A three-judge panel of the Atomic Safety and Licensing Board has dealt a major setback to backers of a planned irradiator on state land at Honolulu International Airport. As a result, the public will have an opportunity to comment once more on the proposal of Michael Kohn and his limited liability company, Pa`ina Hawai`i, to build the facility.
In late August, the ASLB issued a 110-page-long decision on an appeal of the final environmental assessment (itself not even 16 pages long) prepared by the Nuclear Regulatory Commission staff. The EA was intended to disclose the impacts of the facility, intended to kill bugs on fruits for export by bathing them with gamma rays from up to a million curies of Cobalt-60.
The ASLB was asked by Concerned Citizens of Honolulu to rule on a number of alleged deficiencies in the NRC’s analysis. Some of the allegations, the ASLB determined, were without merit or had been dealt with, either in the EA itself, in the accompanying administrative record, or in materials submitted during ASLB proceedings on the group’s challenges. But three of the group’s most important objections were upheld. First, the judges found, the NRC should have addressed the possibility that accidents could occur while the Cobalt-60 sources were in transit to the irradiator. Second, they faulted the NRC for its utter failure to consider electron-beam irradiation as an alternative to using Cobalt-60. Third, they ordered the NRC staff to consider alternative sites.
But whether public comment will be possible on all aspects of the revisions to the final environmental assessment is a question awaiting clarification. The NRC staff argues that the ASLB decision limits public comment to the analysis of alternative technologies and other sites, while the attorney for Concerned Citizens holds that it opens the door to comment on the discussion of possible transportation accidents as well.
On September 8, David Henkin, the Earthjustice attorney representing Concerned Citizens, formally asked the ASLB to clarify this question. In addition, Henkin asked that the group’s claim that a full environmental impact statement is required not be dismissed with prejudice so that, in the event the group’s concerns are not answered in the final revised EA, the claim can be raised once more.
In a phone interview, Kohn sighed audibly when asked for his take on the ASLB decision. He expressed satisfaction with the fact that the board had agreed with Pa`ina that the NRC analysis concerning the risk of airline crashes, earthquakes, tsunamis, and flooding “are now correctly done in the EA.”
As to the requirement that the transportation of Cobalt-60 needs to be addressed, Kohn called it “strange.” “That same contention, when raised as a safety contention, was by order of the higher court – the [Nuclear Regulatory] Commission itself – dismissed earlier, about a year and a half ago. I also say it’s strange because we don’t transport, we don’t have a license to transport. If anyone wants to challenge that, they should challenge the company that does have the license for that, not us.”
A ‘Needle in the Haystack’
The very fact that an environmental assessment was prepared for the Honolulu irradiator is unusual. Customarily, the NRC regards such facilities as falling within a categorical exemption that the agency has adopted for actions with minimal environmental impact. But in this case, the NRC agreed in March 2006 to prepare an assessment to settle the initial challenge brought by Concerned Citizens.
In December 2006, the draft EA was made public. In February 2007, Concerned Citizens filed “detailed and lengthy” objections, stating that the document did not comply with NEPA and that a full environmental impact statement should be prepared instead.
At that time, the ASLB did not act on Concerned Citizens’ claims since, as it points out in the August 2009 decision, “it anticipated and transparently indicated to [NRC] staff that … many of the issues raised … might be ‘readily cured in the ordinary course of the staff’s performance of its NEPA obligations’” – that is, by considering public comment in preparing the final EA. But the final EA, the judges note, had “very few changes from the Draft EA,” and so the ASLB gave new life to the earlier challenges from Concerned Citizens.
In considering the points raised by Concerned Citizens, the ASLB judges did not limit themselves to looking only at the final EA and its appendices, but also considered other documents that the staff referred to or relied on and additional testimony from staff generated in the course of the ASLB proceeding itself. And when the staff fumbled and could not come up with satisfactory responses to the Concerned Citizens’ allegations, the ASLB judges themselves went the extra mile to help the staff out.
For example, in discussing the allegation that the final EA did not contain sufficient evidence to substantiate the claim that the irradiator would have “potentially … small beneficial impacts to socioeconomics,” the judges noted that the NRC staff had said it relied on several studies by the Animal and Plant Health Inspection Service of the U.S. Department of Agriculture. Yet the staff “does not point out where in the documents the alleged supporting information may be found,” the judges wrote.
The NRC has held that parties “must clearly identify evidence” and that they cannot “simply incorporate massive documents by reference,” they wrote. “Here, the staff has not complied with that commission directive… We have, nonetheless, ‘searched for a needle that may be in a haystack’ and … in doing so, we found that the Final EA and staff exhibits, along with the staff’s testimony, now … support the staff’s assertion regarding the potentially small beneficial impacts.”
In this fashion, the ASLB managed in the first 46 pages of the decision to dispose of most of the allegations made by Concerned Citizens.
In the second half of the decision, the discussion becomes far more interesting. The judges did not buy into the NRC staff’s position that transport of the Cobalt-60 sources was an activity in no way “connected and intertwined” with operation of the irradiator itself. They seemed dismayed at the staff’s utter failure to analyze electron-beam irradiation as an alternative to the use of Cobalt-60. And they disagreed with the view of NRC staff that analyzing alternative sites was simply not required in an EA.
The NRC staff dismissed concerns over transportation accidents by referring to a Generic Environmental Impact Statement that purportedly addressed the transport of radioactive material. The judges observe in a footnote, “we have been unable to locate the GEIS” cited by NRC staff, but, once more going out of their way to make up for staff deficiencies, the judges were able to locate a GEIS that did refer “to the issues at hand.” Yet even that GEIS did not discuss transport of radioactive materials in an urban environment. Rather, the judges say in yet another footnote, the GEIS itself states that transport in an urban environment will be considered in a separate environmental study. “To date, the [NRC] staff has not filed or cited the allegedly forthcoming and relevant environmental study on the transportation of radioactive material in urban environments,” the ASLB notes.
In March, when the NRC staff finally attempted to address the Concerned Citizens’ complaints head-on, the ASLB was not impressed. In a filing with the board, the NRC “presented the testimony of Mr. Easton, one of its experts.” Easton had testified that over the last 30 years, there’s been no release of radioactive material from NRC-approved shipping casks involved in an accident – a statement contradicted by a witness for Concerned Citizens, who stated that in recent years, there had been at least two accidents involving such casks that resulted in radioactive releases.
The NRC staff was thus ordered amend the final EA “to take a ‘hard look’ and consider the environmental consequences of accidents that might occur during the annual transport of Co-60 sources to and from the proposed irradiator.”
‘Lowest Possible … Passing Grade’
The discussion in the Final EA of alternatives to Cobalt-60 as a means of achieving the same goals was cursory and incomplete, Concerned Citizens alleged. The ASLB agreed.
“Although the discussion of alternatives in the EA need only be ‘brief’ it must nevertheless be sufficient to comply fully with” the National Environmental Policy Act requirements, the board noted.
The staff’s discussion of two alternatives that were mentioned in the EA – methyl bromide fumigation and heat treatment – was soundly denounced by the judges. “Even with the addition of its witness testimony [during proceedings before the ASLB] that largely reiterates the meager information in the Final EA, we cannot find that the Staff treatment of the methyl bromide and hot-water immersion alternatives receives a passing grade,” they wrote. Information that would have justified the staff’s statement that fumigation and heat treatment were not adequate to achieve the goals of Pa`ina Hawai`i was available, the judges found, in a letter from Kohn, the company’s principal, which referenced information compiled by a U.S. Department of Agriculture entomologist. “Rather than set out such basic, essential, and self explanatory information in the EA from independent staff research that meets professional standards… the EA in large measure provides nonessential, largely worthless generalities and some information of questionable validity,” they note.
Still, with this information in hand – even though it was not provided by NRC staff – the judges let the NRC off the hook: “With the addition of the information from the adjudicatory record, … the EA is deemed clarified by our decision and the agency’s treatment of these two alternatives can now be given the lowest possible minimum passing grade.”
As for the altogether missing analysis of electron-beam irradiation technology, the judges were not so kind. The Final EA “makes only passing reference to the e-beam irradiator,” they observed. In addition, they write, the NRC staff provided no explanation as to why this technology was not considered. During the ASLB proceedings, Matthew Blevins, chief author of the EA, submitted written testimony stating that he considered the technology “economically uncertain,” on the basis of various web sites of anti-irradiation groups. Blevins admitted that he did not contact Eric Weinert, vice president of Hawai`i Pride, which operates an e-beam irradiator in Kea`au, on the Big Island. Most of Blevins’ statements about the deficiencies of e-beam technology were drawn from an email from Kohn.
To rebut Kohn, Concerned Citizens provided the testimony of Weinert, who disputed Kohn’s claims about the cost of electron-beam irradiation and his allegations that it required a high level of technical support.
“Mr. Kohn’s letter, quote understandably, is an advocacy piece of a salesman for his proposed irradiator and we wish to make it clear we do not question his good faith,” the judges wrote. “Nonetheless, a number of the assertions in his letter about the Hawai`i Pride facility are clearly opinions, obviously strongly held, that need to be viewed through an objective lens. It is apparent from his letter and testimony that he has no actual experience purchasing or operating an e-beam facility.”
Blevins’ dismissal of e-beam technology came in for withering criticism from the ASLB judges. He ignored the NEPA requirement that all appropriate technologies to the proposed action be studied, developed, and described; his actions were “plainly contrary to” the requirement that he provide evidence that the mandated decision-making process has actually taken place; and in so doing, he frustrated “one of the overarching purposes of NEPA that information be made available to the public.”
For these reasons, the judges ordered the EA to be returned to NRC staff to consider “the appropriate and reasonable alternative of the e-beam irradiator.”
Kohn made no secret of his strong objections to this part of the ASLB’s decision. He disputed Weinert’s claim that his company has consistently made profits, mentioning the financial difficulties that the manufacturer of the Hawai`i Pride irradiator has had. “Maybe Hawai`i Pride is profitable now, now that Titan [the equipment manufacturer] has paid off their loan,” he said. “But it was a very dubious business deal to begin with.”
Weinert also claimed to have explored e-beam technology himself. “Of course I did my homework,” he said. “As a businessman, I’m going to look at the best possible solution. My irradiator costs $1.3 million, but if I go to Titan, it’s $4.5 million.” In addition, he said, he would need to build a concrete bunker with walls nine feet thick in order to shield the environment from the electron-beam irradiation. “I have asked a contractor and engineer, and they say the cost will be well over $2 million, especially here by the airport.”
“There are other things, too,” Kohn said. “You cannot equate their [Hawai`i Pride’s] business model with ours. Ours is, we will treat small amounts of produce in batches, not like theirs, in a conveyor belt… If you only have 20 boxes, we’ll irradiate 20 boxes for you. The uniqueness of the cobalt irradiator is that it allows very small shipments to be irradiated.” Weinert, he says, requires his users to put between 1,000 and 2,000 boxes of fruit per week through treatment.
Aside from the cost of the facility, Kohn mentioned the cost of electricity consumed by the e-beam treatment as well as the reliability of the technology. He disputed Weinert’s claims that Hawai`i Pride had had no major breakdowns since 2005.
“Eric Weinert and David Henkin are good friends,” Kohn said. “Weinert has wholeheartedly supported Henkin to represent those five concerned citizens.” In response, Henkin says he has never even met Weinert in person and has had only phone contact with him in connection with the ASLB action.
The NRC staff had argued that it need not look at sites other than the one preferred by Kohn at the Honolulu airport. The ASLB judges disagreed, invoking not only NEPA, but also the precedent established in the 9th U.S. Circuit, which requires “all reasonable alternatives” be considered, including alternative sites.
“Accordingly, the consideration of reasonable alternative sites or locations that would accomplish the project’s purposes with less significant impacts ought to be considered,” they wrote, again ordering the EA to be returned to staff “to consider and permit written comment on alternative sites.”
A Premature Lease Request
On the agenda for the Board of Land and Natural Resources’ meeting of September 11 was a proposal from the Department of Transportation’s Airports Division that the board approve a direct lease of land at the Honolulu airport to Pa`ina Hawai`i. All totaled, the DOT was proposing leasing about half an acre to Kohn’s company, with a proposed annual rental of $76,492.80 for the first five years – although no rent would be due until the irradiator was built or 12 months had passed since the lease was signed, whichever came earlier.
The report given to the board by DOT director Brennon Morioka claimed that the NRC had completed its final environmental assessment for the irradiator and had issued a finding of no significant impact. Attached to the submittal was the NRC’s August 2007 letter to Kohn, which included the final EA, a FONSI covering the facility, and a license for possession and use of radioactive materials. The DOT submittal also stated that with respect to complying with Hawai`i’s environmental disclosure law, Chapter 343, “the tenant shall be responsible for compliance.”
On being informed by Henkin that the NRC had been ordered to revise the final EA and that it was anything but final, Russell Tsuji, deputy director of the Department of Land and Natural Resources, determined that the matter was unripe for board consideration.
Kohn was asked why the matter of a lease got as far as the Land Board agenda even though the matter of the sufficiency of the EA was still pending before the ASLB.
The lease had to go through various levels of approval, Kohn said – the DOT leasing department, then the attorney general’s office, then the head of DOT, and then, finally, the Land Board. “When this process took place, we had no idea that the ASLB would actually come up with its order or decision, which came right at the same time when it was going before the Land Board,” Kohn explained. “Even though the ASLB decision said that the EA is probably 99.9 percent complete, it’s still not final. So I think it would be better to wait until the EA is completely done, confirmed by the higher court”
When this process took place, we had no idea that the ASLB would actually come up with order or decision, and so the decision came right at the time when it was going before the land board. But since the ASLB decision said that the EA is probably 99.9 percent complete, it’s still not final. And I think it would be better to wait until the EA is completely done, confirmed by the court.” (In his conversation with Environment Hawai`i, Kohn consistently referred to the NRC as the higher court.)
But, Kohn was reminded, the subject of the sufficiency of the EA was in dispute throughout this time; it was at the very heart of the issues before the ASLB.
Kohn disagreed, pointing to the Final EA and FONSI that the NRC issued in 2007, as well as his materials license, issued at the same time. “I had gotten a license, which has never been revoked,” he said. “That was the basis for me to go ahead and ask for the lease.”
“I can move forward if I want to, as long as I have the license,” he insisted. The license “gives me the right to store and use Cobalt-60…. The ASLB said unless we have a lease, there was no need to put a stay on the license. This forced me to get the lease to get clarification. If we had a lease, then the ASLB would have to make a decision on whether they wanted to order a stay of the license or not. At least then we’d have a way to appeal it. At this point, we’re just in limbo.”
That may change soon. In his motion to the ASLB to clarify its August 27 ruling, Henkin also asked that the ASLB revoke Pa`ina’s materials license. “The board’s holding that the EA failed to provide statutorily mandated information is … inherently inconsistent with the staff’s approval of Pa`ina’s license, which was based on the deficient EA,” Henkin wrote. “Given the controlling 9th Circuit law and the board’s invalidation of the final EA, Concerned Citizens believes the board’s silence about the fate of the license approval was inadvertent.” And in the event that the silence was not inadvertent, Henkin asked the board to reconsider. “Pa`ina would not be prejudiced in any way by temporary revocation of its license, as it has neither secured a lease for its proposed irradiator site nor begun construction.”
A State EA?
The DOT’s submittal to the Land Board included a brief discussion of the requirements of the state environmental impact disclosure law, Chapter 343. Compliance with 343, the DOT said, would be the tenant’s responsibility.
Kohn was asked how he intended to comply. “Anyone who wants to build something on state land is subject to Chapter 343. There is, however, already an EA for that parcel,” he said, referring to one prepared by the state two decades ago. “That EA will be submitted with the request for the Land Board to grant us a lease. On top of that, we will also submit the EA with the FONSI that the NRC has concluded.”
Would there be anything beyond that? Kohn was asked.
“I don’t think the land has changed since then,” he replied. “Everybody else has been allowed to build there without challenge. Why shouldn’t we?”
— Patricia Tummons
Volume 20, Number 4 October 2009