June 18, 2014
William D. Magwood, IV
U.S. Nuclear Regulatory Commission Washington, DC 20555
By e-mail to: William.Magwood@nrc.gov
SUBJECT: Demand for Immediate Resignation from the NRC and Other Measures Dear Mr. Magwood:
On behalf of 34 environmental organizations and individuals,1 we are writing to demand your immediate resignation from the U.S. Nuclear Regulatory Commission (“NRC”). You have fatally compromised your role as an independent safety regulator by negotiating for and accepting the position of Director-General with the Organisation for Economic Co-Operation and Development’s (“OECD’s”) Nuclear Energy Agency (“NEA”), an organization (a) that actively promotes “the development of the production and uses of nuclear energy;” and (b) whose policies are set by member governments, including a number that own or sponsor U.S. nuclear licensees and applicants.2 In appearance and in actuality, you are now committed to an organization whose mandate to promote nuclear energy as well as the economic interests of its members is antithetical to the basic principles of the Energy Reorganization Act of 1974 that safety, not economics, must be the NRC’s paramount consideration and that promotional policies shall be left to the U.S. Department of Energy (“DOE”).3 It is precisely the blending of economic promotion with safety regulation that was a root cause of the regulatory failures that paved the way for the Fukushima disaster in Japan.4
Your continued presence on the Commission also violates federal law governing the impartiality of judges. Under 28 U.S.C. § 455, you must recuse yourself from any NRC decision in which your “impartiality might reasonably be questioned.”5 As noted above, NEA seeks to “further the development of the production and uses of nuclear energy.”6 Having accepted the position of NEA Director-General, you now appear biased towards the protection of the NEA’s interests. The fact that NEA and others are already identifying you as an NEA employee only aggravates your appearance of bias.7 Thus, in any NRC proceeding involving proposed safety determinations that are inconsistent with the pronuclear economic mandate of NEA and its members, a reasonable person would question your independence and objectivity in applying NRC safety requirements or judging the significance of safety issues – especially when you are forced to consider a solution to a safety issue that could significantly increase the cost of nuclear power production and thus limit its viability in the marketplace.
Under the Atomic Energy Act of 1954, a single agency, the Atomic Energy Commission, had responsibility for the development and production of nuclear weapons and for both the development and the safety regulation of the civilian uses of nuclear materials. The Act of 1974 split these functions, assigning to one agency, now the Department of Energy, the responsibility for the development and production of nuclear weapons, promotion of nuclear power, and other energy-related work, and assigning to the NRC the regulatory work, which does not include regulation of defense nuclear facilities.
Your apparent lack of impartiality dates back at least nine months, to the time when you applied for the position of Director-General at the NEA.8 While your application was pending with the NEA, you had a strong incentive to improve your employment prospects by avoiding safety decisions that would exacerbate nuclear power’s ongoing economic difficulties. During that period, you voted against further research by the NRC Staff on two important post-Fukushima issues: the adequacy of the scope of NRC’s safety regulations and whether the NRC should order the expedited transfer of spent fuel from high-density storage pools into dry storage.9 Given that further research on both issues could have led to the imposition of additional costly safety requirements on reactor licensees, in conflict with the NEA’s interests in minimizing reactor costs, a reasonable person would question the objectivity of your vote against further inquiry by the Staff.
As you should be aware, the NRC’s Office of Inspector General (“OIG”) found that former Commissioner Merrifield violated federal ethics rules by soliciting employment with the nuclear industry while serving as an NRC Commissioner, without recusing himself from decisions in which his prospective employer had a financial interest.10 Like Commissioner Merrifield, you have failed to take measures to ensure that your employment negotiations and acceptance of a position with an organization that promotes the nuclear industry would not create a conflict of interest with your responsibilities as an NRC Commissioner.
Therefore, in order to avoid the reality and the appearance of bias in future decisions, you should resign from your position as NRC Commissioner. In addition, you should disqualify yourself retroactively from all safety decisions you made after applying to the NEA for your position.
Finally, we demand that you publicly release your application to the NEA and all related correspondence, including endorsements and recommendations by U.S. officials. Full disclosure of these documents is necessary to clarify your statement that you were “the U.S. Government’s candidate” for the Director-General position at NEA.11 If there was, indeed, a formal process for your nomination to the NEA by U.S. government officials, the information should be made public as a matter of course under the Freedom of Information Act.
However, we can find no evidence of a formal nomination process for the position of NEA’s Director-General. Instead, a job notice posted on LinkedIn directs applicants to submit a curriculum vita, “motivation letter,” three references, and answers to “a few short questions.”12 Thus, it appears that senior government U.S. officials wrote recommendation letters to the NEA on your behalf as a personal courtesy.
If senior government officials have used their offices to recommend you for a job so at odds with your responsibilities as an NRC Commissioner, the public deserves to know the basis for their recommendations. The public also deserves to know whether the senior government officials who endorsed your employment by the NEA included officials of the NRC and/or the DOE. If so, they should be called to account for subverting the purposes of the Energy Reorganization Act of 1974 by helping you to obtain a position with the NEA, without insisting on your recusal from safety decisions during the pendency of your application and your resignation from the NRC after your hire.
[Electronically signed by]
[Electronically signed by]
Turner Environmental Law Clinic Emory Law School
1301 Clifton Road
Atlanta, GA 30322 404-727-3432
Joint Counsel to Environmental Organizations
1 Alliance to Halt Fermi 3, Beyond Nuclear, Blue Ridge Environmental Defense League, Center for a Sustainable Coast, Citizens Allied for Safe Energy, Citizens Environmental Coalition, Citizens Resistance at Fermi 2, Coalition for a Nuclear Free Great Lakes, Don’t Waste Michigan, Kay Drey, Ecology Party of Florida, Friends of the Coast, Friends of the Earth, Green States Solutions, Hudson River Sloop Clearwater, Indian Point Safe Energy Coalition, Captain Dan Kipnis, Missouri Coalition for the Environment, NC WARN, Nevada Nuclear Waste Task Force, New England Coalition, Northwest Environmental Advocates, Nuclear Energy Information Service, Nuclear Information and Resource Service, Nuclear Watch South, Physicians for Social Responsibility, Public Health and Sustainable Energy, Riverkeeper, San Clemente Green, San Luis Obispo Mothers for Peace, San Onofre Safety, SEED Coalition, Sierra Club Nuclear Free Campaign, and Southern Alliance for Clean Energy. These organizations are active participants in NRC rulemakings, licensing proceedings, and other regulatory proceedings in which you have played or may play a decision-making role.
2 Statute of the OECD Nuclear Energy Agency, Articles 1 and 8 (as amended on 13 July 1995), https://www.oecd-nea.org/nea/statute.html. Countries that own or sponsor U.S. nuclear licensees or applicants include, for example, France (MOX Fuel Fabrication Facility through AREVA; Nine Mile Point Units 1 and 2, Calvert Cliffs Units 1 and 2, and Ginna through Electricité de France) and the Netherlands (Louisiana Enrichment Services through URENCO). NEA also promotes the financial interests of many private nuclear companies doing business in the U.S. and other countries.
3 As summarized on the NRC’s website:
4 For example, the National Diet of Japan’s investigation into the causes of the Fukushima accident concluded that “[t]he regulatory authorities’ supposed independence from the ministries promoting nuclear energy and the nuclear operators was a mere façade.” Introduction to Main Report of the Nuclear Accident Independent Investigation Commission of the Japanese Diet at 16 (July 5, 2012). http://warp.da.ndl.go.jp/info:ndljp/pid/3856371/naiic.go.jp/en/report/.
5 See also Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), CLI-82- 9, 15 NRC 1363, 1365-67 (1982).
6 See note 3.
7 For instance, the OECD’s 2014 Annual Report posts your photograph with the caption: “William
Magwood, Director General” of the NEA. OECD 2014 Annual Report to Ministers at 110, Attachment 1 (excerpt). Only in the small print of a footnote does the Annual Report state that you will not “take up your duties” until September 2014. Id.Similarly, in a report of a recent “Summer Institute” sponsored by the World Nuclear University (“WNU”) for the “next generation of nuclear leaders,” the WNU describes you as “US NRC Commissioner and appointed OECD/NEA DG.” World Nuclear Association Blog (April 2014), http://www.world- nuclear.org/Source/Pages/WNA/Blog.aspx?blogmonth=4&blogday=14&blogyear=2014&blogid=3701&i d=36478&LangType=2057. The purposes of the World Nuclear University include “strengthening the development of a new generation of leaders for the nuclear industry.”http://www.world-nuclear- university.org/summerinstitute/whythewnu.aspx.
8 A job notice posted on LinkedIn (http://fr.linkedin.com/jobs2/view/6466687) states that the deadline for applications for the position closed on September 3, 2013.
9 See Commission Voting Record, Decision Item: SECY-13-0132, U.S. Nuclear Regulatory Commission Staff Recommendation for the Disposition of Recommendation 1 of the Near-Term Task Force Report (May 19, 2014); Commissioner Vote Sheets on COMSECY-13-0030, Staff Evaluation and Recommendation for Japan Lessons-Learned Tier 3 Issue on Expedited Transfer of Spent Fuel (May 27, 2014). These documents can be found on the NRC’s website at http://www.nrc.gov/reading-rm/doc- collections/commission/recent/2014/.
10 Memorandum from Hubert T. Bell, Inspector General, to NRC Chairman Jaczko re: Alleged Conflict of Interest by Former NRC Commissioner (Case No. 07-63) (Sept. 17, 2009), Attachment 2. The OIG concluded that Mr. Merrifield “did not take effective measures to prevent a potential conflict of interest during the last 2 months of his term,” because he negotiated for future employment without ensuring that he “disqualified himself from involvement with potential conflict of interest issues.” Id. at 11. In contrast, in a subsequent investigation of former NRC Chairman Dale Klein, the OIG concluded that Mr. Klein avoided creating a conflict of interest during his term on the NRC by “decid[ing] simply not to address any prospective employment offers while at NRC.” Memorandum from [name withheld], Office of Inspector General, to Joseph A. McMillan, Assistant Inspector General for Investigations re: Potential Conflict-of-Interest Violation of Ethics Requirements by Former Commissioner Klein (OIG Case No. 10- 39) at 3 (Sept. 28, 2010), Attachment 3.
11 Statement of Commissioner William D. Magwood, IV, United States Nuclear Regulatory Commission, to the House Committee on Energy and Commerce Subcommittee on Energy and Power (May 7, 2014), Attachment 4. You have also been quoted in the press as giving thanks for the “strong support and encouragement” that you received “from senior officials of the Administration to take on [the NEA] assignment.” “NRC Commissioner Magwood Set to Leave Commission for International Agency,” Radwaste Monitor, Vol. 7 No. 11 (Mar. 21, 2014), Attachment 5 (excerpt).