) and the Nuclear Energy Institute's (NEI) role in the rule change. GE, along with Hitachi, is the reactor designer and vendor for the ESBWR that would be built at Fermi 3. And Detroit Edison is a nuclear utility member of NEI.

In Jan. 2012, Beyond Nuclear et al., represented by Toledo attorney Terry Lodge, contended to NRC's Atomic Safety and Licensing Board Panel (ASLBP) that the NRC staff had violated NEPA, by not including the proposed new Fermi 3 transmission line corridor in its EIS.

Fermi 3's transmission lines would extend 29 miles, connecting it to the regional electricity distribution grid. The corridor would disturb 1,000 acres of land, including along tens of miles of already existing Right of Way that have nonetheless lain dormant for years and even decades. But would also trailblaze through some 10 miles of previoulsy undisturbed land. This destroyed corridor would include forested wetlands and other habitat critical for the survival of numerous threatened and endangered species, including the Eastern Fox Snake.

The proposed Fermi 3 reactor, and its electrical transmission lines, are inextricably interlinked, of course. Yet, NRC staff has consistently failed to undertake a NEPA review of the Fermi 3 transmission line corridor's environmental impacts.

The ASLBP ruled that the environmental coalition was too late to raise the contention, saying it should have raised it by March 9, 2009 in response to Detroit Edison's own deficient Environmental Report. The ASLBP did not explain how the coalition was supposed to have known the NRC staff would not correct the utility's NEPA violation in its own Draft EIS, years later, as is the agency's legal obligation. But the ASLBP did warn the NRC staff that the coalition's concern was legitimate, and the NEPA violation should be corrected in the Final EIS. It was not, however.

In response, the ASLBP itself published a sua sponte motion ("of its own initiative" in Latin), seeking permission from the full NRC Commission to review the apparent NEPA violation itself. Such ASLBP sua sponte motions are very rare in NRC licensing proceedings -- the previous one had been some 15 years earlier.

The coalition supported the ASLBP's sua sponte effort to address NRC staff's NEPA violation.

However, the NRC Commissioners rejected the ASLBP's request, leaving the transmission corridor NEPA violation in place, and unaddressed. In fact, the full NRC Commission and NRC staff finalized approval of Fermi 3's COLA on May 1, 2015. That's why the coalition is now appealing this matter to the federal courts.

It is the first legal challenge to NRC's redefinition of the word "construction" since 2007. This is the first opportunity for the federal appeals courts to reverse NRC's bogus policy, gutting NEPA, to the benefit of the nuclear power industry at new atomic reactor construction sites like Vogtle 3 & 4 in GA, Summer 2 & 3 in SC, and Fermi 3 in MI.