Nuclear regulators try to obstruct Congressional oversight

[kristopher]

From letter by Sen Boxer to NRC 26 Nov 2013
She terms the new policies "controversial and obstructive" and says they are designed to specifically to "justify withholding information from Members of Congress". Sen Boxer lambasts them for making the changes without consultation with Congress stating "It is clear that the changes to the NRC policy work against the interests of Congress and attempt to undercut constitutional oversight."

Full letter with 3 appendixes can be downloaded with this link
http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=394f579a-28c0-46b7-9f9d-1e6fd48ba1be

Appendix 1 Staff Analysis of NRC’s New Policy for Transmitting Sensitive Documents to Congress
SUMMARY: NRC’s new policy removes the rights of most Senators to receive sensitive documents at all, and imposes new means by which even requests submitted by Committee Chairmen will be obstructed, delayed and possibly even denied. The new policy has been altered from one that generally presumes that sensitive documents will be provided to Congressional requesters to one that generally presumes that they will not.

NRC’s new policy removes the rights of most Senators to receive sensitive documents at all
The Commission’s old practice was to provide sensitive documents to Members of its Congressional oversight committees as well as to other Members of Congress when the documents address matters pertaining to his or her State or District. In that manner, Members of the Senate Environment and Public Works Committee could more fully conduct their oversight and legislative responsibilities, and individual Senators not on the Committee could obtain safety, financial or other information related to nuclear reactors or materials that impact their States.

The Commission’s new policy denies sensitive documents to all but Chairs and Ranking Members of its oversight committees (and imposes new limitations on Chairs and Ranking Members as well – see below). If an individual Senator asks that a Chair or Ranking Member make a request for documents on his or her behalf, both the Chair and the Ranking Member would receive copies of all documents produced. This could compromise the confidentiality of the individual Senator’s work, including work related to matters in his or her own State.

The NRC’s new policy directs NRC staff to try to limit the documents provided, even to oversight Committee Chairs and Ranking Members
The NRC’s old policy directed NRC staff to ask for a delay in the provision of “particularly” or “highly” sensitive documents such as ongoing investigations until the matter at hand had been decided. It also allowed NRC staff to suggest a different way to provide the information requested, such as allowing Congressional staff to review the materials on NRC premises or suggesting other conditions associated with their provision. However, if the Congressional requester still wished to receive the documents, NRC staff was directed to consult with NRC Commissioners but then provide them in a manner that clearly indicated that the documents could not be publicly released.

The NRC’s new policy does not distinguish between “particularly” or “highly” sensitive documents and other non-public materials, and requires NRC staff to attempt, as a matter of course, to pursue alternatives to providing any non-public document to the Congressional requester. If the Congressional requester continues to require the documents, NRC staff is directed to provide NRC Commissioners with the opportunity to approve or disapprove a proposed document production. These changes will delay the provision of materials requested by NRC’s oversight Committee Chairs or Ranking Members as each Commissioner determines whether to approve, disapprove, or delay the response even further by insisting that a full Commission vote be taken. This could also result in the denial of some or all of the requested documents to Committee Chairs and Ranking Members via direction of NRC Commissioners absent legal authority to withhold any such materials whatsoever.

NRC’s new policy may seek to deny Committee Chairs and Ranking Members documents that have also been subject to a Freedom of Information Act (FOIA) request

NRC’s old policy allowed for the transmittal of documents that had also been subject to a FOIA request to Congressional requesters as long as they were transmitted with a cover letter asking that they be maintained in confidence until the FOIA determination had been made.

The new policy simply states that NRC staff should keep Congressional requesters apprised of the status of the FOIA request, but is silent on the question of whether the documents will be provided while the FOIA determination is pending. Any person who wished to delay Congressional oversight of a particular matter could seemingly file their own FOIA request for information in order to complicate, delay or deny Congressional requests for the same materials.

Appendix 2 Comparing NRC’s Old and New Policies for Transmitting Sensitive Documents to Congress

Old Policy: http://www.nrc.gov/about-nrc/policy-making/icp-chapter-6-2011.pdf
New Policy: http://www.nrc.gov/about-nrc/policy-making/icp-chapter-6-2013.pdf

SUMMARY: NRC’s new policy removes the rights of most Senators to receive sensitive documents at all, and imposes new means by which even requests submitted by Committee Chairmen will be obstructed, delayed and possibly even denied. The new policy has been altered from one that generally presumes that sensitive documents will be provided to Congressional requesters to one that generally presumes that they will not.

Who in Congress can receive sensitive documents from the NRC?
Old policy: “The Commission's general practice is to provide sensitive documents requested by Members of its Congressional oversight committees. It will also provide sensitive documents to other Members of Congress when the documents address matters pertaining to his or her State or District. In other circumstances, OCA [the NRC Office of Congressional Affairs] should advise the Member that the NRC prefers that such requests be made through the full Committee or Subcommittee Chairman or ranking minority Member of an NRC oversight committee.”

New policy: “Sensitive documents may be provided only upon written request by a Chairperson or Ranking Member of one of NRC's Congressional oversight committees or subcommittees, acting in his or her capacity as Chairperson or Ranking Member.... Individual members of Congress who request sensitive information should be provided publicly available information that is responsive to their requests and offered briefings. The Commission's expectation is that requests for sensitive information will come from the Chairperson or Ranking Member of an NRC oversight committee or subcommittee.”

How should NRC staff respond to requests for sensitive documents they prefer not to provide?
Old policy: “In some cases, where the nature of the documents is highly sensitive, the Commission may wish to consider alternatives to direct transmittal. For example, the Commission may wish to suggest retaining the documents on the premises and making them available to Congressional staff for their review.”

New policy: “When sensitive documents are requested, OCA, in consultation with the Office of the General Counsel (OGC), should first pursue appropriate alternatives to meet the requester’s need for information that do not involve production of sensitive documents.”

What should NRC do when Congress continues to wish to obtain sensitive documents even after hearing NRC’s concerns?
Old policy: For particularly sensitive documents, such as ongoing investigations, “the Commission’s preference is that these documents not be provided to Congress until after the agency has decided the matter at issue. When documents within these categories are requested, OCA will discuss the sensitivity of the document with the requester and ask to defer the request until after the agency has made its decision on the matter at issue. If the requester refuses to withdraw or defer his or her request, then OCA, after consultation with the Commission, will provide these documents to Congress pursuant to the procedures set forth below.” The procedures referred to include a requirement that the documents be transmitted with a cover letter specifying that they should not be publicly released, and each sensitive document should be so marked as well. The presumption in the 2011 document is that sensitive documents will be provided upon request, absent additional direction from the Commission.

New policy: “In recognition of the Commission’s decision-making responsibilities, OCA is to ensure that the Commission receives an opportunity to approve, or a reasonable opportunity to object to, the initial staff tasking that would include the compilation of sensitive documents as well as a proposed response that would include production of sensitive documents.” The new policy does not distinguish between ‘highly sensitive’ and ‘sensitive’ documents, and appears to require an active decision on the part of the Commission to approve or disapprove the document production.

How should the NRC handle Congressional requests for documents that have also been FOIAd?
Old policy: In cases where non-public documents requested by a Congressional source are also being requested under a FOIA request, they should be transmitted to the requesting Congressional committee under a cover letter signed by the Director, OCA explaining that the documents are subject to a pending FOIA request and requesting that they be maintained in confidence pending a FOIA determination.

New policy: In cases where sensitive documents requested by the Chairperson or Ranking Member of an NRC oversight committee or subcommittee are also being requested under a Freedom of Information Act (FOIA) request, OCA should make reasonable efforts to keep the Congressional requester(s) informed of the status of the pending FOIA request.”

http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=394f579a-28c0-46b7-9f9d-1e6fd48ba1be

[FBaggins]

1. CONGRESS has oversight powers...

... Individual congressmen do not.

It's also an issue is executive authority. Congress can't arrogate power to themselves... though they frequently try.

[PamW]

2. The new policy sounds much like what is done with classified information

kristopher,

The new policy sounds very much like what is done with classified information.

As a rule, individual Congressmen / Senators do not get individual access to classified information.

However, certain members of Congress are the "gate keepers" for the rest of Congress with regard to classified information. For example, in the arena of defense and intelligence, Congress has the "gang of eight", who are the chairman and ranking members of both Parties for the Armed Services and Intelligence Committees.

In a way; this mirrors how classified information is handled in the Administration and Executive Branch. A person doesn't get access to classified information just because they have the clearance level for it. Suppose a document is classified at the "Secret" level and a person has a "Secret" level clearance. That person doesn't automatically get access to the classified information.

Someone in the Department's management chain has to certify that the person has a "Need to Know". It's not "Wants to Know", it's "Needs to Know". Someone has to certify that there is a damn good reason for the person to have access to the information. If it is really necessary for the person to do his/her job; then they have a "Need to Know".

Congress has been without this additional check and certification that all other people with access to classified information have. I really have no problem with the Committee Chairman and Ranking Member providing this "Need to Know" certification function.

Congress and their staffers leak like a sieve in most cases; and when it comes to sensitive information from the Nuclear Regulatory Commission; I think it is in the best interest of all to have these additional controls on information.

PamW

[bananas]

7. Yes, many aspects of nuclear energy are so dangerous they must be classified

and those aspects are classified.

This new policy is treating information which should not be classified as if it should be classified.

There's no reason for that other than to hide criminal or irresponsible activity.

[kristopher]

3. Nuclear "Regulatory Capture" -- A Global Pattern

Regulatory capture is a form of political corruption that occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or special concerns of interest groups that dominate the industry or sector it is charged with regulating. Regulatory capture is a form of government failure; it creates an opening for firms to behave in ways injurious to the public (eg, producing negative externalities). The agencies are called "captured agencies".

<snip>

Nuclear Regulatory Commission
According to Frank N. von Hippel, despite the 1979 Three Mile Island accident in Pennsylvania, the Nuclear Regulatory Commission (NRC) has often been too timid in ensuring that America's 104 commercial reactors are operated safely:

Nuclear power is a textbook example of the problem of "regulatory capture" — in which an industry gains control of an agency meant to regulate it. Regulatory capture can be countered only by vigorous public scrutiny and Congressional oversight, but in the 32 years since Three Mile Island, interest in nuclear regulation has declined precipitously.

Then-candidate Barack Obama said in 2007 that the five-member NRC had become "captive of the industries that it regulates" and Joe Biden indicated he had absolutely no confidence in the agency...

http://en.wikipedia.org/wiki/Regulatory_capture

Nuclear "Regulatory Capture" -- A Global Pattern
Karl GrossmanInvestigative reporter


<snip>

...the nuclear regulatory situation in Japan is the rule globally.

In the United States, for example, the U.S. Nuclear Regulatory Commission and its predecessor agency, the Atomic Energy Commission, never denied a construction or operating license for a nuclear power plant anywhere, anytime. The NRC has been busy in recent times not only giving the go-ahead to new nuclear power plant construction in the U.S. but extending the operating licenses of most of the 104 existing plants from 40 to 60 years -- although they were only designed to run for 40 years. That's because radioactivity embrittles their metal components and degrades other parts after 40 years, potentially making the plants unsafe to operate. And the NRC is now considering extending their licenses for 80 years.

Moreover, the NRC's chairman, Gregory Jaczko, recently resigned in the face of an assault on him by the nuclear industry and his four fellow NRC members led by William D. Magwood, IV. Magwood is typical of most NRC and AEC commissioners through the decades -- a zealous promoter of nuclear power. He came to the NRC after running Advanced Energy Strategies through which he served as a consultant to various companies involved with nuclear power including many in Japan -- among them Tepco, as revealed by Ryan Grim on The Huffington Post.

Before that, Magwood served as director of nuclear energy for the U.S. Department of Energy. He "led the creation," according to his NRC biography, of DOE programs pushing nuclear power, "Nuclear Power 2010" and "Generation IV." Prior to that, he worked for the Edison Electric Institute and Westinghouse, a major nuclear power plant manufacturer.

Jaczko, although a supporter of nuclear power, with a Ph.D. in physics, repeatedly called for the NRC to apply "lessons learned" from the Fukushima disaster to its rules and actions -- upsetting the industry and the other four NRC commissioners. As Jaczko declared in February as the other four NRC commissioners first approved the construction of new nuclear plants since Fukushima, giving the go-ahead to two plants in Georgia: "I cannot support issuing this license as if Fukushima had never happened."

The NRC was set up to be an independent regulator of nuclear power to ...

http://www.huffingtonpost.com/karl-grossman/nuclear-regulatory-captur_b_1664340.html

[PamW]

4. NOT THAT FLISMY LOGIC

Karl Grossman states
In the United States, for example, the U.S. Nuclear Regulatory Commission and its predecessor agency, the Atomic Energy Commission, never denied a construction or operating license for a nuclear power plant anywhere, anytime.

NOT THAT FLIMSY LOGIC.

This is old flimsy logic that somehow unless the regulator cancels or denies a plan; they aren't doing their job.

It's just like with building inspectors. Suppose you are building a house, and the building codes require that the electrical wiring be AWG 14 gauge wire. Suppose your building contractor instead of installing 14 gauge installs the lower capacity AWG 16 gauge wire. The building inspector catches the error. What does the inspector do?

Does the inspector say, "That's it - you blew it. You violated building codes. Tear down the house. You don't get to build this house because you made a mistake.".

Although inspectors theoretically have the power to not approve a building that is not built to code; it doesn't come to that.

The builder will always make the minor repair of replacing the wire; if the threat is that the building won't be approved.

So building inspectors never have to order buildings torn down for non-compliance.

The real job of the building inspector is not to tear down non-compliant buildings; but make sure buildings are built to code.

The same is true with the NRC.

Just because building inspectors and the NRC don't deny building certifications / operating licenses as the case may be; doesn't mean they're not doing their job.

They are both making sure that the buildings / power plants are being built in accordance with law.

Grossman is well-known old anti-nuke professor of journalism or some other "soft" field.

His knowledge / command of nuclear power technology shouldn't be trusted.

PamW

[kristopher]

8. NRC is "captive of the industries that it regulates" - Barack Obama

"Barack Obama said in 2007 that the five-member NRC had become "captive of the industries that it regulates" and Joe Biden indicated he had absolutely no confidence in the agency."

http://www.democraticunderground.com/112758653#post3

[bananas]

5. This is very bad, and I'm very disappointed that Alison Macfarlane is going along with it.

Where there's smoke, there's fire. These changes indicate there's either something they are covering up now, or something they intend to cover up in the future, or more likely both. We should assume both, since that's historically common.

A lot of information about nuclear energy is already classified.
There are already procedures for this.
Any information which *might* constitute a national security issue *will* be classified.
The current classification system is often criticized for unnecessarily classifying too much information.
Any national security issues, including local terrorism, would already be classified.
So these changes are not about national security issues.
These changes can only be to hide corrupt practices - both ongoing and planned for the future.

On top of that, the sleazy attempts by NRC workers to intimidate Boxer's staff.
No wonder Boxer is pissed - and justifiably so.

I won't be surprised to find Alison Macfarlane subpoenaed to testify under oath within the next 2 years.
And I won't be surprised if she takes the fifth on every question.

[FBaggins]

6. Go along with it? It's probably her idea.

It's long overdue to prevent congressional abuse of information... but Ed Markey had his anti-nuke lapdog in place to block it... until his own abuses of arrogated authority cost him his job.