A public shaken by the accident at Three Mile Island a year ago will have a chance, over the next few weeks, to look at a dubious administration scheme for reforming nuclear safety practices.
The Kemeny Commission, appointed by President Carter to investigate the accident, recommended that the independent five-man Nuclear Regulatory Commission be abolished and replaced by an executive branch agency under a single administrator. The president rejected that recommendation, proposing instead that the NRC be reorganized along lines designed to improve its ability to deal with emergencies and to correct other deficiencies revealed by the accident. That proposal is now before Congress and will become law at the end of 60 legislative days unless Congress persuades the president to modify some of its less desirable provisions.
New provisions for crisis management are necessary, and I have no quarrel with the president's plan for centralizing responsibility for dealing with emergencies at nuclear power plants. I am very much concerned, however, that the overall reorganization plan, while preserving the form and trappings of a commission, goes a very long way, in practical effect, toward carrying out the Kennedy recommendation for one-man rule over nuclear safety.
Under the new plan, the chairmanship of the commission, which is conferred at the pleasure of the president, would carry with it near absolute control over hiring and firing of the agency's safety staff. In the past, top officials, including the commission's executive director, have been hired by and were responsible to the commission. Under the proposed reorganization, they would report instead only to the chairman. This grip on the staff would be further reinforced by monetary incentives to bureaucratic loyalty, for the chairman would gain control over cash bonuses of up to $10,000 awarded under the Senior Executive Service plan. The plan's supposed safeguard is that any office head "may communicate directly to the Commission or to any member of the Commission" when he thinks "a critical problem of public health and safety . . . is not being properly addressed" -- presumably by the chairman.
The chairman's control would also be tightened over the commission's part-time Advisory Committee on Reactor Safeguards -- the 15 "wise men" who exercise independent judgment over safety problems and performance of the regulators. He would have veto power over their appointment and reappointment.
The most direct route to control over any organization is control over information, best achieved through control over the staff. Nuclear safety is an esoteric subject, and the NRC staff has a near-monopoly on information. It does not take an overactive imagination to see that, under the proposed plan, the commissioners are not going to see what the chairman doesn't want them to see. Just as in Orwell's "Animal Farm," one comissioner will be more equal than others where access to information is concerned. Equal access to information, the proposed plan states, would apply only when the commissioners were exercising their new and more limited functions, the chief of which is murkily defined as "policy formulation."
"It is the specific intention of the plan," says its accompanying draft analysis, "that the chairman shall have additional responsibilities and authority and greater access to information as compared with the other members of the commission . . ." (My emphasis.) Yet I believe a commission majority would agree that equal access to information -- now guaranteed by the law -- is vital to fulfilling their responsibilities. As for the "policy formulation" to which this access applies, the analysis warns that the commission should confine itself to "bona fide areas of policymaking." Defining this could lead to endless wrangling.
Under present practice, the commission delegates certain powers to its staff; the staff reports back to the commission. Under the provisions of the "Sunshine Act," these reports are made at commission meetings held in full public view. Under the new plan the commission's delegations of its powers would run to the chairman, who in turn would delegate to the staff, which in turn would report back to the chairman -- presumably outside the uncomfortable glare of the public spotlight and the annoying requirements of the Sunshine Act. The chairman would, of course, pass on to the commission whatever he thought they needed to know.
The pulling and hauling over the administration of nuclear affairs has been going on since nuclear energy first became a matter of government concern. After long public controversy about who in the government should control this new resource, the Atomic Energy Act of 1946 set up a five-man commission. Nobody knew exactly what, beyond bombs, nuclear energy was good for, but the instinct of Congress was that the responsibility for watching over it was better shared than concentrated. Over the years this approach has been adhered to, despite the fact that the effectiveness of the commission form of organization has been questioned each time nuclear energy entered a new phase.
When the Atomic Energy Act was rewritten in 1954 to allow for commercial development, the then-chairman of the commission, Lewis Strauss, sought to draw more power to that office. Congress, although recognizing the commission form as somewhat difficult in an operating situation, nevertheless resisted, and nuclear energy matters continued to be guided by a group of five with diverse backgrounds and experience.
In 1974, as the use of commercial nuclear power expanded, Congress decided that effective public protection from nuclear hazards required oversight by an independent agency. Authority was again vested in a five-man commission -- the NRC -- since it was clear that regulation would importantly affect public safety and was not ready for a nuclear overlord inside the executive branch. While Congress did allow the new chairman certain extra executive administrative powers, the lawmakers continued to insist on equality of authority and access to information for the four other commissioners.
It can be argued -- and indeed appears to be the underlying premise of the present-reorganization plan -- that the basic problems of nuclear energy have been solved and that what is needed now is less questioning and more action. But surely this cannot be the lesson of Three Mile Island: that lesson is that the basic problems of nuclear safety have not been solved. The accident made clear the need for increased commission oversight to protect the public.
It is difficult to believe that the public will draw comfort from the present effort to clip the wings of its independent regulators. If nuclear energy is to survive, it will have to be on the basis of public confidence that the government is putting the public safety first, energy crisis or no energy crisis. That is not done by subordinating commission independence to administration discipline on energy policy, or by closing the blinds on the commission's deliberations, or by telling the public that five men have ultimate responsibility for public safety while papering over the fact that only one of the five has any real authority to influence that safety.