10 The head of the NRC division charged with reviewing the SSPSA Update did inform the Subcommittee staff that he recalled Executive Director for Operations, Victor Stello, advising the utility not to use new source term assumptions in its submittal. This suggestion was offered prior to the completion and submittal of the documents to NRC. Moreover, between June 20, 1986 and July 15, 1986 there were seven meetings and telephone calls between Derrickson and several high NRC staff officials. PSNH submitted the Seabrook Station Risk Management and Emergency Planning Study and the Emergency Planning Sensitivity Study to the NRC for review on July 21, 1986. In these documents, PSNH contends that an emergency planning zone of a 2-mile or even 1-mile radius may be justified for Seabrook. Since current regulations provide for a 10-mile emergency planning zone around nuclear power plants, NRC would have to grant PSNH an exemption from the regulations in order to reduce the EPZ to less than 10 miles. On July 29, 1986, PSNH requested that the NRC expedite the review as follows: "A future submittal, depending on the results licensing. This is important in light of the Subcommittee interviews with NRC staff indicate NRC'S complete understanding that at the outset, PSNH solicited and secured the benefit of the technical expertise of the NRC to ensure that if and when the company seeks an exemption, the Commission will be predisposed to grant it, because the NRC staff already will have approved the technical basis for that exemption. A July 29, 1986 staff note indicates, "Derrickson wants to know if this could serve as a technical argument. If not, he won't file. Pointout which technical arguments are good vs. no. . NRC staff also acknowledged that they were and continue to be well aware that if the study's conclusion is upheld by the Commission, the utility probably will be able to remove itself from its apparent stalemate with Massachusetts over emergency planning and will be in a position to obtain Seabrook's operating license. 11 NRC mobilized very quickly to coordinate this review. Within 15 days of receiving the study, the Commission had contracted with the Brookhaven National Laboratories to assist in the review. By August 6, Brookhaven had prepared a detailed project description for the review. Brookhaven's list of review milestones outlined a three month undertaking at a cost to the NRC of $245,000. NRC staff concedes that this short time frame is "out of the ordinary. On September 26, 1986, PSNH and the NRC staff presented reports on the study and its review to a subcommittee of the Advisory Committee on Reactor Safeguards (ACRS), and on October 10, 1986, reported to the full ACRS Committee. The ACRS Committee is composed of scientists who advise the NRC on potential hazards of proposed or existing reactor facilities and on the adequacy of proposed safety standards. ACRS has been reviewing the study separately from the NRC review, and will provide to NRC in early 1987 an independent recommendation on the merits of the study. At the September meeting, the utility reiterated its desire to increase their range of options relative to emergency planning. Mr. Derrickson related the utility's "need to know the conclusion of the NRC as to our results so that we can move forward. We really can't move forward until we know we have some level of agreement." The Subcommittee staff has serious concerns about the NRC staff's approach to the review, and specifically how they perceive their role in this process. Although NRC contends that what they have undertaken is strictly a review of the technical merits of PSNH's study, NRC internal documents and staff notes from meetings and discussions with the utility and its consultants indicate that members of the NRC staff frequently speak as advocates rather than objective regulators. NRC staff often sound as if they are trying to help the utility put the best face on the conclusion of the study. ... For example, in a July 25, 1986 staff meeting, almost immediately after the NRC had received the study, one NRC staff person noted, "what do we (emphasis added) have to justify to change EPZ? need to consider technical and legal" (emphasis in original). The tenor of these comments seems to contradict what the NRC has told the Subcommittee about the review. It is important to recognize here that the NRC has not been asked yet to address the question of a change in the emergency planning zone, and has told us specifically that it is not considering it. Moreover, even if PSNH had requested an exemption from the 12 emergency planning regulations, NRC staff, as employees of the pertinent regulatory agency, would not be considering what the NRC had to justify to change the EPZ. In such a case, the burden of proof would be on the utility. NRC's regulatory mandate to oversee the nuclear industry runs contrary to this approach. NRC staff has told the Subcommittee that NRC made the determination that this review was appropriate, in the context they outlined for us, because it is an objective" review of the studies' technical merits only. By setting out to support the studies, NRC has abdicated its regulatory responsibilities. An NRC staff note from an August 27, 1986 meeting with PSNH staff further illustrates the cooperative nature of the NRC/PSNH approach to this review: "Review group [illegible] Novak, coordinated with the utility, with a list of goals... We need to think about what this group can do in three months" (emphasis added). [Novak is the acting Director of the Division with primary responsibility for the review.] Moreover, NRC staff meeting notes and the attached chronology of meetings between NRC and the utility appear to suggest NRC staff acceptance of the political and legal objective of the study: to "get rid of Massachusetts so they don't have to submit" emergency plans for the affected communities. In another meeting, an NRC staff representative wrote: "Unique features of the Seabrook containment Let's INRC staffl try to make it more unique show it's better than average. Through these comments and many others in which the staff seems to be trying to help the utility to put the conclusions of the study in the best possible light, it appears that the NRC staff well may have surrendered the "impartial professional attitude befitting the staff of a regulatory agency. . The NRC expects a preliminary Brookhaven report on the review by the last week in November. Presumably, if Brookhaven indentifies inadequacies in the study, the utility may correct those inadequacies and resubmit the study for a renewed NRC/Brookhaven review. NRC staff has informed the Subcommittee staff that as long as the utility wants to pursue NRC approval of the study, this process of evaluation and reevaluation could continue indefinitely. We believe that should such a process evolve, the NRC essentially will be a full partner in the development of the study if it is not already. The conduct of the NRC staff with respect to the Seabrook studies pertinent to emergency planning raises numerous troubling questions for consideration by the Subcommittee. 13 O Is it proper for NRC staff to conduct a review of this study in the absence of a formal petition or exemption request by PSNH? O When is early involvement by NRC staff in a licensee study associated with a clear regulatory intent inappropriate? How much involvement is appropriate? What guidelines should the NRC staff use in making these decisions? O Has the NRC blurred, if not erased, the line between advocacy and technical comment in the licensing process? When the Subcommittee staff asked the NRC staff to draw a distinction between the goals of the utility and the NRC in this review, especially as supplemental information is exchanged during the review, the NRC was hard pressed to draw such a distinction. We believe that the Subcommittee might usefully question the propriety of an NRC review of a licensee study which the staff understands may be used by the utility as the technical basis for a future request for an exemption from NRC regulations. PSNH has solicited and secured the benefit of the technical expertise of the NRC to ensure that if and when the company seeks an exemption, the Commission staff will support granting it, because that same NRC staff already will have approved the technical arguments supplied as the basis for that exemption. If PSNH pursues such an exemption, the same NRC staff will be called upon by the Atomic Safety and Licensing Board and/or the Commissioners to provide their views. The NRC is charged not only with the licensing of nuclear power plants. More importantly, it bears the responsibility of protecting the public from the health and safety hazards of nuclear power. The public has every right to expect that the Commission will discharge its duties impartially. If the integrity of the regulatory process is to be maintained, the Commission and its staff must take particular care, especially in contested licensing proceedings, to avoid even the appearance of favoratism, promotion, or partiality. The staff must abide by a standard of conduct which avoids planting seeds of doubt in the public's mind that the regulatory process has been biased. In effect, the public regards the NRC as judge and jury. When the staff acts in such a way as to engender doubts about the Commission's objectivity, then the public may perceive that the Commission is stacking the jury in favor of the nuclear industry. To permit even such an appearance undermines the credibility of the regulatory process. 14 Especially in the case of Seabrook, where the public confidence in both the NRC and PSNH is strained at best, the public interest might have been better served by a more open and formal review process. How and where to draw the line is another question the Subcommittee may wish to address. In short, the NRC appears not to have been sufficiently sensitive to the public's concerns about the potential safety implications of reducing the emergency planning zone at Seabrook. The staff's actions to date threaten to inflame public sentiment rather than to provide the inarguably impartial discourse necessary to calm it. PAST NRC STAFF COMMENTS ON DEFERRING REQUESTS FOR REDUCING As noted above, the question of reducing the size of the EPZ had arisen previously, in a request by Baltimore Gas & Electric to seek a reduction in the size of the EPZ for Calvert Cliffs. In that instance, Robert Minogue, the Director of the Office of Nuclear Regulatory Research, wrote the following in a January 27, 1986 memorandum to Harold Denton. "At the last RES quarterly meeting it was agreed A few of those reasons are illustrative. "The orderly progression of generic rulemaking on the "The public must be involved in major rule exemption or rulemaking decisions. However, because of the broad policy implications of this action, the public would be better served with a generic rulemaking rather than a site-specific one. . |