Westinghouse's AP1000 reactor design. Federal regulators have expressed serious safety concerns about the design for 14 of the nation's 25 proposed new nuclear reactors, raising questions about the future of what the industry calls its "renaissance."

The Nuclear Regulatory Commission announced last month that Westinghouse failed to demonstrate that the building designed to shield its AP1000 reactor from outside threats such as tornadoes, hurricanes, and earthquakes. In addition, there are concerns about whether the shield building, which also provides a radiation barrier, will be able to support the 8 million-pound emergency cooling water tank that's supposed to sit on top.

"We've been talking to Westinghouse regularly about the shield building since October 2008, and we've consistently laid out our questions to the company," said Michael Johnson, director of the NRC's Office of New Reactors. "This is a situation where fundamental engineering standards will have to be met before we can begin determining whether the shield building meets the agency's requirements."

Pennsylvania-based Westinghouse, which is owned by the Toshiba Group of Japan, downplayed the NRC's concerns, releasing a statement that said it "fully expected that the NRC would require additional analysis, testing, or actual design modifications to the shield building" and that it had "already begun to address certain portions of the design." The company says it remains "confident" it will answer the NRC's concerns.

Whether it does has important implications for the South's energy future, as all of the planned AP1000 reactors are slated for the region. Two AP1000 units have been proposed at each of the following facilities:

But nuclear power watchdogs say the reactor's design problems should mean no taxpayer money in the form of Department of Energy loan guarantees should go toward its construction. Last month, an alliance of 10 nuclear watchdog groups including the Southern Alliance for Clean Energy and the NC Waste Awareness and Reduction Network sent a letter [PDF] to DOE officials calling on the agency to stop issuing conditional loan guarantees to utilities using AP1000 technology.  Among the new nuclear projects with AP1000 reactors that the DOE is reportedly considering for loan guarantees are the Vogtle site in Georgia and the Summer site in South Carolina.

"With billions of taxpayer dollars at stake in the proposed nuclear loan guarantees, the Department of Energy owes it to the public to get on the same page as the NRC about these serious AP1000 reactor design problems," said Sara Barczak, a nuclear power specialist with SACE. "We believe that the DOE should assure the public that utilities considering problematic nuclear reactor designs, such as the AP1000, would not qualify for these loan guarantees."

A report released earlier this year by the Union of Concerned Scientists found that the potential risk exposure to the federal government and taxpayers from guaranteeing loans to build new nuclear plants -- now estimated to cost upwards of $6 billion each -- could range from $360 billion to $1.6 trillion. At the same time, a study put out earlier this year by the Vermont Law School's Institute for Energy and the Environment estimated the per-kilowatt cost of new nuclear plants at two to more than three times the cost of efficiency and renewables.

But the nuclear power industry is pushing hard for more taxpayer assistance -- or what some of its critics are calling a "bailout." Last month, the Nuclear Energy Institute, industry's lobby group, announced that it wanted to build 45 new reactors by 2030 and was seeking $100 billion in additional loan guarantees.

And the industry has key champions in Washington, as several moderate Republicans including Sen. Lindsay Graham of South Carolina have said policies promoting nuclear power would be necessary for them to vote in favor of climate legislation now being considered in Congress.

Did the AP1000 get improper insider help at the NRC?

A major defense contractor and an important player in the post-Katrina reconstruction of the U.S. Gulf Coast, the Louisiana-based Shaw Group is also the largest provider of commercial nuclear power plant maintenance and modification services in the United States.

The company has long been known for working its insider connections. For example, it was one of several firms that won contracts to rebuild the Gulf Coast after Hurricane Katrina with the help of hired lobbyist Joe Allbaugh -- a campaign manager for former President George W. Bush and that administration's first FEMA director.

But now the Shaw Group faces questions about whether improper insider connections at the NRC benefited its commercial nuclear power ambitions.

Back in 2007, the Project on Government Oversight reported that Nuclear Regulatory Commissioner Jeffrey S. Merrifield "vigorously championed several major policy initiatives that directly benefited his future employer": the Shaw Group, who he went to work for 12 days after leaving the NRC.

The initiatives Merrifield promoted included a procedural change for certain types of construction activities at nuclear plants that effectively eased environmental restrictions. "Because Shaw is among the largest construction companies in the nuclear industry, few companies stood to benefit more from this initiative," POGO said at the time.

Then last month, the NRC Inspector General issued a report that confirmed Merrifield twice cast votes during his time on the NRC regarding matters involving companies he had contacted about jobs. The others were Westinghouse and General Electric. The report said the firms could potentially have benefited financially from his votes at the same time Merrifield was negotiating with them for jobs.  

In one of the questionable votes, Merrifield voted to change the criteria for emergency cooling systems, a change that would directly benefit Westinghouse, of which the Shaw Group owned a 20 percent interest. He also approved a plan by the Shaw Group to cooperate with China on building nuclear plants using AP1000 technology. China reportedly wants to have 100 AP1000 units operating by 2020.

Merrifield has denied that his job search affected any decision he made while at the NRC. The IG has referred the case to the Department of Justice.

This story originally appeared at Facing South.

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One of the rare Bush administration clean-air policies favored by enviros has been struck down by a federal appeals court. The Clean Air Interstate Rule would have required 28 Eastern states to reduce soot-causing, smog-forming emissions that easily spread on the wind. The U.S. EPA estimated that the rule would prevent 17,000 premature deaths per year, tens of thousands of nonfatal heart attacks, millions of lost work and school days, and up to $100 billion in health-care costs. But ruling in favor of electric-power producers, the U.S. Court of Appeals for the District of Columbia Circuit found that the EPA overstepped its authority in instituting the rule and that the regulation contained "more than several fatal flaws." Says Frank O'Donnell of advocacy group Clean Air Watch, "This is without a doubt the worst news of the year when it comes to air pollution."

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Court rules against Bush administration's fish-protection plan

The Great Judicial Smackdown of 2007 continued this week, with a federal appeals court ruling that the Bush administration's plan for "protecting" fish on the Northwest's Columbia and Snake rivers violates the Endangered Species Act. The feds had claimed that the rivers' hydroelectric dams could be made safe for the 13 listed salmon and steelhead species that must navigate them. They also said that since the dams were built before the ESA became law, they shouldn't be considered for removal or alteration. But the three-judge panel of the 9th Circuit Court called that argument "little more than an analytical sleight of hand" and issued a stern reminder that, when it comes to the ESA, "compliance is not optional." The coalition of sporting and environmental groups that had challenged the plan was pleased by the ruling, with a Sierra Club regional director saying, "Two decades of federal failure and dishonesty must stop here." He added, "Our region needs a scientifically sound, economically viable solution." Good luck.

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We love the Supreme Court this week. In a unanimous decision yesterday, Big Justice overturned a lower court ruling and declared that Duke Energy did indeed violate the Clean Air Act when it modernized coal plants without paying for pollution-reduction equipment. Duke had claimed it wasn't required to consult the U.S. EPA when upgrading eight plants between 1988 and 2000, as it did not increase their hourly emissions; green groups had sued, arguing that modifications increased the number of hours the plants were in operation, thus increasing annual emissions, thus necessitating a permit. Right you are, said the Supremes, in a ruling that may have a green-colored ripple effect. The case now heads back down to district court. SCOTUS chose not to rule on Duke's backup argument, that federal clean-air requirements should not be triggered by "routine maintenance." And a complete overhaul of a plant is totally routine maintenance, right?

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In a landmark Supreme Court case -- the first ever on the issue of global warming -- the court has ruled that carbon dioxide is a pollutant under the Clean Air Act and that the U.S. EPA should regulate it as such. Boo-yah! The ruling is the latest in a long series of blows to the beleaguered and increasingly isolated Bush administration. The case of Massachusetts v. EPA put three questions before the court. The first is whether states have the right to sue the EPA over this issue -- whether they have "standing." The court said: yes. The second was whether carbon dioxide fits the Clean Air Act definition of an air pollutant, thus giving the EPA the right to regulate it. The court said: yes. The third was whether, given that right, the EPA has to regulate it. On that question, SCOTUS strongly urged the EPA to reconsider its refusal to address the issue. The ruling split the court 5-4, with conservative justices dissenting.

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Samuel Alito, to the right of President Bush (ahem).

Photo: Paul Morse/The White House.

Enviro advocates in D.C. have spent the last 24 hours digging through Samuel Alito's extensive paper trail for clues as to how he might vote on environmental cases were he confirmed as a U.S. Supreme Court justice.

A staunchly conservative judge who's served on the Philadelphia-based 3rd U.S. Circuit Court of Appeals for 15 years, Alito was nominated by President Bush yesterday to fill the slot being vacated by Sandra Day O'Connor. He's already a hit with Republican senators as well as Bush's right-wing base, which squelched the candidacy of Harriet Miers.

Environmentalists, meanwhile, are joining many progressives and Democrats in crying foul over the nomination.

Sen. Charles Schumer (D-N.Y.), a member of the Senate Judiciary Committee, stepped right up yesterday to criticize Alito as a "controversial nominee who would make the court less diverse and far more conservative." He's been dubbed "Scalito" for having a judicial philosophy closely akin to that of Supreme Court Justice Antonin Scalia, who shares with the nominee a Roman Catholic, Italian-American background.

That comparison alone is enough to raise the hackles of enviros, many of whom see Scalia as a right-wing ideologue more staunchly opposed to environmental regulation -- and federal-level authority in general -- than any other justice on the Supreme Court. And at 55 years of age, some 14 years younger than Scalia, Alito would be in a position to influence environmental jurisprudence for decades to come.

Bush, trying desperately to bounce back after a week of crushing blows to his presidency, gushed over his nominee, whom he described as having "extraordinary breadth of experience ... more prior judicial experience than any Supreme Court nominee in more than 70 years." The prez even tried to frame Alito as a pro-environment pick who "moved aggressively against white-collar and environmental crimes, and drug trafficking and organized crime and violation of civil rights" as a U.S. attorney for New Jersey in the late '80s.

When examining the whole of Alito's record, however, environmentalists found little that was encouraging. "Here's our initial assessment of his record: some good, but more bad and ugly," Glenn Sugameli, Earthjustice senior legislative counsel, told Muckraker. "We're extremely concerned that Alito has repeatedly sought to restrict Congress' authority to allow Americans to protect their rights in court, and to enact laws that protect our health and environment. His record in these cases is more hostile to congressional authority than the current Supreme Court majority."

Sugameli cites the example of Public Interest Research Group v. Magnesium Elektron, a 1997 case in which Alito cast the deciding vote in a 2-1 ruling that not only blocked certain rights of citizens to sue polluters under the Clean Water Act, but threw out a $2.6 million fine against Magnesium Elektron for violating the act. The decision was effectively reversed two and a half years later by a Supreme Court ruling in which Scalia was one of two dissenting votes.

Alito's extensive track record on the court isn't entirely devoid of pro-environment decisions. Take, for instance, the 1995 ruling on Pennsylvania Coal Association v. Bruce Babbitt, in which Alito rejected an industry challenge to the toughening of an environmental law on coal mining. Or the 1997 ruling on Southwestern Pennsylvania Growth Alliance v. Carol Browner, in which he joined a consensus in denying industry's efforts to skirt pollution rules under the Clean Air Act.

Critics, though, say such instances are rare. Alito appears to have favored environmental protections "mainly in the face of unanimous agreement and overwhelming evidence against polluters," said Doug Kendall, executive director of the Community Rights Counsel, a D.C.-based public-interest law firm that defends environmental laws against constitutional challenges.

What concerns enviros most are not the decisions Alito has made on environmental matters directly, but those revealing a broader judicial philosophy that could be invoked in future environmental lawsuits. "What's most important is what a justice believes on constitutional grounds," said Sugameli.

Take, for instance, Chittister v. Department of Community and Economic Development, in which Alito argued that the 11th Amendment prohibits state employees from suing a state government in federal court for damages under the federal Family and Medical Leave Act. (The Supreme Court later ruled that employees could sue under a related provision of the act.) "It's more evidence that Alito may not believe the Constitution adequately empowers Congress to allow average Americans to go to court, protect their rights, and ensure that environmental and other laws are enforced," said Sugameli.

The most troubling skeleton in Alito's judicial closet, according to Sierra Club senior attorney David Bookbinder, is the dissent he wrote in U.S. v. Rybar in 1996. Alito advocated striking down a federal law banning possession of machine guns on the grounds that, in some instances, it exceeds congressional power under the Constitution's Commerce Clause. He argued that, as in-state machine-gun possession is not interstate economic activity, such authority should be conferred to state governments alone. This kind of reasoning strikes fear in the hearts of enviros, as the Commerce Clause is the basis for nearly every major federal environmental law in the U.S.

"If he is willing to find that Congress doesn't have that sort of authority over possession of machine guns, it makes you very concerned he will apply the same logic to Congress's authority over interstate pollutants," said Bookbinder.

This is particularly concerning to enviros given that three weeks ago, the Supreme Court decided to review Rapanos v. United States and Carabell v. Army Corps of Engineers, two landmark cases that challenge the reach of the Clean Water Act and call into question state-level versus federal authority to protect the environment. "The stakes are enormous," said Kendall. "If the federal government loses these cases, millions of acres of waters and wetlands could be left unprotected. And an adverse ruling would also call into question a much broader array of environmental safeguards."

It brings into sharp relief the potentially immediate impact of Alito's nomination, Kendall added: These cases are scheduled to be heard in the spring of 2006, so if confirmed, Alito would be in a position to cast a deciding vote.

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The plotline sounds as absurd as a made-for-TV movie: An FBI agent exposes deadly contamination at an old nuclear-weapons plant, but the federal government conceals the findings. Years later, Congress votes to convert the tract into a wildlife refuge and open it to school field trips and public recreation. The site becomes a poster child for eco-friendly nuclear-waste disposal -- with a dangerous radioactive secret lurking below the surface.

An aerial view of Rocky Flats.

Photo: Los Alamos National Laboratory.

Fact, of course, can be stranger than fiction -- even bad Sunday-night-on-CBS fiction -- and former FBI agent Jon Lipsky is one of several insiders who say the above scenario is unfolding right beneath Uncle Sam's nose.

In 1989, Lipsky led an FBI raid on the Rocky Flats nuclear-weapons plant in Colorado after receiving reports that the plant posed a huge public-health threat. His raid, which took place over 18 days and involved more than 100 FBI and EPA officials, gave way to a nearly three-year criminal investigation into widespread radioactive contamination of the air, water, and soil at the 6,240-acre site and the surrounding suburbs of nearby Denver.

The raid prompted the Department of Justice to assemble a special grand jury to investigate the evidence against U.S government officials and Rockwell International, the private defense contractor that managed Rocky Flats from 1975 to 1989 on behalf of the Department of Energy. Rockwell pleaded guilty to certain counts of negligence and paid a fine, but never fessed up to the full extent of the crimes Lipsky says he witnessed. The case was settled with a plea bargain agreement, and the Department of Justice sealed the contamination evidence from the public.

Next month, Lipsky will be party to a lawsuit against DOJ in conjunction with Wes McKinley, the former leader of the Rocky Flats grand jury, and Jacque Brever, a former chemical operator at the plant who suffers from radiation exposure, in an effort to unseal the documents.

The plaintiffs are concerned, in particular, about a 2001 congressional decision to turn Rocky Flats into a wildlife refuge, which may have as many as 16 miles of trails for hiking and horseback riding. On Dec. 31, Lipsky retired early from the FBI to protest the agency's orders that he keep mum about the Rocky Flats controversy. "I left so I could help expose the truth," he told Muckraker. "Without the truth there can be no real understanding of the extent of this environmental crime, and there can be no thorough cleanup."

Lipsky describes the DOE's ongoing cleanup effort at the nuke site, scheduled to be completed by 2006, as "woefully inadequate -- a farce." As for the decision to make Rocky Flats a tourist destination, he said, "There is nothing safe or sane about it."

Before the vote on the Rocky Flats designation, Lipsky wrote an open letter to Congress putting his objections in no uncertain terms: "I am an FBI agent. My superiors have ordered me to lie about a criminal investigation I headed in 1989. The Justice Department covered up the truth ... I have refused to follow the orders ... Some dangerous decisions are now being made based on that government cover-up."

He exhorted members of Congress to read the book The Ambushed Grand Jury, a chronicle of the cover-up by Colorado lawyer Caron Balkany, who is representing Lipsky et al. in their lawsuit, and McKinley, the former grand-jury member, who was just elected to the Colorado state legislature.

The DOE dismisses Lipsky's charges as bunk. Department spokesperson Karen Lutz flatly denies that there's anything to be concerned about. "Our Rocky Flats cleanup effort has been going on for 15 years, and the whole time it has been meticulous, thorough, and transparent, with full community participation. We've had this under a microscope -- the oversight has been incredibly vigilant. There is nothing legitimate about these allegations." The Department of Justice did not respond to Muckraker's request for comment.

What lurks beneath the tallgrass?

Photo: RFETS.

The critics counter that DOE wanted to keep the public in the dark to cut corners on cost, not to mention protect itself from criticism for environmental negligence. The department allocated $7 billion to the cleanup, a sum initially criticized as far too low to enable a thorough job. And less than 8 percent of the allocated sum is even being used to decontaminate the site, the plaintiffs say; the rest is going to administrative costs and decommissioning the plant.

Former Rocky Flats employee Jacque Brever, who claims to have read more than 16,000 documents on the cleanup, told Muckraker that the effort is "so bad you wouldn't even believe it." She said several fields and hillsides that had been dumping grounds for toxic and radioactive wastes have been excluded from the cleanup. Additionally, she said, the sampling techniques for determining contamination levels are misleading, and the standards for soil and water purification are weak.

"There is no question in my mind that the grounds are still hot [radioactive] at that site, and will be for a long time," she said. "That plant was spewing radioactive ash and effluent for nearly 40 years. We dumped radioactive stuff in areas they're not even looking at. We buried drums that corroded underground, and they're looking only at the surface of the soil." Brever worked at the plant for 10 years and her fiancé for 19 years. Both spent most of their careers in "hot" areas of the facility where they were directly exposed to plutonium. Brever now has thyroid cancer and her fiancé has a rare form of eye cancer, both illnesses associated with long-term exposure to radioactivity. They haven't been able to get financial compensation for their medical treatment, she said, because some key records pertaining to their exposure have been suppressed. "We're having difficulty proving our case. That's why we're taking it to the courts -- to get the rest of our records released."

Allard (left) and Udall introduce the Rocky Flats National Wildlife Refuge Act.

The effort to transform Rocky Flats into a wildlife refuge was lead by Colorado Rep. Mark Udall (D) and Colorado Sen. Wayne Allard (R). But at the time, says Lipsky, Udall and Allard, like everyone else, didn't have access to all the facts. "Congress didn't know that there was midnight plutonium burning. Congress didn't know that there was extensive offsite contamination. Congress didn't know the site had an irrigation system that dispersed radioactive liquid from the holding ponds throughout the surrounding fields to skirt discharge constraints."

McKinley has announced that he will introduce a bill in the Colorado legislature that would require officials at the Rocky Flats National Wildlife Refuge to warn visitors of the site's past. "People shouldn't visit a so-called park that for half a century has been a radioactive waste dump without knowing about the malfeasance that happened there," he said. "You get warning labels on hot coffee, why shouldn't you be warned that you could be walking on 'hot' ground?"

What concerns attorney Balkany the most is that the Rocky Flats cleanup could be used to fuel the myth that nuclear waste can be safely handled. "I believe the main goal of the DOJ and the nuke industry at Rocky Flats is greenwashing. It helps both nuclear power and the nuclear-weapons industries to convince people that industries and government can deal with their waste in a safe way," she said.

This could be of particular interest to the Bush administration, given that just last week, in President Bush's first newspaper interview since his reelection, he told The Wall Street Journal of his hopes to spark a nuclear-power renaissance, glorifying nuclear power in ways that many would deem delusional: "I believe nuclear power answers a lot of our issues," he said. "It certainly answers the environmental issue." He later added: "It's a renewable source of energy." Who's ever heard of renewable energy that creates cancer-causing waste?

"Just watch," said Brever. "They're going to hold up Rocky Flats as the nuclear-waste success story, the flagship. It's going to happen all over the country: Washington is going to make nuclear-waste dumps into plutonium playgrounds."

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