Congress wants to turn the nuclear regulator into the US industry’s cheerleader—again

The US Congress overwhelmingly approved the ADVANCE Act in July to accelerate licensing of “advanced” reactors. These consist mainly of fast reactors, which radically differ from those operating today, and include “fusion machines.” There were no public hearings on the act, and it shows every sign of having been written by interested parties and with little vetting.

The Energy Department and the US nuclear industry are promoting fast reactor demonstration projects, the prime being TerraPower’s Natrium project in Wyoming. The project broke ground in June but still awaits a full construction permit. No commercial reactors of this type are operating today. TerraPower foresees selling hundreds of such reactors for domestic use and export. The new law is largely directed at clearing the way for the rapid licensing of such reactors by the Nuclear Regulatory Commission (NRC). It does so in part by providing additional resources but also—more ominously—by weakening the agency’s safety reviews and inspections in the name of efficiency.

Efficiency over safety. The act’s insidious approach is, first, to direct the NRC to modify its “mission statement” to add a provision that its licensing and safety reviews will “not unnecessarily limit the benefits of nuclear energy to society.” The addition sounds innocuous: No one is going to defend unnecessary work. But the message is clear. To make sure it works its way down to the daily decisions made by NRC’s safety engineers, the act then gives the commissioners one year to supply Congress with a report on what guidance they will provide to the professional engineering staff to “ensure effective performance” under the new mission.

In a bureaucracy, you get what you incentivize for: Congress wants the commissioners to make clear to safety reviewers that every hour they will take is an hour that society will be deprived of nuclear energy (and someone’s grandmother will sit in the dark). This sort of pressure spells trouble. The safety of complex systems with inherent dangers is a subtle trade and requires unbiased attention to avoid serious errors. That is especially true of newly commercialized technology. NRC safety reviews and inspections are especially critical in protecting the public because, with nuclear power, there is no customer feedback loop like there is with, say, commercial flying. If people get worried about flying, they can vote for more safety by not buying tickets. Once a nuclear plant is turned on, there is realistically not much the public can do.

The Energy Department’s web page said the new law would help to “build new reactors at a clip that we haven’t seen since the 1970s.” But the department seems to forget that the 1970s spurt of licensing—encouraged by the commissioners of the old Atomic Energy Commission—resulted in light-water power reactors with many safety problems. These problems were then left for the newly independent NRC to resolve, taking years and leading to considerable expense.

Weaker definition of safety. For Congress to address the mission statement of a federal agency is itself strange. Mission statements, like “vision” statements, are products of business schools and management consultants and are typically brief generalities that hardly anyone pays much attention to. The Energy Department says its mission is “to ensure the security and prosperity of the United States by addressing its energy, environmental, and nuclear challenges.” Congress could have told the department to speed up the reactor development process, but it didn’t. Instead, it acted on the assumption that the stumbling block to a nuclear future lies in the NRC licensing system.

The ADVANCE Act acknowledges the need for the NRC to continue to enforce the safety requirements of the Atomic Energy Act while pursuing the goal of “efficiency.” But in doing so, the new act does not cite the Atomic Energy Act’s original safety standard of “adequate protection” (Section 182), but rather a watered-down version of “reasonable assurance of adequate protection.” In the law, words matter.

The commission has been using that weaker standard of safety for some years—not legitimately, in my view. The new act now validates it. The NRC lamely claims that the additional three words are just explanatory—needed to avoid the implication that “adequate protection” would mean perfect safety—and do not affect the basic standard. But the commissioners don’t dare apply that logic to the security part of the NRC’s responsibilities, which, if they did, would read: “to promote reasonable assurance of the common defense and security.” There is no question that the addition changes the meaning.

Deja vu. For Congress to put the onus on NRC’s safety engineers to speed along the reactors of a yet-untested type is reminiscent of the situation before the 1974 Energy Reorganization Act separated the Atomic Energy Commission (AEC) regulators from the agency’s reactor developers. The 93^rd Congress did not give the nuclear regulators independent status out of some concern for administrative neatness. It was done because the AEC commissioners neglected their safety responsibilities. The AEC kept the regulatory staff on a short leash, mainly so that they would not get in the way of the project the commissioners cared most about—as it turns out, also a demonstration fast reactor that was supposed to be followed by hundreds and even thousands of commercial orders. In the end, it all came to nothing. Glenn Seaborg, the then-chairman who was largely responsible for the debacle, would later admit: “[N]one of the [underlying] assumptions proved correct.”

We’ve gone through several iterations of nuclear power over-enthusiasm since the AEC thought fast reactors would soon power the world: The “nuclear renaissance” during the George W. Bush administration was to produce dozens of power reactor orders by 2010; then its Global Nuclear Energy Partnership was going to build fast reactors to burn spent fuel and obviate the need for additional geologic storage; and now fast power reactors are hyped again. None of the earlier expectations worked out. But each time, the certainty of the predictions was used to lean on the regulators to smooth the way. The ADVANCE legislation’s assumption that many orders for fast reactors will soon be coming and that the NRC must be disciplined to avoid a holdup has the makings of another such episode.

Congress’s main concern about the NRC should be that it is an effective protector of public safety.

Nothing in the ADVANCE Act is so revealing of the credulous thinking that went into it than its treatment of fusion. No one has yet demonstrated a fusion power proof of principle, one analogous to Enrico Fermi’s 1942 demonstration of a controlled fission chain reaction. Yet, the act blithely requires the Nuclear Regulatory Commission to prepare a study within a year, in consultation with the private fusion sector, on “licensing frameworks for mass-manufactured fusion machines.” One thing is certain: Congress has the fusion cart before the horse.