Nuclear regulators to Sen. Boxer: 'None of your business' -- Experts question the legal grounds cited by the NRC in withholding documents about the demise of the San Onofre plant.
Orange County Register (2014-06-09) Teri Sforza
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, Shut San Onofre
Attempting to solve the continuing mystery we could call “Who Killed San Onofre Nuclear Generating Station?” U.S. Sen. Barbara Boxer has demanded that the Nuclear Regulatory Commission cough up documents revealing (perhaps uncomfortable) details about precisely how
San Onofre’s nearly new $1 billion steam generators came to poop out so very, very quickly; and what role the NRC’s regulation – or lack thereof – played in the fiasco.
The NRC, smiling tensely, has said it’s doing all it can to fulfill her request, thank you very much, but that it doesn’t have to give her, you know, everything,
as a lot of that is none of Congress’s beeswax. It reminds Boxer that the NRC is an independent
regulatory agency, and that “separation of powers concerns
” protect it against forced disclosure
of certain documents, to ensure that there’s not even the potential appearance
of the NRC being bullied by Congress and its political whims.
Attention, folks: This is not some banal We The People v. We The People battle. While it would certainly be nice to know precisely what crippled San Onofre, and who knew what and when they knew it, there are enormously larger issues at stake:
• More than 116 million people live within 10 miles of America’s aging nuclear power plants. That’s more than one-third of the population of the United States of America.
• The operators of these aging nuclear reactors want to extend their working lives decades longer than originally envisioned. That means installing many new parts and pieces on all of them.
• If the NRC repeats the suspected San Onofre scenario elsewhere (i.e., plant owner opens the lid, says, “I’m just putting in a new light bulb!”; NRC says “Yeah, sure, fine!”; and that light bulb turns out to be more like a neutron star), well, one could argue that public health, safety – heck, even lives – are at stake.
So that’s why this battle is important. So important that, amid the whiplash-inducing legal volleys between the NRC and Boxer’s Senate Committee on Environment and Public Works, Boxer dropped her own little neutron bomb: The public release of a legal analysis that says the NRC and its rationale for withholding information is wrong, wrong, hopelessly wrong.
“These refusals to comply have been accompanied by constitutional and other legal justifications that are highly problematic and unsupported by accepted law and practice,” wrote Morton Rosenberg, a legislative consultant with 35 years in the American Law division of the Congressional Research Service.
“(T)he NRC Chairman demonstrates a profound misunderstanding of the plenary (legal word meaning “unqualified; absolute”) nature of Congress’s investigatory power in the circumstances prevalent in the SONGS matter; misstates the authority of three cited cases dealing with the law on congressional intercession in agency decisionmaking; ignores the overwhelming contrary case law ....; and shows a lack of awareness of over 90 years of congressional investigations in which agencies have been consistently obliged to provide documents and testimony ....
“In the present circumstance, there is no question of constitutional power allocation,” Rosenberg wrote. “The NRC is a creation of the Congress which alone is responsible for its mission, authority and funding and is ... subject to Congress’s plenary oversight power to determine how well it is performing.”
The NRC declined to respond to this particular little bomb. But, in the past, it has argued that it’s allowed to withhold from congressional inquiry documents related to ongoing NRC investigations, and documents detailing how it arrived at decisions and enforcement actions, and “internal deliberative documents.”
Why? Because the revelation of such documents would undermine the ability of its officials to communicate freely and candidly with one another to make sound and independent decisions, the NRC argued.
Now, these sorts of conflicts are fairly common. And they pretty much end only one way.
“They do have to, sooner or later, turn this stuff over,” said Denis Binder, law professor at Chapman University. “This is not a national secret that should be kept from the public. There were major problems with a nuclear power plant that made it shut down, and the people charged with oversight need to know what happened for possible regulation in the future.”
The NRC’s refusal to hand over the documents Boxer seeks “gives the impression that somebody screwed up and they’re trying to cover up,” Binder continued. “It’s common, but the investigators usually win. Congress has the power of the purse. Congress has created the agency. Congress controls the rules and regulations by which they operate. And Congress has an oversight function. The question to ask is, what are they hiding? What don’t they want to come out?”
Indeed. Critics charge that the NRC really dropped the regulatory ball by failing to rigorously monitor the safety, design and installation of San Onofre’s steam generators. Operator Southern California Edison said the new generators were essentially “like for like” (meaning mostly identical to what was there before), and the NRC agreed (thus allowing So Cal
Edison to bypass an intense, exhaustive, expensive and extremely public license amendment process).
But in fact, critics charge, the new generators were designed to greatly boost power output. “On the outside, they may look identical, but on the inside, they’re dramatically different. It’s like taking a Model T and slapping a V-8 engine in it,” said Arnie Gundersen of Fairewind Associates after examining the situation in 2012.
Edison and Mitsubishi, the manufacturer of the steam generators, blame each other for the fantastic failure.
In September, the NRC announced that it had identified flaws in the computer codes that Mitsubishi used to design the failed generators, and issued a “Notice of Non-Conformance” against Mitsubishi. The NRC also cited So Cal
Edison for the failed design created by Mitsubishi.
It might have been more useful for the NRC to help find those flaws before the new generators were built, at a cost of $671 million.
To underscore, Boxer blasted the NRC chairman at a hearing last week. “It is vitally important that the NRC remain committed to its mission, which is ‘to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment,’” she said. “Based on a review of the progress made since the Fukushima disaster and on what additional steps need to be taken by NRC to ensure the safety of the people and the environment, I am afraid that you may have lost sight of that mission.
“The Fukushima Near-Term Task Force, made up of NRC senior staff, recommended 12 measures to upgrade safety in the wake of the Fukushima meltdowns.... As of today, the NRC has failed to require reactor operators to complete implementation of a single one of these post-Fukushima safety measures.... This is an unacceptable delay that puts the safety of the American people at risk.”
At that hearing, Sen. David Vitter, R-La., accused Boxer, D-Calif., of “using semantics to confuse and scare the public” in a “subversive and undercover effort to really cripple the nuclear industry, which is on-going.”
So what’s next? Negotiations between the NRC and the committee continue. It appears that Boxer’s committee is headed to subpoena the NRC’s documents, said Thomas Campbell, dean of Chapman University’s law school; and if NRC refuses to comply with a subpoena, she can go to the full Senate for a finding of contempt.
“However, the (Department of Justice) has to enforce a contempt citation, and it’s unlikely the same President who appointed the members of the NRC would authorize his Attorney General to seek contempt sanctions against the NRC,” Campbell said by email. “Hence, it’s likely not to go much further. However, I can imagine the White House does not want this issue detracting from its support base in the environmental community; so there may be a deal worked out between Sen. Boxer and the NRC under White House prodding, that will allow Sen. Boxer to see most if not all of what she wants.”
The 116 million or so folks who live within 10 miles of the nation’s aging power plants might be interested in seeing them, too. We certainly are.
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