The Nuclear Regulatory Commission has been in "emergency" status since the United States received tsunami warnings in the wake of a March 11 earthquake that crippled Japanese nuclear reactors last month, documents obtained by Greenwire reveal.

NRC Chairman Gregory Jaczko is using the rarely used status, allowing for the transfer of certain commission decisionmaking powers to himself, because of concerns that the tsunami spawned by the quake could hit the United States. Though that threat subsided within 48 hours, the emergency status continues, according to an email the NRC's Office of Congressional Affairs sent to a senior staffer for the Senate Environment and Public Works Committee.

"The chairman has been exercising his emergency authority since that time," the April 4 email said, noting Jaczko had such authority under Section 3 of the Reorganization Plan No. 1 of 1980. "The agency will return to a non-emergency status when the situation warrants."

Congress passed the law in 1980 to ensure there was decisive leadership for dealing with nuclear emergencies in the aftermath of the partial nuclear meltdown in 1979 at the Three Mile Island plant in Pennsylvania, the NRC said.

Former NRC Chairman Richard Meserve last used such authority following the terrorist attacks of Sept. 11, 2001, according to the NRC, which allowed Meserve to ensure that security designations at U.S. nuclear plants were raised to the highest levels.

"Responding to external emergencies is a basic function of the agency and its designated chairman, as noted by President Carter when he sent the Congress the current reorganization plan under which the NRC operates," said Eliot Brenner, a spokesman for Jaczko.

"When the NRC stands down its emergency response capabilities is wholly dependent on the status of the situation in Japan and the need for our assistance to the embassy, American citizens and the request by Japan for assistance," he said.

NRC commissioners were notified on March 11 that the agency had entered into a "monitoring mode" in response to the Japanese crisis, and Brenner said the chairman was not required to make a declaration of any type for using emergency authority.

But Sen. James Inhofe (R-Okla.), the ranking member on the Senate Environment and Public Works Committee, says the chairman's decision could be limiting crucial input from other commissioners. "This action may have reduced the contributions of your experienced colleagues in monitoring the event and in decision-making," Inhofe wrote in an April 6 letter to Jaczko.

A senior agency official said at least one NRC commissioner was not aware of the "emergency" declaration for at least a month. That commissioner, who refused to be named, has questions about how the chairman is using the emergency authority and whether he has assumed the policy function to make decisions on behalf of the entire commission, the official said.

Brenner said NRC commissioners are not precluded from providing input and that all four commissioners and the chairman together last month adopted the NRC's review of U.S. nuclear reactors in the aftermath of the Japanese disaster. "Any decisions that flow from that study would, of course, be commission decisions," Brenner said.

Inhofe, whose office provided the email to Greenwire, has questioned how the head of a federal agency can declare an emergency in the United States for a disaster that happened in another country. The 1980s law guides how an emergency can be declared and what it allows the chairman to do.

Jaczko raised eyebrows when he recommended that Japanese officials evacuate people living within 50 miles of the Fukushima Daiichi plant, which was damaged by the March 11 earthquake and tsunami. Japanese officials at the time were maintaining an evacuation area of 12 miles around the reactor complex.

NRC staff were unable to say who vetted Jaczko's recommendation when the NRC Advisory Committee on Reactor Safeguards asked for clarification at an April 7 meeting (E&ENews PM, April 7).

The advisory committee, composed of part-time government employees with expertise in nuclear engineering, risk assessment and general engineering, voiced concern over the lack of knowledge surrounding Jaczko's high-level statement and asked the commission to provide detailed calculations that went into supporting the 50-mile evacuation recommendation.

NRC staff said at the time that the "conservative" decision to call for a 50-mile evacuation zone was based on assumptions that the spent fuel pool was full of fuel, as are American spent fuel pools. But NRC staff said they were surprised to later learn that the Japanese spent fuel pools were not as packed with nuclear fuel as they would have been in the United States.

Brenner clarified that the chairman's recommendation for a 50-mile evacuation zone was a recommendation, not an official order.

Robert Duffy, chairman of the political science department at Colorado State University, said he sympathizes with the need for leadership in the aftermath of the Japanese crisis but found it odd that the chairman wouldn't inform commissioners of the "emergency" status.

Duffy said Jaczko's recommendation to implement a 50-mile evacuation zone may be scrutinized because it raises doubts about the safety of the nuclear industry in the United States.

"My guess would be the industry wasn't really thrilled with a statement that you need to evacuate within 50 miles of the Fukushima plant," Duffy said. "All of a sudden, people start asking questions about U.S. plants and the NRC's ability to regulate."

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