"Public Participation" or Citizen Pacification: What Does the Nuclear Regulatory Commission Really Want?
On January 31, 2013, I appeared before the five-member Nuclear Regulatory Commission (NRC) in Rockville, Md., to present NRDC’s views on the agency’s rules governing (and sharply limiting) the public’s participation in the nuclear licensing and rulemaking process. As fate would have it, the NRC’s webcast of its meeting on public participation failed for all but the last 20 minutes of the three hour session! (As one attorney I know often quips about the NRC, “you just can’t make it up.”) To the commission’s credit, however, archived video of the session is available here.
I used the opportunity afforded by submission of a prepared statement to give the commissioners a comprehensive overview of the cumulative exclusionary effect on public interveners [spelled “intervenors” in NRC parlance] caused by the steady accretion of rules restricting the ability of concerned citizens, states, and municipalities to exercise the adjudicatory public hearing rights supposedly guaranteed to them under the Atomic Energy Act of 1954 (AEA). This statement also includes an Appendix projecting how these segmented and restrictive rules could interact over time to produce nuclear regulatory gaps that could seriously degrade public health and safety.
One hypothesis receives immediate confirmation
In my prepared statement, I had begun by noting, “I think we have divergent views about what the phrase ‘public participation’ means,” and then I went on to write:
“…the dominant view among Commissioners and Staff seems to be that ‘public participation’ is either a legal necessity foisted on the agency by the vestiges of the original Atomic Energy Act of 1954, or a useful component of an overall public communications strategy geared to reassuring the public that nuclear power plants—even aging obsolescent ones—are safe. In this view, public participation in informational type meetings…is intended to give the public a reassuring glimpse into the regulatory process ongoing in the background, in which the NRC’s vigilance and expertise will continue to keep nuclear power plants safe.”
While I have long believed that this “strategic communications” paradigm is what shapes the attitude of many NRC officials toward public participation, I hardly expected immediate confirmation of my hypothesis from that morning’s proceedings. But when Chairman Allison McFarlane queried Bill Borchardt, the NRC’s Executive Director for Operations, regarding “the impact of public input you receive,” he replied as follows:
“…talking from the licensing perspective, and the inspection perspective, having a wide range of meetings and opportunities for engagement of various stakeholders… provides an opportunity to … actually have a face-to-face conversation with people that are sincerely interested about what's going on in that facility…so that we can receive what they're concerned about, explain what the NRC inspection program is about, the findings—it helps…to establish a sense of trust with those individuals and organizations so that they are aware of what we do, how we carry out our regulatory responsibilities, and that they know they have someone they can contact if they have a concern that they believe needs to be addressed.”
In other words, public reassurance, rather than improved safety, appears to be the first- order objective of the NRC’s engagement with the public. Indeed, in the staff slide presentations, the terms "nuclear facility licensing" or "licensing process" did not appear-- they have been replaced by the phrase "NRC Adjudicatory Processess" -- and yet the granting, amendment, or renewal of a facility license is the only mode of "public participation" that affords citizens the potential for pursuing a contested safety or environmental issue to an independent judicial resolution that lies outside the unilateral exercise of the Commission's discretion. It is also the mode of public participation that lies at the core of the NRC's statutory authority, the Atomic Energy Act. But one would be hard pressed to draw this conclusion from the Staff's busy graphic on "Public Participation and Interaction" (Hint: hunt for the symbol of a gavel).
The conjoining of "public participation" with "public interaction" is revealing, especially when the topic of the meeting was specifically "Public Participation in NRC Regulatory Decision-Making." On the bright side, this chart leaves little room for doubt that the NRC is in the forefront of the world's nuclear regulators in the sheer quantity of information that it makes available to the public about its inspection and enforcement activities, and such transparency is all to the good. A concerned citizen in Russia, or China, or India is routinely denied the kind of information the NRC supplies the public in abundance. But at the end of the day, in a democracy mere "transparency" and "public interaction" do not amount to meaningful participation in NRC regulatory decisionmaking. This can only come from citizen participation in the nuclear facility licensing process itself, which confers certain procedural rights, including the right to seek review of the agency's final decision by a Federal Appeals Court.
An Insular Regulatory Regime Has Consequences, and Not Only in Japan
In the ten minutes allowed for my oral presentation, and during the question and answer session that followed, I sought to outline the inequities and dysfunctional aspects of the NRC’s current rules governing public participation in the licensing process, and offered some concrete suggestions for how these flaws might be remedied. I noted that the current “strict-by-design” contention “admissibility” requirements place a steep barrier in front of affected members of the public seeking access to the hearing process to adjudicate their nuclear safety and environmental concerns, and that this actually harms the NRC’s efforts to maintain and improve nuclear safety.
An illustration of this point is currently on full display in Southern California, where a mega-costly error in the design of replacement steam generators for the San Onofre Nuclear Generating Station (SONGS), culminating in radiation leaks and the shutdown of both reactors, might well have been uncovered had the project been subjected to the independent external scrutiny of a public license amendment process (look here to peruse the NRC docket for San Onofre, which includes NRDC’s January 2013 Amicus brief in support of Friends of the Earth outlining why a public license amendment proceeding is required to consider whether, and under what conditions San Onofre might be permitted to restart.)
Under the standards set forth in the AEA, the Commission is directed to grant a hearing “upon the request of any person whose interest may be affected by a licensing or rulemaking proceeding, and admit any such person as a party to such proceeding.” The current pleading requirements are very hard to reconcile with this statutory direction. They should be scaled back to reflect a good faith implementation of the standard expressed in the AEA.
For example, to be admitted as a party to a licensing proceeding, petitioners should need only to demonstrate “standing “– i.e. that they have a bona-fide interest that could be affected by the proceeding – and to frame a cognizable “request” that (a) outlines a nuclear safety, public health, security, common defense, or environmental concern within the purview of the AEA and/or NEPA that is within the scope of the proceeding to which they seek admittance, and (b) provides a succinct statement of the facts that leads them to the conclusion that their concern regarding compliance with NRC rules, the Atomic Energy Act, or National Environmental Policy Act (NEPA) warrants further investigation by a licensing board to ensure, in the words of the Administrative Procedures Act, “a full and true disclosure of the facts.”
I personally would not go much further than this, but there are obviously several places, beyond mere “notice pleading,” but well short of NRC’s current draconian “contention admissibility requirements,” where reasonable people of good will could agree to draw the line. The current requirements are excessive and their net effect on public involvement is contrary to the letter and intent of both the AEA and NEPA.
Unfortunately, courts over the years have allowed the NRC to construct a wide moat between itself and the public because its regulatory authorities are outlined in the Atomic Energy Act in only the most general terms, thus affording the Commission and its 4000 plus staff virtually unfettered discretion to promulgate a vast and mostly impenetrable pastiche of rules and regulatory “guidance,” (including numerous exceptions to the rules), which purport to precisely define the NRC’s application of its regulatory authority to licensees and the public’s participation in the licensing process.
The Multiple Hurdles en Route to a Contested Hearing
As things now stand, prospective “public intervenors” must assemble, within 60 days of the agency’s public notice of a hearing opportunity, a complete preview of their entire case, including references to the specific sources and documents on which the petitioner intends to rely to support its position, and sufficient information to show that a “genuine dispute exists with the applicant/licenses on a material issue of law or fact,” and references to the specific portions of the application that the petitioner disputes, and the supporting reasons for each dispute, and all contentions must be based on documents or other information available at the time the petition is to be filed (rather than plausible allegations to being vindicated through future discovery and cross examination).
In essence, citizen petitioners must have the resources to try their case at least twice, once at the contention “admissibility” stage, and all over again if they are lucky enough to gain a hearing on the substantive merits of their claims, all the while remaining confined within the artificial constraints imposed on their initial pleading, which NRC rules make very difficult and costly to amend in light of further information and insights. To make matters worse, the applicant may immediately appeal to the full Commission any licensing board decision to admit a public intervenor’s contention, whereupon additional legal briefing on the matter is required. All this without ever getting to a first evidentiary hearing on the merits, which one imagines would be a far more efficient and fair process for promptly weeding out supposedly “meritless” contentions from ill-informed citizens.
The NRC’s current rules demand an excessively litigious approach to a process that should be geared in the first instance to promptly ascertaining, not whether the petitioners have demonstrated a “specific material litigable dispute” with an applicant, but whether they have raised a safety or environmental issue worthy of further exploration by the type of three person board – comprised of two technical experts and a third expert schooled in the conduct of regulatory agency proceedings – that the Atomic Energy Act created expressly for the purpose of assisting the Commission in adjudicating the public’s concerns.
Litigating Compliance with Rules versus Adjudicating Important Safety Issues
Licensing boards were created to conduct quasi-judicial administrative and fact-finding proceedings in order to adjudicate disparate interests and claims regarding the hazards posed by NRC-licensed facilities. This important substantive safety function cannot and should not be reduced to a kind Talmudic parsing and reparsing of the NRC’s bewildering and sometimes contradictory array of rules, requirements, exceptions, “enforcement discretion,” “regulatory guidelines,” “statements of consideration,” “policy statements,” and so forth, which ordinary citizens and even most nuclear experts have little reason or motivation to master in order to make substantive contributions to nuclear safety and/or environmental protection.
It defeats the entire purpose of the process to force citizen petitioners—who may be in possession of insights and information important to NRC’s safety mission, but unschooled in the arcane complexity of NRC’s rules—into such a narrow, technically litigious and costly framework before they have had a chance to appear before a licensing board tasked with exploring the substantive merits of their contentions at hearing. Moreover, this narrow litigious approach seems predicated on a misplaced belief, akin to papal infallibility, that every conceivable safety, environmental, security, or common defense concern is somehow already encompassed and correctly determined by NRC’s existing rules.
Two Against One: NRC Staff Join Industry in Double-Teaming Public Intervenors
It was quite apparent from both their demeanor and statements at the meeting that the Commissioners themselves have only a vague grasp of what this vast body of rules requires in any particular instance, thus effectively empowering the Staff to predetermine most Commission decisions via their interpretation of what these rules “require.” And probably 9 times out of 10, the Staff’s recommended course of action, on both the admissibility and merits of a contested issue, coincides with that of the license applicant, not the public intervenor. No surprise there, you say? But what if the professional staff of the FDA or EPA had the same batting average on behalf of companies seeking approvals to market new drugs or agricultural chemicals? Tens of thousands, perhaps millions of us would be crippled or prematurely deceased due to such a one-sided lack of skepticism of a regulated entity’s claims. Clearly, the NRC’s unusually high degree of alignment with the views of the industry it regulates – it has for example, never denied a request to relicense a nuclear power plant – does not reflect some broadly acceptable norm for regulatory agencies.
NRC Assistant General Counsel Bradley Jones explained the Staff’s hand-holding approach to industry this way: “I don't know the licensee that is willing to go to the [public] hearing [opportunity announcement] with NRC staff opposing their application. It's not a very fruitful exercise. Over the years, we tried to make more transparent to the public the process by which the applicant and the staff end up in agreement, you know, by the time the hearing actually takes place, that this looks like an application that should be granted….the reality is applicants don't want to go to a hearing with NRC opposing the application, so we're likely to work at it until we get on the same page before that happens.” (Jan. 31 meeting transcript, p. 16).
Needless to say, at the outset of the hearing process the NRC Staff is under no compulsion, legal or otherwise, to actively support an application, other than to certify that it is materially complete and ready for review by the public and the Commission. Indeed, even though the Staff is not required to be, and is usually not a “party” to a contested licensing proceeding, and could just as easily stand aside or remain neutral, it almost invariably acts as an additional de facto legal advocate for the applicant, even on matters, such as environmental impacts, where its expertise is questionable.
I also pointed out to the Commission the self-referential character of the current strict pleading standards, which focus narrowly on whether petitioners have managed to pinpoint a specific material dispute concerning an applicant’s compliance with NRC rules. Totally missing from this framework is the reality that petitioners may be seeking to adjudicate whether certain actions or requirements of the Commission meet—not its own rules—but the “adequate protection” standard laid down in the Atomic Energy Act, or the “hard look” standard for environmental review under NEPA.
For example, in a licensing proceeding involving the sensitive issue of easily-concealed laser enrichment (of uranium), the Staff recently claimed that “the nonproliferation issue” was “unrelated to the NRC’s licensing criteria” for this facility and, even more improbably, “not within NRC jurisdiction.” Had NRDC been apprised of this plainly erroneous legal view early enough in the proceeding to seek and obtain party status – by no means certain -- and had the necessary financial resources been at our disposal, we most certainly would have wanted to pursue before a licensing board the question of whether the Staff’s refusal to evaluate the proliferation implications of this technology constituted a violation of its non-discretionary duties under both the AEA and NEPA. But the NRC’s current rules precluded such a legal challenge, even when the erroneous refusal to conduct a nonproliferation impact analysis was repeated in the Environmental Impact Statement (EIS) and put out for public comment.
Restoring a Modicum of Fairness to the Contested Hearing Process
In addition to revising the pleading standards, and giving more discretion to licensing boards to probe and evaluate petitioners claims in an evidentiary hearing before deciding whether to pursue or discard them, I commended to the Commission’s attention a number of other modest reforms that would make the licensing process more accessible and equitable for citizen intervenors:
1. A notice of hearing opportunity should be published only after the Staff determines that the a license application is materially complete in all respects, and the number of days allowed to prepare a hearing request should be reasonably related to the scale of the hurdles that petitioners must surmount in order to file admissible contentions. For example, with today’s requirements, 180 days would be a more equitable timeline. With the reduced pleading standards I outlined earlier, the current 60 days might well suffice.
2. Regardless of what pleading standards are adopted, when the Staff is notified of a company’s intention to submit a license application, it should establish a single consolidated electronic file, and into that file should henceforth be deposited all the correspondence and documents of the applicant and the Staff relating to the application that do not contain proprietary business information, trade secrets, and the like. The current system of placing the entire burden on petitioners to discover and retrieve from NRC’s convoluted ADAMS electronic records system all documents relating to the application is burdensome and unfair, when the Staff could very easily establish a consolidated file open to all parties with an interest in the application as it develops.
3. Also as a matter of elemental fairness, I urged another simple reform: in matters where the NRC Staff agrees with any other party – it’s nearly always the Applicant -- the Staff should be compelled to file joint motions and briefs, thus reducing the inequitable burden on petitioners to respond to multiple slight variations in the same basic arguments for excluding them from the licensing process. This rule already applies to all intervenors, regardless of whether they are private citizens, sovereign states, local governments or Indian Tribes, by requiring that they be consolidated for all purposes on any issue on which they take the same position.
4. Eliminate the asymmetry in so-called “interlocutory” appeal rights as between the Applicant – who can lodge an immediate appeal to the Commission on the question of whether a board’s ruling admitting a contention should have been wholly denied – and the Petitioner, who has no right of interlocutory appeal on the question of whether the contentions the board rejected should have been admitted, but only on denial of the entire petition. Or possibly, get rid of interlocutory appeal rights altogether on the questions of standing and admissibility, and let the licensing boards decide these questions, reserving appeals to the Commission based on the complete record of a Board’s determinations on all issues.
5. Revise the Commission’s NEPA rules to end the onerous and problematic requirement that all NEPA contentions must be lodged by admitted parties at the outset of a licensing proceeding, based on a “genuine dispute,” not with the agency’s EIS, but with the applicant’s environmental report “on a material issue of law or fact.” This rule is problematic, obviously, since NEPA does not apply to the private applicant, but rather to the “major federal action” of granting a license, and no such premature and burdensome requirement is imposed on NEPA commenters by other agencies of the US government. I suggested creating a separate and later entry point for State officials and other petitioners who may determine, based on the agency’s failure to remedy flaws they have identified in comments on the Draft EIS, that they have serious environmental objections to the granting of the proposed license.
6. Get rid of all the current rules limiting the right to file new or amended contentions based on the draft and final EIS documents. These rules actually promote nonsensical outcomes, and are an artifact of the current burdensome requirement that petitioners with environmental contentions must be a party to the licensing proceeding from the very outset, even though they may have no bona fide interest in the nuclear safety aspects of the proceeding and no ability or resources to satisfy the contention admissibility standards.
7. Give citizens desiring to participate in the NRC’s NEPA processes the same rights and obligations they have as participants in NEPA proceedings before other agencies, and adopt an affirmative policy that Council on Environmental Quality (CEQ) regulations apply to the conduct of NRC’s NEPA activities.
Cozy Regulation has weakened the US Nuclear Industry
Ironically, the pro-industry slant of the NRC’s convoluted rule book has not aided the prospects of the nuclear industry, which has failed to connect a new nuclear plant to the grid in almost 17 years. NRC regulation has instead blatantly favored extending the operating life (from 40 to 60 years) of aging and technologically obsolescent plants with safety and environmental problems that the Commission rarely acts to remedy decisively. Indeed, for almost two decades the public has been precluded by rule from even raising nuclear safety issues in a relicensing proceeding, unless the issue can be tied to known effects of “aging” in specific plant equipment or materials. The NRC has even determined “generically,” for all plants applying for license extension, that the risk posed to the public from a severe nuclear accident, like that experienced at Fukushima, is “small” and not worthy of reevaluation.
The net result of such regulatory coddling is a nuclear utility industry that has invested little in research and development to improve the safety and environmental performance of its plants, and that has continually deferred safety and environmental upgrades, leaving it poorly positioned to compete for market share in the coming transformation of the grid to low-carbon electricity production. On the contrary, the shale gas boom and increasing competition from cleaner renewable energy sources have placed the continued safety of these older nuclear units in direct conflict with their future commercial viability, setting up uncomfortable tradeoffs for owners, utility regulators, state and local officals, and the tens of millions of citizens who live near these plants. These various interested parties frequently have different information and perspectives on how to resolve these tradeoffs, and NRC’s responsibility under the Atomic Energy Act and NEPA is to ensure the fair hearing and adjudication of such divergent views. The NRC’s current regulatory practice unfortunately falls far short of this standard.
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