by Karl Coplan
As we watch with horror the events unfolding at the Fukushima Daiichi nuclear power plant in Japan, it is clear that (as with the BP/Deepwater Horizon oil spill last year) we are witnessing not just an engineering failure, but a failure of a system of environmental regulation to anticipate and prevent these sorts of large scale disasters. Those who have been involved in the environmentalist side of nuclear power issues in the United States have long been arguing that existing reactor and spent fuel management could not be relied on to prevent the sort of cascade of failures now in progress at the Fukushima Daiichi plant. These arguments have fallen on deaf ears at the Nuclear Regulatory Commission, the US Agency charged with regulation of nuclear power plant licensing and safety.
Environmental advocates generally support the regulatory state under the belief that expert agencies free of political influence will be more likely to protect public safety and environmental values than more politically responsive government actors. But the experience with the Nuclear Regulatory Commission certainly belies any notion that independent agencies are preternaturally more protective of environmental values than political actors. The NRC is a classic “independent agency” — its commssioners are appointed for five year terms, and are not removable by the President except for “inefficiency, neglect of duty, or malfeasance in office.” 42 U.S.C. sec 5841(e). No more than three of its five members can be of the same political party.
This record of this particular independent agency has been one of secrecy, avoidance of public participation, and minimization of environmental values. From its inception, the Nuclear Regulatory Commission and its predecessor agency has a history of avoiding environmental impact review (Calvert Cliffs Coordinating Committee v. Atomic Energy Commission) and manipulating procedures to avoid considering integrating environmental values into the licensing process (Vermont Yankee v. NRDC).
Ironically, the 1979 Vermont Yankee case dealt with (and ultimately permitted) the commission’s procedural machinations to avoid a full adjudicatory hearing in the context of an individual license on the problems (and environmental impacts) of nuclear waste disposal. The commission at the time removed the issue from individual licensing proceedings by adopting a rule declaring, generically, that the environmental risks and impacts of spent fuel reprocessing would be minimal. Thirty years later, we still have no functional plan for nuclear waste disposal in this country, and the NRC continues, by rule, to preclude consideration of spent fuel issues in the context of nuclear power plant relicensing. Similarly, seismic issues are strictly limited in relicensing proceedings by NRC’s rules directing that only issues related to plant aging are relevant in a relicensing.
As a result, spent fuel continues to pile up in storage pools at US reactor sites, packed in densities far higher than the pools were originally designed for. (The pools were originally designed to hold spent fuel only until it was cool enough to be shipped for reprocessing; in the absence of a reprocessing system and long term geologic disposal, plants across the country received license modifications to permit long term storage of spent fuel at higher densities than originally designed). These exact sorts of spent fuel pools, retroactively approved for higher density fuel storage, are what pose the greatest threat of widespread contamination at the Fukushima Daiichi nuclear power plant. Unlike the active reactor core, these spent fuel pools have no containment systems around them, and loss of cooling water both exposes emergency workers to acutely fatal radiation doses at the same time as the fuel heats up and begins a chain reaction that leads to a spent fuel fire lofting radioactive wastes into the atmosphere.
While other nations, such as Germany, have imposed immediate moratoria on nuclear power plant license extensions, the US Nuclear regulatory commission has sought to assure the public that the unfolding Fukushima Daiichi disaster can’t happen here, despite the fact that US nuclear power plants are nearly all of the same vintage as the Fukushima Daiichi plant and use the same uncontained, overstuffed spent fuel pool design. Today, President Obama “asked the Nuclear Regulatory Commission to do a comprehensive review of the safety of our domestic nuclear plants in light of the natural disaster that unfolded in Japan.” Notice that the President did not “order” such a review by the NRC, for (apparently unlike the German head of state) he lacks the authority to “order” and independent agency like NRC to do anything. Although the President can designate a new chair, he lacks the authority to fire any of the NRC’s commissioners without cause. If NRC’s “review” of nuclear power plant security in the wake of the 9-11 terrorist attacks is any guide, we can expect no visible changes to nuclear power plant licensing and safety standards in the wake of the Fukushima Daiichi experience. In that previous review, NRC concluded that “[spent fuel pools] are robust structures that are difficult to damage.”
It may be that the Nuclear Regulatory Commission experience does not adequately represent the capacity of politically independent agencies to protect public goods like safety and environmental values. After all, the NRC was not constituted as an independent agency to promote environmental values beyond the reach of political influence — quite the contrary, NRC was most likely made an independent agency precisely so that it could offend local environmental communities who oppose nuclear plant siting, without fear of political backlash. But there is nothing more inherently environmentally protective about an independent agency than an executive agency.