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NRC Relies on Obscure High Court Ruling to Draw Curtains

May 28, 1985

WASHINGTON (AP) _ The Nuclear Regulatory Commission is relying on an obscure Supreme Court ruling about a six-year-old foreign conference on telephone cables to exclude the public from a number of its discussions of nuclear safety.

The five commissioners in charge of assuring that the United States’ 120 nuclear power reactors do not endanger the public gave themselves authority this month to confer secretly in ″non-meeting gatherings.″

They decided their general discussions, technical briefing and ″brainstormin g″ sessions about safety are not ″meetings″ as defined by the 1975 Government in the Sunshine Act.

The new policy reverses an 8-year-old commission practice of holding such discussions only in public.

The chief architect of the change, Commissioner Fred Bernthal, sent his fellow commissioners a memo last February saying he had found an obscure 1984 Supreme Court decision reinforcing his belief that the commission ″is not taking advantage of the latitude″ provided in the open meetings law.

The high court decided that a 1979 telecommunications conference in Dublin attended by three members of the Federal Communications Commission did not constitute a ″meeting″ under the U.S. sunshine law. A lower court had ruled the meeting was subject to the law.

The high court reasoned that since the FCC did not convene the conference and it did not result in any ″firm positions″ on pending business, it was not an agency meeting.

Bernthal contends the change will ″improve candor, make this place work better and result in better decisions for the public.″

Critics - including several members of Congress and one member of the NRC - counter that the change ″shows a disdain for the public″ that will only increase people’s skepticism about the safety of atomic power.

″Without public participation in the NRC’s activities, there will be no public trust,″ said Rep. Edward Markey, D-Mass, chairman of the House Energy conservation and power subcommittee. ″And if there is no public trust, the future of nuclear energy will be bleak indeed.″

No other government agency has interpreted the Supreme Court ruling as broadly as the NRC has done, according to congressional observers. Even the FCC has viewed it as applying only to international conferences, according to William Russell, an FCC spokesman.

But even critics admit that the Supreme Court ruling may give the NRC the leeway to close more meetings.

″The test is not whether it’s legal,″ Rep. Dennis Eckart, D-Ohio, told the NRC last week. ″It’s the smell test. Something here just doesn’t smell right.″

James Asselstine, a dissident NRC commissioner, said his agency ″consistently takes a very expansive reading″ of exemptions in the law.

The NRC traditionally has closed one-third of its more than 200 meetings a year. It was not immediately clear how many more meetings now will be behind closed doors.

The 1975 law requires agencies to keep transcripts of meetings closed to discuss national security, personnel matters, legal strategies and the status of investigations.

No such transcripts or even minutes will be required for the NRC’s new ″non-meeting gatherings.″

Transcripts from secret NRC meetings in the past have proved embarrassing when released by courts or leaked to reporters - particularly those involving controversial nuclear plants such as Three Mile Island in Pennsylvania, Shoreham in New York and Diablo Canyon in California.

″The harm has been not to the public, but to the egos of certain commissioners,″ says Ellen Weiss, an attorney for the Union of Concerned Scientists. ″They’ve exposed ignorance in some cases and a lack of interest in some of the most fundamental safety questions.″

Bernthal has been troubled since he joined the NRC two years ago about what he calls its ″stringent and restrictive″ application of the sunshine law.

″Whether it’s research scientists, commission members or average people, human nature dictates that they don’t talk as candidly and criticize each other’s positions as openly when they’re in an auditorium or before a microphone,″ he said in an interview.

″What the public bargains for in paying five guys instead of just one is that their collegial or collective decision will be better,″ Bernthal said. ″We talk to each other, but only one on one. That inefficiency has led to gross failures in decision-making.″

Consumer activist Ralph Nader said, ″They’re institutionalizing a coverup of the deals and concessions they’re making with utilities.″

Sen. Lawton Chiles, D-Fla., the chief author of the Sunshine Act, said, ″To those who find open government inhibiting, I would remind them of President Truman’s maxim about getting out of the kitchen.″

042EDT

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