NRC Commissioners deny appeal on QA at Fermi 3, but environmental intervenors vow to fight on

An artist's rendition of the GEH ESBWR, proposed by DTE to be built as "Fermi 3" at its nuclear power plant in Monroe Co., MIOn Dec. 16th, the U.S. Nuclear Regulatory Commission's (NRC) five Commissioners, in a unanimous ruling, denied an environmental coalition's appeal in the NRC Atomic Safety and Licensing Board (ASLB) proceeding on Detroit Edison's (DTE) proposed new Fermi 3 reactor in southeast MI on the Lake Erie shore. The coalition requested reconsideration of the ASLB's June 2014 ruling that DTE's Fermi 3 quality assurance (QA) program was adequate, reasserting its preponderence of evidence -- including the testimony of Fairewinds Associates, Inc.'s Chief Engineer, Arnie Gundersen -- that DTE's QA program was at best in disarray, and at times non-existent.

The coalition became aware of DTE's QA chaos through an NRC staff Notice of Violation in 2009. But DTE argued it need not have had a QA program in place before September 2008, as it had not yet filed its COLA (combined Construction and Operating License Application), so it was not yet an "applicant" under NRC regulations. NRC staff then reversed itself, and likewise opposed the coalition's QA contention.

Fortunately, the ASLB didn't fall for DTE's and NRC staff's Orwellian "definition of the word 'applicant'" switcheroo. But the ASLB nonetheless ruled, in June 2014, that what little QA oversight DTE had in place was sufficient to fulfill NRC requirements. The coalition contended that geological borings, as but one example, with little to no QA authentication, mean that Fermi 3 could be a "house of cards," vulnerable to poorly understood seismic risks.

The coalition intends to appeal these NRC rulings to the federal courts, if need be.

One last coalition contention is still in play before the NRC Commission. In a very rare move, the ASLB panel itself has requested sua sponte permission from the NRC Commissioners to review NRC staff's stubborn refusal, despite repeated warnings, to not include the new transmission line corridor in the Fermi 3 Environmental Impact Statement. The environmental coalition objected in Jan. 2012 that its exclusion appears to be a violation of NEPA (the National Environmental Policy Act) on its face. NEPA requires NRC to take a "hard look" at all environmental impacts caused by a major federal action, such as NRC's allowing DTE to construct and operate Fermi 3 (and its inextricably interlinked transmission corridor). The NRC Commission indicated in its Dec. 16th denial of the QA appeal that it would rule on the transmission corridor contention in a separate order.

If the NRC Commissioners deny the ASLB's request for permission to review the apparent NRC staff NEPA violation, the environmental coalition intends to appeal that issue to the federal courts, as well.

As announced in the Federal Register on Dec. 5th, the NRC Commission has scheduled its "mandatory hearing" on Fermi 3 for Feb. 4th. As described by a Feb. 16, 2011 NRC press release (less than a month before the Fukushima nuclear catastrophe began), and as shown in a flow chart in a May 22, 2014 internal NRC email, this means that the NRC is moving ever closer to final approval of the Fermi 3 COLA.

This would be the first proposed new reactor license approval by NRC since Vogtle 3 & 4 in GA, and Summer 2 & 3 in SC, were approved by split decisions at the NRC Commission in early 2012. NRC Chairman Greg Jaczko was the sole dissenting "no" vote, stating the new reactor license approvals were taking place "as if Fukushima hadn't even happened." The last order for a new reactor in the U.S., that actually got built and operated, was placed in October 1973.

All this comes as the U.S. Department of Energy announced another round of solicitations for the $12.5 billion of federal taxpayer-funded nuclear loan guarantees available. An $8.3 billion nuclear loan guarantee was finalized for Vogtle 3 and 4 some time ago. Intervenors are concerned that DTE may well apply for a high-risk federal loan guarantee, putting American taxpayers on the hook if Fermi 3 defaults on its loan repayment. Being a different design than was awarded at Vogtle 3 and 4 -- an ESBWR instead of an AP1000 -- only increases the risk that DOE will award DTE the loan guarantee, given the "diversity" sought by the loan guarantee program. (In an egregious example of the revolving door between government and industry, a primary author of the nuclear loan guarantee program, Alex Flint, a senior staffer for Energy Policy Act of 2005 sponsor U.S. Sen. Pete Domenici (R-NM), shortly after the bill's enactment went to work as top lobbyist for the Nuclear Energy Institute. In a very real sense, Flint wrote his own paycheck.)

However, the environmental coalition opposing Fermi 3 also has a Nuclear Waste Confidence contention pending in the proceeding. If, and when, NRC moves to finalize COLA approval, the intervenors -- part of a larger coalition of three dozen groups nationwide, challenging NRC's Nuclear Waste Confidence policy -- will very likely move for a federal court injunction to block NRC's Fermi 3 COLA approval, until the Nuclear Waste Confidence dispute is resolved.

The environmental coalition opposing Fermi 3's COLA includes Beyond Nuclear, Citizens for Alternatives to Chemical Contamination (CACC), Citizens Environment Alliance of Southwestern Ontario (CEA), Don't Waste Michigan, and the Sierra Club Michigan Chapter, as well as numerous concerned local residents. Terry Lodge of Toledo serves as their legal counsel. The coalition first intervened against the COLA on March 9, 2009, after DTE made application to construct and operate Fermi 3 in September 2008. The largely volunteer coalition has filed around three dozen contentions over the past six years, more than in any other proposed new reactor ASLB proceeding.

Fermi 3 would be a General Electric-Hitachi (GEH) so-called "Economic, Simplified Boiling Water Reactor (ESBWR)." DTE's Fermi 3 ESBWR is the "Reference COLA," or flagship, in the U.S. In late 2008 and early 2009, several proposed new ESBWRs were canceled, as in Texas, as well as at North Anna, VA. However, more recently, Dominion Nuclear returned to the ESBWR design for its proposed new North Anna Unit 3 reactor. Another dozen or more ESBWRs are proposed to be built overseas, as in India and China.

The ESBWR DCD (design control document) recently won final "design certification," or approval, by NRC. This, after NRC staff asked an astounding 6,000 (yes, six thousand) RAIs (requests for additional information) on the half-baked design. NRC also approved the ESBWR design despite a lingering concern about the design of the massive steam dryer system. The U.S. Department of Justice made an out of court settlement with General Electric-Hitachi (GEH), fining the company a mere $2.7 million, for apparent false and fraudulent statements made by GEH to the U.S. Department of Energy (DOE). GEH has been a beneficiary of taxpayer-funded "Nuclear Power 2010" support from DOE, a 50/50 cost-share between nuclear reactor vendors and the Energy Dept. for proposed new reactor R&D. The ESBWR is one of only two proposed new reactor designs so funded. The other is the Toshiba-Westinghouse AP1000, currently under problem-plagued construction at Vogtle 3 & 4 in GA, and Summer 2 & 3 in SC.

NRC has made the troubled steam dryer design a licensing condition at Fermi 3. A mere ten days prior to start up, DTE supposedly will be required to show that any lingering concerns have been resolved.

Beyond Nuclear, CEA, and Don't Waste MI, again represented by Terry Lodge, have also intervened against the license extension sought by DTE at its adjacent Fermi 2 reactor, a twin design to the reactors at Fukushima Daiichi in Japan that melted down and exploded in March 2011. In an independent, parallel intervention, the Citizens Resistance at Fermi Two (CRAFT) has also challenged the 20-year license extension.

Fermi 2 is a scaled-up version of the GE BWR Mark I, with the fatally-flawed containment (too small, too weak). At 1,122 Megawatts-electric (MWe), Fermi 2 is nearly as big as Fukushima Daiichi Units 1 and 2 put together (460 + 784 = 1,244 MWe). In addition, Fermi 2's high-level radioactive waste storage pool contains significantly more irradiated nuclear fuel than all four destroyed units at Fukushima Daiichi put together (around 600 metric tons).

The co-location of Fermi 2 and Fermi 3 represents the worst of both worlds in terms of risk. As depicted by "The Bathtub Curve" of David Lochbaum, Director, Nuclear Safety Project at Union of Concerned Scientists (UCS), the "breakdown phase" risks at the age-degraded Fermi 2 reactor would be compounded by the "break-in phase" risks at the untested Fermi 3 reactor. As demonstrated so tragically at Fukushima Daiichi in Japan, a reactor and/or high-level radioactive waste storage pool disaster at one unit can lead to, or exacerbate, a reactor and/or storage pool disaster at adjacent units.

Ominously, DTE intends to build Fermi 3 on the very same spot that its Fermi 1 experimental plutonium breeder reactor had a partial core meltdown on Oct. 5, 1966. The Fermi 1 disaster was documented in John G. Fuller's iconic book We Almost Lost Detroit (Reader's Digest Press, 1975), and in the song by Gil Scott-Heron of the same title.