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Patterns of Noncompliance

The Nuclear Regulatory Commission
The Maine Yankee Atomic Power Company

Generic and Site-specific Deficiencies
in Radiological Surveillance Programs

III. NRC and NRC Licensee Noncompliance with Federal Law

Overview of Noncompliance Issues

The generic and site-specific deficiencies in radiological surveillance programs documented in this report are the result of a pattern of behavior - a failure to document the radiological impact of reactor operations which violate both the letter and the spirit of federal law as contained in 10 CFR Part 20 and other federal regulations. The statutory obligations of the Code of Federal Regulations require documentation which the NRC, out of careless oversight of its licensees and their activities has failed to execute. The generic failure to document routine liquid (and gaseous) effluents in turn refers to a broader noncompliance issue: the failure to fund waste effluent monitoring and waste storage transport and disposal at the time the wastes were created.

The failure to fund routine environmental monitoring adds one more phrase (evasion of documentation) to the litany of noncompliance issues. A more comprehensive surveillance program would have reduced the profits of stockholders and at the same time increased the costs of electricity to ratepayers. These monetary considerations join with the potential economic and public relations impact of more detailed knowledge of the environmental impact of liquid effluent discharges from MYAPC. The licensee, MYAPC, would prefer isobecquerel maps by Hess and Smith or anyone else not become public, just as they hoped disclosure of the large area of contamination on the west side of the plant would not become public. The high reporting levels and deficient radiological surveillance procedures allowed by NRC regulations and/or failed oversight assist MYAPC in deflecting attention from the environmental impact of plant operations. This is despite the fact that the radiological content of liquid effluents from reactor operations in other countries as well as in the United States is well known and well documented. Evasion of documentation of this impact is pointless as well as counterproductive in that it exacerbates the lack of public confidence in the safety of routine reactor operations which is not always justified. The generic failure to fund waste monitoring, storage and disposal in turn refers to other noncompliance issues, some of them criminal in nature.

The same profit motive underlying the failure to fund waste monitoring and storage issues is the root cause of other NRC licensee illegal activities which have received widespread publicity during the last several years, both within and outside of Maine. The manipulation of computer data and other misrepresentations underlying the illegal power up-rate scam uncovered by the whistleblower's letter were for-profit violations of NRC regulations and federal law. The profit motive is the fundamental driving force behind waste misclassification, failure to rectify design and licensing bases flaws, site investigation deficiencies, and generic safety issues. The safety upgrades required after the MYAPC independent safety assessment team (ISAT) inspections were very expensive and ultimately resulted in the closure of the Maine Yankee reactor. In the haste to decommission MYAPC as soon as possible, economic considerations help explain an inept PSDAR, the failure to hold public hearings, provide site-specific environmental impact statements, or to allow public disclosure and discussion of Derived Concentration Guideline Levels (DCGLs). NRC licensee and state of Maine staff shortages as well as unfunded costs, premature closure, mismanagement, equipment obsolescence and tenacious evasion of documentation all have the same root cause: a shortage of financial resources and/or a desire to maintain or increase profits. Economic considerations are at the heart of the successful attempt to avoid public scrutiny of the reclassification of GTCC reactor vessel internal components as class C waste, or the rush to utilize the Barnwell, South Carolina facility for disposal of misclassified long-lived medium and high-level wastes. NRC oversight and regulation of its licensees has inadvertently given rise to a pattern of for-profit activities that bear an uncanny resemblance to violations of Title 18 Sections 1961 and 1962 of the United States Code (USC.) The USC as well as the Department of Justice Handbook for Prosecutors makes explicitly clear that Title 18 violations are grounded in predicate criminal activities which constitute the bases upon which any prosecution of a pattern of Title 18 violations must originate. Predicate for-profit criminal activities with respect to phony Small Break Loss-of-coolant Analyses (SBLOCA) and reactor containment analyses, and other instances of licensee misrepresentations and illegal activities, combine with operational deficiencies, design flaws, safety defects, withheld or misrepresented data, and other examples of NRC or NRC licensee non-compliance to constitute what is best described as a collapsing pyramid scheme.

The payment of waste monitoring storage, transport, and disposal costs by the beneficiaries of nuclear energy at 3 cents per kilowatt hour has been systematically evaded since the inception of the nuclear energy industry. Much of the profit generated by the operation of MYAPC is derived from this evasion. The sharing of the resulting profits with commercial and residential ratepayers has now ended. A failure of federal oversight allowed the opportunity for NRC licensees and their owners to circumvent the letter and spirit of the law. The failure to fund monitoring and disposal of radioactive wastes was facilitated by what in essence is a bribe, purchase nuclear energy at three cents per kilowatt hour or face the threat of the loss of the only reliable source of electricity. Generic issues of due process and equal protection before the law abound as a result of this extortion. Collection of the mounting debts which are the legacy of the nuclear energy industry is gradually shifting the burden of these unfunded costs to a second class of individuals: those who did not, for the most part, share the profits of reactor produced electricity. The only difference between the collapse of the MYAPC pyramid scheme and any other racketeering enterprise is a distinction of most important consequence: these evasions constitute what is essentially a de facto federally sponsored racketeering enterprise. All the benefits which accompany the full moral authority of the federal government help support this pattern of activity. "Under the color of official right" and utilizing "fear of economic loss" the federal government has "induced participation" of unwitting nuclear energy ratepayers in a "continuing scheme" which has resulted in both a violation of "due process and equal protection under the law" and has "facilitated the transfer" of an obligation of payment of debts from the beneficiaries of the traffic in nuclear waste to those who did not benefit from this scheme (quotes taken from U.S. Code Title 18, Section 1961 and 1962). The deficiencies in radiological surveillance programs discussed in this report represent one small fragment of this pattern of misrepresentation, deceit, evasion, and induced participation. Only congressional action in the form of an overhaul of the regulatory guidelines, deceptive radioactive waste classifications system, and obsolete funding mechanisms of the nuclear industry will rectify this situation. Such congressional action is unlikely.

A. Radioactive Waste Misclassification

Irregularities in licensee site characterizations as well as NUREG guides occur in the context of controversy and questions about the current waste classifications system utilized by the NRC. It is now clear that the current radioactive waste classification system is not working and does not protect public safety. The classification of low-level waste now includes long-lived isotopes in class A wastes and in the highly radioactive resins which constitute class B wastes. Highly radioactive reactor internal components compose class C low-level waste. Even more highly radioactive greater-than-class C (GTCC) reactor vessel internal components are in the process of being reclassified as class C low-level waste by a procedure that averages radioactivity throughout an intact reactor vessel. Reactor vessels are also characterized by accumulations of sludge, hot particles, corrosion products, CRUD, spent fuel fragments, and other debris which are then generically labeled as low-level waste dross. This misleading classification, whereby reactor wastes which are actually high-level and medium-level wastes are defined as low-level wastes, serves to undermine the ability of NRC licensees to site these wastes. The current waste classification system constitutes a clear violation of the NRC statutory obligation to protect public health, safety and the environment. In no way is public health protected by including long-lived and/or highly radioactive wastes in uncontained landfills in conjunction with disposal of short-lived class A low-level wastes. The result of this misclassification of highly radioactive substances as "low-level" wastes is the systematic undermining of public confidence in the ability of the federal government to safely dispose of the huge volumes of radioactive wastes which are the legacy of the Cold War, including those generated by the nuclear power industry.

A second legacy of this classification is the unfortunate impact on the legitimate medical and research utilization of short-lived low-level wastes. Generators of these truly low-level wastes are held hostage to the deceptions and evasions of this misclassification which has as its only basis the need to save the nuclear power industry, federal government and utility ratepayers the costs inherent in a comprehensive waste disposal program. The current misclassification of wastes ensures that there will be no viable program for decommissioning nuclear reactors or weapons production facilities until a more practical and less deceptive waste classification system is implemented. Specifically, since widespread public support is essential for future waste disposal programs, any such program must be based on monitored retrievable storage (MRS) of spent fuel as well as class B, C, and GTCC wastes including reactor dross in one comprehensive program which is entirely separate from the disposal of low-level wastes with radioactive half-lives of 5 years or less. (See Part IV: Conclusions and Recommendations.)

B. The Failure to Characterize the Environmental Impact of Plant Operations and Decommissioning

The cumulative deficiencies of the radiological surveillance programs noted in this report provide clear evidence of the evasion by the federal government, the NRC and NRC licensees of their statutory obligation to execute a straightforward documentation of the site-specific impact of nuclear reactor operations. This failure has its root causes in the financial considerations noted above as well as in the legacy of secrecy of the Cold War era, a legacy which continues to impact citizens and ratepayers in the form of a variety of highly contaminated weapons production and fuel reprocessing sites. Waste misclassification and the deficient execution of radiological monitoring programs are one small component of this legacy of contamination, evasion, deceit, and misrepresentation. Public support of the nuclear energy program, including waste disposal policies would be greatly enhanced if the NRC would end the use of generic environmental impact statements as a substitute for more comprehensive site-specific environmental impact statements. A comprehensive database documenting the site-specific environmental impact of reactor operations is an essential component of any radiological surveillance program. This data in turn constitutes the basis of site-specific environmental impact statement which should be developed for each reactor site being decommissioned by the NRC. The failure to document this impact undercuts the legal bases of both reactor operations and decommissioning. The recent disclosure of widespread soil contamination at MYAPC illustrates these generic failures.

C. Undocumented NRC Licensee Radiation Releases

The large size of the previously undisclosed liquid effluent spills at the Maine Yankee Atomic Power Company involving tens of thousands of square feet of contaminated soil on the west side of the plant north of the Forebay and at Bailey Point, Foxbird Island and in the radiation controlled area (RCA) of the plant is a reminder that undocumented NRC licensee releases of radioactive effluents are an unresolved issue. This recently disclosed soil contamination at MYAPC will require extensive additional surveillance and significant and costly remediation activities. Similar undocumented releases have recently come to light at the Connecticut Yankee facility at Haddam Neck. As more extensive radiological surveillance programs are implemented as part of the decommissioning process, additional incidences of undocumented NRC licensee accidents, spills and chronic loss of radiological controls will come to light. These revelations are one more example of a legacy of omissions, misrepresentations, evasions, fraud and lies referenced by deficiencies in environmental radiological surveillance programs at NRC licensed facilities.

D. The Failure of the DOE to Accept High-Level Waste

February 1, 1998, was the deadline for the Department of Energy to begin to accept NRC licensee generated spent fuel wastes. The current attempt to utilize Yucca Mountain as a repository for both NRC licensee and weapons production spent fuel has experienced significant delays and has been undercut by recent disclosures of the rapid transport of weapons testing-derived radioactive chlorine through thousands of feet of rock to close proximity to the underlying water table. Additional obstacles to the use of Yucca Mountain as a final repository for spent fuel wastes include unexpected earthquake activity, strong opposition from the state of Nevada, the high cost and safety issues inherent in long distance transport of spent fuel and the lack of a sufficient number of transport casks meeting NRC design criteria to facilitate this transport. The ultimate obstacle to the use of Yucca Mountain as a final repository will eventually be that no final repository is in fact possible: the only viable future option for the storage of spent fuel will be monitored retrievable storage (MRS) as is now widely recognized in the European community. The failure of the DOE to accept high-level wastes is symptomatic of the painful twilight of the nuclear era. If a viable monitored retrievable storage facility cannot be constructed in an appropriate location (e.g. contaminated desert site) due to state and local opposition, then storage of spent fuel will revert to monitored retrievable facilities at the locations at which the spent fuel was generated. The 1982 Nuclear Waste Policy Act contained provisions for this scenario by allowing for the creation of Independent Spent Fuel Storage Installations (ISFSI) at reactor sites. Such a facility is now being planned for the MYAPC site. Not more than twenty percent of the costs of funding of a permanent spent fuel repository (Yucca Mountain) and none of the costs of a monitored retrievable storage facility have been collected compared to the amount of spent fuel generated. This failure to site high-level wastes and the accompanying funding discrepancies are the central components of the pattern of noncompliance which characterizes federal attempts to deal with the intractable problems of final disposal of NRC licensee-derived radioactive wastes.

E. Design Deficiencies in NRC Licensed Reactors

One aspect of the increased scrutiny of the MYAPC facility as a result of the whistleblower's letter was the discovery of a number of design bases deficiencies in NRC licensed Westinghouse reactors, many of which are yet to be resolved. All of these have or had significant public safety implications and include the following: electrical cable separation issues, containment spray pump deficiencies, problems with the efficacy of fire barrier protection seals, deficient service water and auxiliary feed water systems, and problems with the ventilation systems. These design deficiencies played a major role in the closing of MYAPC. The costs of rectifying the deficiencies identified by the increased oversight activities of the NRC following the whistleblower's letter of December 1995 were an important component of the cost squeeze experienced by MYAPC prior to shutdown. These design deficiencies, many of which were generic in nature, also played a role in the premature closure of other NRC licensee's facilities, all of whom also had deficient radiological surveillance programs. The safety issues raised by the discovery of these design deficiencies went unresolved. The shortage of resources that ensured premature plant closure at MYAPC also played a role in perpetuating deficient radiological surveillance programs during plant operation as well as during the ongoing decommissioning process.

F. Irregularities in Licensee Reactor Operations

The whistleblower's letter of December, 1995, was an event of historic proportions, uncovering as it were a pattern of failed federal oversight of licensee reactor operations of mammoth proportions. One site-specific manifestation of this letter was the Independent Safety Assessment Of The Maine Yankee Atomic Power Company dated October 7, 1996, resulting from the onsite evaluations of the summer of 1996. This was the most important of numerous NRC inspection reports, generic communications, "morning reports" and other reviews of MYAPC and other licensees. The unraveling of the MYAPC pyramid scheme which followed resulted not only in the closure of the plant but also of an NRC Office of Investigation inquiry which was later referred to the Office of the U.S. Attorney for Maine for investigation and prosecution. Specific operational irregularities cited by subsequent NRC inspection reports include problems with fuel handling (see inspection report 50-309/95-24), inadequacies in the scope of testing programs, a lack of effective improvement programs, deficiencies in emergency operating procedures, and a general shortage of resources. In addition to the issue of the manipulation of computer data pertaining to the capacity of the emergency core cooling system, the NRC office of investigation also cited the licensee for altered problematic risk assessments (PRA). In NRC inspection report 50-309/96-16, a continuation of the independent safety assessment team reviews, the NRC grouped sixteen apparent violations into the following categories, " (1) safety related equipment inoperability; (2) testing inadequacies; (3) safety review inadequacies; (4) procedure inadequacies and non-adherence; and (5) corrective actions not identified, untimely, and/or inadequate."

The most important of all the deficiencies in licensee operations was the allegations initially contained in the whistleblower's letter of December 1995. These allegations are summarized in the May 8, 1996, NRC report Office of the Inspector General Event Inquiry (case number 94-04S). The most significant act of deception was the manipulation of computer data resulting in an inadequate small break loss-of-coolant accident analysis (SBLOCA) of the emergency core cooling system (ECCS). As a result of this misrepresentation, the licensee was able to obtain two license amendments to increase the rate of thermal power of the MYAPC reactor. Maine Yankee then proceeded to operate the reactor for over a decade at power levels which were outside of the design and licensing bases of the emergency core cooling system as well as the reactor containment. This is the equivalent of speeding with a nuclear reactor. "It was further alleged that MYAPC was cognizant of these inadequate analyses, yet misrepresented them to the NRC in seeking the license amendments" (pg. 3). These for-profit deceptions and misrepresentations, the bases of the lucrative power up-rate scam, qualify as predicate criminal activities within the larger pattern of noncompliance referenced by deficiencies in radiological surveillance programs and discussed in Part J of this section of this report as U. S. Code Title 18 violations.

G. Microdegradation Mechanisms as a Threat to Public Safety

In the year prior to the appearance of the whistleblower's letter, the Maine Yankee Atomic Power Company (MYAPC) had completed a controversial sleeving of the steam generators. Numerous NRC reports and licensee studies were issued which illustrated ongoing microdegradation mechanisms which were and continue to be a threat to the public safety at MYAPC and other NRC licensed facilities. The two most important processes involved the circumferential cracking of the steam generator tubes (see U.S. NRC, Generic Letter 95-03) and the discovery of embrittlement in the reactor vessel at Yankee Rowe, which resulted in the closure of this facility when the owners discovered the reactor vessel couldn't be replaced when the owners discovered that it was too expensive to repair the reactor vessel. MYAPC spent in excess of 30 million dollars in sleeving the corroded steam generators and was closed before the issue of embrittlement of its reactor vessel could be addressed. The steam generator sleeving project resulted in the documentation of extensive sludge deposits and corrosion products adjacent to and at the base of steam generator tubes. Figure 1 is a graphic licensee-provided illustration of the sludge deposits at the base of the steam generator tubesheet. Sludge and CRUD deposits were also documented in the tube support drill plates; scaling was noted on the exterior and interior of the steam tubes throughout the steam generators. The radiological content of these corrosion products has not yet been documented. Their presence adds an element of uncertainty to the costs and procedures of the decommissioning process.

Also of interest is the farfield stress damage and the bowing and lateral deformations which are the inevitable result of the sleeving process at MYAPC or any other reactor undergoing a similar repair project. Figure 2, also derived from licensee sources9 provides an illustration of the deformations that result from the sleeving process. Of particular interest as a safety issue was the radical difference in the life expectancy of the state of the art sleeves versus the aging parent tubes which still remained in use after the steam generator was repaired. This sleeving project raised critical safety issues with respect to the reliability of MYAPC steam generators which were unresolved at the time the plant closed. These microdegradation mechanisms raise important safety issues with respect to NRC and NRC licensee operating policies. The willingness of NRC licensees such as MYAPC to continue to operate aging reactors with large discrepancies in the life expectancy of sleeved generator tubes versus aging parent tubes, or with embrittled reactor vessels, is consistent with patterns of behavior involving the SBLOCA thermal power up-rate scam. This pattern of risk taking and deception by NRC licensees in turn references the historic deficiencies and omissions in radiological surveillance programs. A tenacious aversion to documentation continues to characterize the ongoing decommissioning process at MYAPC and other New England reactors.

Figure 1

Figure 2 

9 The correct bibliographic citation for the source of these figures has never been determined. CBM has never been able to locate a full copy of the document in which these licensee-derived figures were published.

H. NRC General Requirements for Decommissioning Nuclear Facilities

The discussion of decommissioning procedures and requirements in the Federal Register, 53-24055 through 53-24105, 1988 which precede the publication of The General Requirements of the Nuclear Regulatory Commission for Decommissioning Nuclear Facilities (10 CFR Parts 30, 40, 50, 51, 70, and 72) clearly refer to the need to assure adequate funding of decommissioning costs "early in the lifetime of the facility" (53-24030). Also a component of these musings is the insertion in the Federal Register of Public Interest Research Group (PIRG) observations, which date from 1979 that decommissioning costs which include some waste disposal costs, should be paid for by "current beneficiaries not future generations." While the costs of storage and transportation of spent fuel until received and sited at a federal repository is specifically excluded as a decommissioning cost by these regulations, all waste disposal costs must be funded, as a generic requirement of federal law at the time they are created. The failure to fully fund decommissioning costs during reactor operation, and the failure to fund the storage and disposal of all radioactive wastes are illegal and constitute a clear violation of both the Code of Federal Regulations and the Bill of Rights in the United States Constitution. These failures are the foundation of a pattern of a variety of for-profit acts of noncompliance by numerous NRC licensees which are already the subject of NRC Office of Investigation (OI) and Department of Justice (DOJ) inquiries and investigations. This generic noncompliance with existing federal regulations, initially symbolized by deficiencies in radiological surveillance programs, constitutes a continuing pattern of industry for-profit activities which have an uncanny resemblance to Title 18 violations as described in the U.S. Code (Title 18, Sections 1961-1962).

I. The Failure to Fund the Storage, Transport and Disposal of Radioactive Wastes at the Time they were Created

The failure to fund radioactive waste storage and disposal at the time the waste was generated is a long-standing violation of the NRC's own regulations and has never been resolved despite the efforts of the Federal Energy Regulatory Commission (FERC). This issue has very specific ramifications at MYAPC during the decommissioning process: there is in fact inadequate funds, insufficient staff and a lack of laboratory equipment on all levels of government to implement the more detailed and exacting radiological monitoring surveys that lend credibility to the current site release criterion. The generic failure to fund waste disposal and decommissioning discussed in the previous section impacts the ability of NRC licensees to fund, design, and construct the following facilities or equipment essential to a safe decommissioning process:

1. The Failure to Fund an Independent Spent Fuel Storage Installation (ISFSI)

Preliminary planning for an ISFSI at MYAPC is already underway. The Preliminary Site Decommissioning Activities Report (PSDAR) issued by Maine Yankee contained an initial cost estimate of 125 million dollars for construction and operation of this facility. Since the design of storage casks to be used at this facility has not yet been determined, reliable estimates of the actual costs are premature. The operation of such a facility could go on for decades, if not indefinitely, due to the inability of the Federal Government to implement a comprehensive program for radioactive waste storage and disposal, including spent fuel.

2. The Failure To Fund A Multi-Purpose Canister Program

One of the options in the development of an ISFSI is the use of multipurpose canisters (MPC) which can be utilized first for on-site storage of spent fuel and then for its transportation and temporary storage in an monitored retrievable storage facility and/or final disposal in a geological repository. MPCs would replace more primitive dry cask spent fuel storage equipment currently being used by a number of utilities. The dry casks which might be used at the MYAPC ISFSI have the advantage of being much cheaper than the more sophisticated MPC units with their overpacks and transportation units. The disadvantage of dry cask storage is that they may not meet interstate transportation safety standards and are not suitable for either MRS facilities or a final geological repository. The NRC is still receiving a variety of proposals for more sophisticated models of both dry cask and multipurpose canister units. No final design has been decided upon. Under the current conditions of government deregulation there are a number of vendors attempting to obtain approval for the sale and use of several different types of dry cask spent fuel storage units. This is in part a result of the cancellation of the Department of Energy's multipurpose canister design program several years ago. Implementation of the use of one design for MPC units to be used by all nuclear utilities would have saved utility ratepayers a considerable amount of money vis-à-vis the cost of designing and constructing dry cask storage units of many different designs. This unfortunate development indicates that the federal government is going in the opposite direction of developing a comprehensive multipurpose canister system suitable for the monitored retrievable storage of spent fuel which will be the only likely waste disposal option of the future. Were a final geological repository for spent fuel to open tomorrow, NRC licensees currently have no suitable MPC equipment available for the safe transportation and disposal of this spent fuel. Even more ominous is the fact that no funding has been collected for the development of either dry cask storage units or the more expensive multi-purpose canisters at MYAPC or any other NRC licensed facility. The failure to fund adequate radiological surveillance programs was the first component of the ongoing federal failure of oversight of NRC licensee activities, which includes the failure to fund spent fuel storage and transportation..

3. Monitored Retrievable Storage (MRS)

Two versions of the 1998 Nuclear Waste Policy Act have been approved in both the House and the Senate and await reconciliation as well as the possible veto of President Clinton. This act would establish a monitored retrievable storage facility for the temporary storage of spent fuel in the Nevada desert in lieu of or until a final repository is constructed at Yucca Mountain. Strong state opposition exists to the development of this facility. Questions about the costs and the viability of a final geological repository at Yucca Mountain are also surfacing. Any monitored retrievable storage (MRS) facility to be developed in any location is as yet unfunded. This includes the cost of insurance, security, multi-purpose canisters, safe transportation, supervision, and administration of the movement of spent fuel from its current locations to the Nevada MRS or any other location. The most likely MRS scenario for both spent fuel and reactor vessel GTCC components is indefinite onsite storage at the Wiscasset facility.

4. The Inadequacy of the Mill Rate Fund to Pay for High-Level Waste Storage

Nuclear utility ratepayers have been funding the collection of the mill rate fund (0.01 cents/kilowatt-hour) to finance the final geological disposal of spent fuel. Over 13 billion dollars has been collected as of mid-1998. Unfortunately, in view of the 38,300 metric tons of spent fuel which have been created as of this date (see U.S. DOE Integrated Database Report, Rev. 11, Table 1.3), the mill rate collections to date will fund significantly less than twenty percent of the costs of storage and disposal of this spent fuel. Current projected costs excluding transportation, MRS and MPC design and construction costs for the construction of the Yucca Mountain facility are 56 billion dollars and growing. If constructed as designed the Yucca Mountain repository will be the largest construction project in the history of the United States and the costs for final geological disposal of spent fuel (domestic not military) will likely exceed 100 billion dollars. MYAPC stockholders, ratepayers, and Maine taxpayers' share of these unfunded costs is now approaching one billion dollars. Unfunded spent fuel disposal costs represent an ongoing evasion, the consequences of which are much more visible than those of unfunded effluent monitoring.

5. The Squandering of the Mill Rate Fund

Adding insult to injury is the fact that the U.S. Congress has already spent at least six billion dollars of the money which has accumulated in the mill rate fund on line items in the federal budget which have nothing whatsoever to do with the final disposal of the "entitlements" of nuclear utility ratepayers: 38,300 metric tons of spent fuel. Legislation now before congress would eliminate the use of the mill rate fund as a source of revenues to help balance the federal budget. Evasion of the costs of an adequate radiological surveillance program also constitute squandering of public funds with similar consequences. Future citizens who do not benefit from the generation of radioactive wastes still must pay for evaluation and remediation of spills such as those at MYAPC which are now just being documented.

J. The Power Up-rate Scam as a Title 18 Violation

A review of the deficiencies in NRC and NRC licensee (MYAPC) radiological surveillance programs opens a window of opportunity for consideration of a broad pattern of noncompliance with federal and constitutional law. Deficiencies in radiological surveillance and site characterization as well as the recent disclosure of an undocumented loss of radiological controls at MYAPC, occur in the context of a failure to fund the monitoring, storage, administration, transportation and disposal of radioactive wastes generated by NRC licensee activity. The evasions, omissions and deceptions which characterize radiation protection programs as well as the failure to fund waste disposal and decommissioning are symbolized by the thermal power up-rate scandal at MYAPC. This scam was the result of "...inadequate small break loss-of-coolant accident (SBLOCA) analyses of the emergency core cooling system (ECCS) to support two license amendments to increase the rated thermal power at which Maine Yankee Atomic Power Station could operate" (U.S. NRC, January 3, 1996). Following the whistleblower's letter of December, 1995, which provided the details of the power up-rate deception, it became widely known that MYAPC and the Yankee Atomic Electric Company altered computer codes pertaining to both the capacity of the emergency core cooling system and the reactor containment. These misrepresentations allowed the licensee to successfully obtain two upgrades in the rated thermal power of the MYAPC reactor, first to 2360 MWth and then 2700 MWth. The MYAPC reactor was able to operate for over a decade without the NRC noticing these violations. Only after the appearance of the whistleblower's letter in December of 1995 did the NRC discover that MYAPC was operating outside of its licensing and design bases. This illegal power up-rate was equivalent to speeding with a nuclear reactor - a for-profit activity which posed the threat of an accident with devastating public safety consequences. The power up-rate scam at MYAPC was particularly successful in that it extended over such a long period of time (over 10 years) as to result in increased sales of nuclear electricity of +/- 100 million dollars, much of it profits for the owners of MYAPC. It was also successful in that, following the NRC's Office of Investigation (OI) inquiries and recommendations to the U.S. Attorney for Maine, further investigation of the power up-rate scam did not result in its successful prosecution.

The whistleblower's letter resulted in increased scrutiny of the MYAPC and other licensees by the NRC. Subsequent inspections revealed design flaws, numerous operational deficiencies and long-standing unresolved safety issues pertaining to fire barriers (see the Peter Atherton papers), crossed electrical cables, and other issues which can be reviewed by accessing the NRC's extensive internet files at <http://www.nrc.gov>. These inspections occurred in the context of increasing public awareness of the deterioration of the physical plant at MYAPC following the controversial steam generator sleeving which had occurred earlier in 1995. Reactor vessel embrittlement was another safety issue on the horizon which added to questions about the reliability of aging reactors such as MYAPC. The ultimate consequences of the conflict between making a profit or addressing these unresolved design and safety issues was the permanent closure of MYAPC in the late spring of 1997.

The thermal power up-rate scam constitutes a classic example of predicate criminal acts necessary to establish the existence of a pattern of racketeering activities. The entire panorama of omissions, evasions, deceptions and fraud of which the thermal power up-rate scam was only a part, bear an uncanny resemblance to Title 18 violations as defined in the United States Code (USC Title 18, Sections 1961 and 1962). Waste misclassification, failure to characterize the environmental impact of plant operations prior to decommissioning and the failure of the DOE to accept spent fuel are components of the milieu in which the thermal power up-rate scandal occurred. A consideration of MYAPC activities prior to plant closure as Title 18 violations also inevitably raises the question of other illegal activities, which could be interpreted to include:

Much of the terminology used to define what constitutes a pattern of racketeering activity applies to the behavior of NRC licensees including MYAPC: Economic association, proof of awareness of the existence of the activities of an enterprise, continuity, ongoing relationships, documentary material, common purpose, financial motives, adverse intention, obstruction, evasion, adding and abetting, extortion via fear of economic loss, telephone facilitation, interstate travel, induced participation, conspiracy, single finite goal (profit, avoidance of loss), intent to facilitate, violations of due process, equal protection under the law and conspiracy.

An essential characteristic of the generation of nuclear power as a for-profit activity is the violation of due process of the law. The thermal power up-rate scam as well as the broader milieu of failure to fund and failure to document depend on the creation of two classes of individuals, those who profit from the generation of nuclear electricity and those who pay for its legacy of unfunded costs. In this context, MYAPC and other NRC licensee for-profit noncompliance with federal law is a typical generic commonplace racketeering activity.

If MYAPC was a donut company discharging hundreds of millions of nanocuries of radioactivity into Montsweag Bay from nuclear powered donut makers without documentation of emissions, leaks or accidents, or was caught operating their nuclear donut making equipment above their rated thermal power, they would be prosecuted to the full extent the law allows. NRC licensees have the luxury of federal preemption of their activities from the consequences of state and federal laws. They also have the added benefit that both the Nuclear Regulatory Commission and the Department of Justice are passive accessories in these patterns of noncompliance.

K. Checklist of Unresolved Noncompliance Issues

1. The inadequacy of the Preliminary Site Decommissioning Activities Report (PSDAR.)

2. The failure to provide an overall inventory of reactor-derived contamination (on-site and off-site inventories of residual radiation described in standard reporting units.)

3. The failure to disclose that a series of spills and chronic leakage involving liquid effluents occurred during reactor operations as documented by Characterization Survey Report packages 0100, 0500, 0900, 1000 and supplementary survey package 2501.

4. The failure to isotopically characterize reactor vessel content other than internal GTCC components, e.g. hot particles, CRUD, sludge, dross, prior to decommissioning and uncontained land burial.

5. The illegality of uncontained land burial of reactor vessels with greater-than-class C (GTCC) internal components intact (e.g. the Barnwell, South Carolina, facility.)

6. The unresolved issues pertaining to the storage, administration, transportation and disposal of spent fuel including funding, security, environmental impact, etc.

7. The failure to provide or allow public hearing during the decommissioning process.

8. The failure to mandate a site-specific environmental impact statement for the decommissioning process.

9. The failure to provide timely information about the decommissioning process including derived concentration guideline levels (DCGLs) and isotopic characterization of hot spots discovered during site characterization.

10. The failure to characterize the environmental impact of the decommissioning process including the fission product inventory and environmental impact of the reactor containment decontamination flush and the refueling water storage tank discharge.

11. The failure to fund sufficient staff to ensure safe decommissioning.

12. The failure to collect sufficient routine radiological monitoring data to validate the site release criterion of 25 mrem/yr total effective dose equivalent for "an average member of the critical group" (10 CFR 20.1402).

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