CAPTIVE REGULATORY AGENCIES AND PUBLIC POLICY IN GEO-SCIENCE

The 1975-76 renewal of the license for operation of the three Indian Point nuclear power plants in NYS provides an interesting example of the impact of the Freedom of Information Act and the impact on public policy by a captive agency. The Indian Point plants were jointly owned by Consolidated Edison (ConEd) and the Power Authority of NYS (PASNY). The renewal of licenses by the Nuclear Regulatory Commission (NRC) was challenged by the NYS on the grounds that plant proximity to the Ramapo Fault was grounds for suspension of the licenses until a geological risk analysis could be completed and structural containment for the reactors could be strengthened if need be. Four months of litigation ensured.

The main players for NYS were the NYS Geological Survey and a trial attorney borrowed from another state agency. ConEd and PASNY hired a geological consulting company and a Washington, D.C. law firm. The NRC was represented by its staff which was led by a competent geologist. Each party submitted its direct testimony in writing. Opposing parties orally cross-examined the person or persons who had prepared the direct testimony. A communications failure between geologists and lawyers existed.

NYSGS placed a man fulltime at the NRC FOIA office with instructions to copy and forward anything that might be useful. We analyzed those reports every evening. They proved to be incredibly useful. The NRC staff geologist was caught in substantial lies twice. When we challenged him by using the NRC documentation, he became emotionally overwrought on the witness stand. We suspected that higher authority had directed him to lie.

Due to exchanges of personnel between industry and regulatory agencies, the agencies often become friendly with those they regulate, and thus they become prejudiced and “captive”. Thus policies may be formulated that tend to favor the industry and make it difficult for “outsiders” to make their concerns heard. We saw this very clearly in the way two of the administrative judges posed questions. Lessons learned: Use of FOIA is absolutely necessary. Underfunded groups are wasting their time. Even with well-funded and expert teams, it is an uphill battle to contest the desires of a captive agency that favors the industry.