When Michael Kohn announced his intention to build a facility at Honolulu International Airport to irradiate fruit for export markets, his plans called for it to be up and running by February 2006.
More than two years later, the license Kohn needs to operate that facility, which he calls Pa`ina Hawai`i, is still held up in administrative appeals before the Nuclear Regulatory Commission’s Atomic Safety and Licensing Board.
Last month, Kohn was hopeful that the NRC would short-circuit the appeals process by overturning the most recent decision by the Atomic Safety and Licensing Board. But without discussion, on March 17 the NRC postponed any action that would dismiss or overturn ASLB review of the case. Instead, it issued a ruling on questions that the ASLB had forwarded to the commission, seeking its guidance on questions related to safety that seemed, to the ASLB, to be unaddressed in the NRC regulations.
In a 25-page order, the NRC basically threw the ball back into the safety board’s court, finding that nothing in the NRC regulations precluded the board from taking up issues relating to safety concerns over the proposed siting of the facility.
“I think it’s a favorable outcome,” said David Henkin, representing irradiator opponents Concerned Citizens of Honolulu. “I’d like to think the board will see the NRC guidance as I do, as a green light, in unusual situations, to look at the safety and environmental consequences” when an irradiator is proposed for a site such as the Honolulu airport.
A Brief Recap
After Kohn applied for the license in 2005, the NRC initially decided it could grant it without preparing an environmental assessment. That determination was successfully challenged, however, by an ad hoc group, Concerned Citizens of Honolulu. In December 2006, the NRC released a draft environmental assessment for the irradiator, which Kohn proposes to build on state-owned land lying between Lagoon Drive, on the ocean side of the airport, and an airport runway. Concerned Citizens then contested the sufficiency of the EA and a supporting report, which was supposed to analyze the effect of a natural disaster, such as a tsunami, and airline crashes at the site. Last June, the NRC released an appendix to the draft EA, which was to address the impacts of a terrorist attack on the irradiator.
Last August, NRC staff issued the final environmental assessment and finding of no significant impact (FONSI).
Yet another challenge was made by Concerned Citizens, represented by Earthjustice attorney Henkin. The EA and the supplemental reports, Henkin argued, did not really take a hard look at environmental impacts, it failed to consider alternative sites and technologies, and the agency should have prepared a full environmental impact statement.
Last December, the Atomic Safety and Licensing Board, which handles administrative appeals of NRC staff decisions, determined that the first and second of these contentions merited further consideration, while it held off any decision on the third one. By upholding the contentions, the ASLB paved the way for further disclosure and argument on the points raised.
In challenging the sufficiency of the environmental assessment, Henkin said that the NRC staff did not address Concerned Citizens’ detailed and voluminous objections on the draft. As the ASLB describes it, the group contends “that the staff’s actions amount to an omission of any meaningful consideration of the intervenor’s comments and, in turn, preclude the type of informed decision-making required by NEPA [National Environmental Policy Act].”
The ASLB agreed with the Concerned Citizens that the NRC staff had failed to address 12 of the 25 points they raised about the EA’s sufficiency. As to the other 13, the ASLB found that “each is sufficiently addressed.”
Here’s a synopsis of some of the points raised by Concerned Citizens and upheld by the ASLB:
Transportation: Concerned Citizens claimed the EA did not adequately consider the possibility of transportation accidents involving the shipment of the cobalt-60 sources to and from Hawai`i. The staff responded by claiming it did not have to consider them, since such impacts are addressed in a generic environmental impact statement (GEIS) dealing with the transport of radioactive materials.
The ASLB disagreed: “Having introduced transportation impacts in the draft and final EA, the staff cannot now fence off the subject from challenge,” the ASLB found. “Because the applicant’s proposed facility cannot operate without regular shipments of Co-60 sources, the transportation of the radioactive sources shipped to and from the facility, along with transportation accidents that are an inevitable fact of life, appear to be connected and intertwined actions whose potential impacts may need to be examined in the final EA… The staff’s reliance on a GEIS … is too little and too late to defeat the contention.”
Effect on Foods: The EA did not address, but should have done so, the impacts of eating irradiated foods on human health. In raising this objection, Concerned Citizens referred to recent studies that showed irradiated fats could promote the growth of cancers.
The ASLB found that indeed, such a potential impact would be “closely intertwined with, and connected to, the use of the proposed irradiator,” and allowed further argument on the point. In opposition, NRC staff observed that other federal agencies, including the Food and Drug Administration and the U.S. Department of Agriculture, have determined food types that may be safely irradiated, and argued that any such discussion was outside the jurisdiction of the NRC. “In the context of the staff’s compliance with the mandates of NEPA, however, the fact that other federal agencies have regulatory authority over the safety of irradiated foods does not automatically excuse the staff from considering in the final EA the health effects associated with irradiating the tropical fruits … at the proposed facility,” the ASLB wrote, agreeing to allow a full briefing on this question.
This determination drew a swift response from Russell Stein, vice president of Gray*Star, which manufacturers the irradiator. On January 4, Stein wrote the NRC directly: “We are stunned,” Stein wrote. And while “we disagree with all of the decisions of the ASLB in this order, we are stunned that the ASLB ruled that the EA should potentially include the review of the safety of the irradiation of food,” he said. “This is clearly outside of the purview of the NRC.”
“We believe that the ASLB has grossly erred,” he wrote, and “Gray*Star respectfully asks that the commission itself take up a review of this case.” The ASLB order “will incur major costs and even greater delays… Without a commission review, this process will continue indefinitely. In the meantime, most likely, the irradiator will not be installed. Pa`ina Hawaii and the agricultural sector of Hawai`i are suffering and will continue to suffer irreparable harm.”
Henkin, who was not copied on Stein’s letter, eventually received a copy from NRC staff. On January 14, he wrote the NRC, expressing Concerned Citizens’ opposition to Grey*Star’s request. Henkin noted that Gray*Star was not even a party to the proceedings, and, as such, “may not make a request for review of the board’s order.” In addition, he wrote, the request “invites precisely the piecemeal interference in ongoing license board proceedings the commission has long disfavored.” The order “neither denied nor granted Pa`ina’s application for a materials license. Rather, it merely admitted two environmental contentions, leaving for later determination whether the final environmental assessment satisfies the NRC staff’s legal obligations.”
Under NRC rules, the commission has 40 days to initiate its own review of any order of the ASLB. They extended that in February to March, and on March 4, the commission secretary announced that she was extending until April 1, 2008, the time within which the commission could initiate its review of the ASLB order.
Terrorist Attacks: One of the glaring omissions in the EA, Concerned Citizens alleged, was the failure to analyze potential terrorist acts targeting the irradiator. At the time of the ASLB decision, a case that raised this point was pending before the NRC, concerning the Diablo Canyon nuclear power plant’s storage of spent fuel. In the December order, the ASLB announced it was withholding a ruling on this point until “we have the benefit of the commission’s guidance from its treatment” of the Diablo Canyon case.
The NRC order was issued on January 15, finding that an EA has a two-fold function: informing both the public and the decision-maker of the possible environmental impacts of a project. Still, the NRC allowed sensitive information of the sort that could be withheld under the Freedom of Information Act to be withheld from publication in the EA. On the other hand, the NRC did require the staff to list the documents it relied on in making its environmental analysis and provide also, for each withheld document, the reasons why a FOIA exemption is claimed. Such a compilation is described as a Vaughn list, named after a federal court case that established the precedent.
Last month, the ASLB issued its order on the argument by Concerned Citizens that the environmental assessment failed to address the threat of terrorism. It is now requiring only that the NRC staff prepare a Vaughn index, describing the privileged documents it relied upon in preparing the EA, and release of the documents that are not exempt from disclosure.
The Paths Not Taken
The environmental assessment, Concerned Citizens claimed, did not “rigorously explore and objectively evaluate” any alternative sites or technologies other than the one being proposed by Pa`ina Hawaii. The ASLB upheld this point, agreeing that fuller discussion of alternatives would need to be made.
Concerned Citizens say, in effect, “that for the purposes of complying with NEPA, an adequate environmental assessment must provide a rigorous and objective evaluation of the relative environmental costs and benefits of the methyl bromide gas and heat treatment technologies in relation to the proposed Co-60 irradiator as well as consider the alternative technology of an electron beam irradiator,” the ASLB wrote in summarizing this contention. “Thus, the contention claims that the staff’s actions amount to an omission both of any rigorous and objective evaluation of the relative costs and benefits of the two alternative technologies briefly mentioned by the staff and of any consideration of the electron beam irradiator alternative.” The ASLB agreed that this omission merits further briefing.
As to the failure to consider alternative sites, Concerned Citizens, “relying on its expert’s declarations … states that (1) sites located away from the lagoon at the airport would eliminate threats from tsunami run-up and hurricane storm surges; (2) sites on solid ground, rather than unconsolidated fill, would eliminate liquefaction during earthquakes; and (3) sites away from the airport runway would reduce the threat of airplane crashes.”
NRC staff opposed the argument, saying it is not “required to consider remote and speculative alternatives.”
But the ASLB agreed with Concerned Citizens, finding that “the merits of the legal issue contention can only be addressed after the contention is admitted. Finally, and more importantly, where, as here, the burden of compliance with NEPA falls on the staff, the obligation to examine alternative sites falls upon the staff and not the intervenor.”
The Human Environment
The last argument that the Concerned Citizens raised was that the irradiator may harm the human environment, a possibility that triggers the need to prepare a full environmental impact statement. But given that the two arguments as to the insufficiency of the EA and the failure to consider alternatives were admitted for further review, the ASLB wrote, this argument was premature. “[S]hould we find that the final EA is adequate, we will then be in a position to determine whether the proposed irradiator might cause significant degradation of some human environmental factor, and thus require the staff to prepare an EIS. On the other hand, should we find that the final EA is inadequate, the EA will need to be supplemented or amended before it can be determined whether an EIS is required.”
— Patricia Tummons
Volume 18, Number 10 April 2008