Last year, Nuclear Regulatory Commission inspectors discovered design problems at the Fort Calhoun nuclear plant in Nebraska and the Indian Point nuclear plant in New York. In the former case, the NRC applied the most serious sanction levied against any reactor in 2010 and required the plant’s owner to correct the problem. But at Indian Point, the NRC essentially shrugged and allowed the safety problem to go unsanctioned and uncorrected. This tale of two sites illustrates the NRC’s honoring (in the case of Fort Calhoun) and breaching (at Indian Point) of its regulatory contracts with plant owners and the public. A regulatory contract constitutes the height of the safety bar for a nuclear power plant. The NRC cannot require more, or accept less, without depriving stakeholders of their legal rights.
The NRC develops its regulations through an open rulemaking process that allows a plant owner to protest measures considered too burdensome, and the public to contest measures deemed too lax. The NRC’s final regulations define the “Goldilocks” safety level — not too high, nor too low, but just right. Likewise, the NRC issues an operating license for a reactor after an open process in which a plant owner can explain how the reactor’s design features and procedures conform to the safety levels established by the regulations, and the public can intervene to point out perceived shortfalls. The final regulations and operating license become a three-way contract between the NRC, the plant owner, and the public. Such contracts protect plant owners from NRC requirements to meet stricter, and more costly, standards. Similarly, contracts protect the public from NRC acceptance of lower, and more risky, standards. How did the regulatory contracts play out at Fort Calhoun and Indian Point?
Fort Calhoun. As part of their routine oversight efforts, the NRC’s inspectors examined the ability of Fort Calhoun to withstand severe weather conditions. They found information in the plant’s Updated Final Safety Analysis Report — containing key design parameters and results from safety studies — that indicated vital equipment would be protected against flooding of the Missouri River to 1,014 feet above mean sea level. But they also found evidence that flooding above 1,010 feet would disable this equipment and likely cause reactor core damage. The NRC assigns four colors to its findings: green, white, yellow, and red, in order of increasing severity; the agency issued a yellow finding to the plant owner for this violation. In 2010, the NRC issued no red findings and only two yellow findings. More important than the color assigned to the violation was the fact that workers were required to take steps to correct shortcomings identified by the NRC’s inspectors. Leak-tight doors and barriers were installed, and pathways for water intrusion were patched, all of which came in handy when floodwaters exceeded the 1,010-foot level this year. Fort Calhoun fared well despite a significant flooding challenge.
Indian Point. NRC’s inspectors also identified design problems related to flooding at the Indian Point Unit 2 reactor. That reactor’s Updated Final Safety Analysis Report described a stainless steel liner installed in the refueling cavity as having but one safety function — to prevent leakage following a seismic event. But in 2010 the NRC’s inspectors found that the refueling-cavity liner had been leaking at rates up to 10 gallons per minute since at least 1993. Obviously, a component that has as its sole safety function the prevention of leakage after a seismic event cannot fulfill that function if it is already leaking. The inspectors noted that the plant owner had not evaluated the persistent leakage situation to determine whether safety after an earthquake would be assured despite the pre-existing failure. Nevertheless, the NRC did not issue a finding, even a low-level green finding, for this design problem. Worse yet, the NRC has not required the plant’s owner to fix the problem.
The NRC found that Fort Calhoun violated terms of its contract by not protecting against flooding up to 1,014 feet. The NRC wrote the owners a ticket for that violation and required them to take steps to restore compliance with the regulatory contract. The NRC likewise found that Indian Point violated terms of its contract, by not ensuring that the Unit 2 refueling-cavity liner would not leak after an earthquake. This time, however, the NRC essentially channeled the ineffectual Sergeant Schultz of “Hogan’s Heroes,” and did nothing about the violation. This is not to suggest that the NRC should have issued a yellow finding at Indian Point. All violations do not have equal severity. But all violations do represent a breach of the regulatory contract that must be remedied.
Imagine for a moment that Fort Calhoun had already been protected against flooding up to 1,014 feet, but the NRC inspectors, along with every other person working for the agency, sincerely believed that the public was not safe without flood protection up to 1,016 feet. Neither the unanimity nor the intensity of that belief would have empowered the NRC to require Fort Calhoun’s owner to upgrade its flood protection measures. The regulatory contract would have prevented the NRC from imposing stricter standards; it would have been necessary to undertake an open rulemaking process to generically increase flooding protection standards at all nuclear plants, or to conduct an open licensing process to specifically increase the flooding protection standards at Fort Calhoun.
At Indian Point, however, the existing regulatory contract fails to protect the public. It matters little whether the majority of NRC inspectors, or even the entire work force, believes that the refueling-cavity liner on Unit 2 can perform its safety function despite the pre-existing leakage. The regulatory contract that NRC brokered with the plant owner and the public established a safety level requiring no leakage. Any amount of leakage is therefore inappropriate from a safety perspective. The NRC cannot accept a lower standard without amending its regulatory contract via one of its open processes.
In breaching its regulatory contract at Indian Point on this cavity-liner problem, the NRC also breached its trust with the American public. Why should any member of the public expend the time and effort to engage the NRC during an open rulemaking or licensing process only to see the agency turn right around and ignore whatever safety level was decided upon by that process? The NRC cannot boast about its open processes when regulators do not enforce them. The NRC must honor its contracts with the public as well as with plant owners. If regulators continue to opt out, the American public deserves better representation in those Commission seats
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