NRC and the Sunshine Act
Comments on Non-Sunshine Act Discussions
May 12, 1999
Secretary
United States Nuclear Regulatory Commission
Washington, DC 20555-0001
Subject: Comments on Non-Sunshine Act Discussions
Dear Ms. Vietti-Cook:
The following comments are submitted in response to the May 10, 1999, Federal Register notice (Vol. 64, No. 89) regarding the Nuclear Regulatory Commission's intent to implement a rule enacted in 1985 allowing three or more Commissioners to hold private discussions.
The Commission should not conduct non-Sunshine Act discussions. If the Commission persists in meeting privately, the agency must stop proclaiming that "public confidence" is one of its key considerations. The two actions are contradictory. The Commission must decide whether it will sacrifice public confidence in order to gain some purported convenience.
The Federal Register notice stated that by now implementing a 14-year old rule, "The Commission believes that non-Sunshine Act discussions can benefit the agency and thereby benefit the public which the NRC serves." The Commission is clearly entitled to the beliefs of its choice, as are we. We believe that the public would be better served if the agency were to now enforce a 19-year old rule -- namely, the fire protection regulations of Appendix R to 10 CFR Part 50. Continuing to virtually scoff at those public safety regulations while implementing this rule allowing private meetings will do very little to boost public confidence. More importantly, it does nothing to protect public health and safety.
The Federal Register notice stated that
At the time that the Commission changed its Sunshine Act rule in 1985, many of its critics appeared to believe that if the rule change were implemented, numerous discussions currently held in public session would instead be held behind closed doors. This was a misapprehension. Indeed, if there is one point that needs to be emphasized above any other, it is that the objective of the 1985 rule is not that discussions heretofore held in public session should become non-Sunshine Act discussions; rather, the focus of the 1985 rule is on the discussions that currently do not take place at all.
Our concern, which the staff cavalierly dismissed as a 'misapprehension,' is that the bulk of the discussion on selected agency matters will be conducted by the Commissioners in private sessions, thereby turning public meetings into mere theatrics, which by their very nature tend to erode public confidence.
The agency's evaluation, as presented in the Federal Register notice, failed to justify why non-Sunshine Act meetings were important. In numerous other forums, such as in testimony before the United States Senate and in the document (SECY-99-007A) supporting its new oversight program, the agency contends that the nuclear industry's overall safety performance has improved significantly over the past decade and suggests that its regulatory effectiveness is partially responsible for this improvement. If this contention is correct, the agency seemingly wants us to believe that this alleged regulatory effectiveness and safety improvement was obtained in spite of the Commission's inability to conduct non-Sunshine Act discussions.
Setting aside beliefs, the truth is that the agency's existing "Noah's Ark" policy allows Commissioners to privately gather as often as desired "two by two." Technically, this policy enables the Commission to reach consensus on an issue before discussing it in a public meeting and to examine "big picture" issues. This existing policy therefore prevents neither the predeterminations that we fear or the collegial raps that the Commissioners desire -- it merely complicates and inconveniences the process.
Returning to beliefs, UCS believes that implementing this 1985 rule at this time will gain the Commission some convenience at the sake of eroded public confidence. During my tenure at UCS, I have only sought, and was granted, one private meeting with a member of the Commission. Such private meetings would not be improper and would enhance the dialogue between UCS and the Commission on safety issues, but I have resisted them. Instead, I engage the Commission on safety issues via the very public forums of public meetings and publicly available correspondence. It is more inconvenient and perhaps less effective, but it is necessary to avoid even the perception of behind-the-scenes dealings.
The Commission has a choice—convenience or confidence. It may be very tempting to choose convenience. But, a simplified process which lacks public confidence is not really an attractive option. UCS urges the Commission not to implement this 1985 rule and not to hold non-Sunshine Act discussions involving three or more Commissioners.
Sincerely,
David A. Lochbaum
Nuclear Safety Engineer
