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Coalition rebuts motions to strike at Davis-Besse, while FOE defends legal victory at San Onofre

Terry Lodge speaks out against Davis-Besse's 20-year license extension at a press conference in Oak Harbor, OH, in August 2012. The main bone of contention at that time was the recently revealed severe cracking of Davis-Besse's concrete containment structure.The environmental coalition challenging safety shortcuts by FirstEnergy Nuclear Operating Company (FENOC), on its proposed 2014 steam generator replacements at the Davis-Besse atomic reactor along the Lake Erie shore east of Toledo, has responded this week to motions to strike filed by FENOC and the U.S. Nuclear Regulatory Commission (NRC) staff. The coalition's Reply to FENOC's motion to strike was filed on July 8th; its Reply to NRC staff's motion to strike was filed on July 11th.

If the NRC's Atomic Safety (sic) and Licensing Board (ASLB) rules in favor of the motions to strike, whole sections of the coalition's intervention petition arguments could be erased from the record, and would no longer allowed to be raised.

The coalition challenging the risky steam generator replacements at Davis-Besse consists of Beyond Nuclear, Citizen Environment Alliance of Southwestern Ontario (CEA), Don't Waste Michigan, and the Sierra Club.

An overlapping coalition comprised of Beyond Nuclear, CEA, Don't Waste MI, and the Green Party of Ohio has also challenged FENOC's application to NRC for a 20-year license extension at Davis-Besse. The problem-plagued reactor's original 40-year license expires on Earth Day (April 22), 2017. If granted, the license extension would allow Davis-Besse to operate until 2037. This coalition's contention against NRC's bogus Nuclear Waste Confidence Decision, regarding the on-site storage risks of irradiated nuclear fuel, is still live. For example, little known is the fact that Davis-Besse's high-level radioactive waste storage pool has leaked radioactivity into the ground, precariously close to the Great Lakes shoreline. The Great Lakes represent 20% of the planet's surface fresh water, and supply 40 million people in 8 U.S. states, 2 Canadian provinces, and a large number of Native American First Nations with drinking water. NRC has announced that a public comment meeting regarding its court-ordered Nuclear Waste Confidence Decision environmental impact statement will be held in the Toledo area sometime this autumn.

Toledo-based attorney Terry Lodge (photo, above left) serves as legal counsel for both coalitions. He has watchdogged Davis-Besse since 1977.

Meanwhile, Friends of the Earth (FOE) has resisted attempts by the NRC staff to vacate the recent ASLB ruling which effectively led Edison International to decide to permanently shutdown San Onofre 2 & 3 in southern CA due to extensive damage in defective replacement steam generators. The ASLB granted FOE the license amendment hearing it sought, during which devilish new details would have been revealed regarding the $2.5 billion dollar boondoggle which put 8 million residents within 50 miles at risk. If NRC staff succeeds, the ASLB ruling would be erased from the official record, as if it never happened. FOE's victory could then not be cited as a precedent in the Davis-Besse, or any other future, intervention proceedings. The Attorneys General of the States of New York and Vermont have filed friend of the court briefs in support of preserving FOE's legal victory as a citable precedent.

Terry Lodge pointed out to the Davis-Besse steam generator replacement ASLB that NRC staff's legal arguments in the San Onofre and Davis-Besse proceedings are 180 degrees diametrically opposed to one another. At San Onofre, NRC staff argued that FOE was years too late in intervening; at Davis-Besse, NRC staff argue that the coalition is intervening too early. As environmental attorney Richard Webster pointed out in his closing arguments at the Oyster Creek, NJ license extension ASLB proceeding in September 2007, it's like the Queen's toasted logic in Alice in Wonderland: "The rule is, jam to-morrow and jam yesterday – but never jam to-day." The only consistency is NRC staff's seemingly eternal struggle to deny environmental interveners' hearing rights. This is an odd form of behavior by a federal agency whose mandate is to protect public health and safety and the environment.

In fact, it violates NRC's own stated policy of welcoming public involvement in licensing proceedings with open arms. Terry Lodge cited this in his conclusion to his July 11th PETITIONERS’ REPLY IN OPPOSITION TO NRC STAFF ‘MOTION TO STRIKE’:

"The Commission has long maintained that “the Commission's objectives are to provide a fair hearing process...and to produce an informed adjudicatory record that supports agency decision-making on matters related to the NRC's responsibilities for protecting public health and safety, the common defense and security, and the environment,” and that “the opportunity for hearing should be a meaningful one that focuses on genuine issues and real disputes...”. Fed. Register, Vol. 63, No. 150 (August 5, 1998).

Moreover, “Public participation through intervention is a positive factor in the licensing process and Intervenors perform a valuable function and are to be complimented and encouraged.” See, e.g., Virginia Elec. & Power Co. (North Anna Power Station, Units 1 & 2), ALAB- 256, 1 NRC 10, 18 n.9 (1975); Consolidated Edison Co. of N.Y., Inc. (Indian Point Nuclear Generating Unit 2), ALAB-243, 8 AEC 850, 853 (1974); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-229, 8 AEC 425 (1974); Gulf States Utils. Co. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222 (1974).

Joint Petitioners trust that the NRC means what it has said, and that the Petitioners here will be permitted to perform their indisputably “valuable function” of helping to ensure that the NRC will fulfill its “responsibilities for protecting public health and safety, the common defense and security, and the environment.”

On a recent Fairewinds Energy Education podcast, entitled "Barrier to Entry," Terry Lodge explained how NRC policies, regulations, and actions serve to lock the public out, not let it in. NRC's idea of "public service" seems to be serving the public up for dinner to the nuclear power industry.

Even U.S. Senator Barbara Boxer (D-CA) was shocked to learn that NRC staff almost always take the side of the nuclear industry proponent in licensing proceedings. She learned this at a hearing of the Environment and Public Works Committee she chaired in October 2007, regarding the proposed Yucca Mountain high-level radioactive waste dump in Nevada. NRC had taken the side of the dump advocate, the U.S. Department of Energy, and were striving to block any challenges to the proposal by opponents, such as the State of Nevada. Even NRC's own ASLB in that case was moved to chastise NRC staff, pointing out that it would be highly unlikely that Nevada's experts, with impeccable credentials and carefully crafted legal and technical work, could be wrong about every single one of the state's hundreds of contentions, as NRC staff was arguing.

Arnie Gundersen, Chief Engineer at Fairewinds Associates, Inc, serves as expert witness for FOE at San Onofre, as well as for the environmental coalition at Davis-Besse. Kendra Ulrich, FOE nuclear campaigner at San Onofre, also serves on Beyond Nuclear's board of directors.

See more about the coalition's challenge to Davis-Besse's risky shortcuts on safety with its proposed steam generator replacements, as well as recent incidents at the reactor, at this link.