Last month, the NRC's Atomic Safety and Licensing Board ruled that restarting a troubled reactor at the San Onofre plant could not go forward without extensive public hearings. Plant owner Southern California Edison then decided to close the plant down. Last week, the NRC moved to vacate the safety board ruling.
Now Vermont Attorney General William Sorrell has joined his New York counterpart, Eric Schneiderman, and the green group Friends of the Earth in criticizing that move.
The attorneys general are asking that they be allowed friend of the court status because both states "have fundamental and longstanding concerns about the development of fair and transparent decisionmaking ... within the (NRC)," stated the June 24 filing.
In New York, concerns have been raised about the safety and environmental impacts of the operation of Indian Point nuclear power station in Buchanan and in Vermont, similar concerns have been raised about Vermont Yankee nulcear power plant in Vernon.
In the ASLB ruling, which was issued on May 15, the board concluded a restart plan approved by the NRC constituted a de facto license amendment, and all license amendments require public hearings.
The ASLB took up the issue after Friends of the Earth contested the NRC's approval.
Following the ASLB's ruling, Southern California Edison pulled the plug on San Onofre, signaling it would be permanently closing the nuclear power station. During refueling outages over the past four years, steam generators in the station's three reactors were replaced due to corrosion and degradation issues.
Because of the change-out, which replaced 30-year-old steam generators, analyses underlying inspections of the generators were no longer valid, noted the ASLB.
"Without question, the current analysis described in the (Final Safety Analysis Report) failed to achieve its intended purpose, and it must therefore be changed," wrote the three-member panel. The board characterized the change as "a radical deviation from the prior analysis and description ..."
"We view this change as sufficiently significant to trigger the license amendment requirement ..."
The board also concluded that the NRC's decision granted authority to SCE "to operate its replacement steam generators in a manner that constitutes a test or experiment ..."
In a report produced by Fairewinds Associates of Vermont, Arnie Gundersen noted that the power plants at San Onofre "were operating outside their approved licensing parameters in an unanalyzed, unlicensed condition," resulting in numerous leaks to tubes in the steam generators.
"If a steam line break accident were to occur it could be more severe than any design basis accident scenario previously analyzed by Edison ..." wrote Gundersen.
Because of concerns such as those raised by Gundersen, the NRC should have allowed public hearings prior to approving the restart plan, noted the three members of the ASLB.
But on June 14, the NRC asked the licensing board to vacate its decision, seeing as SCE had decided to shut down the plants.
"Therefore, there is no outstanding controversy, rendering any proposed appellate challenge ... moot," noted the NRC.
In their filing, the attorneys general of Vermont and New York contended the controversy is not about the de facto license, but instead the lack of transparency and public hearings that led up to the NRC's decision. The NRC needs to be called to task and the ASLB's decision should not be rendered moot, they wrote.
"There's very little case law on issues such as when an NRC staff decision becomes a de facto license amendment that requires public participation," said Kyle H. Landis-Marinello, Assistant Attorney General in the Vermont AG's Environmental Protection Division.
"Here that issue was fully briefed, there was an oral argument and the ASLB panel issued a well-reasoned decision, explaining in detail why the circumstances constitute a de facto license amendment."
Landis-Marinello said it's important that the decision remain a part of the official record. If it's vacated as requested by the NRC, it is unclear how it might affect future proceedings.
"That decision should be publically available and parties should be able to cite it," he said.
Bob Audette can be reached at firstname.lastname@example.org, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.