Court "orders the doing of a useless act": federal appeals panel orders NRC to resume Yucca dump licensing despite next to no funds

The Yucca Mountain radioactive waste dump zombie's sixth toe twitched today.

By a 2-1 split decision, a three judge panel of the federal Court of Appeals for the District of Columbia Circuit approved a writ of mandamus sought by the States of Washington and South Carolina, et al., ordering the U.S. Nuclear Regulatory Commission (NRC) to resume the licensing proceeding for the proposed Yucca Mountain national dumpsite for high-level radioactive waste (HLRW). NRC had suspended the proceeding for lack of congressionally appropriated funding in 2011.

Two of the appeals judges felt the $11.1 million remaining in NRC's Yucca licensing coffers is a substantial amount of funding with which to resume the proceedings.

But Chief Judge Garland disagreed, pointing out that in its last fully funded year of the proceedings, NRC budgeted nearly $100 million. Since, NRC has largely dismantled its digital and physical infrastructures for evening conducting the proceedings, as has the former license applicant, the U.S. Department of Energy, which has moved to withdraw the license application, and has let go its Yucca program staff.

He also pointed out that Yucca's ultimate price tag would require Congress to approve not just over $100 million per year in licensing support, but, if the application is ultimately approved, many tens of billions of dollars to carry out construction and operation (DOE's last estimate for the total cost of Yucca, should it proceed, made several years ago, was nearly $100 billion).

Chief Judge Garland then dissented to the ruling, arguing that what little money NRC has remaining should be used to preserve the existing records from this largest licensing proceeding in the agency's history, writing:

"In short, given the limited funds that remain available, issuing a writ of mandamus amounts to little more than ordering the Commission to spend part of those funds unpacking its boxes, and the remainder packing them up again."

Extensive media coverage of the court decision, and reactions to it, are posted at the State of Nevada's Agency for Nuclear Projects "What's News" website.

"Attorney Generals Fight for Public Access in Nuclear Issues"

Environmental coalition attorney Terry Lodge of Toledo speaks out against Davis-Besse's 20-year license extension at a press conference in Oak Harbor, OH in August 2012An article written by Roger Witherspoon, "Attorney Generals Fight for Public Access in Nuclear Issues," begins:

"The Attorney Generals of New York and Vermont have joined the fight against California’s San Onofre Nuclear power plant in an effort to stop federal regulators from erasing all record of a judicial ruling that the public has a right to intervene before major amendments are granted to an operating license.

If the five-member Nuclear Regulatory Commission grants the request of their staff to vacate the ruling of the Atomic Safety and Licensing Board and expunge the record, it will eliminate a precedent that affects power plant operations and regulatory practices around the country. In particular, it will affect the six-year fight in New York to shut the Indian Point power plants 25 miles north of New York City; and Vermont’s ongoing effort to shut the Vermont Yankee power plant.

The cross country battle now being waged by NY Attorney General Eric Schneiderman and Vermont Attorney General William Sorrell is an uphill fight against one of the most powerful professional staffs in the US government and an agency that has a unique view of its own independence.

“The Commission has stated that it is not bound by judicial practice, including that of the United States Supreme Court,” stated Schneiderman and Sorrell in a brief filed June 24 with the NRC challenging the staff request...". Continue reading Roger Witherspoon's article here.

The next proceeding most likely to be immediately and directly impacted by the survival or demise of Friends of the Earths' (FOE) San Onofre precedent involves the replacement of steam generators at FirstEnergy Nuclear Operating Company's (FENOC) problem-plagued Davis-Besse atomic reactor, located on the Lake Erie shoreline in Oak Harbor, Ohio just east of Toledo. A coalition of environmental groups -- Beyond Nuclear, Citizen Environment Coalition of Southwestern Ontario, Don't Waste Michigan, and the Sierra Club -- have challenged FENOC's attempt to avoid transparent, open, and publicly accessible license amendment proceedings, by arguing the new steam generators are "like-for-like" replacements of the old ones.

But the coalition's expert witness, Arnie Gundersen, Chief Engineer at Fairewinds Associates, Inc., has documented numerous major changes from the degraded old to the new replacement steam generators. Gundersen also serves as FOE's expert witness at San Onofre. Toledo-based attorney Terry Lodge (photo, above left) serves as the coalition's legal counsel.

An Atomic Safety (sic) and Licensing Board (ASLB) panel heard pre-hearing oral arguments regarding the environmental interveners' standing, as well as the merits of its arguments, on July 24th. The ASLB indicated it would rule on the admissibility of the coalition's intervention petition this month.

Nuclear revolving door gobbles up billions of dollars of ratepayers' money, threatening to move onto taxpayers next!

Commissioner Geoffrey Merrifield's NRC file photoWhile still a U.S. Nuclear Regulatory Commission (NRC) Commissioner, Geoffrey Merrifield did the nuclear power industry a big favor. He spearheaded a seemingly simple, but significant, change in NRC regulations, which paved the way for new reactor construction, unfettered by bothersome environmental safeguards. Merrifield shephered through a change in the definition of the word "construction." Now, nuclear utilities could build any aspect of a nuclear power plant, save for the reactor and its containment building, without having to first complete an environmental impact statement, as required by the National Environmental Policy Act (NEPA). Thus, large aspects of a new reactor construction job -- such as foundation excavations for the reactor complex, or construction of the turbine building -- could proceed apace, building "facts on the ground," and momentum that would be hard to stop.

Merrifield capped such corruption by leaving NRC immediately after his dirty work, and going to work for the Shaw Group, which specializes in -- you guessed it -- new reactor construction! This example of the nuclear revolving door between supposed government regulator and industry even made a number of senior managers at NRC uneasy about Merrifield's blatant, self-serving conflict of interest.

Now, as reported by the Atlanta Progressive News, to such corruption must be added incompetence, raising not only financial risks, into the billions of dollars, but radiological risks that could impact millions of lives:

'...Chicago Bridge and Iron (CB&I), formerly known as Shaw Modular Solutions, makes modules being used to assemble four Westinghouse AP1000 reactors being built at Plant Vogtle in Georgia and V.C. Summer in South Carolina.

“CB&I is unable to provide properly constructed modules... and [have demonstrated a] continued inability to reliably meet the quality and schedule requirements of the project," Barbara Antonoplos, a ratepayer, testified, citing a report from the utility's regulatory staff in South Carolina.

"These problems have existed from the beginning and been raised in every other CB&I hearing and still there is no fix... they [Georgia Power] still do not have a competent outfit making parts and once the new parts get delivered to Vogtle, they are repairing them to make them acceptable.  This alarms me because incompetence of this magnitude breeds disaster especially when it comes to construction of a nuclear device. There is no way these reactors can be considered safe... when ‘patch it together’ is the best construction model they are able to come up with," Antonoplos said.

"Ongoing failures of this sort result in escalating cost and I don't believe you should force ratepayers to foot the bill for such gross incompetence," Antonoplos said.

Southern Company’s projections do not include the cost of the lawsuit they’re engaged in with their contractor, The Shaw Group/Chicago Bridge and Iron, nor the full cost of not getting Federal Loan Guarantees, for which the negotiation deadline has been extended three times according to Georgia WAND's website...'

Alex Flint, NEI's Senior Vice President for Governmental AffairsSpeaking of nuclear revolving doors and federal loan guarantees, the top lobbyist for the nuclear power industry, Alex Flint at the Nuclear Energy Institute (NEI, photo left), has passed through multiple times. For one, he "served" as the staff director on the U.S. Senate Energy and Natural Resources (ENR) Committee, under Sen. Pete Domenici (R-NM), on whose personal staff Flint had previously "served." The ENR Committee hatched the passage of the Energy Policy Act of 2005. In addition to the $13 billion of direct taxpayer subsidies in that bill aimed at promoting new atomic reactor development, Flint wrote the federal nuclear loan guarantee language. After the bill was enacted into law, Flint left "public service" and went to work at NEI, where he remains to this day.

In a very real sense, Flint wrote his own (likely high six-figure, if not more) paycheck, while "serving the public" -- up for dinner to the nuclear industry, that is!

In late 2007, $18.5 billion for new reactor loan guarantees, and another $4 billion in new uranium enrichment loan guarantees, were approved by Congress and George W. Bush. However, even though President Obama, in Feb. 2010, awarded $8.3 billion in new reactor loan guarantees for the proposed new Vogtle 3 & 4 reactors -- giving it the highest profile possible, by making the announcement himself -- Southern Co. has never agreed to the terms. Too much of its own "skin in the game" is being asked of it, for such a financially risky scheme. Thus, no nuclear loan guarantees have yet been finalized.

"Advocates, Ratepayers Oppose Paying for Vogtle’s Cost Overruns"

As reported by the Atlanta Progressive News, Georgia ratepayers, as well as groups such as Georgia Women's Action for New Directions and Nuclear Watch South, have testified before the Georgia Public Service Commission (PSC) against billion dollar cost overruns at Southern Company's construction site for proposed new reactors from being foisted onto customers' electricity bills:

'..."Many of the cost overruns are the result of mismanagement.  The company has said less than one percent of the increases in costs are from engineering procurement and construction.  These costs are results from mismanagement in paperwork and scheduling delays," Courtney Hanson, Director of Public Outreach at Georgia Women's Action for New Directions (Georgia WAND), testified.

"Southern Company jumped the gun in seeking license for the whole project and the cost accrued because of design changes and license amendment requests.  They were not prepared when the process started and the cost reflects that.  This is a problem that happens over and over," John Michael, a ratepayer, testified.

"The cost overrun is not a new story and it is unfair for these cost overruns to be continually passed on to the ratepayers.  Last time [with Vogtle units one and two] we were promised four reactors for six hundred million dollars and we got two for over eight billion.  A company will never reduce costs if they continually have a blank check written to them," Amanda Hill-Attkisson, Managing Director of Georgia WAND, testified...

[Steve] Prenovitz, an expert in economics with Nuclear Watch South, challenged continuing the Vogtle project.  He raised the question over whether the public would be better served by cutting their losses on Vogtle before massive cost overruns in the future reach stratospheric numbers.'

"Thank you, Tallahassee, for making us pay so much for nothing"

Tampa Bay Times Business Columnist, Robert Trigaux, has let Florida state legislators and the Public Service Commission have it "for passing a law forcing Duke Energy customers to pay up to $1.5 billion in higher rates for a long proposed nuclear power plant in Levy County that will not be built...And no, Florida customers, you're not getting any of that money back."

Trigaux continues "The real reason the witless sheep in Tally let this happen is that power companies wanted to shift both the cost and the risk of building a nuclear plant on to its customers and off of its shareholders...Nowhere in the country do you see big Wall Street firms or banks lending billions of dollars to electric utilities for nuclear plants. The risk is too high. The recent history of building nuclear plants is plagued with fantastic delays and enormous cost overruns."

His column is an excellent exposé on "advance fee recovery" or CWIP -- Construction Work in Progress -- which is illegal in most states. In Indiana in the 1980s, for example, Citizen Action Coalition successfully sued the Hoosier State's would-be nuclear utilities for making illegal CWIP charges on ratepayers' electricity bills. The court ruled the utilities had to return hundreds of millions of dollars to ratepayers. Two nuclear power plants, at Bailey and Marble Hill, were stopped dead in their tracks.

In 1976, Kay Drey -- now a Beyond Nuclear board member -- helped lead a statewide referendum making CWIP illegal in Missouri, a law, enacted through grassroots democracy at its best, that still stands. In Iowa, Mike Carberry, of Green State Solutions and Friends of the Earth, has helped lead an environmental/ratepayer coalition which has successfully fended off nuclear lobbyists at the state capital for several years, blocking legalization of nuclear CWIP.

But CWIP has been made legal in several southeastern states, thanks to nuclear industry lobbyists' sway over state legislators and governors' mansions there. Floridians have now learned the hard way why nuclear CWIP is a really bad idea. But Georgians and South Carolinians are beginning to learn the same hard lesson. Even Georgia's Republican governor has suggested that Southern Co. shareholders should eat some of the major, all-too-predictible cost escalations at Vogtle 3 & 4; South Carolinians have seen a half-dozen rate increases in just the past few years, all going towards keeping up with Summer 2 & 3's skyrocketing pricetag.