Roundtables
ShareThe future of the Nuclear Regulatory Commission
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.
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.
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.
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."
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.