Thursday, December 24, 2009

Courts rule: Fed "experts" always right in the eyes of the law

December 24th, 2009

Dear Readers,

The 2nd U.S. Circuit Court of Appeals in Manhattan ruled Monday (12/21/2009) that it must defer to the so-called expertise of the U.S. Nuclear Regulatory Commission (NRC) -- a small cadre of pro-nukers which sort of pretends to regulate the nuclear industry.

And it gets worse: The court could have, perhaps, somehow, rejected the case, or claimed they didn't have jurisdiction. Instead they took on the case, and then abdicated responsibility. They said, in effect: "We'll rule, but we'll rule in favor of the NRC every time." Such momentous things are often reserved for holidays, when the fewest people are paying attention.

The specific topic was an attempt by several states to force the federal government to admit that spent fuel pools at nuclear reactor sites are a serious environmental threat. But even that was too much for the courts.

When we were young, we were taught the following (or should have been):

"Ignorance is no excuse in the eyes of the law."

Well, it appears that, as unbelievable as it may sound, the law itself (i.e., the court system) is allowed to be ignorant!

As long as there's a government agency which claims to understand something, the legal system no longer has to understand it. Not the nuances. Not the scientific foundations. Not the political ramifications. Not the economic factors. Not the alternatives. They just don't have to understand stuff anymore. Calling in so-called "expert" witnesses won't be allowed -- unless they work for the Federal Government and are stating the opinions (taken to be facts by the court) of the agency they work for within the government.

And they can telegraph that opinion to the court by their actions -- they don't even have to show up.

And you can't fight it -- the court will rule in favor of the opinion of the federal agent in every case, without further exploration of the facts.

That's what happened in regards to the opinions of the Attorneys General of three states -- Connecticut (where this author was born), New York, and Massachusetts. The lawsuit was based on a request by Massachusetts and California (where this author resides). The four states involved represent about 1/5th of the population of the United States -- about 65 million people.

About 65 million Americans are not entitled to an opinion. And neither are the rest of you -- you just didn't try to offer one, so you didn't find out you're not entitled to an opinion, either.

Taking the NRC's opinions as fact is essentially the same as allowing the nuclear industry to define the so-called "facts." The U.S. nuclear industry is almost entirely self-regulated, which means it hides things from the federal inspectors, who don't have time to look at more than about 1/10th of 1% of what goes on at the plants. These so-called "experts" are stretched thin as ice, as they ponder dozens of new designs to replace our aging and dilapidated "fleet" of 104 reactors -- aging, collectively, at the rate of 104 reactor years per calendar year. As Neil Young said, "rust never sleeps."

New reactors are not permitted in California, after a landmark case fought decades ago by Jerry Brown against the federal government of the time. Brown won for California the ability to stop NEW nuclear reactors in the state until the spent fuel (aka nuclear waste, "quap," and many other names, some not nearly so benign-sounding, and thus, more appropriate) problem is solved.

This landmark case has stood the test of time in the courts thus far. The latest challenge came just a few years ago by a crazed group out of Fresno who want to build a new reactor, and who have a state assemblyman -- a know-nothing who bases his opinion on campaign contributions instead of facts -- who wants to help them.

That attempt failed (so far; it could be revived), but there have been a few problems -- a few chinks in the armor -- which the nuclear industry has capitalized on to the fullest extent of the law (and beyond). When the California law was enacted it was believed by the duped and, for the most part, ignorant citizens that in a few years, the operating reactors would get too old to operate and be shut down.

One chink is that old reactors can be rebuilt over and over again umpteen times -- forever, if it's okay with the NRC (those "experts" who have just been given a free hand by the courts).

But here's another chink. San Onofre Unit 1 was shut down in the early 1990s for various reasons, but mainly because it simply wasn't cost-effective to operate. But Unit 3 can be reopened. The license can be restarted. The reactor itself cannot -- so-called dry casks sit on the hallowed ground on which it stood, and the reactor dome has been demolished, ground up, hauled away, and washed out to sea. The reactor pressure vessel sits attached to nothing, like a heart removed from a body, shielded by a specially-constructed building and its own 8 inches of steel, the inside being far more radioactive than the outside, but none of it good.

Meanwhile, you're worried about health care reform? It's better not to get sick in the first place. Nuclear waste is so dangerous, that millions of people could be wiped out in a spent fuel fire. Millions more would suffer lifelong debilitating illnesses. Crops, water, soil -- all would be nearly permanently damaged by a spent fuel fire. Damage estimates are that health effects will occur as much as 500 miles "downwind." Trillions of dollars would be lost if San Onofre or Diablo Canyon, or Indian Point, or any of the others were to have an accident in their spent fuel.

Never mind the reactors, we're JUST talking about the spent fuel. The part that's growing, in California alone, by about a thousand pounds PER DAY on average (we have four reactors in California, with a constant threat of a fifth and perhaps a sixth (Humboldt County had a reactor at one time, and could legally be "restarted" although like SONGS' Unit 1, it doesn't actually exist much, anymore).

Spent fuel cannot be transported safely to an offsite repository located some place where there are very few people. Such a place does not exist. Even "desolate" Nevada, where Yucca Mountain is located (the nation's most recent suggested place for the waste) has too many people who live too close to let it happen. Las Vegas alone has about a million opponents to Yucca Mountain, and good luck getting elected from Nevada while openly supporting the project. And at the moment, it's officially stalled by the Obama administration because even pro-nuclear Energy Secretary Chu cannot ignore the science that shows Yucca Mountain is not a safe repository. (It should be noted that the Yucca Mountain team of scientists was allowed to suggest any alternatives they thought were better. They could not.)

The Nevada Test Site (NTS), where Yucca Mountain is located, isn't as big and vast as you might think. Sure, hundreds of nuclear weapons were exploded there above the ground, and hundreds more below it. But they tried to conserve space as much as possible: Bomb blast craters frequently overlap each other at their edges, and many of them are small, as atomic bomb craters go. I flew over it once. It's terrifying, but it doesn't go on "forever."

The radiation from those bomb blasts will go on for millions of years, which is close enough to forever for all reasonable economic, political, and most other projections.

Hundreds of thousands of American soldiers were harmed by that radiation when they were forced to walk through the radiation fields soon after a bomb had gone off, or forced to witness a bomb blast up close (or, more frequently, told to look away and cover their eyes with their hands, in which case they would see the bones of their hands when the bomb went off, from the x-rays running through them). Millions of ordinary citizens were exposed to the fallout from those tests, too.

A nuclear power plant has a thousand times MORE radiation than a nuclear bomb! If a spent fuel fire occurs, the radiation content of DOZENS of refills of the reactor -- thousands of nuclear bombs worth of radiation -- could be released into the world. Millions would die, and millions more would suffer. Trillions of dollars in real estate and other property would be lost forever.

Experts by the thousands have tried, over the years, to solve the problem of what to do with the nuclear waste. But believing it can be solved at all is a bit like believing in Santa Claus.

No, actually, it's a lot like believing in Santa Claus. Sort of a reverse-Santa, who can magically come and take away your icky garbage that you don't know what else to do with. The "solution" to nuclear waste has defied mankind for 60+ years, and this "trend" will continue forever. That's not exactly a prediction, any more than predicting that gravity will continue is much of a prediction.

The reason there is no solution to nuclear waste storage is that radiation destroys ANY container you put it in. Containers are made from chemical bonds, which are much weaker than radioactive decay forces are. Case closed.

Ah, but wait! The case -- the legal case -- cannot be opened, because the courts have ruled that they don't have to understand this stuff. They don't have to understand the energy spectrum, or the nature of matter, or elements, isotopes, molecular biology, or why infants are more at risk than adults from radiation damage.

Nope. Instead, the Nuclear Regulatory Commission is the ONLY expert the U.S. court system will accept -- yet the NRC doesn't have a single medical doctor on its staff, let alone one who is an expert in the health effects of radiation on fetuses. The agency is woefully deficient in understanding metallurgy, too, which is why they have let reactors be built with parts that fail far sooner than expected. It's an industry-wide ignorance, costing hundreds of billions of dollars all around the globe, even without an accident.

And as for human engineering factors -- the NRC will let you get away with anything. They basically just keep on thinking -- no matter what evidence there is to the contrary -- that workers at the plants, who have passed a variety of security checks to be there in the first place, will all do good work all the time. The NRC assumes that any errors that do occur will be caught by the regulators (themselves), and all such errors will be innocently made, and not intentionally covered up. The NRC fervently believes that nothing significant will be overlooked for any reason: Overworked staff, intentional cover-up, ignorance. The NRC has infinite faith in human nature, despite all the evidence they've collected over the years, such as welders who use incorrect computer-control inputs to set the speed of a welding machine's advance while fabricating a spent fuel dry cask on which the lives of millions will rely.

The NRC has done everything it can to ignore the obvious consequence: EVERY WELD, at least every weld by that welder, needs to be re-inspected. But the dry storage casks that were welded incorrectly are now already in use -- full of extremely hazardous nuclear waste.

Worse than that, the NRC isn't even trying to punish San Onofre's owners, where the incident occurred. The worst thing that happened in regards to the incident wasn't even the incident itself. It was the cover-up.

Southern California Edison didn't really mind hearing from one of its senior managers that one of his workers had entered the wrong data. They just blamed the manager for not keeping an orderly operation.

What SCE didn't like hearing was that the welder had intentionally used numbers he knew were outside of specifications. The manager who reported that had approximately 25 years' experience at San Onofre, and before that, worked at one of our national weapons labs (Los Alamos). He was considered one of the best dry-cask fabricators, if not THE best fabricator in the business. Yet SCE chose to try to destroy his career for reporting something the NRC would come down on SCE for, rather than face the problem he reported, take the heat, and let whatever the lap-dog agency, the NRC, decides to do, happen. Even if it cost SCE millions and shut them down.

Instead, Southern California Edison's senior management decided to make the manager not use emails for his complaints (he had to submit them as hand-written documents ONLY), they excluded him from virtually all contact with even his boss, let alone other senior plant officials, and they tried to cover up the very existence of the original complaint by wording all reference to the incident incorrectly, and in such a way that the manager, not the worker, was entirely to blame, and then only for sloppiness, not for any intentional wrongdoing.

The manager, Rick Busnardo, had wanted the welder fired.

Everyone at the NRC and in the nuclear industry always says that where nuclear power is concerned, we can't cut corners. But we do.

In America, as of Monday, December 21st, 2009, winter solstice, knowing the law, knowing the facts, and knowing the science, is not good enough. To be an expert on nuclear waste, you have to work for the Nuclear Regulatory Commission, and by so doing, you are automatically an authority on all issues you choose to adjudicate on, or that the courts feel are too complex for juries and judges to understand and thus throw at you, whether you like it or not. The NRC's opinion stands next to God's as the final word, and no scientific understanding of the facts matters. There are no experts but the appointed and anointed officials of the NRC.

Merry Christmas! You might as well believe in Santa Claus!


Ace Hoffman
Carlsbad, CA

The author has written about nuclear issues for several decades and has interviewed hundreds of top experts in the field. For a background on the science behind this article, see his book THE CODE KILLERS, a free download from

The AP article about Monday's court decision:

At 06:31 AM 12/22/2009 -0500, BG wrote:
>What's a little nuke fire here and there?
>Court: nuclear spent fuel can be stored at plants
>Posted at 03:21 PM on Monday, Dec. 21, 2009
>The Associated Press
>NEW YORK -- A federal appeals court has refused a request by several states to force the Nuclear Regulatory Commission to declare spent fuel pools at nuclear power plants a serious environmental threat.
>The 2nd U.S. Circuit Court of Appeals ruled Monday in Manhattan. It denied appeals by New York, Connecticut and Massachusetts that it review the NRC's rejection of a request by Massachusetts and California that it raise the risk level.
>The states had argued that spent fuel causes a greater risk of fire than previously appreciated. The appeals court said it must defer to the regulatory agency's expertise.
>Connecticut Attorney General Richard Blumenthal said he will continue legal actions to force the agency to create a central national site to store nuclear waste.

Quotes collected by Ace Hoffman:

"Nuclear war must be the most carefully avoided topic of general significance in the contemporary world. People are not curious about the details." -- Paul Brians (author; quote is from: Nuclear Holocausts: Atomic War in Fiction)
�When fascism comes to America, it will come wrapped in the flag and carrying a cross.� -- Sinclair Lewis (first American Nobel Prize winner in Literature, 2.7.1885 - 1.10.1951)
"There is no such thing as a pro-nuclear environmentalist." -- Sen. Tom Harkin (D-Iowa, 1992)
"Know thy self, know thy enemy. A thousand battles, a thousand victories." -- Sun Tzu (Chinese general b.500 BC)
"The most intolerable reactor of all may be one which comes successfully to the end of its planned life having produced mountains of radioactive waste for which there is no disposal safe from earthquake damage or sabotage." -- A. Stanley Thompson (a pioneer nuclear physicist who later realized the whole situation)
"Any dose is an overdose." -- Dr. John W. Gofman (another pioneer nuclear physicist who saw the light (9.21.1918 - 8.15.2007))
"Choose your leaders with wisdom and forethought. To be led by a coward is to be controlled by all that the coward fears. To be led by a fool is to be led by the opportunists who control the fool. To be led by a thief is to offer up your most precious treasures to be stolen. To be led by a liar is to ask to be lied to. To be led by a tyrant is to sell yourself and those you love into slavery." -- Octavia Butler (science fiction writer, 7.22.1947 - 2.24.2006)
"If you want real welfare reform, you focus on a good education, good health care, and a good job.

If you want to reduce poverty, you focus on a good education, good healthcare, and a good job.

If you want a stable middle class, you focus on a good education, good health care, and a good job.

If you want to have citizens who can participate in democracy, you focus on a good education, good health care, and a good job.

And if you want to end the violence, you could build a million new prisons and you could fill them up, but you never end this cycle of violence unless you invest in the health and the skill and the intellect and the character of our children. You focus on a good education, good health care and a good job.

And other than that, I don't feel strongly about anything."

-- Paul Wellstone (US Senator, D-Minnesota, 7.21.1944 - 10.25.2002)
"There are no warlike peoples - just warlike leaders." -- Ralph Bunche (8.7.1903 - 12.9.1971)
"Resistance to tyrants is obedience to God." -- Thomas Jefferson
"Please send this to everyone you know!" -- Ace Hoffman (original collector of the above quotes, January, 2008)

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"Ace Hoffman" <>
PO Box 1936, Carlsbad, CA 92018
(760) 720-7261