Senator Vitter and Representative Terry recently introduced a bill that would replace the law currently governing the Nuclear Regulatory Commission's internal operations, known as Reorganization Plan No. 1 of 1980. The "Reorg Plan" came about after the 1979 accident at Three Mile Island. Studies that examined the factors leading to the accident recommended that the NRC be headed by a single administrator. President Carter retained a commission structure, but with more powers concentrated in the NRC Chairman. The Reorg Plan vested in the Chairman executive responsibilities and conferred to the Chairman sole authority over emergencies.
Three decades later, the Vitter-Terry legislation (called the "Nuclear Regulatory Commission Reorganization Plan Codification and Complements Act") would decentralize some of the Chairman's authority under the Reorg Plan, dispersing it to the full Commission. It would also impose new requirements on the Commission. The legislation is motivated by the controversial actions of former Chairman Jaczko, who resigned amid allegations that he abused his authority and failed to fulfill the responsibilities entrusted to him under the Reorg Plan. Much of the controversy related to the Yucca Mountaing licensing decision. But the Fukushima Daiichi accident also put a spotlight on a Chairman's rare use of emergency authority.
The driving force behind the bill is understandable, given the divisive and uncollegial Commission atmosphere during Chairman Jaczko's tenure. But the practical effects of the legislation must be examined carefully.
In an opening effort to dilute the Chairman's authority, the bill proposes to change the NRC's budget formulation process. Currently, the NRC staff proposes a budget to the Chairman, who then proposes a budget to the full Commission for its approval. The "Chairman's budget" may not necessarily reflect the NRC staff's proposal. In contrast, the bill explicitly makes one of the Commission's core functions the approval of the budget "proposed by the Executive Director for Operations." In other words, the Commission would directly approve the staff's proposed budget, cutting out the Chairman as the middle-man. Allowing the Commission to directly review the staff's proposed budget appears tied to the issue of Commission access to information.
Access to information – a sticking point under the former Chairman – is explicitly called out in the bill, requiring that all members of the Commission have full, unfettered, timely, and equal access to information. This mandate is logical on its face, considering the Commission's broad responsibilities. But in practice, how would this be implemented? If the staff provides one Commissioner information in response to an inquiry by that Commissioner, is the staff obligated to provide that information to all Commissioners virtually simultaneously? On the other hand, wouldn't sharing information to the fullest extent possible enhance the collegial Commission structure?
The saying "knowledge is power" also has special meaning in the context of the changes the bill would make to the Chairman's authority during an emergency. The bill continues to concentrate emergency powers in the Chairman, but is much more explicit than the Reorg Plan regarding declaration of an emergency, consultation with the Commission, and the final report to be issued. These amendments are clearly driven by Chairman Jaczko's handling of Fukushima, which raised questions as to whether the Chairman had invoked his emergency powers (the immediate emergency – other than the threat of a tsunami affecting nuclear power plants on the West Coast – was in Japan and did not affect NRC licensees). Those actions also led to Congressional inquiries as to the actions taken by the Chairman during the emergency and the extent to which the Commission knew about those actions. The legislation would require the Chairman to publicly declare an emergency, consult with the Commission to the maximum extent possible before taking policy or regulatory actions during an emergency, and issue a report to the Commission and Congress describing any actions taken under the Chairman's emergency authority. These provisions appear intended to make the Chairman more accountable to the other Commissioners, which is a worthy goal so long as it does not revert to the pre-TMI failures of weak executive power in a domestic emergency.
Chairman accountability is a theme throughout the bill, which would also require the Commission to inform the President and Congress in writing if a Commission majority decides that the Chairman has not acted in accordance with established Commission policy, or has failed to keep the Commission "fully and currently informed" about matters within its functions. This requirement in effect codifies the approach taken in 2011 by the four other members of the Commission, who wrote to the White House expressing their grave concern that Chairman Jaczko's actions were creating a chilled work environment. Accountability to the President and Congressional oversight committees is sensible. But requiring the "nuclear option" could cause strain within the Commission – particularly if the decision is not unanimous. Then again, so long as a Chairman acts within his or her statutory boundaries, the Commission would never have occasion to confront such matters.
Acting within the Chairman's authority means that any statements made by the Chairman on behalf of the Commission must reflect the policies of the Commission. Although this has always been the intent under the Reorg Plan, it has not always been faithfully executed. The bill retains the Chairman's spokesman duties, but clarifies that the Chairman must represent policies established by a majority of the Commission. Of course, one would presume that the Chairman would continue to be able to express a personal view that diverges with Commission policy, so long as it is appropriately caveated as such.
Other provisions do not explicitly curtail the Chairman's authority, but are direct results of the prior Chairman's actions. For example, the bill includes a provision imposing strict time limitations for the Commission to review decisions of the Atomic Safety and Licensing Board. It would require the Commission to act within 90 days of receiving final briefs on a Board's decision, and to move forward with its decision once a majority position has been established, even if some Commissioners have not voted. The bill would also require the Commission to publish its decision within 30 days after a majority position has been established or, in the case of a tied vote, after the votes of participating members have been cast. These provisions seem to address the infamous split decision on Yucca Mountain. It took the Commission until September 2011, over a year after the underlying Board decision had been issued, to publish its decision. Many – including Congress – questioned whether the Commissioners had voted on the Yucca Mountain matter, and if so, why the resulting decision had not been issued. The bill would force prompt Commission action, which is desirable from the standpoint of ensuring timely licensing decisions. But the real test would be in implementation. Ultimately, the Commission must ensure that its decisions are not only timely, but also sound, well-articulated, and grounded in the underlying record. A quick Commission decision would be an inefficient one if it is only to be reversed by a Court of Appeals.