FROM: Society of Environmental Journalists

TO: Secretary, U.S. Nuclear Regulatory Commission (Attn: Rulemakings and Adjudications Staff; e-mail: SECY@nrc.gov)

DATE: March 28, 2005

SUBJECT: Comments of Society of Environmental Journalists on "Proposed Rule: Protection of Safeguards Information" (RIN 3150-AH57)

Comments of the Society of Environmental Journalists

on "Proposed Rule: Protection of Safeguards Information,"

Nuclear Regulatory Commission,

Federal Register: February 11, 2005 (Volume 70, Number 28), pp. 7196-7217

(RIN 3150-AH57)

The Society of Environmental Journalists (www.sej.org), the largest and oldest organization of working journalists covering environmental issues, hereby submits comments for the formal record on the Nuclear Regulatory Commission's "Proposed Rule: Protection of Safeguards Information," published February 11, 2005. We appreciate the opportunity to comment.

SEJ is a non-partisan educational organization of individual working journalists dedicated to improving the quality, accuracy and visibility of environmental reporting. Founded in 1990 and based in Jenkintown, Penn., SEJ consists of more than 1,350 journalists, educators and students. SEJ's programs include annual and regional conferences; a daily environmental news service; a quarterly magazine; a biweekly story tip sheet; an annual journalism contest; a comprehensive Web site; eight e-mail listserves; a diversity program; and a mentoring program.

General Comments

SEJ shares the concern of the Nuclear Regulatory Commission (NRC) and all Americans with the protection of the health and safety of the American public from hazards of all kinds that may be associated with activities involving nuclear materials. We commend the NRC generally for its continuing efforts to protect the public. Further, we understand that there are many legitimate instances where secrecy is a necessary component of security.

We are concerned, however, that the proposed rule (RIN 3150-AH57) only fortifies a secrecy regime which in the end may have an effect the opposite of what is intended — diminishing true safety and security rather than enhancing it — hiding vulnerabilities rather than eliminating them; masking performance failures rather than correcting them; and weakening public oversight and accountability rather than strengthening them.

The possibility of a deliberate terrorist act using nuclear materials is really only one of a wide range of potential ways in which the use or release of nuclear materials could endanger the health and safety of the U.S public and the environment. Real safety derives from designing and configuring systems to maximize their inherent safety in the first place.

An excessive focus on secrecy belies the possibly mistaken assumption that terrorism is the greatest hazard confronting U.S. nuclear facilities — and the assumption that the vulnerabilities of the system are not immediately and externally obvious. The wide distribution of nuclear materials across the American landscape and throughout U.S. commerce and research has been publicly known for decades. A sudden tightening of secrecy will not erase this knowledge from people's minds.

Greater secrecy could, however, chill or extinguish public discussion of whether nuclear plants and materials are being adequately protected from terrorism or other threats. It could remove from the table of public debate legitimate policy questions which ought to be openly and intelligently debated on the basis of adequate information. It could diminish public awareness of nuclear safety and security issues and relieve the NRC and involved industries of public pressure to address them.

Greater secrecy for nuclear safeguard information would likely make it much harder for journalists to do stories like the one that appeared in the Washington Post of today, March 28, 2005, ("Storage of Nuclear Spent Fuel Criticized; Science Academy Study Points to Risk of Attack," by Shankar Vedantam, p. A1). That story was based largely on SGI materials, yet it could be argued that the information should have been public to begin with — and that SGI status did far less to protect U.S. citizens from terrorism than it did to protect the government and industry from criticism or accountability.

What is missing from the SGI schema are the controls and checks that are built into the national security classification system. There is insufficient mechanism for reviewing and appealing decisions to categorize information as SGI; there is inadequate mechanism for removing information from SGI status once it has been so categorized; there are no truly independent oversight bodies; there is no recognized channel for getting disputes over SGI status into court; and there is insufficient mechanism for making available to Congress, news media, and the public the portions of information protected as SGI which would not present a risk (i.e. redaction). These are the issues any modification of the existing SGI system should address.

The Atomic Energy Act created an absolute protection for certain kinds of information more than 50 years ago. At times the AEA has acted to categorically exclude from public disclosure information which would serve the public's interests. The AEA has made information secret when the needs served by public disclosure would clearly outweigh the need for secrecy as, for instance, where government activities have jeopardized public health and safety.

The half-century old AEA preceded the Freedom of Information Act which recognized a need for public oversight of government activities except where clear exemptions applied, and the public's needs for information were probably never adequately considered at its passage. The AEA has acted as an Exemption 3 statute precluding entirely any balancing of public and secrecy interests and it has operated at times to make secret old information that could no longer do any harm and that could serve public needs.

To expand by regulation the definition of information absolutely protected by the AEA now, 50 years after its enactment and nearly 40 years after the enactment of the Freedom of Information Act, is decidedly not in the public's interest.

The exemptions to the FOI Act already give adequate protection to information that could cause any of the harms anticipated here by disclosure. The agency can accomplish what it intends to accomplish here by flagging information as sensitive subject to review before disclosure under the FOI Act.

We are offering only general comments on the proposed rule at this time. Frankly, we did not have adequate time to address the lengthy proposed rule in sufficient detail. NRC's offering of less than 60 calendar days (and barely more than 30 working days) for comment on a proposal of this length is really not adequate to allow us to do the thorough job of examining it and responding in detail that we consider necessary. We urge the NRC to extend the comment period for another 60 days to allow further and more adequate comment.

Signed,

Perry Beeman

SEJ President

Ken Ward Jr.

Chair

SEJ First Amendment Task Force

Robert McClure

SEJ Board of Directors Liaison

SEJ First Amendment Task Force

Joseph A. Davis, Ph.D. (for the above)

Project Director

SEJ First Amendment WatchDog Project

The Society of Environmental Journalists

P.O. Box 2492 Jenkintown, PA 19046

Telephone: (215) 884-8174 Fax: (215) 884-8175

sej@sej.org