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Using FOIA to Induce Disclosure and Maintain Openness Regarding Events in Fukushima, Japan::

Jules Zacher

The United States Nuclear Regulatory Commission and FOIA: Using the FOIA to Induce Disclosure and Maintain Openness Regarding Events in Fukushima, Japan

Speaking Truth To Power
Jules Zacher, Esq.
Jeffrey R. Santin

June 16, 2012

The subject of this paper is the request for documents from the United States Nuclear Regulatory Commission (“the NRC”) relating to the nuclear accident(s) taking place in Fukushima, Japan on March 11, 2011. The theme of the paper is how utilizing the Freedom of Information Act (“the FOIA”) can breach the wall of secrecy surrounding otherwise public events, such as those related to Fukushima.

II. Background to the Fukushima Nuclear Accident(s)
In the early morning hours of March 11, 2011, an earthquake measuring 9.0 on the Richter Magnitude Scale occurred near the east coast of Honshu, Japan. Casualties and damage in Japan were immediate and widespread—more than 15,000 people were killed in Japan as a result of the earthquake and subsequent tsunami which struck a wide area of Japan’s east coast. This tsunami was measured as high as 37.88 meters at Miyako, Japan.
The Japanese nuclear power industry and infrastructure sustained significant damage in the wake of this earthquake. Immediately following the earthquake, power to all plants was shut down for safety reasons. However, in consideration of the need to use power for cooling plant reactors, power was restored wherever possible.
The nuclear facilities at Fukushima Daiichi sustained the greatest damage. This facility contains six reactors; approximately twenty-four hours following the earthquake, a hydrogen explosion occurred in reactor 1 which destroyed the integrity of the building and exposed the interior/cooling pool of the reactor. Days later, between March 14 and 15, hydrogen explosions occurred in reactors 2 and 3 and similarly exposed the interiors of these reactors. On March 15, the Tokyo Electric Power Company also reported that reactor 4 had sustained a hydrogen explosion.
In the reactors which had been breached, pools which had once contained water which had been used to cool nuclear fuel rods were empty or rapidly evaporating. The Japanese government, in conjunction with American and other technical advisors, initially elected to flood the exposed reactor cores with salt water in a hasty attempt to prevent further damage from overheated fuel rods; this effort was a success in the early stages, but ultimately failed due to salt buildup within the reactors which had eventually prevented water from reaching the fuel rods. Highly elevated levels of radioactive material were emitted from Fukushima Daiichi reactors 1, 2, 3 and 4 throughout this cooling effort, and emissions continued after fresh water was used to remove salt and curb corrosion. During the early period of greatest radionuclide emission, local weather conditions had been somewhat anomalous; winds blew toward the northwest instead of eastward, bringing a significant amount of radioactive contamination to the Japanese living inland. However, days later, winds had resumed blowing eastward and began to carry radionuclides toward the United States.

III. The NRC Leads American Efforts to Assist the Japanese Government in Fukushima
The NRC was created as an independent agency by Congress in 1974 to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment. The agency seeks to achieve these goals through the regulation of commercial nuclear power plants and other uses of nuclear materials in the United States (such as in nuclear medicine) through licensing, inspection, and enforcement of its requirements.1
The scope of the NRC’s responsibility was inherited from the now-defunct Atomic Energy Commission (“AEC”), which had received its mandate from the passage by Congress of the Atomic Energy Act of 1954. When the NRC began operations in 1975, it focused its attention on several broad issues that were essential to protecting public health and safety, including radiation protection and reactor safety.i Today, the NRC's regulatory activities are focused on reactor safety oversight and reactor license renewal of existing plants, materials safety oversight and materials licensing for a variety of purposes, and waste management of both high-level waste and low-level waste.i As a United States regulatory agency, its power to regulate is limited to facilities and personnel located within United States territories.
Throughout the post-earthquake period, the NRC offered its services to the Japanese government. The NRC was actively involved in the coordination and implementation of measures intended to minimize environmental damage resulting from radioactive contamination, as well as in the analysis of data predicting possible exposure to this contamination in the United States.
Immediately following the earthquake near Fukushima, the NRC began to closely monitor events in Japan and assess the potential impact on nuclear plants and materials in the United States. The agency also offered its cooperation to its Japanese regulatory counterparts, and by March 14, 2011 the NRC had dispatched a total of eleven staff members to provide technical support to the American Embassy and the Japanese government.2

IV. Using the Law to Compel Disclosure of Potential Problems in Fukushima

The NRC and other federal regulatory agencies have a responsibility to take actions in furtherance of policy and other goals of the United States government. The public is usually isolated from the decision-making process; this isolation contributes to a perceived wall of secrecy surrounding federal regulatory agencies, and can foster an environment of distrust (of the federal government) among the populace.
One way to peel back this wall of secrecy is to use the means available to the public by law. The FOIA is a valuable tool—the Supreme Court has described the dominant objective of the FOIA as “disclosure, not secrecy….”3 In support of this objective, the President of the United States, Barack Obama, has issued a memorandum to the heads of all federal executive departments and agencies instructing that “[a]ll agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.”4

V. FOIA Request for NRC Documents Related to Fukushima
On April 3, 2011, a request for the release of documents relating to the earthquake, damage, and subsequent cleanup efforts was made to the NRC by Speaking Truth To Power in accordance with the FOIA. In response to this request, the NRC has released more than fifty thousand pages of documents, and is continuing to occasionally release documents as they are collected and reviewed by the agency.
VI. A Broad Summary of Documents Released by the NRC
The documents released by the NRC reveal that the agency had taken a proactive approach to assessing possible imminent tsunami-related damage to nuclear reactor sites in the continental United States. The agency also appeared to have proactively worked to determine whether the United States could possibly receive a significant amount of contamination from the Fukushima site.5
Any intra-agency worries regarding tsunami damage to reactors in the United States were short-lived; domestic nuclear sites continued to operate while under advisement that water levels may rise slightly. The NRC turned its attention toward sending support personnel and equipment to Japan, as well as toward projecting the possible movements of radioactive clouds being generated by the Fukushima reactor sites. Air mass (“plume”) models which were intended for localized post-accident use quickly proved inadequate for projecting plume movement across the Pacific Ocean. To address this limitation, internal NRC documents revealed cooperation between the agency and other organizations to develop a program capable of long-range projections.6
Without regard to these projections, though, the eastward spread of radionuclides quickly became apparent. On the morning of March 13, 2011, the United States Navy notified the NRC that radionuclide dose rates were being detected and measured from the flight deck of the USS Reagan, an aircraft carrier located about 130 nautical miles from the Japanese Pacific coast.7 Dose rates from the overhead plume were approximately 0.6 millirem per hour, but dose rates on the ship’s surfaces were too low to be detectable. The NRC had already received a report by this time, from the International Atomic Energy Agency, stating that dose rates at the boundary of the Fukushima Daiichi reactor site were being measured at 100 millirem/hour twenty hours earlier.
By the following morning, on March 14, the 7th Fleet of the United States Navy had repositioned its ships out of the downwind plume direction from the Fukushima Daiichi site after also detecting low-level contamination on its aircraft operating from ships in the area. Later that evening, cesium-137 and iodine-131 emissions consistent with a nuclear accident had been detected at the Yokosuka Naval Base, located approximately 175 miles south of Fukushima.v On March 16, communications between NRC officials revealed that the day before, on March 15, the United States Navy identified radiological data from the USS George Washington (located at Yokosuka) that showed an air sample of .000000007 microcuries for every milliliter of air, from which the Navy estimated a dose rate of 1.5 millirem per hour.v Reports received by the NRC from the United States Navy regarding contamination and the relocation of naval assets were simultaneously made public by the U.S. Navy 7th Fleet Public Affairs Office.

VII. The NRC Cooperated with the Environmental Protection Agency for Early Danger Assessment
According to internal NRC documents, under the Nuclear/Radiological Incident Annex to the National Response Framework the Environmental Protection Agency (“the EPA”) is responsible for measuring “plumes that come across our borders.” 8 In the United States, the EPA uses a nationwide radiation monitoring system, called RadNet, to continuously monitor the nation’s air and to regularly monitor drinking water, milk, and precipitation for environmental radiation.

On the morning of March 12, 2011, internal electronic mail documents from the NRC indicated that the agency was “…working with [the Department of Homeland Security], EPA and other federal partners to ensure monitoring equipment is properly positioned, based on meteorological and other relevant information.”9
The NRC had noted internally that, as early as March 15, the EPA had already publicly stated its agreement with an earlier NRC assessment that the radiation levels reaching the United States would be negligible. In France, the Institute for Radiological Protection and Nuclear Safety concurred in a later statement released on March 19 10 In anticipation of an increased need for monitoring, though, the EPA had indicated to the NRC by March 15 that it “plans to work with its federal partners to deploy additional monitoring capabilities to parts of the western U.S. and U.S. territories.” 11

VIII. NRC Acknowledgement of the Domestic Arrival of Radiological Contamination
The International Atomic Energy Agency and the United Nations had indicated to the NRC and the EPA at least as early as March 14, 2011 that a radioactive air mass was expected to appear over the west coast of the United States by March 18, and that they “expect no detectable radioactivity.”12 Radioactive airborne particles were already being detected by this time; equipment located at the nuclear facility at Diablo Canyon, in San Luis Obispo, California, detected 6.349^-13 microcuries of iodine-131 per cubic centimeter of air. This amount represented only 0.003% of occupational hazard values; “in other words, very low level and at the limits of [the NRC’s] detection capability." 13 The March 18 arrival of a radioactive air mass was confirmed on March 19, in an internal NRC memo, 14 and it was also determined that the radionuclide-containing air mass was composed of iodine-131 and cesium-137. Each are byproducts of nuclear fission, and are not naturally occurring in the environment. 15

IX. The Measurement of Domestic Radiological Contamination by the EPA 16
The EPA has determined a Maximum Contamination Level
(“MCL”) for a number of contaminants in drinking water and milk, including radionuclides. For iodine-131, the MCL is three picocuries per liter (“pCi/l”) of drinking water; for cesium-137, the MCL is two hundred pCi/l.17

Between March 11 and June 30, 2011, the EPA measured radionuclides in precipitation,
drinking water, and milk at more than 150 locations throughout the United States. Measurements published on the EPA’s website dedicated to RadNet data are all measurements which were above the normal background readings prior to March 11; when examining EPA-published data, any figures listed are a net reading which accounts for already-existing background radiation.

Tests of precipitation during the period March 11 to June 30 revealed radionuclide
measurements far above the MCL for drinking water and milk; in Idaho, readings taken from the
EPA station in Boise on March 27 revealed levels of iodine-131 more than one hundred times
higher than the MCL. Detection of excessive iodine-131 was widespread, and stations as far east
as Jacksonville, Florida received levels of iodine-131 fifty times higher than the MCL. Readings
for cesium-137 were also elevated above the MCL, but only in readings taken in Richmond,
California and Boise, Idaho between March 27 and April 28.

However, it appears that the contamination found in precipitation during this period did
not lead to harmful contamination of drinking water and milk. No testing site revealed drinking water contamination of iodine-131 above the MCL; only one station located in Dover, Delaware noted a cesium-137 reading above the MCL, on April 13. Readings for contaminants in milk were similarly lacking in frequency--no collection after April 13 revealed any contaminants above pre-earthquake background levels.

The EPA had routinely shared information with the NRC regarding contamination levels. Beginning as early as March 21, 2011, the NRC incorporated EPA-generated data in its daily morning briefings on the NRC response to nuclear events in Japan. In the morning briefing of March 21, at least three days after the arrival of Fukushima-generated nucleotides, the NRC noted in the morning briefing record that the “EPA’s system has not identified any radiation levels of concern in [the United States]. In fact, natural background (radiation) from…rocks, sun, buildings, is 100,000 times more than any level that has been detected to date. We feel confident in our conclusion that there is no reason for concern in the United States regarding radioactive releases from Japan.” 18

X. Determining Whether the NRC has been Forthcoming in its Disclosures
The conclusions reached by the NRC appear to indirectly comport with available meteorological data from the time of the accident. In a preliminary assessment of potential atmospheric radiation releases, published on March 31 and included among released NRC documents, it was noted that “ground level winds often blew inland in the days immediately after the earthquake…in the first twenty-four to forty-eight hours after the shutdown of [the] reactors, these releases would have contained significantly more radioactivity….”19 With the greatest amount of radioactivity having been released during that time period, and with efforts to mitigate damage and output beginning almost immediately following the earthquake, plumes migrating to the United States would reasonably contain a lower concentration of radionuclides than those plumes which were generated during the first forty-eight hours.

Internal NRC documents showed that the agency was consistent in its assessment of a relative lack of danger to the continental United States, and that this assessment was augmented by other agencies. In addition, these documents revealed that the agency had been in virtually constant contact with news outlets around the world. Information was pushed to these news outlets, despite occasional hesitation among NRC officials to be quoted by name, and the information provided was in accord with what had been discussed internally among the various agencies.

XI. Conclusion
The April 3, 2011 FOIA request for internal NRC documents and other communications relating to agency actions in the months following the Fukushima nuclear accident(s) was successful—the NRC appeared to have fully complied with the request, revealing details surrounding post-accident cleanup and risk mitigation plans which may not been made publicly available.

The documents revealed that the NRC and other agencies and organizations had determined, early in the post-earthquake period, that the danger to the American population and nuclear facilities would be negligible. These early assessments were largely supported by other domestic and foreign agencies. The documents also later confirmed the earlier assessments, and had showed that air masses containing radiological material had reached the continental United States but did not constitute a health risk to the public. The NRC maintained contact with media outlets throughout the post-earthquake period.

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3 Department of Air Force v. Rose, 425 U.S. 352

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16 A comprehensive collection of measurements can be found at go to website

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