Appeals Court Won't 'Second Guess' Nuclear Regulatory Commission

The 3rd Circuit Court of Appeals has turned down a request by a coalition of citizen groups to review the relicensing of the Oyster Creek Nuclear Generating Station.

The appeals court said it reviewed comments from the federal Nuclear Regulatory Commission, Exelon, the plant's owner, and the coalition about the potential impact of the damage to the Fukushima Daiichi Nuclear Power Station and "the propriety" of re-licensing Oyster Creek back in 2009.

"We are confident that the NRC's review of Exelon's application was well-reasoned, and we will not second-guess technical decisions withing the realm of its unique expertise," the three-judge panel said in its ruling. "For the foregoing reasons, we will deny the petition for review."

The appellate court in March directed NRC lawyers to provide more information about the "propriety" of re-licensing the Oyster Creek in the wake of the earthquake and tsunami in Japan. The NRC asked the court to deny the petition.

The coalition petitioned for the review of three NRC decisions related to granting  Oyster Creek another 20 years of operation. The NRC re-licensed the 40-year-old plant in April 2009.  Oyster Creek is the oldest nuclear plant in the United States. It went online on Dec. 23, 1969.

The coalition includes the New Jersey Environmental Federation, The New Jersey chapter of the Sierra Club, the Nuclear Information and Resource Service, the New Jersey Public Interest Research Group, Jersey Shore Nuclear Watch and Grandmothers, Mothers and More for Energy Safety.

"We have repeatedly showed that the NRC has a long, very ugly history of ignoring safety problems and putting public safety behind industry progress," said Janet Tauro, a member of GRAMMES. 

"Oyster Creek has the same set of circumstances and is set up for disaster in exactly the same way as Fukushima," Tauro added. "They are both boiling water reactors. They have the same vulnerabilities - weather, terror and human error. We're set up the same way for disaster but we've just been lucky. We've had a bad court decision. As a watchdog group we have to continue to be vigilant."

Richard Webster, an attorney with Washington, DC-based Public Safety, who argued the case for the coalition, said the appellate court "deferred" to the NRC.

"We don't have the same trust in the NRC as the court does," Webster said today. "We need to vigilantly ensure that safety is enforced through state safety panels and oversight of the NRC."

The coalition has raised a number of issues about corrosion in the plant's drywell shell, a steel containment that encloses the reactor.

The corrosion was discovered in the late 1980s, when water leaked into the outer wall of the drywell shell in the top of the sand bed region. The plant's owner then - AmerGen Energy - made a number of repairs and took ultrasonic measurements (UT) to determine the corrosion damage. AmerGen concluded the corrosion had stopped, according to the appellate court ruling.

Exelon officials pledged to continue the "aging management program" for the drywell shell when the company applied for another 20-year license in 2005.

But the citizens coalition said the application failed to provide for UT measurements in all levels of the drywell liner; was insufficient to detect corrosion on the drywell's interior; the UT monitoring frequency was insufficient to maintain an adequate safety margin.

"Independent safety experts would bring a fresh set of eyes and expertise to the NRC," Webster said today. "It is critical to make sure the drywell won't further decay. With the issue at Fukushima, safety shouldn't be taken lightly. We need to improve the safety requirements especially in fuel pool, fire protection, and the adequacy of the containment."

The Atomic Safety and Licensing Board admitted one of the contentions, denied several others and later said the admitted contention lacked merit. The NRC granted Oyster Creek another 20 years of operation in April 2009.

Exelon officials announced last Dec. 8 that Oyster Creek would close in 2019, 10 years before its latest license is due to expire.

Exelon President Chris Crane said then that "negative" economic conditions and changing environmental regulations were the reason for the earlier closure.

The state Department of Environmental Protection has mandated that Exelon install cooling towers at the plant on Route 9 in Lacey Township as a condition of its draft water discharge permit.