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Court denies nuke plant foe’s appeal in relicensing bid

SEABROOK – A local organization that for years fought the licensing of Seabrook Station, and is now at the forefront of attempts to block a 20-year extension of the nuclear power plant’s operating license, has been taken out of the adjudicatory battle.

In a decision released Friday, the U.S. First Circuit Court of Appeals denied an appeal lodged by the Exeter-based Seacoast Anti-Pollution League of a Nuclear Regulatory Commission ruling. That ruling took the organization out of the license-extension fight.

The court swatted down SAPL’s claims that the NRC erred in rejecting its contention that the license extension process must take into account the possibility that in 40 years, wind-power technology could be a viable alternative to electricity produced using nuclear fuels. SAPL claimed that in rejecting that contention, the federal agency misinterpreted provisions of the National Environmental Policy Act. That federal law requires agencies to study and document the environmental impacts and alternatives to proposed “major federal actions significantly affecting the quality of the human environment.”

SAPL also alleged that in not allowing its wind-power contention to be fully adjudicated, the NRC’s decision “was arbitrary, capricious, an abuse of discretion or not otherwise in accordance with the law.”

“Neither argument is persuasive,” the court decision read, “and … we deny (SAPL’s) petition for review.”

SAPL President Herb Moyer of Exeter said he was disappointed, but not surprised by the decision.

“The NRC seldom loses at anything,” he said. “The evidence is before their eyes that there is plenty of wind-power resources to replace nuclear energy.”

In May 2010, NextEra Energy, the company that operates the local nuclear power plant, applied to the NRC to extend the plant’s current 40-year operating license, which expires in 2030, for another 20 years until 2050.

Three environmental groups – SAPL, the New Hampshire Sierra Club and the Washington, D.C.-based Beyond Nuclear – petitioned the NRC on Oct. 20, 2010, for a public hearing. The organizations claimed NextEra had not done an adequate environmental review of less-harmful energy alternatives to the generation of power using radioactive fuel as required by the federal National Environmental Policy Act. On Feb. 15, 2011, the NRC’s Atomic Safety Licensing Board, the group that adjudicates charges such as the one leveled by the three groups, issued an order granting these groups the hearing they had requested.

The groups had submitted dozens of expert documents in support of their request for a public hearing. Included for the NRC to review was the state of Maine’s proposed development of 5 gigawatts – the power equivalent of four Seabrook plants – of offshore and deepwater wind power in the Gulf of Maine for transmission of electricity into Maine and New England by 2030.

However, on Feb. 25, 2011, NextEra appealed the ASLB decision and, on March 8, 2012, the NRC upheld the appeal, preventing the three organizations from taking part in the license extension hearings. That left only two contentions concerning the extension request to be adjudicated by the ASLB, both of which were filed jointly by the Maine-based Friends of the Coast and New England Coalition on Nuclear Pollution in Vermont.

The first of the remaining contentions claims the Severe Accident Mitigation Alternatives report submitted by NextEra as part of its license extension request minimized the potential amount of radiation that could be released by the Seabrook plant as the result of a severe accident. The second claimed NextEra used a faulty modeling process to determine how air currents along the coast would disperse any radioactivity released from the Seabrook plant in the event of a severe accident.

“On behalf of Seacoast residents, we have the right to have a full hearing on this absurdly premature and ill-advised re-licensing proposal, so we are compelled to take NRC to federal court and, hopefully, make them bow to common sense,” said Doug Bogen, SAPL’s executive director, at the time the appeal was filed. “In denying us the right to a hearing, the NRC is showing it’s in a serious state of denial over the post-Fukushima realities of global and local efforts to pursue cleaner and safer electric power options.”

However, the court found that not only had the NRC followed proper procedure in overriding the ASLB, but that the representations by SAPL and the others in support of the possibility of wind power replacing nuclear power “proved to be untrue.” SAPL claimed a University of Maine study titled “Maine Offshore Wind Plan” showed the possibility that wind-power technology would advance to the level of providing assurances that the baseload generating capacity currently provided by Seabrook Station could be assumed by wind turbines placed in deep water in the Gulf of Maine.

“The exhibit relied upon by (SAPL) before the ASLB to support their representation – that wind power off Maine’s coast would provide baseload power by 2015 – does not support (SAPL’s) representation,” the court ruled. “The exhibit does not make any suggestion about baseload power, let alone in the 2015 time period.”

The court also rejected SAPL’s claim that the NRC’s decision to deny the wind-power contention was capricious and against the law.

“We hold that the NRC’s decision to deny admissibility to (SAPL’s) contention constituted reasoned decision-making and was not arbitrary or capricious,” the decision read.

Moyer said his group would like to continue the legal battle to get the NRC to recognize the legitimacy of the wind-power contention, but money may be an issue.

“We have to decide if we have enough resources to take this to the next level,” he said.