The United States is seriously discussing expanding the role of nuclear energy to both reduce its carbon emissions and foreign fuel dependence. In a recent online feature, David Lochbaum criticized the Nuclear Regulatory Commission (NRC) for its past regulatory lapses and wrote that it would be challenged to handle the increased responsibilities. What sort of changes in federal oversight would be required to ensure both the public's safety and to allow U.S. nuclear power to grow? Below, our four experts explore the current framework, its strengths and weaknesses, and what reform at the NRC might look like.
It's true that the Nuclear Regulatory Commission (NRC) has had lapses in enforcement of its rules by giving the benefit of the doubt to utilities. David Lochbaum provides reasonable examples of such lapses. Conversely, there have been commissions that have had such a focus on compliance that utilities were forced to follow rules that had minimal to no impact on safety, setting the entire focus on safety back 10 years, as the Millstone Unit 1 design basis reconstruction effort has shown.
As a former utility executive, the NRC lapse at Davis-Besse is very difficult to understand given the evidence that was available years before. The reactor vessel head degradation at the plant was the result of a major breakdown not only at the NRC, but also at the Institute of Nuclear Operations (the industry's oversight organization), the utility's external oversight board and most importantly the utility itself. It should be recognized that the responsibility for nuclear safety rests not with the NRC, but with the utility that owns and operates the plant. The best the NRC can do is monitor operator performance and create an environment in which a positive safety culture is encouraged by its actions within its rules and regulations. The major lesson of the Three Mile Island accident, which is still relevant today, is that the primary responsibility for safety is with the operator.
David's proposals for reforming the NRC have some merits. The NRC is living inside a box of its existing regulations that does not incentivize industry to improve design or procedures since it must operate within a regulatory envelope developed largely in response to past events, rather than a forward looking focus on meaningful safety improvements. The commission has slowly allowed risk to inform the regulatory process, but this has met resistance from "old time" thinking within the NRC itself and from industry.
Once a significant problem at a plant such as Davis-Besse is identified, the NRC swoops in with many special investigation teams that result in significant changes at the utility, not only in terms of personnel but also in operation. These are extremely costly as documented by David and one would think that the utilities would recognize the consequences of poor performance by now.
David calls for seeking the "best available" candidates for senior NRC management openings from other federal agencies such as the Department of Energy, the Environmental Protection Agency and the General Accounting Office and creating a rotation program to bring in new perspectives. I would expand his list to include those with operating reactor experience and officials from the Federal Aviation Administration and the National Transportation Safety Board. He also encourages Congress to play a more active oversight role in monitoring NRC reforms.
While in principle, these are good ideas since external input is always healthy, the regulatory process is a strict one in which innovation in enforcement is not necessarily a good option using David's own examples. A serious review of the entire regulatory framework should be considered, to make it more focused on safety than on process. Unless this happens, those bright people from outside will be just as constrained as the current group who are promoted from within.
Deterministic rules, developed to respond to uncertainties and conservatisms even if they make no real sense, are a deterrent to safety no matter who enforces them with vigor. The industry has experienced such blind enforcement of regulations, which has resulted in billions of dollars wasted without meaningful improvement in safety.
When you couple a regulatory structure focused on safety based on risk-informed criteria, with an NRC staff that is open minded and managers who are willing to allow that staff to focus on real safety issues, meaningful improvement in overall regulatory and utility performance and most importantly safety is possible.
David Lochbaum wants to inject new blood into the Nuclear Regulatory Commission (NRC) staff to stiffen enforcement of its safety rules. The composition of NRC technical staff is not the problem--they are a professional lot, as good as you will find in the federal government. Not surprisingly, though, they are responsive to priorities set at the top--by the commissioners, and mainly by the chairman.
The problem is that while Congress created the NRC to be an independent safety regulator, from the beginning, the majority of commissioners saw themselves more as the nuclear industry's facilitators and protectors, pressing the staff to approve licenses and assuring the public there was nothing to worry about. For example, after the devastating 1975 Browns Ferry fire, the commissioners spent hours on the NRC press release because the chairman wanted to exclude the word "serious."
But this wasn't the whole story. Even if reluctantly, the commission generally approved its staff's safety recommendations. After Browns Ferry, it upgraded fire protection rules, and after the 1979 Three Mile Island accident, it approved much broader upgrades, and on the whole, enforced them. Later, during the Reagan era, the commission included retired admirals from the nuclear navy, who, although sympathetic to the industry, knew in their guts that lives were at stake when plant operators didn't follow rules; therefore, they were disinclined to suffer gross plant mismanagement.
This delicate balance between promotion and safety tipped radically in 1998, when, after getting what he called "outside recommendations," New Mexico Republican Sen. Pete Domenici, then chairman of the Energy and Water Appropriations Subcommittee, threatened NRC Chairman Shirley Jackson with a savage budget cut unless she made NRC more industry-friendly. In his book, A Brighter Tomorrow, Domenici actually brags about privately confronting Jackson, who he says seemed stunned and pleaded for time. She soon, however, saw the light: "Since that meeting with Chairman Jackson, I've been very impressed with the NRC."
Jackson replaced experienced top managers with younger more malleable ones and hired Arthur Anderson as management consultant. The NRC ended the tough plant evaluations the industry disliked and introduced simplified, laxer ones. To give an idea of the effect, in 2003, the NRC gave the badly mismanaged Davis-Besse plant top grades in every safety category--just before it was discovered (fortuitously!) that a large chunk in its reactor head had corroded away. There is a direct line from that 1998 meeting in Domenici's office to Davis-Besse's close brush with disaster.
Andy Kadak has a gentle way of putting it: "It's true that the [NRC] has had lapses in enforcement of its rules by giving the benefit of the doubt to utilities." I'd say it has effectively become a wholly owned subsidiary of the Nuclear Energy Institute, the industry's lobbying arm. This isn't only wrong; it's shortsighted on the industry's part. An NRC that lacks public respect is a drag on nuclear expansion. When problems are close to home, everyone wants tough safety regulation and full disclosure. Even Oklahoma Republican Sen. James Inhofe, ranking member on the Environment and Public Works Committee, and otherwise a fervent defender of everything nuclear, came down on the NRC when he discovered it had kept secret a leak from a nuclear processing plant in nearby Tennessee. In a July 2007 letter to NRC Chairman Dale Klein, he put it pretty well: "I know that you share my belief that nuclear energy must play an increasing role in our nation's growing demand for energy. This will not happen unless and until the public and this committee have confidence that the commission will ensure public health and safety, and protect the environment."
The Nuclear Regulatory Commission (NRC) is facing a significant challenge as it seeks to fulfill its responsibilities to ensure the safe and secure use of commercial nuclear technology. For the first time in decades, the NRC will soon conduct the licensing review of several new applications to build and operate nuclear power plants, as well as review the first ever application for a used fuel repository. In addition, it will continue its ongoing oversight of nuclear reactors, materials licensees, and used fuel management. Compounding this challenge, the NRC is hiring hundreds of new personnel, while many of its most experienced leaders retire. But compared to where the Atomic Energy Commission and the NRC started from in 1974, it's clear that the commission is fully capable of regulating industry in an effective manner.
David Lochbaum's piece is a trip down memory lane. In hindsight, there clearly were areas where the NRC and industry could have, and should have, performed better. There's still room for improvement, which I'll get to in a moment. But I believe that the NRC accomplishes its mandate to enforce its regulations. Both the NRC and its licensees experienced many growing pains and learned many lessons since the late 1960s when the first commercial plants went on line. Andy Kadak points to the lack of safety focus and the heavy focus on compliance that dominated the regulatory process into the 1990s. The subjectivity of that process also contributed to instability in regulatory oversight. What constituted compliance often was in the eye of the beholder. NRC's enforcement policy was used liberally by the commission when noncompliance was identified, and violations and civil penalties were issued accordingly; there was no hesitancy by the NRC to exercise enforcement.
It wasn't until the mid- to late-1990s that probabilistic risk analysis and performance-based regulatory approaches were meaningfully incorporated into the regulatory process. That movement culminated in 2000 with the NRC's revised Reactor Oversight Process (ROP), a more safety-focused, objective, and transparent program. David, the Nuclear Energy Institute, and other stakeholders encouraged the NRC to move in this direction. While the ROP continues to evolve, it's widely recognized as a significant improvement.
Today, you need only to review the industry trends monitored by the NRC, including performance indicators and inspection findings captured by ROP, to conclude that the current fleet of plants is operating more safely and reliably than ever before. This couldn't have occurred without highly competent plant operators and an effective NRC. While David and Victor Gilinsky cite notable lapses (some more than 30 years old, some more recent), the data demonstrates that high levels of safety and reliability have been sustained.
But there is room for improvement. Andy cites the need to move further forward with the use of risk insights. Victor cites the need for greater public confidence in the NRC if new build is to become a reality. I agree with both, although according to a recent telephone survey by Bisconti Research two-thirds of the public believes U.S. reactors are safe and secure. Deterministic regulations developed 40 years ago based on worst-case scenarios to make up for the lack of operating experience and data must be improved and based instead on decades of real-world experience. Furthermore, a Government Accountability Office sting operation that revealed the NRC issued a materials license to a nonexistent entity only undermines public confidence in the regulator and the industries it regulates.
Accountability and discipline throughout the commission will also be critical going forward as the newly staffed NRC approaches current and future challenges. New ideas, fresh thinking, and modern information technology should help the NRC become more effective and efficient. But there also must be discipline to make changes through the proper channels, and not through new interpretations of past regulatory practices that would undermine the stability of the regulatory process.
Andy Kadak raises a valid point about Davis-Besse's near miss resulting from a major breakdown not only at the Nuclear Regulatory Commission (NRC) but also at the plant operator FirstEnergy and the Institute of Nuclear Power Operations (INPO). INPO, formed by the industry in response to Three Mile Island, seeks to hold plant owners to standards considerably higher than NRC regulations. Any time a nuclear plant such as Davis-Besse falls below NRC regulations, it first falls below INPO standards. If INPO's enforcement was successful, declining performance would be corrected before dropping below NRC regulations. But the ongoing recovery at the Palo Verde nuclear power plant in Arizona and the year-plus outages at Davis-Besse, the D. C. Cook plant in Michigan, the LaSalle and Clinton plants in Illinois, Crystal River Unit 3 in Florida, Millstone plant in Connecticut, and the Salem plant in New Jersey demonstrate that INPO has failed repeatedly.
I also agree with Andy that NRC's failures aren't limited to enforcement lapses. In addition to the examples he cites, plant owners and the Nuclear Energy Institute (NEI) have pointed out numerous occasions where NRC inspectors nitpicked issues that were irrelevant to safety or ratcheted up compliance beyond what the regulations required. That the commision routinely gets criticized from both sides strongly suggests that its problems arise from a lack of competence rather than bias. A biased regulator gets the majority of its complaints from one side. An incompetent regulator gets justly criticized from all stakeholders. In addition to being criticized by all the participants of this roundtable, the NRC is currently being formally challenged by the states of New Jersey, Massachusetts, Vermont, and New York in legal proceedings and by the attorney generals of several other states for inadequate post-9/11 security upgrades. It's evident that NRC isn't an effective regulator.
I agree with Victor Gilinsky's description of NRC's ebb and flow approach to nuclear safety oversight, but I think that the outside forces dictating the commission's regulatory mood extend beyond Capitol Hill and NEI. NRC's senior management is comparable to a weathervane, facing whichever direction the wind is blowing. The prevailing wind may be from Capitol Hill and NEI, but sometimes a gust blows in from the media, state governments, or other quarters and gets the NRC's focus for a time.
Anthony Pietrangelo observes that some of the problems I cite date back 30 years. I believe it's fair to mention old problems when similar problems exist today. Regardless of their age, problems in the rearview mirror are relevant when their solutions remain on the road ahead. Old issues transition to a historical nature only when both the problems and their implemented solutions appear in the rearview mirror.
I agree with Anthony that nuclear plants are performing at higher levels today than in the past and that this outcome results from industry and NRC activities. In addition to the reactor oversight process, the NRC's "maintenance rule" and the industry's efforts to meet it have improved safety and reliability. I believe these facts are consistent with, rather than contradictory to, our view that the commission generally establishes safety standards at the appropriate level but does an inadequate job of enforcing them. Most plant owners are meeting or exceeding its standards and achieving strong performance results. But some plant owners can't, or won't, comply with NRC standards. The NRC's Office of Enforcement needs to get into the game to narrow the performance gap between industry leaders and laggards.
Like a top-notch sports referee, a high-quality government regulator is virtually invisible. Bad calls by referees and bad decisions (or events traced back to bad decisions) by regulators attract attention while good calls and good decisions go unnoticed. The NRC gets too much attention from too many people to be considered an effective regulator. To be sure, it has a difficult task pursuing "Goldilocks" regulation--regulation neither too lenient nor too harsh. I believe that by improving its enforcement capability to match its demonstrated skill in establishing regulations, the NRC would make much-needed progress toward regulation that's just right.
It appears there are misconceptions about the Nuclear Regulatory Commission's (NRC) performance depending upon where you stand. David Lochbaum believes that its regulations are fine but not well enforced. He cites dissatisfaction with the NRC from "both sides" not as a sign of fairness but rather incompetence. Victor Gilinsky challenges this notion, believing that NRC staff is highly competent and professional but not allowed to do its jobs by the commissioners. Anthony Pietrangelo suggests we look at the industry's recent performance as an indicator of plant safety, since supposedly unsafe plants have had an outstanding operating record over the last decade or so.
Clearly the recent performance record shows that the NRC and the industry have demonstrated a more effective approach to safety. For the industry, it's driven by economics. If a company isn't running a safe plant, it will experience equipment failures and/or regulatory-driven shutdowns, which are orders of magnitude more costly than preventative measures. NRC Chairman Shirley Jackson initiated the movement of the commission to a more risk-informed, performance-based regulatory body. New Mexico Sen. Pete Domenici certainly had a significant role to play in this transformation since Jackson's earlier strict compliance policy was negatively affecting the industry's respect for NRC and overall safety. Since her new approach, great strides have been made in applying resources to areas that truly protect public health and ensure plant safety. The NRC's Reactor Oversight Process and its increased public transparency regarding safety and regulation are unheard of in any other industry or regulatory body.
Regarding Victor's assertion that the NRC is in the industry's pocket, I'd be interested in seeing his proof, as he provides no evidence to support it. Such a statement is easily made but hard to defend. Each commissioner has his or her private views about whether nuclear energy is a good thing or not. Commissioners on both sides of the nuclear issue have been appointed by presidents. The oath that each took when confirmed by the Senate was to safeguard the public's health and safety, not the industry's interests. These are all honorable men and women who I believe take their oaths seriously.
What has always troubled me more is the requirement that the commission be balanced between Republicans and Democrats. I can't see how a Republican or a Democrat can view safety differently. I could see how a commissioner with an anti-nuclear agenda might. Conversely, even the most ardent nuclear advocate should know that an unsafe plant will be shutdown, so enthusiasm for regulating less strictly isn't in his or her best interest.
Lastly, and perhaps most troubling, is that in recent times, the new NRC commissioners have come from the ranks of staff members of some senator or congressman or committee. This is unhealthy for the agency's reputation, since the public expects appointments to be made based upon an understanding of the technology to be regulated, not based upon congressional job history. Fortunately, at least a few of the commissioners have some kind of technical background--but not necessarily in the field of nuclear engineering.
So what's the bottom line? The NRC needs to be a technical body, charged with overseeing the design, construction, and operation of nuclear power plants and radioactive materials. Its staff must be highly trained with a keen sense of its role at all levels. The new trend toward a more risk-informed regulatory approach is a big step forward. Nonetheless, the NRC can never replace those who are ultimately responsible for nuclear safety--the people who design, build, operate, and maintain the plants.
The Nuclear Regulatory Commission's (NRC) problems lie in the priorities at the top. The overriding priority--evident from commission pronouncements and actions--is to facilitate a major expansion, or "renaissance," of nuclear power. That's okay elsewhere in the federal government, but not at the NRC because it gets in the way of public safety and conducting fair proceedings.
This is especially evident in the licensing review of Nevada's Yucca Mountain, the site the Energy Department proposes as the country's high-level nuclear waste repository. The nuclear "renaissance" is said to depend on NRC approval of Yucca Mountain, and, thus far, the NRC has been accommodating. I'd like to provide a couple of examples based on my experience as a Nevada consultant--one example deals with safety and the other with fairness.
The most disappointing aspect of NRC's role in Yucca Mountain is that it has agreed to toss overboard what has heretofore been the sine qua non of its safety philosophy--"defense-in-depth." Consequently, Yucca Mountain radiation standards are much more lax than repository standards in other countries.
To explain the lack of defense-in-depth at Yucca Mountain requires some background. About 12 years ago, Energy discovered that supposedly dry Yucca Mountain had lots more water than estimated. It was moving a lot faster too, which meant the site wouldn't retain radioactive waste leakage. To keep the project alive despite this, Energy decided to put a near-total reliance on metal containers to retain the waste. Earlier, the NRC had warned against this approach when it approved Energy's geologic site criteria. But when push came to shove, the department kept the site and dropped the troublesome criteria and NRC went along.
To keep corrosive water off the containers, Energy dreamed up the "drip shield"--a heavy titanium alloy cover that would run the length of each tunnel containing waste containers. But Energy doesn't plan to actually make or install the enormously expensive shields for 100 years or more, which makes installation a pretty doubtful proposition, even more so because it will be difficult to maintain a remotely operated underground transport system for that long. But without counting the drip shield, Yucca Mountain can't come close to passing federal radiation dose standards. And there's no backup. Naturally, Energy insists the NRC should assume the drip shield will be in place, however implausible that is. Sad to say, the current NRC has been going along with this absurdity despite its 1998 white paper. That paper states: "The defense-in-depth philosophy ensures that safety will not be wholly dependent on any single element of the design, construction, maintenance, or operation of a nuclear facility." The NRC website's current definition of defense-in-depth drops this language. All the while, it insists it's holding fast to design-in-depth.
My other example is the "waste confidence" issue. Since 1986, the NRC has had a rule against public challenges to reactor licensing based on the argument that there's no place for the waste to go. The rule states that the NRC is confident a geologic repository will be available by 2025. By now, however, that can only mean Yucca Mountain. So while the commission claims it will hold a fair licensing hearing, its rule--binding on its administrative judges--says in effect that the commission is confident the license will be approved. To avoid the rule's obvious pressure on NRC staff and judges, Nevada petitioned the commission to simply drop the specific date and just say that the it is confident spent fuel will be taken care of responsibly. Instead, the commission told Nevada to go fly a kite. But suddenly, the NRC is more receptive now that the industry worries Yucca Mountain won't be ready by 2025 and that the current rule might impede reactor licensing.
The contributors to this roundtable have noted the challenges that the Nuclear Regulatory Commission (NRC) faces now and in the future. To successfully address these challenges, I believe there are three key areas that warrant attention--knowledge management, organizational effectiveness, and transparency of the commission's activities.
The NRC already does many things well in the area of knowledge management. Its training program for new personnel is comprehensive. Better still, new personnel should have the opportunity to learn at plant sites and facilities to attain a better sense of the technology, processes, and activities they're regulating. Additionally, they must develop a thorough understanding of the regulatory process--not only of the regulations themselves, but their foundation, implementation history, and the commission's procedures for enacting changes. Beyond formal training, the NRC should maximize the transfer of the wealth of experience in its senior personnel through mentoring and other knowledge transfer programs.
The NRC is now a $1 billion federal agency with more than 3,000 full-time employees. As the bureaucracy continues to grow, management's challenge is to ensure that the agency carries out its responsibilities effectively. When he began his tenure in 2006, NRC Chairman Dale Klein identified a need to enhance the commission's use of information technology. For example, the NRC now uses more modern project management software to facilitate its review of combined license applications and design certifications for new plants. Additionally, the commission is seeking to improve its internal processes by using approaches such as Lean Six Sigma, a business-process improvement technique that can be used to minimize idle time. To further build on these recent enhancements, an organizational culture of continuous improvement must be engrained in all employees.
While the NRC is probably the most transparent regulatory agency in the federal government, the commission can still improve upon its communication and interaction with all interested parties. For instance, earlier involvement of stakeholders in the discussion of regulatory issues and potential regulatory actions would serve two goals: (1) a better understanding of the issues, resolution options, and their implications; and (2) enhancing public confidence in the process. While all parties may not agree with the final outcome, there should be enough transparency to provide the rationale for commission decisions.
A common factor that differentiates top performing from underperforming nuclear power plants is the health of their corrective action programs (CAPs). By law, plant owners must have such programs in place that find and fix problems in a timely manner. This regulation recognizes that complex industrial sites such as nuclear plants experience everything from equipment failure to human error. CAPs provide for these realities while protecting against problems, either individually or collectively, that compromise safety margins. Sites with robust programs achieve strong safety performance and minimal operating costs. Sites with ineffective programs experience declining performance and rising operating costs.
The Nuclear Regulatory Commission (NRC) has never had such an internal oversight program even remotely resembling those that it requires of its nuclear sites. And while no rule requires the NRC to have a CAP, there's also no regulatory impediment to the commission instituting one. Simply put, the NRC must have an effective corrective action program to be an effective regulator.
The NRC's lack of such a program would solve many of the problems articulated by our discussants. An effective CAP would enhance the training program for NRC personnel that Tony Pietrangelo desires, just as they shape and inform training programs for nuclear plant workers. An effective CAP would provide protection against passively tolerating the waste confidence fiasco at Yucca Mountain that Victor Gilinsky describes in his response. It would also guard against the overzealous and unjustified regulation Andy Kadak decries and the under-zealous, unacceptable regulation that I detail. Effective oversight programs ensure that expectations are met--whether they are to safely operate nuclear power plants or to acceptably regulate them.
It's not that the NRC never corrects its mistakes. For example, the commission formed task forces after oversight failures at the Davis-Besse nuclear plant in Ohio and the Indian Point plant in New York and implemented dozens of process improvements identified by those investigations. If the NRC had an effective corrective action program, such failures might have been avoided or, at a minimum, the list of retroactive fixes might have been shorter.
Poor performing nuclear plant sites such as Palo Verde in Arizona have ineffective oversight programs. One reason that such programs are ineffective is that the threshold for reporting problems is set too high. When small incidents are kept from CAP review, the potential for connecting the dots of seemingly isolated issues is prevented, and systematic process flaws aren't corrected until they're revealed by larger problems. History has repeatedly demonstrated that such high-threshold CAPs cannot sustain the high-safety, low-cost operations that Andy champions.
The NRC essentially functions like a nuclear plant with a very high CAP threshold. Small problems are addressed in isolation with virtually no deeper assessment, root-cause evaluation, or trending analysis. When a regulatory failure triggers a fact-finding investigation, then and only then are such invaluable tools applied.
An effective corrective action program at the NRC wouldn't silence Victor, Andy, Tony, or myself. But it would refocus our concerns on whether the NRC's proposed fixes to emerging problems were comprehensive, cost-effective, and sufficiently expeditious. That would be a more meaningful debate than the one we're having over the depth, breadth, and causes of the NRC's recurring failures.
We have not yet discussed how U.S. utilities dramatically improved the performance of their nuclear plants in the last 10 years, and the role, if any, the Nuclear Regulatory Commission (NRC) played in this improvement.
As a result of performance gains and approved power uprates in the last decade, the equivalent of 20 large, 1,000-megawatt plants was added to the grid. Capacity factors, which are measures of the relative output of power plants, have risen dramatically from a low 70-percent fleet average to more than a 90-percent fleet average, essentially maximum capacity.
This improved performance occurred during a time of transition at the NRC, when it began to focus on performance-based and risk-informed regulation and enforcement. By focusing on the key safety issues, the NRC gave utilities more time to concentrate on the day-to-day business of operating and maintaining nuclear power plants and enhancing their performance. With the onset of energy deregulation, plants were forced to improve performance further, since their earnings were based on keeping their generation costs low and not guaranteed by regulated rates. Today, a significant percentage of U.S. nuclear plants are deregulated "merchant" plants that sell electricity to the grid based on market prices. For these plants, capital, operating, and fuel costs must be recovered at a price the market will pay. Thus, there's tremendous pressure to make their operations even more efficient.
Deregulation concerned the NRC because it feared the utilities would focus more on reducing costs than on maintaining plant safety. The lesson learned from the experience--both in economic and safety terms--is that a well-maintained and well-operated nuclear plant is a safe and profitable plant. Utilities have learned this lesson, sometimes the hard way; however, the pressure between safety and commercial interests is still a real concern. At present, most utilities, with some exceptions, have come down in favor of increased safety.
Utilities are well aware of their obligations--not only to shareholders and consumers, but also to the rest of the industry whose reputation would suffer from poor and unsafe performance at individual nuclear plants. If the existing fleet wasn't performing as well as it does and not generating substantial revenue for owners, the 30 new U.S. reactors and 8 license applications already filed with the NRC wouldn't have recently been announced.
The confidence expressed by the industry in nuclear power is largely based on the outstanding performance levels of the fleet. While new plants will be very costly, the judgment of many nuclear energy companies is that over the long-term, nuclear power will provide them and their customers with the only chance for stable electricity rates. And if carbon emissions are to be priced in the future, the attractiveness of nuclear power will be even greater. Of course, the continuing challenge is to vigilantly keep plants maintained and operated with safety in mind. The NRC's focus on a risk-informed, performance-based regulatory system has allowed the industry to strike that needed balance between safety and economic performance.
Let's talk about something no one is happy with--citizen and state participation in Nuclear Regulatory Commission (NRC) licensing hearings on nuclear plants and facilities. The industry and commission's view is that those who are flat out opposed should express themselves somewhere else, instead of tying up NRC hearings with safety issues best left to government experts. But because of federal preemption of safety regulation, states have no say in these matters and there is no somewhere else. Citizens and states can influence nuclear construction only by participating in NRC hearings, which allow only narrow technical arguments.
No matter what their motives, public participants--or interveners, as they are called--should get a fair hearing, but unfortunately, they usually don't. NRC judges mainly tilt in favor of applicants and the commission's staff isn't in hearings the impartial safety evaluator that it should be. Decades ago, the commission's predecessor agency, the Atomic Energy Commission (AEC), made its regulatory staff a formal party to licensing hearings because the utilities at that time were new to nuclear issues and needed their hands to be held throughout the process, as often did the commission's administrative judges at that time, as well. This meant--and still means, because the practice continues--that once the NRC technical staff writes its safety report on a facility and the hearing starts, the commission's lawyers take charge of the case. At that point, the technical staff plays second fiddle to NRC lawyers, whose goal is to obtain a favorable decision. Often these staff lawyers attack the interveners' right to participate in hearings more ferociously than the applicant's lawyers do.
Ironically, the AEC originally wanted to draw the public in. It saw hearings as an opportunity to promote nuclear power by demonstrating the care the government took in reviewing the proposed facility's safety. In actuality, those reviews were pretty spotty and vulnerable to serious criticism.
The AEC's feeling about public participation in hearings changed to one of irritation in the 1970s, when the opposition began to exploit the commission's liberal hearing rules to assail its licensing process. Although it's hard to point to plants that were delayed by frivolous hearings, the enduring myth in the industry is that nuclear power's woes can be traced back to such cases. As a consequence, since the NRC's creation in 1975, nothing has occupied its commissioners as much as sidelining public hearing participants from the nuclear licensing process. That's been the main motive behind so-called licensing reforms for more than 30 years, including the newly combined construction and operating plant license. To be doubly safe, the commission has drastically curtailed the interveners' right to cross-examination and access to documents. For all its talk about openness, the NRC's interaction with the public can best be described as repressive tolerance.
Yet public examination of the NRC's safety reports contributes importantly to safety, if only because, in the words of Paul Cotter, then head of the commission's administrative judges: "Reports subject to public examination are performed with greater care." I know from my own experience in the Yucca Mountain nuclear waste repository case that the participation of Nevada's experts has been absolutely critical to bringing out the key issues.
To increase the fairness of its proceedings, the NRC should remove its staff from hearings as a formal party and keep it focused on safety. The utilities are now highly competent and don't need NRC handholding. And the NRC lawyers have no business controlling the technical staff on safety issues. Such a step by the commission would also do much for its public standing.
It would take more courage for Congress to take on federal preemption. I believe that nuclear power would ultimately rest on a firmer foundation if its proponents trusted the public more and allowed states to decide whether they want a nuclear facility or not.
The Nuclear Regulatory Commission (NRC) is well-positioned to effectively take on new plant licensing and maintain its oversight of operating plants and its other responsibilities. Organizationally, the NRC created the Office of New Reactors in late 2006--separate from the Office of Nuclear Reactor Regulation--to ensure that its primary responsibility of regulating operating plants wasn't distracted by new plant licensing. Moving forward, a strong, credible, and efficient regulator is necessary for nuclear energy to play a critical role in fulfilling the nation's future energy and environmental needs. Let's examine some of the primary factors that will impact the commission as its workload expands.
The NRC is an independent federal agency with five appointed commissioners and a chairman designated by the president. In my 20 years of experience in dealing with the commission, partisan politics haven't had a major effect on its decisions. Nuclear safety and security isn't a partisan issue. Moreover, congressional oversight of the NRC is practiced by representatives from both political parties, and often political considerations have more to do with state and local concerns versus national party affiliation. But let's not be naïve. The NRC is responsive to congressional inquiries, and although 90 percent of its budget is funded through user fees, its full budget must be authorized by Congress. Over the last few years, Congress has authorized budget increases at the NRC in large part to help it prepare for the review of new plant applications. In the future, the agency must be adequately funded to carry out its statutory mission, but must also be held accountable to execute that mission effectively.
Another primary factor influencing the NRC is the performance of the existing nuclear fleet. Simply put, there would be no applications for new plant licenses if not for the outstanding safety and reliability of currently operating nuclear plants in the United States. This performance has been sustained at roughly 90 percent across the fleet since 2000 and must continue at such high levels in order to demonstrate that the NRC can effectively oversee operating plants and license new plants concurrently. Events at operating plants that effect safety will erode confidence in both the industry and the regulator, which will only have a negative impact on new plant licensing efforts. From an industry perspective, maintaining the high performance of existing plants is the highest priority and a prerequisite to building new ones in the future.
I've noted in my previous posts that the NRC needs to continually improve its processes and practices. To that end, I support David Lochbaum's suggestion that the NRC adopt something similar to the corrective action program (CAP) that all reactor licensees are required to have in place. The CAP is an essential element of licensee efforts to find, assess, and fix problems and issues that are identified in all aspects of plant operations. While the NRC doesn't run a plant, it does administer a complex enterprise that needs to function effectively to fulfill its mission. A CAP-like effort could help find and address areas that don't work as intended or designed and could identify trends in performance that would serve the agency well.
I also support Andrew Kadak's call for the NRC to move forward with more risk-informed, performance-based regulation. Too often, attention and resources get diverted to matters that minimally influence safety in the name of “defense-in-depth” based on traditional, deterministic analysis. Risk assessment is a tool that can help quantify safety margins and the need for additional defense-in-depth measures. The NRC needs to find better ways to employ such tools in its own activities to become a more safety-focused, efficient regulator as its responsibilities grow in the future.
As I've mentioned earlier in this discussion, good referees in sports go unnoticed. They consistently and clearly enforce the rules, seldom drawing complaints from either side. Poor referees hear complaints from both sides, albeit not often in response to the same call.
Unlike a competent referee, the Nuclear Regulatory Commission (NRC) gets noticed quite often. The NRC's inspector general and the Government Accountability Office noticed that the commission allowed its fire-protection regulations to be violated for many years at many plants. The U.S. Court of Appeals for the Ninth Circuit noticed that the NRC failed to satisfy federal law when it deemed terrorist attacks against spent fuel storage "remote and speculative" and failed to consider such possibilities in environmental assessments.
Victor Gilinsky noticed that interveners in NRC proceedings usually don't get a fair hearing.
The states of Vermont, New York, New Jersey, and Massachusetts noticed that the NRC's license renewal process left much to be desired and contested the agency's decisions. Many people noticed that after the NRC approved the power up rate at the Vermont Yankee Nuclear Power Plant, a cooling tower there collapsed due to increased vibrations from the heavier fan motors spinning at faster speeds.
NRC Atomic Safety and Licensing Board Judge Michael Farrar noticed that the NRC was "willing to take an obviously unauthorized shortcut" to "ignore the unmistakable meaning of the regulations" in order to approve a license.
Tony Pietrangelo and Andy Kadak noticed that the NRC has done a swell job ever since New Mexico Republican Sen. Pete Domenici threatened to slash the agency's budget some 40 percent a decade ago. Prior to this heavy-handed threat, industry representatives noticed the NRC was being overly zealous and ratcheting up safety requirements. They noticed in a 1994 report by consultant Towers Perrin that nuclear plant managers were reluctant to question the NRC out of fear of regulatory retaliation. I've noticed that the NRC hasn't scared any nuclear plant managers in about a decade.
But that's all water under the bridge at this point. The key question now is what should a Bulletin roundtable on the NRC look like in 2018? Would it resemble this one, with participants citing updated examples of the NRC's failures--even if they are semantically couched as areas where it needs the most improvement? It might, but that would be bad even if industry representatives complain about the NRC's overzealous regulatory antics and public-safety-minded folks point out that the commission hasn't ratcheted up regulations fast enough. Offsetting inequities to one party with inequities to the other is an unacceptable surrogate for being equitable to all parties. Success in 2018 would be regulatory performance so consistently fair and impartial that neither the industry nor its critics find any reason to complain. In such a future, the Bulletin would find other topics more suitable for roundtable examination than the commission's faults.
It's probably naïve to expect the NRC to become such a regulator. But it's even more naïve to not actively strive toward that goal. The U.S. public and the nuclear industry deserve a commission that establishes requirements at the proper level and consistently enforces those requirements, not above and not below them.