Federal appeals court judges today indicated that environmental groups may face an uphill battle in challenging the Nuclear Regulatory Commission's approval of a reactor design and the country's first new nuclear construction in more than three decades.
Anti-nuclear groups have argued for months that NRC violated federal law last year by approving the revised version of Westinghouse Electric Co.'s AP1000 reactor design without first incorporating far-reaching lessons from the nuclear accident in Japan last year. The March 11, 2011, earthquake and tsunami crippled the Fukushima Daiichi nuclear complex, causing core meltdown in three reactors, radiological release and multiple evacuations.
NRC also violated federal law in February by allowing Southern Co. and a group of utilities to build the country's first reactor in more than 30 years using the AP1000 design at an existing plant in Georgia, the environmental groups say.
But a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit seemed to have concerns about whether the Blue Ridge Environmental Defense League and its allies are specific enough in their legal challenge. That means the court might not even have to reach the merits of the claim that NRC violated the National Environmental Policy Act (NEPA) by failing to revise its environmental review in order to incorporate a task force's post-Fukushima recommendations.
"You did not specify adequately the facts that were put at issue," Judge Laurence Silberman told Diane Curran, the environmental groups' attorney. "If they win on that, that's the end of the case, isn't it?"
Curran conceded that would indeed mean that NRC would win, but she claimed that her court papers did include specific concerns about, among other things, the safety issues raised by the Fukushima disaster of having multiple reactors on one site. The Vogtle Electric Generating Plant in Georgia already has two reactors and is now due to have two more.
The environmental groups say NRC should be forced to craft a new environmental impact statement for the Vogtle plant that explains how cooling systems for the reactors and spent fuel storage pools will be protected against earthquakes, flooding and long periods without power. The environmental review should also detail how emergency equipment and plans for the reactors will be revised to account for accidents affecting multiple reactors on the Vogtle site, they say.
The groups are also arguing that NRC overlooked a series of equipment changes to the AP1000 reactor design that would have ramped up the design's safety.
The NRC task force said -- albeit implicitly -- that "the probability of an accident is greater than thought," Curran told the court today.
Silberman responded that the task force had nevertheless recommended that the Vogtle project should proceed.
Judge Harry Edwards seemed to share some of Silberman's concerns. He pointed out that NRC has not yet decided how to implement the task force's recommendations.
"You will have an opportunity, when that happens, to be part of the process," Edwards told Curran.
He echoed Silberman in noting that the environmental groups' court filings were too vague.
"Based on the case law, that's not enough," he said.
NRC approved the revised AP1000 design in December after Westinghouse demonstrated the plant could withstand an aircraft crashing into the shield building and extensive power loss. The 1,100-megawatt electric pressurized-water reactor relies on gravity, condensation of steam and automatic valves to cool the plant for 72 hours following an emergency.
Commissioners rebuffed the concerns of nuclear skeptics who questioned the reactor's ability to withstand extreme events like the earthquake and tsunami that struck Japan's Fukushima Daiichi nuclear complex. Former NRC Chairman Gregory Jaczko and Commissioner Bill Magwood, a Democrat, said the AP1000's reliance on a passive safety system would have prevented similar problems.
The commission then voted 4-1 in February to approve the permit for a consortium of utilities led by Atlanta-based Southern Co. to use the design at the $14 billion Vogtle Units 3 and 4 about 170 miles east of Atlanta.
On completion, the reactors will be the first built in the United States since 1978.
Jaczko was the lone "no" vote opposing Southern Co.'s license application for reasons that prompted today's hearing. Jaczko, who has since been replaced by NRC Chairwoman Allison Macfarlane, warned in February that NRC had no "binding" agreement that the companies would make safety upgrades related to the disaster last year at the Fukushima Daiichi nuclear complex.
The internal NRC task force that reviewed the Japanese disaster proposed a dozen major recommendations that would have ordered plant operators to strengthen defenses against extreme flooding or earthquakes when necessary and to harden vents that would carry away explosive hydrogen gas from damaged reactor cores in the two types of reactors at the Fukushima Daiichi plant.
The task force also called on operators to extend plants' capabilities to protect reactors and spent fuel pools in an extended blackout of primary and backup electric power and to assess the dangers of having multiple reactors on one site (ClimateWire, July 20).
Jaczko said he could not give his approval and act "as if Fukushima never happened" (Greenwire, Feb. 9).
Despite Jaczko's warning, his colleagues -- two Democrat and two Republican commissioners -- said nothing would be gained by stopping the Vogtle licensing and praised the plant's high-tech, passive safety systems for cooling the reactors during an emergency.
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