Alan S. Rosenthal Interview No. 7, June 20, 2011

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ORAL HISTORY OF
ALAN ROSENTHAL
Seventh Interview – June 20, 2011
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and
the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in the
King Farm subdivision in Rockville, Maryland, on Monday, June 20, 2011. This is the seventh
interview.
MS. FEIGIN: Good morning, Alan.
MR. ROSENTHAL: Good morning, Judy.
MS. FEIGIN: So, when we left, you had come to the Atomic Energy Commission, and
you explained how it was set up, and how you organized the boards, and I
think we’re probably ready to hear now about some of the casework that
you handled while you were there.
MR. ROSENTHAL: Very good, Judy. I was on the appeal panel in a full-time capacity from
the time of my arrival at the AEC in October of 1972 until I left the
Appeal panel in the spring of 1991. I’ll get to it a little bit later, but the
last few years I served in a part-time capacity, having retired from fulltime government employment in August of 1988. During my time on the
appeal panel, the panel – not just myself personally, but appeal boards
drawn from the panel – were involved in the adjudication of applications
either for construction permits or operating licenses for almost all of the
104 reactors that are operating today, in June of 2011.
MS. FEIGIN: There are 104 today. How many were there when you started?
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MR. ROSENTHAL: A very small number; most of the reactors that are in operation today were
built in the 1970s or in the 1980s. The last application that was filed
before a renaissance that has taken place in the last one or two years was
in 1983. Between 1983 and well into this century, there were no
applications at all. The bulk of these reactors were built in the 1970s and
1980s, and as I say, there are 104 of them in current operation, and the
largest number of those 104 is located in the state of Illinois. That’s
President Obama’s home state, and well down the road in a subsequent
session, I will have occasion to note the irony of that fact.
MS. FEIGIN: Is there any reason for that being the case?
MR. ROSENTHAL: No, that’s just how it happened. The reactors are located from coast-tocoast. We have on this coast Seabrook in New Hampshire; several of
them south of Seabrook along the coast. On the West Coast, you have two
of them in California, on the Pacific Coast; one of them in the
San Clemente area, and the other one in the San Luis Obispo area, north of
Los Angeles. But there are a substantial number of reactors in the
Northeast. There are a fairly substantial number in the South, some in the
Southwest. None in the Rocky Mountain area at all, to my knowledge.
All of these reactors, with I think one exception, at least one exception that
I am aware of, are on bodies of water, either rivers, lakes or the ocean.
The exception is Palo Verde which is in the Arizona desert, and it, if you
can believe it, is cooled with water that is provided by the City of Phoenix.
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This is waste water. I forget the precise distance between Phoenix and
Palo Verde, it might be 50 or 60 miles. But every other reactor, to my
knowledge, is cooled by water close to the site. This, again, is the ocean, a
river, or a lake. And in at least one case, the North Anna reactor in
Virginia, southwest of Fredericksburg, it’s cooled with a man-made lake.
This is a lake that the utility built initially for the sole purpose of providing
coolant water for the reactor, but it has turned out that they made quite a
resort area out of it. They’ve sold lots all around the lake. So they’ve
really profited in that way as well as from their having established this
lake. In any event, that’s basically the picture.
This morning I’m clearly not going to address every one of the
cases that I had involving one or another of these 104 reactors. If I started
upon that, we’d be here until at least midnight, if not into some time well
into tomorrow. I want to start with a reactor that was completed, was
approved by a licensing board and an appeal board, but was never put into
operation, and it is quite a story. This was the Shoreham Reactor. It was
constructed in Suffolk County on Long Island. It was completed in 1984
at an expense of $6 billion – now that’s billion, with a “B” dollars – and in
the following year, 1985, it received a low-power license from the
Commission that allowed it to start its testing prior to obtaining a license
that would allow it to operate at full power. Well the biggest issue with
respect to Shoreham was the adequacy of its evacuation plans. Now,
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evacuation is, as you can readily understand, a major issue with respect to
all of these reactors. While an accident is not contemplated, we know
from the experience of Three Mile Island in this country and what
transpired very recently in Japan that it’s important that there be assurance
that, in the event of an accident, there will be an ability to evacuate the
population in the vicinity of the reactor safely. The area around Shoreham
was pretty heavily populated. As we know, Long Island – both Nassau
County and Suffolk County – are heavily populated.
MS. FEIGIN: We should say for those who may not know, we’re talking about
New York.
MR. ROSENTHAL: It’s the state of New York, Long Island. And therefore there was a
considerable concern on the part of the authorities of the municipalities in
the vicinity of Shoreham as to whether the utility’s evacuation plans were
satisfactory, whether they would in fact ensure the safety of the population
in the event of an accident. The consequence of this concern was that
many of these municipalities simply would not sign off on the local
evacuation plans, and the result of this was that in 1989, the governor of
New York at that time, who was Mario Cuomo, and the Long Island
Lighting Company, which had built the reactor, jointly announced that the
reactor would not go into operation but would be decommissioned. And
that is what took place at an expense of an additional $186 million.
MS. FEIGIN: Is that government funds or funds from the utility?
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MR. ROSENTHAL: That was at the cost of the utility, but what happened was that it was
agreed, by I guess the Public Service Commission of New York or
whoever it is in New York that regulates these utilities, that for a 30-yearperiod, the ratepayers of the Long Island Lighting Company would be
assessed a 3% surcharge on their bill in order to enable the Long Island
Lighting Company to recoup, not merely the $186 million in
decommissioning costs, but as well the $6 billion cost of building the
facility. Presumably it will be 2019 before the Long Island Lighting
Company ratepayers are relieved of the obligation of paying this 3%
surcharge. So they ended up not getting the benefit of electricity that
would have been generated by Shoreham, but in addition, have been
saddled with this surcharge. Thirty years.
I want to touch upon one other event in the state of New York that
also involved the aftermath of an appeal board decision, although it didn’t
involve a commercial power reactor. Instead, it involved a research and
educational reactor. It was identified as a Triga Mark II. This Triga
reactor was located in a building on the campus of Columbia University in
Morningside Heights, Manhattan, and it was part and parcel of the
Columbia University program for the training of nuclear engineers. It was
a very controversial proposal, very controversial instrumentality, even
though, as one of my colleagues pointed out, it was so small and generated
such a small amount of electricity, that in the event of an accident, it could
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have been cooled adequately with a garden hose. Notwithstanding that
fact, there was a revolution on the Columbia campus when it came to light
that there was this Triga reactor in one of the buildings on the campus, and
this protest – a very loud protest – involved not only students but faculty
members as well. Faculty members, I would say, who were mainly in the
humanities and social sciences rather than in the physical sciences,
particularly physics. There was a tremendous hue and cry against this
Triga reactor, and this was in an era when Columbia was encountering
protests, building sit-ins, by protestors of the Vietnam War.
MS. FEIGIN: What year are we talking about?
MR. ROSENTHAL: 1974. There were still these protests at that point, and some of the
protesters – even faculty members – were insisting that this reactor could
blow up and cause enormous radiation exposure throughout the
Morningside Heights area, which was pure nonsense. In any event, the
president of Columbia at that time – I don’t recall who it was – was so sick
and tired of the protests that were being encountered with relation to the
Vietnam War situation that it was decided not to put the Triga into
operation. So the result of that was that the nuclear engineering students
at Columbia lost a valuable educational tool. But that was the way things
were at that time.
I might say at this point that with respect to virtually every case
that was adjudicated by the AEC, and then NRC, during the 1970s and
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1980s, whether it was an application for a construction permit or an
application for an operating license, there was enormous public opposition
in the area in which the reactor was located. That opposition, however,
was tempered by economic factors. I’ll give you an illustrative example.
The Vermont Yankee Reactor is located in a community called Vernon, in
the state of Vermont. It’s in the southern portion of the state, not far
above the Massachusetts border. The citizens of Vernon absolutely love
that reactor. And why? Because it contributes so much to the tax base of
Vernon that the ordinary garden variety citizens pay virtually nothing in
property taxes, and at the same time, they have streets paved with gold
[laughter] and libraries that would rival the Library of Congress. That’s
something of an exaggeration, obviously, but they’re very well equipped
at very little cost to themselves.
Now, are they bothered about the radiation? After all, they’re the
closest to the reactor. Well, if they’re bothered, not so much so that the
economic considerations are trumped by their concerns. Now, you get
outside of Vernon, a greater distance from the reactor, and oh, there, every
one of the citizens is totally persuaded that they’re going to be radiated
every day that that reactor operates. And why is that? Because they
derive no economic benefits from the reactor’s operation. So it’s an
interesting thing that for all of the health and safety concerns that people
have, they seem to be subordinated to the economic advantages that some
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of these communities obtain from their proximity to the reactor, from the
fact that the reactor is located within their boundaries.
MS. FEIGIN: Are there a lot of environmental groups that come into play here?
MR. ROSENTHAL: Oh yes. You have over the years a number of nationally recognized
groups, such as the Sierra Club, such as the Natural Resources Defense
Council. But the majority of the intervenors in these proceedings in
opposition to the particular application for a construction permit or
operating license are ad hoc local groups, and some of them are prone to
demonstrate in ways that are not found terribly acceptable by the local
authorities. The arrests that take place at a number of these sites can be
numerous.
Now, let’s go back a step. The licensing boards, as a matter of
Commission policy, conduct all of their evidentiary hearings at or close to
the reactor site, and they encounter all kinds of demonstrations when
they’re out at a reactor site conducting a hearing, and in some instances,
they have been required to invoke the assistance of federal or local law
enforcement authorities for their own protection because it’s turned
violent. The appeal boards, for the most part, conducted their oral
arguments in their hearing room in Bethesda. However, on occasion,
when it wanted to visit a site, the board would go out to conduct the
argument in the locality where the reactor was located, and when it
conducted, as it was authorized to do, an evidentiary hearing, it invariably
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was at or close to the reactor site. So the appeal boards encountered some
demonstrations, but none of the ones that I personally encountered was
anything but peaceful. I had no concern at any point for my safety or the
safety of my colleagues.
Now I said that we would go out occasionally to the reactor site
because we wished to visit it, and that often proved to be very useful.
There was a proposed reactor on the shores of Lake Ontario, north of
Syracuse, and the claim was made to us by the intervenors opposing the
facility that the area where this reactor was to be sited rivaled the Muir
Woods in the San Francisco area in terms of magnificent trees and would
be destroyed by the construction of this reactor. Well, we visited the site,
and all that I can say is that I saw not a single tree that I thought was worth
preserving. I recognize I’m not an arborist, but nonetheless, I can assure
you there was nothing that rivaled, or came close to rivaling, the sequoias
of the west. And so that was very instructive.
On another occasion – this involved the Seabrook facility on the
New Hampshire coast – and I’m going to have a lot to say about Seabrook
a little bit later, but one of the claims that was made by the intervenors in
Seabrook involved the transmission line route, which they said would
absolutely destroy a virgin forest area of unparalleled beauty. Well, we
were going up to Nashua, which is relatively close to the coast of
New Hampshire, to conduct an evidentiary hearing, and we decided that
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while we’re up there, we would go and take a look at this wonderful forest
ourselves. This happened to be in December, and it gets mighty cold in
that month, and it happened on this particular day that the wind was
blowing off the ocean, and it was mighty chilly.
We were led on the expedition to look at this forest by a woman
who lived in Exeter, New Hampshire, and was the president of some kind
of conservation society there, and we walked along the border of the forest
which happened to be a spur line of the Boston & Maine Railroad. We
walked for about a mile, and we looked into this forest, and there was
nothing that appeared to us to be that remarkable. Well the upshot of it
was that in our decision on the challenge to the transmission line, we
decided against the intervenor. In other words, we found the transmission
line to be acceptable, and we noted that we had visited it ourselves, and so
our decision was based in part at least upon our visual inspection. Our
decision ended up appealed to the Court of Appeals for the First Circuit
based in Boston, which has jurisdiction over the state of New Hampshire,
and in the brief filed in support of our decision by the Solicitor of the
NRC, it was pointed out that we had visited the site. Indeed, that was
stressed.
The court’s decision came down some months later affirming our
decision on the transmission lines, and it made a substantial point of the
fact that the board had taken the time and made the effort to visit the site.
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I take it what this really amounted to was their approval of the fact that
some bureaucrats got out of their comfortable offices on the banks of the
Potomac and had gone up in the middle of winter and had taken a look at
the matter in controversy themselves. [Laughter] So these site visits can
be helpful. We didn’t do that many of them, but I think on the cases that I
sat over that period of 18 or so years, I probably visited maybe six or eight
sites.
MS. FEIGIN: That leads me to the question of how frequent were the cases? How many
panels did you sit on in a year?
MR. ROSENTHAL: Curiously, in the nomenclature of the NRC, the overall operation was the
panel, and there were boards that were drawn from the panel, which is
exactly the opposite of the courts’ nomenclature. But I would say that in
the course of an average year, I might have been on perhaps ten boards.
Now they all were not active at the same time, but I would say that that
was probably a reasonable estimate.
Now I made reference to Seabrook in the context of the
transmission line controversy, but the major controversies that confronted
the board in Seabrook dealt with much more significant issues, the
principal one being earthquake potential. Under the regulations of the
Commission, a reactor had to be designed to withstand the largest
potential earthquake that might occur on that site. The term that was used
to describe that earthquake was the “Safe Shutdown Earthquake.” Now,
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in many of the cases arising in areas where there was substantial seismic
activity, or potential seismic activity, the Safe Shutdown Earthquake was a
major bone of contention.
In the Seabrook case, the intervenors presented as a witness on the
Safe Shutdown Earthquake issue a very prominent seismologist. I don’t
recall now whether he was associated with MIT or Columbia; it was with
one or the other, but he had credentials as long as his arm. The license
applicant presented its expert, and he was either at Columbia or MIT – one
of them was at Columbia, the other at MIT, and as I say I can’t remember
which one was where – and his credentials were as impressive.
On the East Coast, as opposed to the West Coast, earthquakes were
not measured on the Richter Scale. The Richter Scale was employed in
the west, and it was based upon the readings of seismographs. On the East
Coast, the measurement of earthquakes in the distant past was formulated
on the basis of subjective criteria. Did the dishes in Widow Brown’s
kitchen shake during that earthquake? Did they fall off the shelf? It was
that kind of thing. It was solely subjective. It was recorded observations
of the practical consequences of the particular earthquake, and they were
measured on, not the Richter Scale, but on a scale called the Modified
Mercalli Intensity Scale (MMIS). Well, both of these experts had
available to them precisely the same data that were derived from a series
of earthquakes that had occurred in the northeast – one of them in
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Montreal I think in 1732, and another one in Cape Ann, Massachusetts, in
what year I don’t recall, and there was still a further one in the Lake
Winnipesaukee area in New Hampshire, I think in something like 1937.
But there were recorded reports of each of these earthquakes and the
damage that had resulted from the earthquake.
The intervenors’ expert, based upon these data, concluded that the
potential was an enormous earthquake that would probably rival the
San Francisco earthquake of 1900-something. When it became his turn to
testify, the equally qualified expert produced by the applicant said the
ground would hardly move. So here we were, the board, confronted with
two highly qualified seismologists looking at precisely the same data and
coming to dramatically different conclusions as to what the earthquake
potential for the Seabrook site might be. Now why was that? Well it
turned out that it was because they proceeded on the basis of quite
different assumptions in the application of these data to the Seabrook site.
The board for Seabrook consisted of – in addition to myself – the
vice chairman of the appeal panel, Dr. John Buck, who was a nuclear
physicist by education, and my good colleague over many years,
Mike Farrar. And it turned out that on the seismic issue, as well as on
many of the other issues that arose in the Seabrook proceeding, Jack Buck
and Mike Farrar agreed upon only one thing, and that was to disagree, and
there wasn’t a decision rendered by the Seabrook board of any
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significance that was unanimous, and in every case, I was the swing vote.
Dr. Buck was in one corner, Mike Farrar was in the other, and I was in the
center, sort of the shuttlecock in a badminton game, and it was my call as
to how it went.
With respect to the seismic issue in Seabrook, I lined up with Jack
Buck, and Mike Farrar filed the dissent. On some of the other issues that
we encountered, I was lined up with Mike against Jack. But this is the
kind of thing that we had to deal with. The earthquake issue, needless to
say, is extremely significant in terms of the California reactors, which,
both of them, sit on faults. It was also a large issue in the Indian Point
proceeding. Indian Point is a reactor located on the Hudson River, about
30 miles north of New York City, and needless to say, there’s a major
evacuation issue associated with Indian Point, given the enormous
population in that whole area – Westchester County, to say nothing, of
course, of New York City. And there’s also a significant issue raised with
respect to earthquake potential. What was the Safe Shutdown Earthquake
for Indian Point, against which the reactor had to be sufficiently hardened
to a standard? Well the intervenors in that case came up with a figure that
would have produced an earthquake that had it occurred, as Jack Buck
wryly observed, nobody would be worrying about the Indian Point site
because the entire city of New York would be wiped out. So that’s one of
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the issues, earthquakes, that I had to focus on during my 18 years on the
Appeal panel.
MS. FEIGIN: I assume in most of these cases it would be as you describe in Seabrook
where one side would be arguing horrendous potential. This would be
typical, right?
MR. ROSENTHAL: Absolutely, but what sticks out when Seabrook comes to mind is that in
most of the other cases where there was this issue where, as you say, there
were diametrically opposed positions taken on the Safe Shutdown
Earthquake, we did not have witnesses of the caliber of these two
gentlemen. What made it so remarkable was that these were two
outstanding seismologists with extraordinary credentials and reputations.
In one of the cases that involved the West Coast reactor where the
Richter Scale came into play, the applicant produced Richter himself as a
witness. He was very interesting. He testified as to the application of his
scale to the particular reactor that was involved. He was well up in years.
I think, if I recall correctly, he died shortly thereafter. He was shown, I
can tell you, considerable deference during the course of his testimony
[Laughter].
MS. FEIGIN: I would expect. Is it still the case that the East Coast doesn’t measure in
terms of the Richter Scale?
MR. ROSENTHAL: I don’t know about the recent seismic events on the East Coast. What I’m
talking about are the events that had taken place in the distant past. This
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was before the seismograph was invented, and therefore, the only way of
measuring the extent of the quake was through the observations of the
individuals as to the damage that had been caused.
MS. FEIGIN: So there weren’t earthquakes on the East Coast after the Richter Scale was
devised?
MR. ROSENTHAL: I don’t know of any significant earthquake on the East Coast in the last 50
to 75 years. If there has been one, obviously a seismograph has been
employed in its measurement, but there have been a number of West Coast
earthquakes of relatively recent vintage, and they’ve all been measured on
the Richter Scale using seismographs.
Some of the other issues that I encountered involved financial
qualifications. The utility had to demonstrate that it had the financial
qualifications not only to run its plant in accordance with all existing
regulations, but also to decommission the facility when its life had come
to an end.
There was a financial qualifications issue with Seabrook. Once
again, I sided with Jack Buck against Mike Farrar, but Mike Farrar was
able later to tell me, correctly, that he had the right on that issue, even
though perhaps not on the seismic issues, since there has not been an
earthquake up there. Not that many years after we determined – that is,
Jack and myself – that Seabrook had the requisite financial qualifications,
the Public Service Company of New Hampshire, which operated the
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facility, went bankrupt [laughter]. As I told Mike, I can’t be right all the
time [Laughter]. I’m not divinely inspired.
MS. FEIGIN: It’s one thing when you’re an advocate and you lose a case, it’s probably
another thing when you’ve written a decision, and then a court, a higher
level court, reverses it. I wonder how that is.
MR. ROSENTHAL: I’m glad you asked that question, because I can answer it this way: I was
never reversed. Never. Neither by the Commission nor by a Court of
Appeals.
MS. FEIGIN: Really? Astounding.
MR. ROSENTHAL: The Commission didn’t like a lot of our decisions, and that’s one of the
reasons why eventually the panel was assassinated. But I don’t recall – we
clearly were not reversed by a court. And it was a very rare instance
where the Commission even agreed to review our decision. There was not
an automatic appeal to the Commission. So the Commission almost never
took one of our decisions. I don’t recall their ever having one of them
reversed, but I can state, without fear of contradiction, that we were never
reversed by a court.
MS. FEIGIN: I’m sure you were appealed to courts.
MR. ROSENTHAL: Oh, yes. I would say that there were probably 20 or so of our decisions
that ended up in the courts of appeals. So, no, I never had to face the
matter of how dejected I might be by being turned over by a court.
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MS. FEIGIN: Actually, that number itself is a pretty small number. You were there
about 20 years and maybe 20 decisions got appealed to courts of appeals.
MR. ROSENTHAL: Most of them didn’t get appealed. Most of them didn’t get beyond a
request to the Commission that it review our decision, and there were
relatively few, as that figure indicates, that ended up in a Court of
Appeals.
MS. FEIGIN: I’m surprised a little bit because there’s so much at stake. Do you have
any theory as to why so few were appealed?
MR. ROSENTHAL: Well first of all, in a very substantial percentage of the cases that came to
us, the appellant was the intervenor; the applicants rarely lost cases before
the licensing boards. The intervenor was most often represented by either
a pro se member of the group, a non-lawyer member of the group
appearing pro se, or by a lawyer who was out of his or her league. There
were a couple of lawyers who were intervenor representatives whose
practice was in large measure the representation of intervenors in our
licensing proceedings, but you could count them on the fingers of one
hand. It was a matter of not having the talent, not having the resources. It
was a very, very uneven playing field. The applicants were much better
represented, had much greater resources, and, in addition, they had the
NRC staff, which was a party to all of these proceedings, usually in their
camp.
MS. FEIGIN: So how did you go about trying to even the playing field a little bit?
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MR. ROSENTHAL: Well, I think the best that I can say on that score is that we approached the
arguments that were being advanced by the applicant, usually joined in by
the NRC staff, with a good deal of skepticism. We couldn’t put ourselves
in the position of being the attorneys for the intervenors, but we took into
account to the maximum extent that we could, the fact that we were
dealing with parties that were not playing on an even field.
Some of the other issues that we encountered frequently included –
and this was on the environmental side – the National Environmental
Policy Act requirement, among other things, that the Commission consider
alternative sources of generating the power that would be generated by
this facility which might have fewer environmental consequences. We
were told in the Shoreham case that the windmill alternative was superior
to the Shoreham facility in terms of the generation of electricity. Never
mind that, as Jack Buck pointed out, to have generated the equivalent
amount of electricity that Shoreham would have produced, you would
have had to have had a giant windmill every 25 yards all over Long Island,
and these windmills would have to be operating in a gale-force wind
constantly. And there was in Seabrook the claim that the wood-burning
alternative was superior to Seabrook. Well, to have generated the same
amount of electricity as would be generated by the Seabrook units, you
would have needed a wood-burning facility probably every five miles over
the whole state. There would have to be a large number of transmission
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lines connecting these various facilities, and in order to produce the fuel,
there would have to be a substantial raid on the forests of northern
New Hampshire, to say nothing then of the big logging trucks that would
be employed to carry the wood down from the forest to the various woodburning facilities. In short, the proposal was ridiculous.
The same, I’m afraid, must be said for the alternatives that were
put forth in most of the other proceedings. For example, in connection
with a reactor close to the Gulf of Mexico – in Texas, I think it was – there
was a suggestion – no, a claim, not a suggestion – that the proposed
nuclear power plant could be replaced by generating facilities using the
kelp from the Gulf of Mexico for that purpose, and that too was really
pretty far off the mark. So that most of the claims regarding the
generation of electricity through some other means really were not
substantial.
Another issue that was encountered from time to time was whether
the power was, in fact, needed, and in most cases, the claim that it was not
needed lacked any possible substance. There were, however, issues that
did require serious consideration in addition to earthquakes and financial
qualifications. One of them, which arose on the operating license level,
was whether the quality assurance that had been employed during the
construction of the plant had been adequate. In a number of cases,
intervenors were able to establish that the utility had cut some corners,
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usually for economic reasons, in the course of building the facility. So in
many of the cases there was a significant quality assurance issue on the
table.
Another issue that came up frequently was the impact of the
proposed facility upon the body of water on which it was located. Now, in
many cases, the proposal was to build cooling towers. The water used to
cool the reactor would go through the tower and back into the facility, and
that had a minimal impact upon the body of water on which the facility
was located. But in other cases, the water – cooling water – would be
drawn from the ocean or river or whatever other body of water was
involved, put through the reactor and returned to that body of water.
When it was returned to that body of water, it was at a temperature that
was considerably higher than when it entered the facility, and this had an
obvious possible impact upon, for example, fish in the particular body of
water that might be sensitive to increases in the water temperature. This
was an issue in a number of cases, one of them being Indian Point, the
reactor on the Hudson River, where there was a fishermen’s association
that claimed that the increase in the water temperature in the Hudson
where they fished would have a deleterious impact upon their pursuit of
their livelihood. In connection with one of the reactors in New Jersey, a
claim was made that the water temperature increase would produce an
increase in the number of marine borers which, in turn, would have a
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deleterious effect upon the wooden yachts in the marine basin located
there.
So these are some examples, but the fact of it is that the appeal
boards, as the licensing boards before them, encountered a very wide
variety of issues, both going to the safety of the reactor operation and the
environmental impacts of that operation. That’s the reason why it was
very important, particularly on the appeal panel level, to have technical
members who were Renaissance men and women, in other words, who,
even if their education and early vocational endeavors had been in nuclear
physics, were prepared to address water quality issues, financial
qualification issues, seismic issues, indeed the whole range of issues that
come before the boards. I found this a very exciting period. The fact that
there was a great deal of controversy in this area made it even more
exciting. I look back upon my 18 1/2 years on the appeal panel with great
satisfaction.
In the summer of 1988, I decided that I had enough of 9-to-5, five
days a week, and advised the Commission that I intended to retire from
full-time government service. I was able to do that at age just short of 62
because the federal government has very liberal retirement policies.
Indeed, I could have retired at the age of 55 with, at that time I had more
than 30 years of federal service.
MS. FEIGIN: That’s under the old system.
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MR. ROSENTHAL: That was the system then, and that was the system under which I operated.
There have been a lot of changes made, I’m sure, since then. But I did
retire, and Christine Kohl replaced me as the panel chairman. I stayed on
the panel part-time for another several years, indeed until March of 1991,
which was just a couple of months before the appeal panel assassination.
MS. FEIGIN: Before we get to the assassination, which you’ve been hinting at for two
sessions now, so I really want to hear how that happened [laughter], I just
want to follow up on one thing you said as you look back on that part of
your career, and happily with much satisfaction, but one of the things you
had said about working at Justice that you loved was the diversity, the
cases were so different. Did you find that the issues were sufficiently
different here that it kept you engaged? The focus was narrower, I guess,
but ––
MR. ROSENTHAL: That had been a concern of mine when I was invited to come to the AEC,
whether I would find sufficient diversity in the work to satisfy me. True,
almost all of the cases that we had before us as appeal panel members at
bottom dealt with the issuance, or nonissuance, of construction permits
and operating licenses, but the issues that arose in reaching the ultimate
judgment on the approval or disapproval of the issuance of a license were
extraordinarily diverse. And I think this is seen from some of the things I
discussed this morning. Certainly the issues that came up in the seismic
area were totally different from those that came up in financial
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qualifications and water quality, and need for power and consideration of
other alternatives, and not only were the factual issues quite diverse, but so
too were the legal issues. So I found my concern in that regard to be
entirely unjustified.
MS. FEIGIN: And before we have the panel being demolished, I should ask you about
probably the most well-known case in this area and whether you had any
work with it, which is, of course, Three Mile Island.
MR. ROSENTHAL: Three Mile Island case, yes. I was assigned to the Three Mile Island board
that was considering issues with respect to Unit 1, which is not the unit
that sustained the partial meltdown and is now out of operation. An issue
that had come up with respect to Unit 1 dealt with the degree of
probability that an aircraft of a certain weight would crash into the
containment of the facility on its way to the nearby Harrisburg
International Airport or leaving from that airport. And I had a hearing
scheduled on either that issue or another issue, I don’t recall today which it
was, for a particular Monday in March of 1979. On the prior Wednesday,
March 28 of that year, the accident occurred in Unit 2. And for a day or
two thereafter, I had no idea as to what the dimensions of that accident
were, whether I should go ahead with the hearing scheduled for that
Monday in Harrisburg or not, but by Friday, it became quite apparent that
this was a very serious matter and that we would look like total fools if we
went ahead with this hearing on Monday on the unit that was not impacted
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by the accident. So I did have contact with Unit 1 of that facility, but I
didn’t have anything to do with the accident itself, other than agonize over
whether I should go ahead with that hearing on the following Monday.
MS. FEIGIN: So now the denouement. What happened to the appeal panel?
MR. ROSENTHAL: Well, we learned, probably in late 1990, that the Commission had in mind
abolishing the panel, which it could do, so long as it gave advance notice
to the Congress that it was planning to take that step. It was obvious to me
and to the rest of the panel that this was being done because the
commissioners at that point had a very strong pro-industry orientation, that
they didn’t like some of our decisions, even though, I might add, that I
would say that probably 95% of our decisions were in the applicant’s
favor. I’m certain it was over 90%, but, of course, they focused on the 5%
or whatever that went against the applicant. They apparently felt that they
could not legitimately reverse those decisions, but they further decided
that what they wanted to do was to abolish the panel and take over
themselves the review of licensing board decisions. And what I did at the
request of Chris Kohl, the chairman at the time, was to go up on the Hill
and to talk to the staff members of some of the congressmen and women
who were sympathetic to the cause of the intervenors and to try to enlist
their assistance in expressing opposition to this proposed move. To my
surprise, I couldn’t get one of the staff members of these congressmen to
agree to do anything.
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MS. FEIGIN: Do you have any theory as to why that is?
MR. ROSENTHAL: I have not the slightest. I was amazed as well as extremely disappointed
because these were members of the staffs of congressmen, as I said, who
had been sympathetic to the intervenors and had been very sympathetic to
the appeal panel. I really don’t know, but that’s the way it turned out. In
addition to that, I went to former Commissioner Jim Asselstine, who had
been my first law clerk. At this time he had left the Commission and was
up in New York working for an investment banking firm, and I tried to
enlist him to contact some of the congressmen who I knew he had
substantial relations with, and he declined as well. For what reason, I
don’t know. The fact was that nobody would come to the assistance of the
panel, and in July of 1991, the panel in fact died, went out of existence. I
had left, as I say, three months, four months before that happened,
knowing it was going to happen, and in any event, I thought at that point it
was probably just as well that I move on to some other endeavor.
MS. FEIGIN: We should probably get to your later endeavors in our next session, but
just to be clear on this, you retired from full-time work when?
MR. ROSENTHAL: In August of 1988.
MS. FEIGIN: And you continued on in what capacity?
MR. ROSENTHAL: I continued on in the capacity of a part-time member of the appeal panel. I
was also assigned, in I think it was 1989, apart from my appeal panel
association, to conduct a special investigation of the deputy director of the
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Office of Enforcement who, the claim was, had engaged in improper
contacts with some outside folk. Nothing much to say about that
investigation. I conducted it for about a year at which point I had not
come to a conclusion. The agency appointed its first inspector general. It
didn’t have one prior to that time which is why I had gotten appointed to
carry out the investigation, and it was then transferred to him.
The only other thing I would say about my appeal panel time was
that I was, on a number of occasions, called to testify in my capacity as
chairman of the panel, before Senate and House committees, and they
were very frustrating experiences. What I encountered was that the
congressmen who were sympathetic to the appeal panel – and these were
basically the ones that were sympathetic to the intervenors and somewhat
suspect of the nuclear utility industry – would be given by their staffs a
long list of questions to ask me, and they were all softballs. There was
never any follow up on the questions asked. And I thought to myself,
what would have happened if I had responded to one of those questions, “I
think that that is the most ludicrous question imaginable [laughter]. I
don’t know how you got elected to Congress,” whether at that point, “Yes,
Mr. Rosenthal, now let’s get to the next question,” or what, but I found
that very, very frustrating. I was very grateful that I wasn’t really called
upon to do that that often.
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MS. FEIGIN: After all those years, do you have an overarching view about the nuclear
industry and the role that nuclear power should be playing in this country?
MR. ROSENTHAL: Well I am basically a supporter of the utilization of nuclear power, but that
said, I think that from time to time there are corners being cut on the part
of some nuclear plant operators, with, unfortunately, the tacit acquiescence
of the regulator. I returned to the NRC at the very end of 1999, and in my
next session I might have some general observations about the industry,
about the regulatory process that is in existence, that I would like to put
forth. For now I would just say again I am a supporter of nuclear power,
but at the same time, there is, I think from a societal standpoint, some
balancing to be done. What you have in nuclear power are very
substantial benefits, but very substantial risks if the worst happens.
I think we were fortunate with Three Mile Island that it was only a
partial meltdown. A much more serious situation in Chernobyl obviously
and then we have the more recent Japanese situation. So I think what
society has to decide is whether it’s willing to accept the risk, small that it
is, of a disastrous accident, in exchange for the benefits that clearly are
derived from the use of nuclear power, which among other things, does
not produce the same environmental consequences – in terms of climate
warming – that are attendant upon fossil fuel generation of electric power.
And we’re a long ways, it seems to me, from the day when we’re going to
have solar energy, or fusion, or wind power, or any of these other
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alternatives that do not involve the risk that nuclear power involves as
adequate sources of the energy that we need.
MS. FEIGIN: Well, unless there’s anything more that you want to add ––
MR. ROSENTHAL: That’s it.
MS. FEIGIN: I think that would be a good place to stop this week. Thank you again, so
much.