By Walter C. Jones | Morris News Service
Monday, September 07, 2009
ATLANTA --- The question of a controversial law's constitutionality could halt new nuclear reactors in Georgia.
A group opposed to reactors on environmental grounds is using a legal challenge to the financing mechanism granted to Georgia Power during the past legislative session as a way to prevent what it considers to be an ecological mistake.
Senate Bill 31 violates the state and federal constitution on several points, argue lawyers for the Southern Alliance for Clean Energy.
The group, which is based in Tennessee but has members and offices in Georgia, has often spoken out against nuclear power and in favor of solar and wind power. Sara Barczak, of the group's Savannah office, relied on environmental arguments in December when she testified against the plant in front of the Public Service Commission.
"Downstream communities should be concerned about project water consumption at the proposed Vogtle site because consumptive water loss, especially during low river flows, can pose significant negative impacts to water quality and aquatic resources," she said.
She also raised concerns about the environmental impact of dredging the nearby Savannah River to allow reactor components to be shipped by barge, as they were when the first two reactors were built.
The group didn't succeed in convincing the commission, so now it's using a different tactic.
The Southern Alliance's 16-page lawsuit argues that when the legislation granted Georgia Power permission to charge its customers the construction costs before power generation begins, it amounted to a tax that gives the company something for nothing.
"The adoption of the nuclear tariff by the Georgia General Assembly creates an unconstitutional gratuity in favor of Georgia Power and its stockholders, for, among other reasons, paying such stockholders of Georgia Power a return on equity in excess of $1 billion before Units 3 and 4 at Plant Vogtle are even put into service, i.e., for services which have not been rendered," the lawsuit states.
Though Southern Alliance is suing the state and not the utility, Georgia Power filed a brief with Fulton County Superior Court asking for the case to be dismissed.
"We still feel like SB 31 was good for the people of Georgia, and we think it is a win-win," said company spokeswoman Carol Boatright.
The bill was controversial when it was debated in the General Assembly. Consumer groups such as Georgia Watch and AARP joined environmentalists in fighting it. The company and its allies carried the day by arguing that more electric generating capacity was needed and that nuclear was the best source. They said consumers would benefit from paying in advance rather than having interest charges mount.
The company also stressed that having a guaranteed funding stream during construction was necessary to attract investors who would lend the money for the work. That funding guarantee was vital, and many other utilities across the country without a similar guarantee haven't been as aggressive about new reactors, according to William Tucker, author of Terrestrial Energy: How Nuclear Power will lead the Green Revolution and End America's Energy Odyssey .
Winning a judgment against the law could halt the project with more finality than many environmental considerations might. For example, a victory for environmentalists on dredging would merely force the utility to go to the added expense of shipping by rail or truck.
One thing power companies and environmentalists agree on is they don't want to see the history of nuclear power plants repeated.
Neither side wants the long, expensive battles that cost taxpayers and utility customers and still ended in the operation of 104 reactors across the country..
The Nuclear Regulatory Commission has replaced the two-step licensing process used in the 1960s and 1970s that granted one license for construction and a second one for operating. At the time, there were many fights at each stage, with some second-stage skirmishes duplicating issues that had been debated at the first stage. Resolving concerns after the plants were built and awaiting an operating license proved to be costly and time consuming.
Now the NRC will issue one combined construction and operating license in an attempt to contain the fights to one stage.
Tom Kauffman, a spokesman for the Nuclear Energy Institute in Washington, said opposition won't disappear.
"We expect that there will be contentions as new plants enter the application process," he said. "That's as it should be, to allow concerns to be aired."
The Vogtle application is still pending before the NRC, even as basic construction is under way in Waynesboro.
Southern Alliance's lawsuit in Fulton County Superior Court represents a new venue. A critical early decision will be whether the judge grants a restraining order that prohibits Georgia Power from charging its customers until the case is settled.
So far, no hearings have been scheduled or witnesses deposed. And with the likelihood that its outcome will be appealed, its resolution could be slow.
Reach Walter Jones at (404) 589-8424 or walter.jones@morris.com.
THE LEGAL ARGUMENT
An environmental group that wants to stop construction of two nuclear reactors has filed a lawsuit that's not based on ecological arguments. Instead, the Southern Alliance for Clean Energy challenges the constitutionality of a state law that allows Georgia Power to pay for construction by charging its customers before the reactors begin generating power.
The suit says Senate Bill 31 is unconstitutional on six grounds:
- It bypasses the Public Service Commission, which has responsibility in the state constitution for electric utilities.
- The law takes money away from Georgia Power customers and gives them no immediate benefit, an alleged violation of the U.S. Constitution's right to due process.
- By exempting large commercial and industrial customers of Georgia Power, the law discriminates.
- Because customers pay while getting no electricity, the charges amount to an illegal gratuity to Georgia Power.
- A government-ordered fee is essentially a tax, and only governments can benefit from a tax.
- The fee strengthens Georgia Power financially, but because the company is a monopoly, the state can't pass laws that benefit it.
Source: Lawsuit filed by the Southern Alliance for Clean Energy
http://chronicle.augusta.com/stories/2009/09/07/met_547261.shtml
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An underground container that holds about half of the world’s supply of radium may be leaking into groundwater in northwestern Niagara County, an advisory group to federal regulators warns.
The Army Corps of Engineers, the federal agency responsible for investigating an area in the towns of Lewiston and Porter holding leftovers from the Manhattan Project, has found uranium contamination beneath ground level in portions of a former federal weapons site.
But corps officials insist there are no leaks in a 10-acre cell, known as the Interim Waste Containment Structure, constructed in the mid- 1980s on the 191-acre Niagara Falls Storage Site as a temporary container for various radioactive wastes and other radiological materials.
Those substances include uranium and about half the world’s supply of radium.
Joseph A. Gardella Jr., chairman of the Lake Ontario Ordnance Works Restoration Advisory Board — a group of residents, academics and industry professionals—believes the issue plays a major role in the ultimate decision on the future of the radioactive substances buried in Niagara County.
“The big question is: If the storage site is already showing some evidence of wear,” Gardella said, “isn’t that something that we should be concerned about?”
Input from the advisory board, which includes faculty from area universities with technical expertise, has been minimized by the corps for the past several years. Early last year, corps officials said the group no longer met the corps’ guidelines.
Despite being virtually ignored, advisory board members have continued to closely monitor issues related to both chemical and radiological contamination at the site.
“It’s really important for the community to be paying attention,” said Gardella, a chemistry professor at the University at Buffalo with decades of experience working on environmental issues in Western New York.
“If you’re minimizing the potential for leaks,” he continued, “that starts to factor into the argument
about the stability of the temporary storage site. And the stability of the storage site is going to be critical in arguing whether [the radioactive material] stays here or not.”
Neither the Corps of Engineers nor the advisory board has said it believes conditions constitute a public health risk at this time.
But the results of a plethora of studies and risk analyses are the building blocks for the final decision on whether to keep the radioactive materials buried in Western New York or to ship them somewhere else for disposal.
Since 1997, when Congress passed responsibility for cleanup of former Department of Defense sites to the Corps of Engineers, the agency has been investigating conditions at the former Lake Ontario Ordnance Works, which includes the Niagara Falls Storage Site. The former ordnance site began with TNT production prior to World War II on a portion of 7,500 acres in Lewiston and Porter. Work on the country’s atomic project officially began there in 1944.
The materials buried in the waste cell come from ore mined in Africa and brought to the United States.
They are unique in a global sense because of the concentration of uranium that was initially found within them, said William L. Boeck, an advisory board member and professor of physics and computer and information sciences at Niagara University.
While the radioactive substances in this case are naturally occurring— as opposed to being the by-products of a nuclear reactor — they are still “more than 10 times richer than anything that’s been found on earth,” Boeck said.
Between 30 and 65 percent of what was mined was uranium, a concentration far greater than anything found in current mining activities in places like Canada and Australia, Boeck said.
“There is nothing like this left on earth,” he said.
Uranium, a high energy and unstable radioactive material, changes into radium as part of a natural decay process.
The corps plans additional investigation related to the radioactive contamination on the Niagara Falls Storage Site. The agency has said it is currently evaluating the available options that would address site contamination.
Sampling could begin as early as this fall, Michelle Rhodes, acting program manager for the project, said via e-mail.
The corps said last year that it spends about $3 million annually on cleanup efforts at the storage site.
Though the additional work is planned, the head of the advisory board is raising questions about the quality of the agency’s study of the radiological contamination.
Gardella contends the corps “didn’t do anything scientific” in evaluating the underground uranium levels.
“I’m not saying they’re incompetent, but this isn’t world-class science and engineering,” Gardella said.
Corps representatives, in a public presentation last month, said their study indicates “no short-term competency issues” related to the interim containment cell.
Study of the contamination shows “no increasing trend in concentration of uranium that would be indicative of a breach,” Rhodes said in her e-mail.
The sides also differ on what uranium levels they accept as typical for the area, also known as “background” levels.
For more than a year, the advisory board has called on regulators to dig into the cell as part of their study. That is the only way to know if groundwater has infiltrated the structure, the board contends.
Corps officials have refused, saying that the procedure would be unsafe for workers who conduct the analysis and that they have “minimized, to the extent possible,” the limitations of the survey methods they did use.
“There is no need to compromise the integrity of the [cell] cap for data not needed at this time,” Rhodes said.
Boeck, the Niagara University professor, disagrees.
The cell boundary is about 50 feet from an area known as the Central Drainage Ditch, which drains into Lake Ontario, he said.
Corps officials say if data is needed later, possibly if the agency decides to remove the radioactive material, the intrusive sampling can be done then.
Gardella said the corps’ analysis— and resulting determination that there is no leak — is based more on computer simulations than actual data. He also said he is not diminishing the challenges that exist if the radioactive storage cell is penetrated; corps officials have not provided a list of pros and cons on the issue, he said.
Performing the intrusive action is necessary if anyone ultimately wants to know about conditions at the site, Gardella said.
The board believes the uranium contamination may have spread outside the storage site property. An investigation of whether it has spread is planned as part of the work that could begin in the fall.
Any discussion about a final decision on what happens at the Niagara Falls Storage Site is done in terms of years, not months.
“To the people in the community,” Gardella said, “the question is, ‘Is it going to be left there or is it going to be excavated and taken out?’ ”
http://www.buffalonews.com/cityregion/story/738086.html