The Unconstitutionality of Nuclear Power Regulation

The Unconstitutionality of Nuclear Power Regulation in America
rhoffman@animatedsoftware.com

May 5th, 2008

Dear Readers,

Nuclear power is undemocratic.

A small group of citizens in California are trying to reclaim their rights -- both those rights taken unconstitutionally by the federal government, AND those rights relinquished by their own state agencies to the feds.

Californians are encouraged by recent victories: A Ninth Circuit requirement to take a closer look at terrorism dangers at nuclear power plants, along with several failed attempts by pro-nuclear zealots in the state legislature to overturn a prohibition on new nuclear reactors in California before a nuclear waste solution has been found. Now 60+ years late, the solution will not be arriving any time soon. (Yucca Mountain is a scientific and engineering nightmare, as the author has discussed in numerous prior essays.)

But the old reactors have to be shut down, and every time citizens of California try to bring up the dangers of embrittlement, worker negligence, the accumulation of waste, or even the viability of clean alternatives, they are told that everything related to "safety" is under the jurisdiction of the federal government, and that the state agencies are unable to rule on such matters.

The citizens are getting tired of hearing this malarkey, so I've prepared a little treatise on the history of our loss of rights. It began near the dawn of the nuclear era.

The charter of the Atomic Energy Commission, drafted in 1946, gave the commission sweeping powers, included numerous provisions for "restricted data" which did not have to be given out to the public. The AEC charter included the supervision of nuclear weapons research and development. Originally as many as 80% of the AEC's "research reports" were classified as "restricted data," with public release of such information punishable by death. (1) (One famous AEC study, which predicted that a nuclear power accident could kill 45,000 people and contaminate an area the size of Pennsylvania, was kept secret for seven years. (2))

The Soviet explosion of a hydrogen bomb in 1953 led to America's then-President Dwight D. Eisenhower announcing the "Atoms for Peace" program in December of that year, with its "Swords into Plowshares" stupidity of using nuclear bombs to carve canals, help mine shale oil, remove unwanted mountains, and so on (many sites where these things were attempted remain dangerously radioactive to this day).

In 1954, the U.S. was able to explode its own H-Bomb (with technology now considered quiant), and the Cold War was back on track and more fervent than ever. The Atoms for Peace program's plan to force nuclear power plants down citizens' throats, however, was having trouble getting started.

By that year, one of the original AEC act's draftsmen, James R. Newman, had termed it "an act of socialism in a sea of private enterprise" because it gave the AEC a monopoly on the production and ownership of "fissionable materials." (The 1954 revision would refer instead to "special nuclear material," in order to include "fusibles" as well.) (3)

The 1954 revision, while hotly debated, did little to change the "socialism" (centralized regulation and authority) of the AEC's broad-reaching authority. Public safety was of little concern, the main issues were things like patent rights for inventors, whether the AEC could compete with private industries in building nuclear power generators, what a "fair price" would be for the electricity, and so on (4). Everyone assumed nuclear power was a "go," the only question was how to proceed.

The Atomic Energy Act of 1954 gave the AEC the authority to issue licenses to private companies to build and operate nuclear power plants, while also giving the AEC the twin responsibilities of promoting AND regulating those commercial nuclear power companies. The AEC was extremely quick to hand out licenses. (5)

It was during this time that the then-chairman of the AEC, Admiral Lewis Strauss claimed: "It is not too much to expect that our children will enjoy in their homes electrical energy too cheap to meter." (6)

Others echoed this ridiculous claim. For example, on August 8th, 1955, H. J. Bhabha opened the Geneva Conference (an important international conference on the future of nuclear energy) by proclaiming, this time about fusion power specifically: "I have to predict that a method will be found for liberating fusion energy in a controlled manner within the next two decades. When that happens, the energy problems of the world will truly have been solved forever, for the fuel will be as plentiful as the heavy hydrogen of the oceans." (7)

Fusion power is still a pipe dream of some, and although no fusion reactors exist, well-funded research continues nevertheless. So far, the longest sustained experimental fusion reaction lasted one half second (in 1997), and required half again more power than the 10 Megawatts it produced. (8)

Furthermore, a fusion energy-based economy would require enormous quantities of the extremely hazardous radioactive hydrogen isotope tritium. Even the experiments require enough tritium to pollute hundreds of billions of gallons of water to the maximum permitted EPA contamination levels. (9)

Strauss's dream for fission reactors -- the type still in use today -- of energy "too cheap to meter" had to be abandoned in the face of reality. In its place, and after Bhabha's similar claim for fusion reactors proved equally fanciful, then-AEC chairman Glen Seaborg was forced to proclaim a (slightly) different dream, stating on April 22nd, 1970: "It has long been recognized that nuclear energy's full promise for providing a virtually unlimited energy source for future generations could be realized only through the development and application of the breeder reactors." (10)

Interest in the plutonium-producing breeder reactors was undoubtedly set back by an event on Nov. 29, 1955, when "miscommunication during an experiment led to a partial meltdown of the reactor's core." (11) Other reports put the amount that melted as: "half its fuel rods" (12).

In June 2005, by which time the AEC's dual role of promoting and regulating nuclear power had been recognized as unworkable, and it had long ago been divided into the promotional arm (the Department of Energy) and the regulatory arm (the Nuclear Regulatory Commission), this author snuck into the American Nuclear Society's annual meeting (it costs $700.00 to be a member so you can attend) and heard the then-chairman of the NRC, Nils Diaz, proclaim that "direct energy conversion" is the #1 technological challenge, the key to making nuclear truly useful to mankind, by eliminating "the turbine" and other parts of the typical power plant, nuclear or not. "Think of the benefits that could be applied" he proclaimed. He also stated that 50% of reactor downtime was due to "materials issues." (13)

Diaz's dream (fantasy), like the dreams (fantasies) of Seaborg, Bhabha, Strauss, and others, lacked one thing: A grip on reality.

The reality is that nowhere in the Constitution is there a provision for the taking of an industry, any industry, out of the control of the states, counties, cities, and towns where it will exist and where its impact will be felt, and giving control to a small cadre of industry-tight regulators who are, in fact, charged not just with regulating but with SUSTAINING and even PROMOTING that industry in the face of sound science and economics which BOTH indicate that same industry is poisoning the planet AND preventing alternative, clean industries from growing!

Kafkaesque, isn't it?

After the author's local nuclear power plant, San Onofre, dropped a crane 80 feet, the author contacted the national Occupational Safety and Health Administration (OSHA), only to discover that OSHA, like the various state agencies, had ZERO authority over, for example, safe crane operations (or anything else) at nuclear power plants. No other industry is excluded from OSHA's oversight in a similar fashion, and look what happened? San Onofre was operating cranes for years with: Worn-out straps, improper lifting techniques, improper personnel safety procedures, a distinct lack of training, and, when they dropped the rented crane they were moving with their gantry, one worker was almost killed, but in the end, allegedly only soiled his clothes.

About the same time, another old crane's forks suddenly dropped, nearly killing another worker. The NRC pretends that it can be an expert in all things having to do with running a nuclear power plant, but these incidents (and many others) clearly show otherwise. (14)

Article 1, Section 8 of the Constitution states Congress can support "science," but Congress is charged with promoting the public welfare too (in the first paragraph of Section 8). Congress is, therefore, obligated to support, most of all, the cleanest energy alternatives possible. And yet, consistently, it throws most of its support behind the dirtiest energy source ever devised, one that, in over half a century, has not lived up to a single promise: Atomic power is not reliable, it's not safe, it's not clean, it's not cheap, it's not democratic, and it leaves a legacy for which there is no "scientific" solution -- physical isolation on appropriated American Indian territory (Yucca Mountain) is the current plan, and is completely unworkable.

In May of 1956, the Nuclear Energy Property Insurance Association was organized by 155 "stock property-insurance companies in the United States." Together, they came up with $50 million dollars in property coverage, not nearly enough to get the industry started. Nuclear promoters claimed that the problem was that the nuclear industry was too new for private insurers to realize how safe it was. (15)

The Price Anderson Nuclear Industries Indemnity Act, commonly called the Price-Anderson Act, was required to actually convince ANY private companies to build nuclear power plants, because of the financial risks involved (it also took billions of dollars in public financing and several other incentives). Price-Anderson was passed in 1957 as an amendment to the Atomic Energy Act of 1954.

Corporate liability was completely removed, even in the case of carelessness or recklessness. Price Anderson "effectively repealed every citizen's common-law right to sue for damages caused by some one else's negligence." (16)

Price-Anderson was renewed 50 years later -- but proponents could no longer proclaim that the industry was immature. Instead they simply claimed that the potential liability was too much for private insurers to bear, and that THEREFORE Price-Anderson should continue. In other words, the fact that insurance companies, having been given 50 years too look the matter over, STILL DON'T WANT TO TAKE ON THE LIABILITY FOR NUCLEAR POWER PLANTS meant nothing to the legislators who extended Price-Anderson recently. The "island of socialism in a sea of capitalism" would continue.

This writer suspects that one hidden impetus for the extension of the corrupt Price-Anderson act was a little-known near-catastrophe in 2002 called "Davis-Besse." In that year, a football-sized hole developed in the 7-inch thick Reactor Pressure Vessel Head (RPVH), and the liner, about 3/16ths of an inch thick, was already bulging when the problem was accidentally discovered. The liner had not been designed to withstand reactor pressure without the backing of the RPVH. A rupture would certainly have caused a meltdown, the effects of which would have rivaled Chernobyl in their actual damage and certainly exceeded it in financial cost to the community. (17)

The event is referred to by the NRC as a "learning experience."

But insurance is not the only fraud being perpetrated on America in the name of nuclear energy. Nullifying anti-trust laws for nuclear corporations also was a goal of AEC Chairman Strauss. (18)

As to "states' rights," those were practically obliterated regarding anything having to do with nuclear energy: "The framers of the 1954 law acted on their conviction that the states lacked the experience and technical knowledge to deal effectively and intelligently with atomic energy. They did not intend to exclude the states entirely from participation in atomic energy issues, but they made no effort to define which functions the states might carry out." (19)

The result was that the Federal Government had taken away numerous citizens' and states' rights regarding nuclear power, but that was only half the problem. The states had, for their part, willingly given up those rights, rather than challenge the usurpation of those rights by the Federal Government. (20)

The states' interests regarding nuclear power were generally limited to doing what they felt was necessary to PUSH nuclear power within those states that wanted it. "Agreement States" came to describe states which had made new, specific agreements with the federal government concerning nuclear power. All issues pertaining to "safety" were kept by the Federal government, so that state agencies could not rule on the dangers of nuclear power. On March 26th, 1962, the Commonwealth of Kentucky became the first Agreement State. There are now 35 Agreement States. (21) Undoubtedly, not one of these agreements is a valid legal document.

Citizens who tried to organize themselves, and especially nuclear workers who became whistleblowers, have been harassed and denigrated. Pro-nukers have done everything from trying to convince local police that local pro-DNA activists were "terrorists" (22) to, in one famous case (and possibly others), apparently killing a Kerr-McGee whistleblower by running her off the road while she was on her way to a meeting with a New York Times reporter. She had promised to bring documents which were never found.

Hundreds of reporters have been harassed as well over the years, after questioning the "logic" of nuclear power, or after merely having an "anti-nuclear activist" or even a scientist on their show who said anything critical about nuclear energy. And if given any significant "air time," the local nuclear power plant will always get their spokesliars on-camera as well, even if they have to donate money to a local environmental effort, such as a nearby lagoon mitigation project, to do so.

Other industry tactics to get nuclear power accepted by the masses have included selling the first nuclear plants (such as Oyster Creek in New Jersey, which still runs, although very poorly) at well below cost, in order to make the technology look profitable to other buyers. These later buyers wouldn't get the same contracts and would pay double, triple and worse for their reactors. Business Week described Oyster Creek as the "greatest loss leader in American industry." (23)

The net result of all the legislative maneuvering since 1946 is that citizens are not protected by anyone other than nuclear promoters who bounce from the international nuclear industry to the Federal government and back again. (24)

It's time for states -- and their citizens -- to take back their right to regulate (and SHUT DOWN) nuclear power from a corrupt federal government, which has been shamelessly lying and promoting this very rotten, failed technology for far too long, despite a plethora of cleaner, safer, and, in the long run, far cheaper alternatives.

Sincerely,

Ace Hoffman
Nuclear Historian
Carlsbad, CA

The author, who has studied nuclear issues for nearly 40 years, used a small fraction of his extensive collection of approximately 400 books on nuclear power to prepare this document, plus some online research and some personal experience. Footnotes for source material and quotations used in this article appear below. In some cases I have paraphrased the source material for clarity.

(1) Gould, Jay M. & Goldman, Benjamin A., Deadly Deceit, 1990 p. 72.

(2) The Silent Bomb, Edited by Peter Faulkner, Foreword by Paul R. Ehrlich, 1977, p. 31

(3) Hafstad et al, Scientific American books: Atomic Power, 1948 - 1955, p. 117 - 120

(4) Ibid, p 117 - 128

(5) Grossman, Karl, Power Crazy, 1986, p. 173

(6) Makhijani, Arjun and Saleska, Scott, The Nuclear Power Deception: U.S. Nuclear Mythology from Electricity "too Cheap to Meter" to "Inherently Safe" Reactors, 1999, p. 2

(7) Hughes, Donald J., (Brookhaven National Labs), On Nuclear Energy, 1957 (foreword by Admiral Lewis L. Strauss, then-Chairman, AEC), p 228

(8) http://en.wikipedia.org/wiki/Fusion_power (as of May 5th, 2008)

(9) For some technical details about the amount of tritium needed, see, for example, Martin Keilhacker, JET Experiments in Deuterium-Tritium, JET Team, Europhysics News November/December 1998, p. 230 - 231

(10) Gofman, John W., Poisoned Power: The Case Against Nuclear Power Plants (forward by Senator Mike Gravel), 1971, p. 323. Note the date of the quote: It's the same day Earth Day was established! (And note that back then, even Dr. Gofman thought "fusion power" might still be a "holy grail" for the nuclear industry!)

(11) Argonne News, The Online Edition of the Lab's Employee Newspaper, http://www.anl.gov/Media_Center/Argonne_News/news01/an011217.html (as of May 5th, 2008)

(12) Idaho State University, Radiation Information Network: http://physics.isu.edu/radinf/chrono3.htm (as of May 5th, 2008)

(13) This author's posted comments about the ANS meeting, available online in NucNews message 22283:
http://groups.yahoo.com/group/NucNews/message/22283 (as of May 5th, 2008)

(14) Information about the "Crane Drop Incident" is based on conversations with a worker at the plant, and public information which came out after the incident was reported to the NRC (and the media) by this author. The NRC's main interest turned out to be the name of the worker who told me about the crane drop (which they never got). The dropped crane incident occurred the same day the public spokesperson for the plant proclaimed that "anti-nuclear activists don't understand the laws of physics." Oh, the irony!

(15) Supra, (7), p 211

(16) Ford, Daniel, The Cult of the Atom, 1982, p. 45

(17) There are numerous sources for the approximate thicknesses of these components, as well as for the time that was left before rupture, and for everything else after that. These thicknesses were taken from a private engineering firm's report to the NRC about the accident:
http://www.nuclear.com/archive/2003/06/11/Davis-Besse_Head_Corrosion-EMC2/Margins-ML0315606540.pdf (as of May 5th, 2008)

(18) Clarfield, Gerard H. and Wiecek, William M., Nuclear America, Military and Civilian Nuclear Power in the United States, 1940-1980, 1984, p. 272-274

(19) Mazuzan, George T. & Walker, J. Samuel, Controlling the Atom: The Beginnings of Nuclear Regulation, 1946-1962, 1984, p277-278

(20) See my April 26th, 2008 newsletter "[California] Coastal Commission enables a NEW quarter million pounds of High Level Radioactive Waste each year in California!"

(21) NRC web site: http://www.nrc.gov/about-nrc/state-tribal/agreement-states.html (as of May 5th, 2008)

(22) Helvarg, David , The War Against the Greens, 1997,p 329

(23) Supra, (16) p. 62 - 63 (The Daniel Ford book contains the Business Week quote.)

(24) See my comments about AREVA in my May 2nd, 2008 newsletter: "Resend: [Hanford] Digest Number 1578 -- Mother Jones should be ashamed. (AREVA ownership correction)" for some examples, but there are many others.

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Quotes collected by Ace Hoffman:
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"Nuclear war must be the most carefully avoided topic of general significance in the contemporary world. People are not curious about the details." -- Paul Brians (author; quote is from: Nuclear Holocausts: Atomic War in Fiction)
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“When fascism comes to America, it will come wrapped in the flag and carrying a cross.” -- Sinclair Lewis (first American Nobel Prize winner in Literature, 2.7.1885 - 1.10.1951)
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"There is no such thing as a pro-nuclear environmentalist." -- Sen. Tom Harkin (D-Iowa, 1992)
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"Know thy self, know thy enemy. A thousand battles, a thousand victories." -- Sun Tzu (Chinese general b.500 BC)
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"The most intolerable reactor of all may be one which comes successfully to the end of its planned life having produced mountains of radioactive waste for which there is no disposal safe from earthquake damage or sabotage." -- A. Stanley Thompson (a pioneer nuclear physicist who later realized the whole situation)
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"Any dose is an overdose." -- Dr. John W. Gofman (another pioneer nuclear physicist who saw the light (9.21.1918 - 8.15.2007))
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"Choose your leaders with wisdom and forethought. To be led by a coward is to be controlled by all that the coward fears. To be led by a fool is to be led by the opportunists who control the fool. To be led by a thief is to offer up your most precious treasures to be stolen. To be led by a liar is to ask to be lied to. To be led by a tyrant is to sell yourself and those you love into slavery." -- Octavia Butler (science fiction writer, 7.22.1947 - 2.24.2006)
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"If you want real welfare reform, you focus on a good education, good health care, and a good job.

If you want to reduce poverty, you focus on a good education, good healthcare, and a good job.

If you want a stable middle class, you focus on a good education, good health care, and a good job.

If you want to have citizens who can participate in democracy, you focus on a good education, good health care, and a good job.

And if you want to end the violence, you could build a million new prisons and you could fill them up, but you never end this cycle of violence unless you invest in the health and the skill and the intellect and the character of our children. you focus on a good education, good health care and a good job.

And other than that, I don't feel strongly about anything."

-- Paul Wellstone (US Senator, D-Minnesota, 7.21.1944 - 10.25.2002)
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"There are no warlike peoples - just warlike leaders." -- Ralph Bunche (8.7.1903 - 12.9.1971)
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"Resistance to tyrants is obedience to God." -- Thomas Jefferson
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"Please send this to everyone you know!" -- Ace Hoffman (original collector of the above quotes, January, 2008)
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Ace Hoffman
"Ace Hoffman" <rhoffman@animatedsoftware.com>
www.animatedsoftware.com
POBox 1936
Carlsbad, CA 92018