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(POSTED 1/26/06)

The Atomic Safety and Licensing Board has granted the petition of Concerned Citizens of Honolulu for a hearing on an application submitted by Pa`ina Hawai`i to build a Cobalt-60 irradiator at the Honolulu International Airport. And that has made David Henkin, the attorney with Earthjustice who filed the petition on behalf of the group, a very happy man.

The board’s decision found that the group had standing to intervene in the Nuclear Regulatory Commission’s deliberations on whether to grant the application to Pa`ina Hawai`i, which plans to treat produce grown in Hawai`i so that it can be exported to other markets in the United States. Unless island produce undergoes some kind of treatment to kill fruit flies and other pests, it cannot be shipped out of the islands; irradiation is an approved treatment, as is heat and steam treatment.

The planned irradiator, which will contain some 1 million curies of Cobalt-60, has so far escaped environmental review. Under the National Environmental Policy Act, federal agencies can prepare a list of actions generally exempt from environmental review, “except in special circumstances,” and the NRC has included irradiation facilities in this category of exempt actions. Henkin challenged the NRC’s decision to invoke the categorical exemption, given the particulars of the site chosen for the irradiator – just feet away from an active runway, even closer to the ocean, and within a tsunami evacuation zone.

In its order granting the hearing request, the board rebuked NRC staff on this point. “The thrust of the petitioner’s contention,” the three-member panel wrote, “is that the agency improperly invoked the categorical exclusion by not addressing what it asserts are special circumstances making such an exclusion inapplicable here – a point the applicant [Pa`ina Hawai`i] and staff completely ignore. In their answers, neither the staff nor the applicant even mention the cases relied upon by the petitioner, much less dispute the petitioner’s reading of … case law requiring an explanation of the NRC’s use of a categorical exclusion and the presence, or absence, of special circumstances… Instead, the staff claims that there is ‘no credible basis to conclude that the types of irradiation or the location of the irradiator, or specific proposals for operating the irradiator are in any way outside the envelope of characteristics that were considered in the [NRC’s] rulemaking decision to grant the categorical exclusion.’”

The three judges continued: “The proposed location of the Pa`ina Hawai`i irradiator is not immune from the hazards posed by natural disasters and potential aircraft crashes … and the [NRC] staff has failed to provide any reason to conclude that the threats endemic to this proposed site have ever been considered. … Indeed, the staff’s approach only begs the question whether any location would prompt the staff to consider special circumstances associated with a proposed siting. For example, it is virtually certain that the [NRC] did not specifically consider the risks associated with placing an irradiator in the caldera of Kilauea; however, the staff would have us believe that the risks associated with the unique location of this irradiator were necessarily considered in the generic forum for establishing the rule providing for the categorical exclusion – a wholly unsupported proposition.”

While the judges agreed with Concerned Citizens in faulting the NRC for failing to consider special circumstances of the airport site, they disagreed on the group’s position that the threat of terrorist attack also should be addressed in a NEPA document. Henkin said he anticipated this outcome. More than two years ago, when the NRC allowed a spent fuel storage facility to be built at Diablo Canyon Power Plant in California, it specifically rejected a contention that the impacts of terrorism should be considered as part of the NEPA analysis. That decision is now before the 9th U.S. Circuit Court of Appeals, which heard arguments in it last fall.

Henkin asked the Atomic Safety and Licensing Board judges to reserve its decision on Concerned Citizens’ request to have the threat of terrorist attack included in the Pa`ina Hawai`i review until after the 9th Circuit Court issued its decision. “We see no sound reason to withhold ruling,” the judges wrote. “[T]he portion of the petitioner’s second environmental contention, asserting that the risks associated with terrorist attacks require that the agency prepare an EA or EIS for the proposed irradiator facility, is inadmissible.”

In the Diablo Canyon case, Henkin says, the applicants did an EIS, “but they refused to consider terrorism risks. The NRC has a very Alice-in-Wonderland position that terrorism is so speculative they need not analyze it. At the same time, since 9/11, they’ve been issuing all kinds of top-secret procedures regarding everything from power plants to medical waste. For Cobalt-60, for example, the quantity of concern is 8.1 curies – if you have that much, you have to implement additional security measures, all intended to address the threat of terrorism.

“So, terrorism is too speculative for environmental analysis, but not so speculative that if you have more than a couple grains of Cobalt-60, you have to undertake all kinds of security measures. It just makes no sense.”

Henkin was not certain when the hearing will be held. The January 24 ruling was made on just part of the Concerned Citizens’ petition, he explained. “It’s a little odd, procedurally,” he said. The group’s petition was bifurcated into NEPA-type concerns and security concerns. “Because there was a dispute about how much of the application we get to see,” he said, “the judges divided the issues relating to the environment and NEPA from the other safety issues, such as the procedures for loading Cobalt pencils and a variety of other things – although I think they are very much related.

“So all they ruled on so far was that we had standing, and we had two admissible contentions, even though all you need is one. There may be additional contentions once they rule on the safety issues.”

The most surprising part of the judges’ findings, to Henkin, was their refusal to consider the indirect effects of food safety. “I think they got it wrong on the facts,” Henkin said. “Our expert did not merely opine that there was a dispute, he affirmed that there was risk of increasing colon cancer … and argued that there should be careful consideration before we increase the amount of irradiated food in our food supply.”

The judges on the Atomic Safety and Licensing Board “punted” – to use Henkin’s term – on this issue, deferring to the Food and Drug Administration and the U.S. Department of Agriculture. “It is the responsibility of the FDA and the USDA to determine the food types used for human consumption that may be safely irradiated,” the judges said, quoting the argument of NRC staff. “In light of these factors, the petitioner’s speculative claim concerning the possible health effects of irradiating papayas and mangoes does not arise to the level of special circumstances necessary to invoke the exception [in federal rules] for the categorical exclusion of irradiators.”

— Patricia Tummons

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