ML23124A381

Regulatory Independence and the Three Mile Island Cleanup

ML23124A381
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Issue date:	05/04/2023
From:	Thomas Wellock NRC/SECY
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1 Regulatory Independence and the Three Mile Island Cleanup Thomas Wellock Historian, U.S. Nuclear Regulatory Commission Independent: Nothing but the highest possible standards of ethical performance and professionalism should influence regulation. However, independence does not imply isolation. All available facts and opinions must be sought openly from licensees and other interested members of the public. The many and possibly conflicting public interests involved must be considered. Final decisions must be based on objective, unbiased assessments of all information, and must be documented with reasons explicitly stated. (NRC Principles of Good Regulation, 1991)

Overview The Energy Reorganization Act of 1974 created the Nuclear Regulatory Commission (NRC) to be an independent regulator. What independence meant in practice was not spelled out, although it was clear from hearings on the legislation that Congress wanted the NRC to prioritize safety in its regulations and be free of the perceived bias to promote civilian nuclear energy displayed by its predecessor, the Atomic Energy Commission (AEC). Turning that relatively simple concept of independence into a working principle for the agency evolved over the years in response to key events. This white paper provides a historical analysis of how NRC independence was shaped by the cleanup of the damaged Unit 2 reactor after the 1979 accident at the Three Mile Island nuclear power plant near Harrisburg, Pennsylvania.

To NRC critics, TMI was a troubling indication of a more general regulatory weakness: the new agency seemed to be neither safety-minded nor independent. Authored by its chairman John Kemeny, the Report of the Presidents Commission on the Accident at Three Mile Island (Kemeny Commission) concluded, We have seen evidence that some of the old promotional philosophy [of the AEC] still influences the regulatory practices of the NRC. . . . The NRC has sometimes erred on the side of the industry's convenience rather than carrying out its primary mission of assuring safety. 1 The Kemeny Commission thought the NRC had bowed to industry pressure by focusing more on approving new plant licenses than resolving safety questions, and its inspectors and staff seemed to show little independence on site visits or reviewing operations, operating procedures, and safety issues.

Regaining the NRCs independent reputation took time. The first year of the cleanup was beset by delays and mishaps that did not reassure the public. The task was also complicated by the unusually engaged role the NRC played in the cleanup. It worked closely with TMIs owner, General Public Utilities Corporation (GPU) to modify the plants license and regulations in response to unanticipated cleanup challenges ranging from the disposal of solid wastes, the addition of new cleanup systems to the plant, and publicly-sensitive offsite discharges. As the lead federal agency for the cleanup, it collaborated with GPU and many other entities to effect policy solutions to technical and political problems, collect safety research data, and resolve 1

John G. Kemeny, Report of the Presidents Commission on the Accident at Three Mile Island (Washington, DC:

U.S. General Printing Office, 1979), 19. See also General Accounting Office, Nuclear Regulatory Commission:

More Aggressive Leadership Needed (Washington, DC: GAO, January 15, 1980), iii, 7-8, 14, 45-46.

2 waste disposal issues. The NRC had the delicate task of being an advocate for the importance of the same cleanup whose safety it oversaw.

This unique post-accident situation required adapting its existing concepts of independence to TMIs reality. The NRC was new, but regulators had endeavored for 25 years to ensure that nuclear safety regulation remained independent of the Atomic Energy Act of 1954s mandate that the federal government promote applications of nuclear energy. The agency drew on an established history of a formal separation of regulatory functions, an established regulatory process, and safety decisions based on reliable data and objective expert analysis. Critically during the cleanup, the NRCs independence depended on its ability to be an open regulator. It sought out research and information critical to its regulatory decisions, and it sought to build confidence in its regulatory decisions by disseminating information and seeking public input.

The Atomic Energy Commission With the passage of the Atomic Energy Act of 1954, the AEC wrestled with how to meet the laws conflicted dual mandate to promote peaceful uses of nuclear energy while still providing adequate protection to the public. An early licensing controversy in Michigan fed the perception that the AEC was more eager to promote nuclear energy than ensure its safety. A consortium of utilities proposed to build south of Detroit an advanced liquid-metal fast-breeder reactor. Despite public concern, the AEC resisted holding public hearings on the proposal and refused to release information on the design or a critical safety assessment of it from the AECs independent Advisory Committee on Reactor Safeguards (ACRS). The AECs recalcitrance led Congress to amend the Atomic Energy Act in 1957 requiring the Commission to publish ACRS, licensee, and staff safety analysis on every application and hold licensing hearings open to public participation. The legislation also made the ACRS a statutorily protected body. 2 The 1957 amendments reflected Congresss belief that regulatory independence had to be verified. It required institutional transparency that allowed an open interrogation of the facts through published regulations and reports, public hearings conducted by independent tribunals, and peer review of safety analysis by the independent experts.

The 1957 legislation, however, did not create an independent commission. Congresss Joint Committee on Atomic Energy asked the AEC to investigate the wisdom of moving its regulatory responsibilities to a separate agency. The AEC reported back that such a move was premature. A regulatory commission, AEC officials argued, would have to compete with the AECs other divisions for scarce nuclear expertise. Given the immaturity of reactor designs and unresolved safety questions, regulators needed ready access to the expertise of the AECs national laboratories and divisions developing new reactor technology. The AEC argued that an agency split should come at a later stage when commercial production of atomic power is achieved. 3 Nevertheless, the AEC tried to carve out independence for its regulators through a reorganization. The AECs regulatory and promotional offices were in the same division, an 2

George T. Mazuzan and J. Samuel Walker, Controlling the Atom: The Beginnings of Nuclear Regulation, 1946-1962, NUREG-1610 (Washington, DC: U.S. Nuclear Regulatory Commission, 1997), 147-182, 192-99.

3 Mazuzan and Walker, 198.

3 arrangement ripe for conflict of interest criticism. The AEC created a separate division of civilian licensing and regulation. Physical separation followed in 1963 when the regulatory staff moved from the AECs headquarters in Germantown, Maryland to offices in nearby Bethesda. 4 The AECs partitioning of regulatory and promotional functions proved unsatisfactory. As safety questions arose with new licensing applications, regulators seeking answers competed for the same pot of money as the AECs offices promoting new reactor designs in the Division of Research, Development, and Technology (DRDT). Regulatory staff and ACRS members complained that light-water reactor safety research had low priority compared to cutting edge technology, such as the liquid-metal breeder reactor, which enjoyed keen interest in Congress.

The internal conflict went public in 1972 during rulemaking hearings to establish performance criteria for Emergency Core Cooling Systems. Intervenors used the new Freedom of Information Act to discover records they claimed proved AEC scientists and regulators were harassed for dissenting views and troubling research results. While the AEC disputed these claims, the intervenors seemed vindicated when the head of DRDT was forced out and the AEC established an office of safety research within the regulatory division. Congress concluded that protecting regulatory independence required legislative separation. 5 The Nuclear Regulatory Commission and Independence Creation of the NRC with the Energy Reorganization Act of 1974, then, reflected internal AEC conflicts, the publics perception that safety had a low priority at the AEC, and a broader movement to protect regulatory agencies from conflicts of interest. Roy Ash had previously led a 1971 study of independent regulatory commissions that called for separation of regulatory and promotional duties at other agencies. Later as the Director of the Office of Management and Budget, he testified in hearings on the Energy Reorganization Act in favor of the AEC split in order to remove even the appearance of a conflict of interest. He thought the five-member Commission format was best means of assuring continued fair and impartial regulation. 6 Like other independent commissions in the federal government, the NRCs commission structure establishes its larger framework of independence. The idea of having a single administrator head the NRC was rejected by Congress in favor of a collegial five-member Commission whose members could not include more than three appointees from one political party. Once appointed by the President and confirmed by the Senate, the removal of a Commissioner is limited to cases of inefficiency, neglect of duty, or malfeasance in office. This independence at the top aimed 4

Mazuzan and Walker, 193; and J. Samuel Walker, Containing the Atom: Nuclear Regulation in a Changing Environment, 1963-1971 (Berkeley: University of California Press, 1992), 38.

5 Thomas R. Wellock, Engineering Uncertainty and Bureaucratic Crisis at the Atomic Energy Commission, 1964-1973, Technology and Culture 53 no. 4 (October 2012): 846-84.

6 The Presidents Advisory Council on Executive Organization, A New Regulatory Framework: Report on Selected Independent Agencies (Washington, DC: GPO, 1971), 79-81; and Susan R. Abbasi, A Brief Summary of the Energy Reorganization Act of 1974 (P.L.93-438) (Washington, DC: Congressional Research Service, March 15, 1975),

CRS-45.

4 to foster public confidence in its decisions and allow the agency to engage multiple stakeholders in its search for safety information without charges of bias. 7 To bolster the NRCs independence, the Energy Reorganization Act also vested the new agency with the authority to fund safety research and the technical capability to analyze it. AEC Chairman Dixy Lee Ray testified that the NRC needed the independent capability for developing and analyzing technical information related to reactor safety, safeguards, and environmental protection. The legislation also established a new Office of Nuclear Regulatory Research (RES) to be responsible for such research as is necessary for the effective performance of the Commissions licensing and related regulatory functions. 8 NRC Commissioners agreed. In its first annual report, the Commission stated it was confident of NRCs ability to face up to and deal with tomorrows regulatory demands with effective, independent decisions, efficiently and openly made. Independently derived technical information, the annual report noted, provided the means to analyze applicant or licensee safety justifications in licensing actions. And safety research provided an independent basis and means to reliably and credibly analyze the progression of hypothetical accidents. 9 The road to independent expertise was not without controversy. Like the AEC, critics claimed the NRC used tainted data and expertise, pointing to the controversial WASH-1400 report (1975), the first full-scale probabilistic risk assessment (PRA). The report came under fire for using biased sources from industry and undergoing an inadequate peer review. An expert panel review of the report in late 1978 substantiated some of these claims. 10 The NRC also struggled with how independence applied to individual agency employees. The 1972 ECCS controversy pointed to the need to protect staff who might offer a differing professional opinion from staff consensus, and several controversies with dissenting employees in the mid-1970s at the NRC and other federal agencies led to whistleblower protection laws.

In 1976, NRC Chairman Marcus Rowden sought to reassure staff that the agencys safety mission was the reason NRC was established as a separate and independent nuclear regulatory agency. . . . Diversity of viewpoint is a strength of our regulatory process, not a weakness; and we must maintain an agency climate which encourages qualified staff to speak their best judgment in carrying out their job. Staff had the right and duty to speak out on any situation which he or she considers to be unacceptable from the standpoint of the protection of the public.

In 1980, the NRC issued a directive to managers that they maintain an environment that encouraged employees to air the best professional judgments even though they may differ from prevailing staff view, disagree with a management decision or policy position, or take issue with proposed or established agency practice. 11 7

Abbasi, CRS-22; and J. Samuel Walker, Three Mile Island: A Nuclear Crisis in Historical Perspective (Berkeley:

University of California Press, 2004), 32-34.

8 Abbasi, A Brief Summary of the Energy Reorganization Act of 1974, CRS-44, CRS-45.

9 U.S. Nuclear Regulatory Commission, Annual Report 1975 (Washington, DC: U.S. NRC, 1976), 12, 102-03.

10 Ad Hoc Review Group, Risk Assessment Review Group Report to the U.S. Nuclear Regulatory Commission, NUREG/CR-0400 (Washington, DC: U.S. Nuclear Regulatory Commission, September 1978).

11 NRC, Annual Report 1976, 201; and NRC Annual Report 1980, 227.

5 On the eve of the 1979 accident, the NRC was still a young agency, but nuclear regulators had already spent many years defining the critical elements of regulatory independence: separation, openness and transparency, unbiased access to data, conflict free expert analysis, and a capable staff free to express professional judgments. Nevertheless, TMI forced the agency to redouble its commitment to independence.

An Independent Regulator at TMI?

Maintaining regulatory independence during the TMI cleanup was a task complicated by the damage done by the Unit 2 accident to the NRCs credibility. While the NRC never claimed that a major accident was impossible, TMI exposed its excessive confidence in the adequacy of existing reactor designs, operations, and emergency preparedness. For example, the industry and NRC had taken only a limited interest in human factors in plant design. The control-room layout presented information in visually confusing ways, which contributed to the mistakes made by TMIs harried reactor operators, as did limited operator training and inadequate emergency procedures. The NRCs own miscues were partly the result of its tendency to treat emergency planning as a paper exercise. When the real thing occurred at TMI, communications between the utility, the NRC, and Pennsylvania officials were uncoordinated and confused, and there was uncertainty about lines of authority in implementing a possible evacuation. As post-accident reviews brought these issues to light, the public and their political representatives demanded reform and that the NRC distance itself from the nuclear industry.

The NRC had to oversee the cleanup in this climate of uncertainty and under the now skeptical eye of local residents. Expediting the cleanup required the NRC to be a more engaged regulator than it was in licensing of new reactors or oversight of operating facilities. There were a multitude of licensing changes and safety reviews NRC staff needed to approve, which made impracticable the usual hierarchical chain of command from headquarters. To improve efficiency, the NRC established a field office, the TMI Program Office (TMIPO) to work with GPU. It was also the primary advocate for the cleanups importance and collaborator with other government agencies to solve thorny technical-political issues such as the removing wastes stranded on the island. How could the NRC work closely with GPU, serve as the cleanups advocate, and be independent and objective?

The NRC expanded and modified its existing traditions of independence. For example, it was careful to maintain professional distance between regulator and licensee. The agency had already developed fraternization restrictions in its new resident inspector program at operating facilities. 12 TMIPO also employed these practices. To avoid a loss of objectivity through extended social contact, NRC staff had limited stints at TMIPO and rules on social contact with GPU employees. For example, NRC staff did not play on the same league softball teams as GPU employees, and an NRC team was disbanded over similar concerns regarding fraternization. 13 The regulatory framework also had to be adapted to cleanup operations. Before 1979, the NRC had not developed regulations to cleanup a damaged nuclear power plant, nor did TMI initially 12 Ernst Volgenau to the Commissioners, Locating NRC Inspectors Near Reactor SitesTrial Program, SECY 138, March 16, 1977, US NRC ADAMS ML20148M862.

13 Lake Barrett email to author, January 3, 2017.

6 convince its staff that one was needed. Soon, however, a legal challenge from local communities over plant decontamination led the NRC to establish more formal regulatory processes. As plant operators stabilized the damaged Unit 2 reactor in April 1979, GPU and the NRC turned to a critical task of filtering and disposing of several hundred thousand gallons of accident generated water (AGW) that had contaminated the reactor and auxiliary buildings. Since the filtration systems could purify AGW to better than drinking-water standards, NRC staff initially believed safety and environmental reviews were unnecessary. In early May, the NRC announced that filtered AGW would be discharged to the Susquehanna River. 14 The announcement drew an angry response from local residents, public officials, and the press at the NRCs untested method of cleaning the AGW. One headline pleaded Dont Make Us Guinea Pigs, and on May 21, the nearby city of Lancaster filed suit to halt the discharge.

Lancaster alleged that the discharge would violate the National Environmental Policy Act (NEPA). The filtration system and planned discharge, the city argued, were a major federal action under NEPA that could do irreparable harm to public health and the environment. The NRC and GPU could not pursue the cleanup in secret, Lancaster claimed, and demanded the agency develop a full-scope Environmental Impact Statement with public input. The suit also noted that the filtration systems were major plant modifications that involved unreviewed safety questions. Such modifications required GPU to submit to the NRC revised plant technical specifications and license amendments in a process open to public input. 15 Lancasters position gained the support of regional politicians and the presidents Council on Environmental Quality, the latter providing oversight of NEPA implementation by federal agencies. In the fall of 1979, the Commission issued a policy statement on the cleanup, which said it would develop a Programmatic Environmental Impact Statement (PEIS) to address the cleanups impact on the environment, occupational and off-site doses, and socioeconomic and psychological effects. Public comments on the draft PEIS reiterated the importance the public attached to the NRCs use of independent sources and experts in evaluating cleanup actions and alternatives. The final PEIS established decision criteria for NRC staff on radiological emissions when reviewing cleanup and data collection activities. 16 The PEIS established radiological boundaries and a clear decision space for TMIPO staffindependence within limits.

Other governing documents also spelled out the independent role of the NRC, such as the NRC Plan for Cleanup Operations, which established that TMIPO would independently review and approve all operations by GPU. 17 As part of the policy statement, the NRC announced it would delay a decision on the final disposition of AGW. It later reached an agreement with Lancaster that it would not discharge AGW to the river. Instead, the NRC issued a supplement to the PEIS that evaluated numerous 14 City of Lancaster v. United States Nuclear Regulatory Commission, Complaint for Injunctive Relief, May 20, 1979, United States District Court for the District of Columbia, Civil Action 79-1368 15 City of Lancaster v. United States Nuclear Regulatory Commission.

16 U.S. Nuclear Regulatory Commission, Statement of Policy and Notice of Intent to Prepare a Programmatic Environmental Impact Statement, Federal Register, 44 no. 229, November 27, 1979, 67738; and US NRC, Final Programmatic Environmental Impact Statement, NUREG-0683, vol. 1 (Washington, DC: U.S. NRC, March 1981),

1-9.

17 NRC Plan for Cleanup Operations at Three Mile Island Unit 2, NUREG-0698, rev. 1, 3-1; Barrett email.

7 options and held hearings on GPUs proposal to evaporate the water. 18 In this way, the most politically sensitive cleanup activity included extensive opportunity for public comment.

The Lancaster suit, the PEIS, and the NRC Plan for Cleanup Operations helped define the legal, procedural, and technical space in which NRC independence operated. Through public meetings and publications, the autonomy of NRC staff was open to public evaluation and comparison to regulations and safety standards. Public access to many NRC records is protected under the Freedom of Information Act. Over time, the rules governing public attendance at NRC staff-sponsored meetings have been carefully defined in regulations, policy statements and directives, particularly for meetings that are closed to the public, such as meetings with licensees where classified or sensitive information will be discussed or drop-in meetings with licensee executives to exchange information on issues not directly related to a regulatory decision. 19 Involving the Public The NRCs damaged credibility following the accident meant it had to work harder to be transparent and open to public input. Openness was critical to reassuring the public that the NRC was acting independently. The NRC supplemented its existing practices of holding open commission meetings and publishing policy papers with other communications efforts. TMIPO staff issued weekly status reports, traveled to NRC headquarters to make quarterly Commission briefings, and made regular presentations to local government bodies and civic organizations.

TMIPO site manager Lake Barrett recalled, it was important that the NRC not only be independent but be perceived by the public as being independent. . . . If there is not an openness effort by NRC, then NRC may be perceived by the public as not being independent. .

. . That wrong perception can be very damaging to everyone, so outreach is an important part of the NRC mission. 20 Barretts assessment was particularly true at TMI. The psychological stress suffered by local residents lingered making further outreach essential. Almost a year and a half after the accident, a majority of residents admitted they doubted their ability to cope with any further accidents at the plant. In late 1979, the leader of a behavioral study of local residents reported that many had developed a pervasive distrust of authorities. Its something policymakers in a democratic system have to deal with. If they dont, its at their own peril. 21 Peril came soon enough. In early 1980, an inadvertent release of a small quantity of Krypton-85 (Kr-85) caused a flurry of news headlines and resident anger. When the story broke, the NRC 18 U.S. NRC, Programmatic Environmental Impact Statement Related to Decontamination and Disposal of Radioactive Wastes Resulting from March 28, 1979 Accident at Three Mile Island Nuclear Station, Unit 2, NUREG-0683, Supplement no. 2 (Washington, DC: U.S. NRC, June 1987).

19 The NRCs most recent guidance on open and closed meetings is NRC, Management Directive 3.5, Attendance at NRC Staff-Sponsored Meetings, July 26, 2021, https://www.nrc.gov/reading-rm/doc-collections/management-directives/volumes/vol-3.html; and NRC, Enhancing Public Participation in NRC Meetings; Policy Statement Enhancing Public Participation in NRC Meetings (86 FR 14964; March 19, 2021)Federal Register, vol. 86, March 19, 2021, 14964.

20 Barrett email.

21 NRC, Lessons Learned from the Three Mile Island-Unit 2 Advisory Panel, NUREG/CR-6252 (Washington, DC:

U.S. NRC, June 1994), 1-6; Nucleonics Week, December 6, 1979, 3.

8 was in the midst of holding a series of community meetings on the drafting of the PEIS. The crowds turned physically confrontational. The police restrained members of the public who screamed liar and murderer at utility and NRC representatives. 22 The public uproar led the NRC to create an ad hoc task force to review an accumulation of problems with the cleanup. The task force warned that a lack of public confidence in GPU and the NRC might sabotage the cleanup. The potential for unplanned releases which might alarm the public, increase worker risk, and complicate the cleanup will grow as time passes. . . .

Without local public understanding and acceptance of the cleanup operation at TMI-2, an orderly and expeditious cleanup will be difficult, if not impossible, to accomplish. Public fears and stress can be expected to persist until the plant is cleaned up. The NRC could act as an independent agency, but only as long as it enjoyed political and public support. 23 The Kr-85 mishap heightened public worries of GPUs proposal to vent a large quantity of the gas from the containment building as part of a plan for personnel entry into the building for a visual inspection. Opposition to venting was intense among some residents, despite analysis by GPU and NRC that venting posed little risk. Suspicious that radiation monitoring had been inadequate, local politicians called for an outside agency to provide trustworthy monitoring.

Mayor Robert Reid of nearby Middletown said, We want someone in there to tell us the truth . .

. someone we can put faith in. 24 The NRC and other government agencies solved this problem by diversifying data sources and empowering citizens. The Environmental Protection Agency took the public lead on radiation monitoring among federal agencies. The public also gained the capability to make its own independent verification of radiation levels near TMI. The Department of Energy reported that those in charge of the cleanup suffered from strong public mistrust and serious problems of credibility. It was necessary, DOE concluded, to create a system for citizens to independently measure radiation levels in and around their communities. DOE funded a program to train residents from 12 communities as radiation monitors, a program that helped alleviate tensions during the controversial Kr-85 venting in the summer of 1980. 25 Empowering residents and local officials also meant providing them with a regular voice on cleanup decisions. The NRC chartered a citizen advisory panel under the Federal Advisory Committee Act. The panel was very active, holding 78 meetings over its 13-year existence to discuss cleanup progress and plans with GPU and the NRC. It included members of the community, state, and local government officials, and three members drawn from the independent scientific community. Acting as a public skeptic of GPU and NRC, members believed the Panel was a TMI-2 experiment that worked. It was an effective channel of communication between the utility, NRC and the public and reassured the public that their interests were properly represented. 26 22 The Bulletin, March 21, 1980, March 23, 1980. The release was just 0.3 curies Kr-85 where a licensed plant will release 65-80 curies a month from normal operations.

23 Evaluation of the Cleanup Activities at Three Mile Island, Task Force Report February 28, 1980, I-2.

24 Three Mile Island Cleanup and Rehabilitation, 27; and Evaluation of the Cleanup Activities at Three Mile Island, Task Force Report February 28, 1980, I-2.

25 PEIS, vol. 1, 11-6; and The Citizen Radiation Monitoring Program for the TMI Area, GEND-008, i and iv.

26 PEIS, vol. 1, 13-9; and NRC, Lessons Learned from the Three Mile Island-Unit 2 Advisory Panel, 27.

9 Reliable Data and Objective Expertise The damaged TMI reactor offered unanticipated opportunities for data collection, and the NRC expanded its ongoing research collaborations with DOE and industry. Before TMI, the NRC had entered into these collaborations with the understanding that each entity would use the data obtained collectively to support its individual mission. For example, in 1977 the NRC contracted with Westinghouse Corporation and the Electric Power Research Institute (EPRI) to conduct reflooding experiments for large-break loss-of-coolant accidents (LOCA). Similar experiments were conducted with EPRI and General Electric Corporation. Following TMI, the NRC expanded and redirected this research to analyze new questions about core thermal-hydraulic and reactor system behavior, such as small-break LOCAs. 27 The NRC also collaborated on TMI cleanup data collection. Under a 1980 coordination agreement, GPU, EPRI, NRC, and DOE (GEND) established the TMI-2 Information and Examination Program and spelled out the objectives and methods for collecting information.

GEND research operated under the direction of the DOE site office and national laboratory personnel; the NRC evaluated and approved the safe conduct of in-plant research activities. The GEND reports have provided invaluable safety data and analysis to the U.S. and international nuclear-power community. 28 A timely cleanup at TMI required ready access to expertise to resolve emergent technical questions, a problem GPU and the NRC solved by collaborating with the Department of Energy.

DOE funded the TMI-2 Technical Assessment and Advisory Group (TAAG) to provide independent technical assessment of cleanup operations. TAAG experts met over 50 times to evaluate technical reviews, safety evaluations, and draft procedures. DOE and NRC attended the meetings as observers. TAAG reported to the president of GPU and responded to requests from the licensee, NRC, and DOE. 29 Ensuring that NRC decisions and confirmatory assessments relied on conflict-free expert assessment required careful separation, or a firewall, between NRC and GPU consultants.

Michael Masnik, one of NRCs project managers for the cleanup, found that for some technical questions there were few experts to advise GPU and the NRC. The dearth of expertise created the potential for conflicts of interest. For example, when residual fuel measurements were needed in the primary cooling system, the best-qualified experts on measuring neutron flux worked for two technical teams at Pacific Northwest National Laboratory (PNNL).

27 L.E. Hochreiter, FLECHT SEASET Program Final Report, NUREG/CR-4167 (Washington, DC: U.S. NRC, November 1985), 2-1 to 2-5. Similar collaborative research in the wake of the TMI accident is discussed in NRC Annual Reports between 1979 and 1985, such as the BWR Counter Current Flow Limit Refill/Reflood Program, expansion of GEs Two-Loop Test Apparatus to conduct transient experiments, seismic research, and equipment qualification research programs.

28 NRC Plan for Cleanup Operations at Three Mile Island Unit 2, NUREG-0698, 1980.

29 NRC Plan for Cleanup Operations at Three Mile Island Unit 2, NUREG-0698, rev. 1, 2-3; Bernard Snyder to R.C. Arnold, December 9, 1981, in Three Mile Island Accident of 1979 Knowledge Management, NUREG/KM-0001, Supplement 1 (hereinafter TMI KM), June 2016; and Technical Assistance Advisory Group, Assessment of Defueling Plant for Three Mile Island, Unit 2 (Middletown, PA: G.P.U. Nuclear, March 1, 1982), 8-15, in TMI KM.

10 Arrangements were made at PNNL that the two teams work separately for GPU and the NRC and were not to communicate while this work was done. 30 Conclusion The TMI cleanup reinforced many of the lessons of independence learned over decades of safety regulation. The public must be satisfied that the regulator is transparent, open to public input, and has conducted an exhaustive search for information. In creating the NRC, Congress emphasized the importance for the agency to seek out the best data. The regulatory agency

[NRC] should not be inhibited in any way from access to all data required to assess the safety of a license application or the operation of a licensed facility. Physical access to research and development activities and to construction and operation activities must be available to the regulatory agency. 31 Recently, the NRC noted this historic leadership role that it has played in sponsoring joint funding of research activities in the United States and abroad. Recent legislation continues to emphasize this role. In the Energy Policy Act of 2005, Congress directed the NRC to pursue collaborative research with DOE through its national laboratories on the Next Generation Nuclear Plant. In that work, the NRC acknowledged the importance of such safety research to its mission and its responsibility to preserve its independence when pursuing collaborative research programs. 32 The necessary linkage between independence and openness so evident during TMI cleanup activities was later enshrined in the NRCs 1991 Principles of Good Regulation. Independence, the Commission wrote, does not imply isolation. All available facts and opinions must be sought openly from licensees and other interested members of the public. . . . Final decisions must be based on objective, unbiased assessments of all information, and must be documented with reasons explicitly stated. Openness, they continued, meant regulation must be transacted publicly and candidly. The public must be informed about and have the opportunity to participate in the regulatory processes as required by law. 33 The TMI cleanup is a major historical example that regulatory independence is possible when the public is confident in the regulator and the regulatory process.

May 4, 2023 30 Michael Masnik, email to the author, December 29, 2016.

31 Abbasi, A Brief Summary of the Energy Reorganization Act of 1974, CRS-44, CRS-45.

32 U.S. NRC, Report to Congress: Advanced Reactor Licensing, August 2012, p. 44-45, https://www.nrc.gov/reading-rm/doc-collections/congress-docs/correspondence/2012/frelinghuysen-08-22-2012.pdf.

33 Emphasis added. Kenneth M. Carr to All NRC Employees, Principles of Good Regulation, January 17, 1991, https://nrcpublicblog.files.wordpress.com/2017/01/principles-of-good-regulation-announcement-january 1991.pdf. See also, Brett Klukan, Principles of Good Regulation: Independence, January 31, 2017, https://public-blog.nrc-gateway.gov/2017/01/31/principles-of-good-regulation-independence.