Four years later, NRC rejects Beyond Nuclear and 10,000+ co-petitioners' call to close Fukushima-style reactors

After nearly four years of behind closed doors deliberations, on January 15, 2015, the U.S. Nuclear Regulatory Commission (NRC) issued its “Final Director’s Decision” rejecting the April 13, 2011 emergency enforcement petition filed by Beyond Nuclear along with more than 10,000 co-petitioners from around the country. The public emergency enforcement petition called for the immediate suspension of the continued operation of the General Electric Mark I boiling water reactors in the U.S. that are identical to Fukushima Daiichi nuclear reactors units 1, 2 and 3 that exploded and melted down following the March 11, 2011 earthquake and tsunami in Japan.

The NRC makes its best case for dismissing the petition by arguing that “each of the Petitioner’s requests has been addressed through other actions.”  We acknowledge that after four years a portion of the actions that we requested in April 2011 have been taken at some of these reactors. However, we strongly disagree with the NRC’s overall conclusion that each and every action request is addressed and that the public health and safety hazard is resolved such that the petition can be legitimately dismissed in total. We remain concerned that the agency is not capable of effective regulation and enforcement given the long standing nature of the Mark I reactor hazards and a recalcitrant nuclear industry that first considers its financial margins over public safety margins.

Regrettably, we recognize that under existing NRC provisions (Chapter 10 of the U.S. Code of Federal Regulation Part 2.206) the public has absolutely no recourse to appeal a Director’s Decision to the Commission level or legally challenge Mark I design vulnerability and its operational hazards in a court of law. This denial of due process comes in spite of the fact that agency orders and industry corrective actions referenced in dismissing the petitioner are inadequate half measures that need not be fully implemented for years still to come, if ever. In critical safety areas for the Mark I, the proposed corrective actions credited in the Director’s Decision are not even conceptually finalized nor approved by the regulator as we approach the fourth anniversary of the nuclear catastrophe. Moreover, there are numerous agency staff non-concurrences on how to even proceed with post-Fukushima action plans.

Realistically, the expenditure of public interest time and resources in preparing and arguing these emergency enforcement petitions needs to be seen as an effort to build a public record of the NRC’s extreme bias to promote and protect the nuclear industry agenda. Even one of the NRC’s own Administrative Law Judges, Alan S. Rosenthal, after looking into agency claims that any public petitioner can make their case through the emergency enforcement petition process acknowledged, “at least where truly substantive relief is being sought (i.e., some affirmative administrative action taken with respect to the licensee or license), there should be no room for a belief on the requester’s part that the pursuit of such a course is either being encouraged by Commission officialdom or has a fair chance of success.”  [See “Additional Opinion of Judge Rosenthal,” Memorandum and Order (Denying Petitions for Hearing), ASLBP No. 12-918-01-EA-BD01, July10, 2012, at page 10 of 20].

In a post-Fukushima Japan, public and political opposition continue to maintain “zero nuclear” power in the country. Most recently, rather than face the mounting economic costs of safety backfits, the Japanese nuclear industry has chosen to permanently close and decommission two of its remaining four Mark I reactors, not counting Fukushima Daiichi Units 1 through 5 and the now permanently closed Unit 6 ( a Mark II boiling water reactor). Conversely, here in the U.S., the NRC has again distinguished itself with the dubious justification for the continued operation of the oldest and most dangerous class of nuclear reactors in the world---the majority here in this country.

Any one of the hazards cited for suspension of the operating licenses in the April 2011 petition serves as ample reason for why the GE Mark I reactors need to be promptly and permanently shuttered.  But a primary focus remains on the threat of catastrophic failure of the Mark I containment under severe accident conditions.

The petitioners remain concerned that because the GE Mark I containment system is only 1/6th the size by volume of a typical pressurized water reactor like Three Mile Island it will not reliably serve to "contain" the tremendous pressures, extreme heat, explosive hydrogen gas and highly radioactive releases associated with an accident involving reactor core damage. In fact, this was demonstrated by a 100% failure rate of the Mark I containment systems for Fukushima Daiichi Units 1, 2 and 3 which were operating at full power at the time of the March 11, 2011 earthquake and tsunami. The current action plan is  a rehash of a 1989 "fix" to deliberately vent a nuclear accident to the environment by temporarily defeating the containment concept to save it from permanent rupture. Moreover, the current NRC order to improve the reliability of containment venting systems similar to those that failed Fukushima, need not be fully implemented by industry until 2019.

Ironically, when the NRC's Japan Lessons Learned Task Force reviewed the nuclear catastrophe for recommending modifications to the U.S. Fukushima-style reactors, the staff concluded that what was really needed was not only an enhanced hardened containment vent for the controlled release of heat, pressure and explosive gas but requiring the re-institution of the defense-in-depth concept to more reliably contain the high-level radioactive releases that would also be generated by the nuclear accident. On November 29, 2012, the Japan Lessons Learned Task Force recommended that the Commission issue an Order to all GE Mark I and Mark II boiling water reactor operators to promptly install hardened containment vents with the engineered radiation filters as a "cost-benefited substantial safety enhancement." The nuclear industry vigorously opposed the additional radiation filter concept on economic grounds and "unintended consequences" and successfully lobbied the five-member Commission by majority vote to reject the filter recommendation on containment vents. The Commission instructed the NRC staff to take up consideration of the installation of radiation filters  in a proposed rulemaking and gather independent scientific expert experience as well as public and industry comments. However, in December 2014, the NRC rulemaking staff reversed course for considering the addition of external radiation filters and now seeks to abandon the rulemaking process effectively locking out public and independent expert input.

Our common struggle for real public safety, environmental protection and energy independence remains to permanently closing down an inherently dangerous atomic power industry.

Keep your eyes on the prize and hold on.