Nuclear Regulatory Commission sea change?

Chairman Jaczko wants red tape removed for Fukushima contentions

PLYMOUTH —

While the Nuclear Regulatory Commission seems to be moving quickly now, dispensing with the objections and legal contentions standing in the way of relicensing the Pilgrim Nuclear Power Station, as those impediments are brushed aside something quite remarkable may be taking place.

Almost hidden in several recent decisions by the NRC – decisions which went against critics of relicensing – is the core of a sea change, a belief on the part of certain key individuals in this government bureaucracy that, at least in the case of recent concerns about the relevance of the Fukushima disaster to Pilgrim and other American nuclear power plants, business as usual is no longer acceptable.

That is not to say that there is even a hint that the NRC will not, perhaps within days, approve a 20-year license extension for Pilgrim. The signs all still point to that happening and happening imminently.

Just this week, the presidentially appointed commission that oversees the NRC rejected two more post-Fukushima contentions filed by the Pilgrim Watch organization regarding the license renewal application for Pilgrim.

That leaves one contention raised by the state Attorney General and two more filed by Pilgrim Watch, all three filed post-Fukushima.

Both of the contentions dismissed this week challenged the Severe Accident Mitigation Alternatives (SAMA) analysis performed by Entergy as part of its license renewal application.

One contention argued that, in light of new information about the possible re-criticality of nuclear fuel at Fukushima following the disaster, the old analysis was now deficient.

The other asked the NRC to review whether that same SAMA analysis effectively accounted for off-site releases of radioactivity, in light of apparent problems encountered with the vents that were supposed to release hydrogen and prevent explosions at Fukushima.

A majority of the commission upheld the Atomic Safety and Licensing Board (ASLB) panel that first reviewed, and rejected, these contentions.

But while brushing aside these two Fukushima-related contentions, the commissioners publicly declared their sensitivity to the underlying issues.

The fine print

The commission’s written decision directly referenced the NRC’s ongoing review of – and the concerns of citizens groups with – the Fukushima disaster.

“Although we have made, and continue to make, significant progress in identifying and implementing lessons learned and prioritizing regulatory actions,” the announcement of this latest ruling noted, “the NRC continues to analyze the Fukushima events, to engage stakeholders, and to develop further recommendations.”

The commissioners further assured concerned citizens that if they find changes are needed to maintain the safety of plants of a similar design to the GE boiling-water reactors in Japan, such as Pilgrim, they will order those changes made regardless of the status of the affected plants.

In short, even if the plant were relicensed tomorrow, changes in response to the Fukushima disaster could and would still be enacted.

“We have in place well-established regulatory processes by which to impose any new requirements or other enhancements that may be needed following completion of regulatory actions associated with the Fukushima events,” the decision announcement stated.

“All affected nuclear plants ultimately will be required to comply with NRC direction resulting from lessons learned from the Fukushima accident, regardless of the timing of issuance of the affected licenses.”

Additionally, the vote to reject the contentions was not unanimous.

Gregory Jaczko, the commission’s chairman, offered a strong dissenting opinion.

“Fundamentally, I believe that the reopening standard is not appropriate for Fukushima-related contentions,” Jaczko argued. “Therefore, I believe the admissibility of these contentions should have been considered solely under the criteria applicable to non-timely filings.

“As the majority observes,” the chairman added, “the higher threshold for contention admissibility imposed for reopening a record places a heavy burden on a litigant seeking the admission of new contentions.

“In my view, this more stringent contention admissibility standard is not appropriate for contentions arising from the unprecedented and catastrophic accident at Fukushima.”

Put simply, Jaczko seems to think that, overall, the events at Fukushima are unprecedented, and so deserve special treatment. He suggested these kinds of contentions should receive expedited consideration: Rejecting them based on admissibility standards is a mistake.

“Given the significance of that accident and the potential implications for the safety of our nuclear reactors,” Jaczko argued, “we should allow members of the public to obtain hearings on new contentions on emerging information if they satisfy our ordinary contention standards.

“Applying more stringent admissibility standards to Fukushima contentions because a board has taken the administrative action of closing the record on an unrelated hearing will lead to inconsistent outcomes and, more importantly, unfairly limit public participation in these important safety matters.”

Though this may be a remarkable change in the tone of the discussion, it is not unprecedented.

Over the past several years, NRC Administrative Judge Ann Marshall Young has dissented with several majority decisions on contentions offered by Pilgrim Watch and others, even prior to March 11, when word of the earthquake and tsunami first reached America.

Young dissented again, in part, earlier this year, when the two contentions that were just dismissed first came before the Atomic Licensing and Safety Board. She concurred with regard to the Re-criticality Contention but would have admitted the Direct Torus Vent Contention.

In addition to her rulings on the admissibility of these contentions, Young also opined that Pilgrim Watch’s contentions raised significant issues and, therefore, using an argument similar to Jaczko’s, warranted sua sponte (without being prompted) review.

Young further recommended that the commission “consider having the staff look more closely – take a ‘hard look’ – into the issues raised in these contentions, as well as any other issues arising out of the Fukushima Daiichi accident that relate particularly to Mark I BWR reactors (the GE design used by Pilgrim and dozens of other American plans), prior to any decision on the license renewal application.

“I believe this would serve the interests of both public safety and public trust in the process the NRC utilizes for attending to such safety and environmental issues, which I find is particularly warranted given the seriousness of the Fukushima accident and the effect it has had on public perceptions of the safety of nuclear power. Whatever the outcome of such an inquiry, in my view, taking such a ‘hard look’ would provide an important public service.”

License to license

A few dissenting opinions, however, do not offset the majority.

The two contentions were dismissed and the expectation, again, is that the remaining three contentions will suffer the same fate.

Pilgrim Watch founder Mary Lampert characterized the NRC’s decision on these last two contentions in terms of its ethics.

“Germany and some other countries responded to the ongoing tragedy in Fukushima by stopping operations until they were 100 percent certain they understood what the problems were and were certain they could go forward without risking the public’s safety,” Lampert said.

“In contrast, this decision (like the recent decision to grant a license to build two new reactors) shows that NRC commissioners have decided to go forward with licensing until they are certain that it is not alright to do so.”

Lampert said this reflects a clear bias on the part of the NRC “in favor of the nuclear industry – not to take the conservative route and slow down until 100 percent convinced it is safe to do otherwise.”

At least in the case of Jaczko and Young, though, the bias appears to be in a different direction.

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