Alan Rosenthal Interview No. 8, July 18, 2011

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ORAL HISTORY OF
ALAN ROSENTHAL
Eighth Interview – July 18, 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, July 18, 2011. This is the eighth
interview.
MS. FEIGIN: Good morning, Alan.
MR. ROSENTHAL: Good morning, Judy.
MS. FEIGIN: When we left off, the Board was being abolished and efforts to lobby on
its behalf were unsuccessful. Where did that leave you?
MR. ROSENTHAL: It left me with the need to find something else to occupy my time, and a
few months prior to the word from the Commission that it was intending
to abolish the Appeal Panel, I had decided that maybe my time had come
to find something else to do, so it wasn’t simply the abolition of the Panel
that led me to go elsewhere, and the elsewhere was to the Personnel
Appeals Board of the then General Accounting Office.
The Personnel Appeals Board was created by statute. It called for
five judges, and its mission was to consider and to pass upon claims by
GAO employees that they had been subjected to a prohibitive personnel
practice. Today, the Board has also the authority to adjudicate labor
disputes, disputes between management and the union, but at that time, it
only considered prohibited personnel practice claims.
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The structure of the Board was something like that of the National
Labor Relations Board. The Board had a general counsel, and the general
counsel’s responsibility was to receive the claims of employees that they
had been subjected to prohibited personnel practices. If the office of the
general counsel, upon investigation, concluded that the claim was
meritorious, then it would prosecute the claim before the Board. If it
determined that it was not meritorious, the employee had the right to retain
private counsel to prosecute the claim. In the first instance, the claim was
heard by a single member of the Personnel Appeals Board, and his or her
decision was then appealable to the full five-member Board. It could be
appealed by either the employee, if he or she lost before the single judge,
or by the agency, if it in turn had not prevailed before the single judge. So
that was essentially the structure. The one unique feature of the Board
was that the five-year term to which you were appointed was not
renewable. It was five years, and then you were out.
MS. FEIGIN: And who appointed you?
MR. ROSENTHAL: The appointment was made by the Comptroller General, but there was a
committee that screened the applicants, and on that committee were both
representatives of the management and representatives of the employees.
The employees designated somebody to represent them on the screening
panel. So this panel made a recommendation to the Comptroller General,
and he – it was a man at the time – acted upon that recommendation. So I
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was appointed to this Board in the spring of 1991, and this was some three
or four months before the abolition of the Appeal Panel.
I found the five-year service on the Personnel Appeals Board
interesting. For two of those five years, I served as its chair, so I had some
administrative responsibilities. The administrative responsibilities were
made much less onerous by the fact that the Board had a perfectly
magnificent executive director. Her name was Beth Don and I would be
remiss if in the course of my recounting this oral history I did not take
recognition of the fact that she was just great, and I have to say that she
still occupies that position, even though it’s now 20 years later.
There was nothing particularly remarkable about any of the cases
that I heard during that period of time. I have to say, however, that early
in my career on that Board, I had some question about my colleagues, and
it had nothing to do with their legal acumen. A month or so after I joined
the Board, I had a physical examination in which it was determined that I
had some kind of growth on my lung, left lung to be specific, and I
underwent an operation that removed what turned out to be an entirely
encapsulated cancerous tumor. I might say that I’ve had no problems with
it at all for 20 years since that operation, and it occasioned no difficulty.
Because it was encapsulated, I didn’t have to undergo chemotherapy or
radiation or anything at all. But needless to say, there was a period of
recovery. This was relatively major surgery, an operation on the lung.
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It turned out that the then Board chairman had scheduled an oral
argument in a very important case, and this was an oral argument before
the entire Board, for some two weeks after my surgery. Well I made the
request, which I thought was perfectly reasonable, to postpone the
argument. There was nothing about the case that necessitated an
immediate decision, and I thought, as I say, that this request was entirely
reasonable, and it was rejected. The Board chairman said to me, “Well, of
course, the oral argument will be transcribed, and you can read the
transcript.” And I said to him, “Well, what about my ability to ask
questions?” [Laughter] That didn’t make much of an impression upon
him, so just two weeks after the surgery, I dragged myself out of my home
and went down and participated in that oral argument, and returned home
immediately thereafter. There were no ill effects, but needless to say, that
left me with a rather sour taste in my mouth about the willingness of my
colleagues to accommodate what seemed to me, again, to be a perfectly
reasonable request. But that was the only actually unpleasant note in
terms of my association with colleagues during the five years that I served
on the Board.
At the end of the five years, I was off the Board. Again, there was
no possibility of serving on it for a second term, and for the next two-anda-half years, I was in the only period of total unemployment since I
graduated from law school, now 60 years ago. I can’t say that I really
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looked around for a job, but it wasn’t a particularly happy time.
But we now come to early 1999, and I received a phone call from
the then Chief Administrative Judge of the Nuclear Regulatory
Commission’s Atomic Safety & Licensing Board Panel, that was the trial
board panel, whose decisions I had reviewed as a member of the Appeal
Panel. Paul Bollwerk said to me that he had just been commissioned to
conduct a special inquiry utilizing a task force into a claim that the NRC
Office of Enforcement had bungled its investigation of an allegation that
the officials of the Millstone Nuclear Power Station, which is located just
south of New London, Connecticut, had retaliated against an employee
that had been a whistle-blower. Paul told me that the chairman of the
Commission had directed him to include in this task force four other
persons, including one outsider, and Paul asked me whether I would be
willing to serve as the outsider.
MS. FEIGIN: You were sort of an inside/outsider? [Laughter]
MR. ROSENTHAL: Well, I was an outsider at that point. As I say, I was totally unemployed.
When he asked me whether I was willing to serve as the outside member
of this task force looking into this claim, he told me that if I accepted it, I
should be prepared to work on it 24/7, and this was because the then
chairman of the Commission, Shirley Ann Jackson, had told Paul that he
had six weeks in which to complete this project, and six weeks meant six
weeks, not one minute beyond six weeks. And I think she threatened him
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with I don’t know what kind of consequences if the six weeks were not
met [laughter].
I agreed to serve on this task force, and it was six weeks of I would
say 60 hours per week of work. It was pressure that I hadn’t been under
for a long time previously, and I’m thankful to say that I have not been
under that pressure since then. In any event, we completed the project in
the six-week period and turned in the report, and I then returned to
idleness [laughter].
In the summer of that year, I received a phone call from
Paul Bollwerk, and he asked me whether I might be interested in joining
the Licensing Board Panel as a part-time member. There was no thought
on his part, and certainly no thought on my part, of possibly returning to
full-time government employment after having, in 1988, decided that fulltime was no longer something of interest to me. But I agreed to join the
Licensing Board Panel, and I did so in October of 1999.
MS. FEIGIN: Was this on a contract basis?
MR. ROSENTHAL: I don’t know if it was on a contract basis. I signed a letter agreeing to
serve, and I serve on an annual basis. Now it begins on July 1 and goes
through the following June 30, so I just renewed within the last month my
appointment for another July 1 to June 30 year. Obviously I serve at the
pleasure of the Chief Administrative Judge of the Panel. He decides
whether he wants each of us part-timers to serve for another year.
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I think I might have mentioned in my session dealing with the
Appeal Panel that the Licensing Board Panel, on which I now serve,
consists of a group of full-time lawyer members and full-time technical
members, and a large number of part-time technical members. I’m the
only part-time lawyer member. Part-time technical members are drawn
from a variety of sources. Many of them are academics, teaching at
universities, and many of them are retired from whatever their occupations
might have been. In any case, I joined the Licensing Board Panel in the
fall of 1999, so I’ve now been on it for I guess it’s almost twelve years, if
my arithmetic is correct.
In the early days on the Panel, the cases to which I was assigned
were for the most part challenges to applications for license amendments
that would approve decommissioning plans. These applications were filed
by NRC licensees who had been engaging in some activity or another
under the aegis of their NRC license. For one reason or another, the
particular activity had terminated, and under the Commission’s
regulations, the licensee was then required within a year to submit a
decommissioning plan to ensure that whatever radioactive material
remained on the site would be handled in such a way as to pose no danger
to the public health and safety. In many instances, some local group
would oppose the decommissioning plan that had been submitted by the
licensee, asserting that the plan was not sufficient to protect the public
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health and safety.
One of these cases had been assigned to me almost immediately
upon my arrival in late 1999, and today, July the 18th, 2011, the matter
has not as yet been resolved [laughter]. It’s an absolutely unbelievable
case. It involves the United States Army. The Army has a proving ground
out in Jefferson County, Indiana, which is on the Ohio River, about
equidistant between Cincinnati to the north and Louisville to the south.
The county seat is Madison, Indiana. Well, beginning in the 1980s, the
Army was shooting off ammunition that was designed to test its capability
to penetrate tanks. It required an NRC license because the ammunition
contained a certain amount of depleted uranium, a radioactive material. In
something like 1994, the Army stopped this activity of testing antitank
munitions. Under NRC regulations, it should have submitted a
decommissioning plan in one year. Instead, being the Army, it paid no
attention to that requirement at all, and it was sometime around 1999 when
it submitted its decommissioning plan to the NRC.
At the end of 1999, a local group filed a request for a hearing to
challenge this plan, and I determined that the group had standing and had
also submitted at least one acceptable contention. So I granted the hearing
request and was prepared to move forward to consider the challenge to the
plan. The Army said, “Please don’t do that. We’re going to come up with
an entirely revised plan.” So I put the case in mothballs, and a year or so
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later, the Army came up with its new plan, and the Commission’s
regulatory staff said, “We’re not going to even consider this plan because
it’s got so many defects on its face.” So, said the staff to the Army, “Go
back to the drawing board.” The Army then came up with another plan,
and the staff said, “Well, before we pass upon that plan, you have to
conduct a survey of this site – they call it a site characterization – to
determine where any spent munitions might be found on the site, etc. The
Army said, “Well we can’t do that, it’s too dangerous, because there’s a
lot of unexploded munitions on the site.” [Laughter] And I’m thinking to
myself, wait a minute, this is the Army, which I thought had trained
experts in dealing with unexploded munitions, UXOs I think they’re called
[laughter]. In any case, the Army said, “We can’t do this; now what we
would like is a license to continue to maintain the site without any kind of
plan for ultimate decommissioning.” Well, that was granted, but a year or
two later, the Army came back and said, “Well, we changed our mind.
We now can go forward with conducting the site characterization. I guess
we did find some soldiers in our ranks who are capable of that kind of
activity, but we want a period of five years in which to conduct the site
characterization.” This didn’t sit too well with the local group, but we
conducted a hearing and decided, with some reluctance, that the Army had
made a good case for having this period of time to conduct the site
characterization and to submit a new plan. So we granted them the five
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years, which will run out this December. December 2011. By
December 31, the Army will be required to submit a new plan with the site
characterization as part of it. And this will be – what is it – 12 years since
I got the case, and something like 17 years since the activity terminated.
Now I can’t say that this is typical of the cases that I’ve handled,
but it is an example of what can happen in the course of the operation of
this bureaucratic maze, and I can say that I have one other case that has
had an equally – or almost equally – long history without its being finally
resolved. But, again, for the most part, these cases move forward with
some degree of dispatch. I say “some degree,” because the entire
mechanism, adjudicatory mechanism that is, of the NRC is absurd. What
our regulations require is – now I’m talking about the applications for
permits to construct and to operate nuclear power plants – and there has
been a renaissance in that area. Between 1983 and about 2006, a period of
23 years, there were no new applications filed for permits to construct
and/or licenses to operate nuclear power plants. But there now are
probably 20 such applications in the mill before licensing boards.
Now how does the adjudicatory process start? The Commission
puts a notice in the Federal Register that an application has been filed by
the XYZ Utility for a combined permit to build and license to operate a
nuclear power plant at a particular site. These applications, I might say,
nowadays almost all call for the construction of additional units on
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existing sites, sites where there are already one or more nuclear power
units. I think there’s just one exception. I think there’s one application
that’s been filed that calls for the construction of a nuclear power plant on
a so-called virgin site.
Within 60 days of the notice in the Federal Register of this
particular application, anyone desiring to challenge the application must
file a hearing request. And that hearing request, in addition to establishing
the standing of the particular hearing requestor to challenge the
application, must set forth contentions that are deemed admissible under
the provisions of the Commission’s Rules of Practice. It must set forth in
detail a solid basis – or bases – for challenging the particular application.
Now, environmental contentions must, in effect, challenge the
Nuclear Regulatory Commission’s fulfillment of its responsibilities under
the National Environmental Policy Act. That Act, in the context of the
NRC, requires the Commission staff to fully evaluate the environmental
impacts that will be associated with the construction and operation of the
facility, and to conduct a cost-benefit balance with respect to those
impacts. So, the challenge on the part of the hearing requestor to the
application must, insofar as concerns the environment, be challenging the
staff’s environmental assessment, which results in an Environmental
Impact Statement.
The problem is that at that early stage, the staff hasn’t even
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embarked upon its environmental assessment. It will have received from
the applicant for the permit an environmental report, which the applicant
must submit, but it will not have the staff’s action on that report in the
form of an environmental impact statement. Now, to be sure later on,
when the environmental impact statement is filed, the hearing requestor,
now presumably an intervenor, its hearing request having been granted,
will have the opportunity to put in new contentions. But it really makes
very little sense, in my judgment at least, to require a challenger to an
application for a permit to construct and license to operate a nuclear power
plant to do anything more than establish standing before the staff has
completed its work. But that’s the way it goes.
In the now almost twelve years that I have been back at the NRC,
the most significant matter that I’ve worked upon has involved the
proposed Yucca Mountain high-level waste repository in the state of
Nevada. Now a little bit of history. Obviously, one of the major issues
regarding the generation of electricity through the use of nuclear power is
what to do with the spent fuel. Currently, the spent fuel is retained onsite,
either in a pool of water or in dry casks on the surface of the land.
Now, it was long ago recognized that this was not a very good
long-term storage of nuclear waste, and so back in 1982, and that’s almost
30 years ago, the Congress enacted the Nuclear Waste Policy Act of that
year in which it directed the Department of Energy to come up with plans
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for the construction of an underground repository to which the spent
nuclear fuel that was being amassed at these various sites could be
transferred for permanent storage. The Department of Energy, as required
by the 1982 Act, embarked upon the study of a large number of possible
sites for this repository, and eventually there were three sites that were
selected for further consideration. One of them in Deaf Smith County,
Texas; another on the Hanford Reservation in the State of Washington.
MS. FEIGIN: An Indian reservation?
MR. ROSENTHAL: No, no. This was a reservation that actually had nuclear activity on it,
definitely not an Indian reservation. And finally, Yucca Mountain, which
is located some 100 miles northwest of the City of Las Vegas, adjacent to
the Nevada test site.
Of these three sites, Yucca Mountain was eventually selected, and
it was selected under the aegis of amendments to the Nuclear Waste Policy
Act in 1987. The Act specifically provided that the Department of Energy
was to consider only Yucca Mountain. The suspicion in some quarters is
that Yucca Mountain was selected because it was in a state which had
relatively little political influence – at the time, at least. Yucca Mountain
having been selected, it was supposed to receive spent fuel by January 31,
1998. That’s a few years ago [laughter]. In point of fact, the application
for a permit to construct Yucca Mountain was not filed with the Nuclear
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Regulatory Commission until June 2008. In other words, more than ten
years after the facility was supposed to be up and running.
MS. FEIGIN: Is there a reason for that?
MR. ROSENTHAL: Well, the reason for that is that the Department of Energy spent how many
years – 1987 to 2008 – investigating the site, preparing its application, and
in the course of doing all of that, spending probably $12 billion. Just to
construct a tunnel, a five-mile-long tunnel, under the mountain, DOE
expended $2 billion. I might say I went through that tunnel at one point.
They had a tram that went through it. They were conducting
investigations – geological investigations, hydrological investigations –
under this tunnel, or at various locations through the tunnel.
Now, before the application was filed, and this, as I say, was in
June of 2008, there were licensing boards that were very active, and they
were active because there were a number of pre-application discovery
issues that had arisen. I had the dubious pleasure of serving on the socalled pre-application board that adjudicated these issues, and the issues
were being adjudicated between, on the one hand, the Department of
Energy, which was the proponent of the proposal, and on the other hand,
the objectors, which were principally the state of Nevada, but in addition
to that, the state of California – Yucca Mountain is very close to the
California border – and certain other governmental entities within Nevada.
Well the application was filed in June 2008 and Nevada and these other
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opponents filed something over 300 contentions in opposition to Yucca
Mountain, which raised an enormous number of both safety and
environmental issues. The Department of Energy, supported by the
Nuclear Regulatory Commission staff, responded to these contentions by
saying that virtually every one of them should be rejected because they
didn’t comply with the Commission’s regulations regarding what was
necessary in order to have a contention admitted for litigation.
In the spring of 2009, a little less than a year after the application
was filed, three separate licensing boards went to Las Vegas to the
Commission’s hearing facility that had been built there specifically for the
purpose of the Yucca Mountain adjudication to hear oral argument on the
300-and-some-odd contentions and the objections that had been filed in
virtually all of them. The contentions were divided up between these three
boards, and each board spent one day listening to oral argument on their
segment of the overall ––
MS. FEIGIN: Just one day?
MR. ROSENTHAL: Just one day. So that the total oral argument went to three days. Three
full days of argument on the objections to these contentions. On the day
that I sat as a member of one of the three boards, I requested and obtained
the privilege of making an opening statement on my own behalf in which I
said that if, as I thought was very likely to be the case, the Board ended up
finding that the vast majority of these contentions were admissible, there
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were very serious questions in my mind – or there would be very serious
questions in my mind – regarding the credibility of both the Department of
Energy and the NRC staff. These objections were ridiculous. In fact,
Nevada was represented by a former deputy general counsel of the
Nuclear Regulatory Commission, and if there was anybody who knew
how to file contentions that were in compliance with the Commission’s
regulations, it was that gentleman.
I don’t think that my message was favorably received by the
Department of Energy counsel or the staff counsel, but they didn’t say
anything in response. It turned out that we admitted all but about 15 of the
contentions, which bore out how ridiculous these objections were. In any
case, we were then prepared to move forward on the 300-plus admitted
contentions when last March – March a year ago, that is – 2010 – the
Department of Energy filed a motion to withdraw its application. Was the
motion based upon a claim that the Department of Energy has suddenly
discovered that there are safety or environmental problems with Yucca
Mountain that cannot be overcome? Absolutely not. The motion was
based solely upon policy considerations, and the foremost policy
consideration being guess what? DOE just woke up to the fact that there
is a lot of local opposition to this proposal in the state of Nevada.
Needless to say, Nevada welcomed this withdrawal, but it did not
sit that well with the states of Washington and South Carolina, in
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particular, both of which have a lot of nuclear junk accumulated on sites in
their states and had been counting upon Yucca Mountain to get rid of it.
So, the motion to withdraw the application was duly opposed by those
states, among others, and the opposition was based upon the claim that the
1987 amendments to the Nuclear Waste Policy Act that designated Yucca
Mountain as the sole site prohibited the Department of Energy from
withdrawing the application that that very Act required it to file. The
argument was that under the statute, DOE was required not only to file but
to prosecute the application, and it was for the Nuclear Regulatory
Commission then to make a decision as to whether Yucca Mountain cut
the mustard in terms of safety and environmental considerations.
The Board (not including me) assigned to consider the motion to
withdraw took note of the fact that the 1987 Act also permitted a
challenger to the motion to go directly into court without exhausting
administrative remedies, a very unusual provision. And indeed, the Board
noted, Washington and South Carolina had done just that. They had gone
to the District of Columbia Circuit challenging before that court, as before
the Licensing Board, the motion to withdraw the application.
At this point, the Board said to the Commissioners, “We don’t see
any cause to pass upon this motion to dismiss, any objection to it. The
matter is before the court, the court is going to decide it in any event, so
it’s going to be simply a waste of resources for us to proceed with this
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matter.” The Commission’s response was, “You’re going to decide it, and
moreover, you’re going to decide it in 30 days.” To which the Board
responded, “We can’t do it in 30 days. We haven’t gotten the briefs yet,
let alone the oral argument, but we will issue a decision as rapidly as we
can following the oral argument.”
In fact, within a month of the oral argument, on the 29th of June,
2010, the Board issued its decision holding that the Department of Energy
did not have the authority to withdraw its application. The Board agreed
with South Carolina and Washington State that, under the provisions of
the Nuclear Waste Policy Act, the Department of Energy had to prosecute
its application, and it was for the NRC to decide whether to grant or to
deny it. DOE immediately appealed the Board’s decision to the
Commission, supported, of course, by Nevada. Today, July 18, 2011, this
is almost thirteen months since the rendition of the Licensing Board
decision, and the Commission has not as yet publicly announced whether
or not it will review the Licensing Board decision.
Rather surprising isn’t it? The Board was given a month to decide
the case, and the Commission in thirteen months – almost thirteen months
– has not as yet publicly announced whether it will review the decision.
Now, is this because the Commission has not voted on this matter? There
was a Congressional hearing a few months ago addressed to the question
of what’s going on here, and the four commissioners who are participating
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in this matter – the fifth commissioner had recused himself because he had
had some involvement with Yucca Mountain before coming on the
Commission – testified under oath that they all had voted last October.
Well why, you might ask, has there been no decision? The reason that
there has been no decision is that the chairman will not allow there to be a
formal vote. What happens regarding Commission decisions is the
commissioners all submit their votes on a sheet, and then, at a meeting,
their votes are confirmed. The chairman will not allow there to be a
confirmation meeting. And why is that? Because the chairman is totally
opposed to the Yucca Mountain project. He has one commissioner with
him. There are two commissioners who wish to uphold the Licensing
Board decision. What happens if there’s a 2/2 split, as there was here?
The decision below is affirmed, and that is not what the Commission
chairman wanted. What he wanted, and what he’s now accomplishing
unilaterally, is killing the project in a different way.
DOE and the NRC both have totally dismantled their Yucca
Mountain operation. Everybody that worked on Yucca Mountain in the
Department of Energy is no longer assigned to that project. The NRC has
shut down entirely its review of the Yucca Mountain proposal. The
hearing facility in Las Vegas that was constructed solely for the purpose of
conducting the evidentiary hearings on Yucca Mountain is being released.
As of the end of this fiscal year, that’s September 30, 2011, neither the
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Department of Energy nor the NRC will have anybody working on Yucca
Mountain. All of the people that had been working on it will be assigned
elsewhere. All of the contractors that had been employed to work on it
will be gone. Even should the court, which still has the matter before it,
determine that the Licensing Board decision was correct, that under the
Act in question DOE was required to prosecute the application, as a
practical matter the project is probably dead.
Now, are these facts secret? No. Everybody knows what has
happened here. And what it has done, among other things, has been to
sadly impair the Nuclear Regulatory Commission’s reputation as a
nonpartisan regulatory agency. It’s recognized far and wide that the
chairman, for political reasons, has unilaterally destroyed this project. The
political reason: Senator Harry Reid. The Majority Leader of the United
States Senate, a Senator from the state of Nevada, has violently opposed
this project from Day One, and the suspicion abroad – I think myself it’s
more than a suspicion – is that this is being done for Harry Reid’s benefit
as well as to make good on President Obama’s commitment when
campaigning in Nevada to scrub Yucca Mountain if elected president. So
this is entirely a political decision, bearing in mind again that DOE did not
claim in its motion to withdraw the application that the motion was based
upon safety and/or environmental considerations.
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MS. FEIGIN: You said last time that there’s an irony in President Obama’s position. I
wonder if you could explain that for us.
MR. ROSENTHAL: I’d be happy to do so. There are more operating nuclear power plants in
the State of Illinois than in any other state in the Union. As a
consequence, there’s more nuclear waste generated by power plants to be
found in Illinois than in any other state. For that reason, it would seem
that Illinois would have the greatest interest in seeing Yucca Mountain
built so that the nuclear waste that’s being generated in the state could be
removed from it to the repository. I’m certain that, unlike
President Obama, the senators and representatives from the state of Illinois
are most anxious to have Yucca Mountain built, although apparently, at
least with the Democratic members of Congress, Senator Reid carries
enough influence that they’re not raising an issue about it. It is my
understanding that among the Republicans in the House there’s a great
deal of agitation over what’s happened with respect to the Yucca
Mountain application.
MS. FEIGIN: I sense a frustration on your part, and I wonder does this impact how you
feel about decisions you make that go up to the Commission, that at least
in some cases can be politically motivated?
MR. ROSENTHAL: Over the years, obviously, first as an Appeal Panel member and more
recently as a Licensing Board member, I’ve had many decisions go to the
Commission. I’ve been satisfied with some of the Commission outcomes.
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I’ve been dissatisfied with others. But I have never previously felt that
any Commission decision, whether on review of one of my decisions or a
decision of a colleague, was motivated by partisan political considerations.
I have thought that some Commission decisions over the years have
reflected too cozy a relationship with the industry, but that was not a
partisan political matter. And that, frankly, is what disturbs me the most
about what has transpired with regard to Yucca Mountain.
I have devoted a very significant portion of my life to this
Commission and its predecessor, and as a consequence, I take a substantial
interest in how it’s viewed by the public at large. It’s for that reason that I
deplore what has transpired with respect to the Yucca Mountain
application in the course of the last year or so.
Now, I don’t know what’s going to happen from this point on. My
oral history is about to come to an end. I would like to think that despite
the current posture of this matter, Yucca Mountain will be revived. Now
when I say “revived,” what I’m talking about is the application. I’m not
predicting at this point what will be the ultimate outcome of an evidentiary
hearing on Yucca Mountain, should one occur. There are very serious
safety and environmental issues that have been raised by the opponents,
principally the state of Nevada, and it might turn out that their concerns
will prove to have been totally justified, with the consequence that at the
end of the day NRC boards and the Commission on its review will
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determine that Yucca Mountain simply will not fly. My problem is that
Yucca Mountain is being scrubbed – or at least an attempt is being made
to scrub it – without the evidentiary hearing that seems plainly required, as
the Licensing Board found, by the governing statute, and this is
particularly appalling, in my mind, because there is no Plan B for dealing
with the accumulating spent fuel.
There is some kind of commission that has been established by the
president to explore other alternatives. In my mind, such commissions are
created simply because there’s no other alternative on the horizon. It’s the
absence of Plan B for disposing of this nuclear garbage, some of which I
might say is military in nature. Yucca Mountain would not merely be
housing the spent fuel from commercial nuclear power plants. It also
would be housing nuclear waste that’s generated by military operations.
So that’s where it stands, and I don’t know how it’s going to turn
out. As matters now stand, Yucca Mountain is dead. It might or might
not be revived. I just think this is a very, very sad day in the history of the
Nuclear Regulatory Commission over the now almost forty years of its
existence.
MS. FEIGIN: I wonder now that you’re on the initial panels, as opposed to an appellate
panel, whether that changes your perspective at all. In other words, when
you were on the appellate panel and you were reviewing these initial
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decisions, you looked at them one way; now when you’re looking at them,
does it change anything for you?
MR. ROSENTHAL: Not really. I would like to think that I avoid some of the mistakes that as
an appellate adjudicator I found in Licensing Board action [laughter], but I
haven’t found it substantially different. One of the things, though, that I
should have mentioned is that I’ve been there, as I say, for almost twelve
years, and I’ve conducted exactly one evidentiary hearing. Almost all of
the cases that I’ve been on have been disposed of without the necessity of
an evidentiary hearing. Now, I probably have conducted maybe 40 oral
arguments on issues of standing, on issues of contention admissibility and
the like, but that happens to have been the way it goes. I mention that
because it demonstrates that as it’s turned out, what I’ve done as a
Licensing Board panel member has not been substantially different from
what I did as a member of the Appeal Panel [laughter]. It’s been basically
hearing oral arguments on legal issues.
MS. FEIGIN: You work part-time now, but what does that mean? How much time do
you devote to it?
MR. ROSENTHAL: Well unfortunately I’m not working as many hours these days as I would
have liked. Four or five years ago, in anticipation of extended evidentiary
hearings with respect to Yucca Mountain, as well as numerous evidentiary
hearings in connection with the renaissance in applications for
construction permits and operating licenses for new nuclear power plants,
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the Licensing Board panel management decided to take on four additional
full-time lawyer judges. Well, Yucca Mountain did not materialize, or at
least it has not at this point. Most of the applications for construction
permits and operating licenses for new nuclear power plants have not
produced evidentiary hearings. The consequence is that the workload is
now much less than had been anticipated. Obviously the full-timers have
to be kept busy, and so I get what’s left over, and these days it isn’t very
much. Most of my time I regret to state is devoted to the peer review of
other Licensing Board members’ work. And that’s something that gets me
into the office from time to time, but I would like to have more work than
I now am given or that I’m likely to receive in the future. How long I’m
going to stay on the panel remains to be seen. As indicated earlier, I
signed up last month for another year, which will take me, health
permitting, until June 30, 2012, and it remains to be seen whether I will
continue. My present inclination is that if they continue to want me, I will
stay with the panel as long as my health permits and there’s at least
something for me to do.
MS. FEIGIN: Let me just ask one closing question before we leave the Commission
today. You said earlier that there was a long period without applications
for new or expanding facilities and then there came a time more recently
when they have started to come in. I assume the original hiatus might be
related to Three Mile Island?
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MR. ROSENTHAL: I don’t know to what extent it was related to Three Mile Island. I think it
was related more to considerations of economics. It requires an enormous
sum of money to build these plants. In many states, you cannot put the
cost of construction into your rate base until after the facility has gone into
operation, so you’ve got significant borrowing costs associated with
building them.
There was a time when it was thought that electricity generated by
nuclear power would be too cheap even to meter, and that certainly was
proved early on to be a total fallacy. I have even substantial doubt as to
whether many of these proposed plants today – the ones that are going
through licensing proceedings – will actually be built. In that connection,
Dominion Power Company, which is across the river in Virginia, has a
two-unit facility in operation at Lake Anna, down south of Fredericksburg.
North Anna is the name of the facility. It applied for an early site permit
for an additional unit or two on that site. When it came to the attention of
a reporter, he asked the president of Dominion whether the application for
this permit meant that Dominion was all ready to go with the building of
an additional unit or two once it got NRC approval, and the president said,
“If I answered that question ‘yes,’ my chief financial officer would have a
heart attack.” But even back in the 1980s it was becoming increasingly
clear that there were definite economic obstacles to building these plants.
MS. FEIGIN: Why now then is there an increase in applications?
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MR. ROSENTHAL: I think they’re hopeful of getting all kinds of federal government benefits
of one kind or another. There is a federal government impetus to increase
the use of nuclear power for the generation of electricity, but it remains to
be seen how many of these plants actually get built.
MS. FEIGIN: You said earlier that the way the system works is a bit awkward in that the
environmental assessments are written after you file your opposition to
them, so is it ultimately that you can amend your opposition?
MR. ROSENTHAL: Well, yes. You can file what the Commission for a long time
characterized as late contentions, which carried an onus. Really they
should be described as new contentions. Once there are new
developments, you can file new contentions addressed to the new
developments.
My view of it, as I indicated earlier, is that at the threshold state,
all that a prospective opponent should have to do is to come in and
establish standing, that he has a basis for complaining about the particular
facility. Then everything should be kept in a state of suspension until the
staff has completed its technical review. The technical review consists of
issuing an environmental impact statement addressed to the environmental
impacts and a final safety analysis report which is addressed to the safety
issues. What happens now is hearing request filed, opposition filed by the
applicant, usually joined by the Commission staff. The Board then passes
upon the hearing request, decides whether there’s standing, decides
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whether there’s at least one admissible contention, and then guess what
happens? The case goes into suspension for a year, two years, while the
staff is conducting a technical review. It makes utterly no sense. I’m just
waiting for some young administrative law professor who’s faced with
publish or perish [laughter] to come up with a scathing Law Review article
addressing this system which for my money would have made Lewis
Carroll and Alice in Wonderland proud.
MS. FEIGIN: Alan, maybe since you’re not working as many hours as you had hoped,
you can start working on that article [laughter].
MR. ROSENTHAL: Obviously, as long as I remain in the employ of the NRC, even on a parttime basis, it would be very poor form, I think, for me to attack the
Commission’s procedures. Needless to say, I’m not the only one who is
mystified by them, and particularly, there are boards that are now handling
these power plant cases, which I am not. It’s sort of frustrating when they
go through the preliminary stages and they hold oral arguments on
contention admissibility and standing and all of that and then they come
down with their decision on what contentions are admissible and what are
not, and then they just do nothing for a year or two in the case, waiting for
the technical review to be completed. And I would have to say in that
regard that the staff is pretty good about the technical reviews in the power
plant cases, in getting them completed seasonably. But in the
decommissioning cases, or in the license extension cases, they take
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centuries.
If I may just add one other thing before we close it out, on license
extensions. You have a license and it’s for a term of years, and now you
want to get it renewed. Here is a perfect example of the flaws associated
with the renewal process. In one of these cases a month before the license
was to expire the licensee filed its renewal application. This happened to
be for a uranium mine. Because the licensee had filed the application a
month before the license was to expire, under the Commission regulations,
the license thus remained in effect until such time as the renewal
application was adjudicated, on the opposition of residents of an Indian
reservation who claimed that this mine’s operations had been polluting its
waters and had caused all kinds of ailments to the residents of the
reservation. Now, their hearing request was granted two years ago. Have
their claims been heard yet? No they haven’t. And why is that? Because
the Commission staff has not completed its technical review of the license
renewal application, and it now looks like it’ll be another year before this
matter reaches a hearing. So what’s the current situation? The situation is
that for at least three years this mine will continue in operation,
notwithstanding the claim of the Native Americans that the mine
operations are causing them substantial physical injury, without any
hearing on the merits of that claim. Is that reasonable? No. But that’s the
way the system works, and I have to say that while the Commission puts
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enormous pressure on the licensing boards to get their decisions out,
particularly where it’s an application for a permit to build a nuclear power
plant, and to operate it, in these cases such as the one I just referred to, no
pressure on the staff at all. It’s a disgrace. But that’s the way that the
system operates. If I were the Native Americans in this uranium mine
case, I would be in court claiming that there has been a denial of due
process and that because of the fact that the agency has dragged its feet so
long, the principle of exhaustion of administrative remedies simply
doesn’t apply. But this is the way it goes.
So, what I’m saying is that there’s a lot wrong in my judgment
with the way that the administrative adjudicatory process operates.
There’s one irony here, which is that while it’s to the advantage of the
licensee seeking an extension to wait until a month before its license
expires to apply for the extension, most of the utilities seeking extensions
of their operating licenses apply for the extensions 10 and 15 years before
the license expires because they want the certainty as early as possible that
they’ll get the license extension.
MS. FEIGIN: Interesting.
Well thank you very much for walking us through this. I appreciate it
enormously.
MR. ROSENTHAL: It’s been a pleasure once again. I guess there’ll be one more session.
MS. FEIGIN: I look forward to it.