ANS Annual Meeting: Promoting the common defense and security

Joining Arndt for the June 13 discussion, entitled “To Promote the Common Defense and Security . . . ,” were Adam Stein, nuclear energy innovation program director at the Breakthrough Institute; Jeffrey Merrifield, energy practice group leader at the Pillsbury Winthrop Shaw Pittman law firm; and John Kotek, senior vice president for policy and public affairs at the Nuclear Energy Institute.

Arndt: In opening comments, Arndt referenced the NRC’s official mission statement, noting that while it directs the agency to license and regulate radioactive materials use and “provide reasonable assurance of adequate protection of public health and safety,” it also calls on the NRC “to promote the common defense and security and to protect the environment.” Those latter tasks, he said, are “an incredibly important part of the mission.”

Also referenced by Arndt was the NRC’s safety goal policy statement, which says, among other things, that “societal risk to life and health from nuclear power plant operation should be comparable to or less than the risks of generating electricity by viable competing technologies and should not be a significant addition to other societal risks.” According to Arndt, that part of the statement has never been sufficiently fleshed out.

“We are providing a technology that has benefits to the common defense, in terms of energy security, in terms of clean energy,” he said. “And why are we trying to make it safer than things that are not providing equivalent benefits? And it’s not just electricity, it’s clean, reliable electricity.”

In support of his safety claim for nuclear, Arndt pointed to analyses showing nuclear to be equal to or better than its energy competitors in terms of accident and integrated health risks and greenhouse gas emissions. (Competing energy sources studied include coal, oil, natural gas, biomass, hydropower, wind, and solar.)

“There’s an old saying in the United States: ‘lead, follow, or get out of the way,’” Arndt said. “We need a regulator that not just gets out of the way, but leads. There is nothing wrong with the agency leading our technology or being co-owners of that. We in the nuclear community have gotten ourselves into a paradigm that makes it difficult to articulate what we want to do. When I am out in the business, I always look at the solar folks—great people, but when was the last time one of them talked about their waste stream or their accidents or defined themselves as being safe? Is this how we’re defining nuclear energy in the world? We shouldn’t be. . . . We should be saying we’re safe, we’re reliable, we’re providing a service to the community, and our regulatory structure should follow from that.”

Stein

Stein: Speaking at the session remotely due to plane troubles, Stein focused his remarks on regulation for the general welfare. There is a “strong consensus,” he noted, for nuclear as part of the energy mix to meet climate goals, reduce health and safety impacts from the energy system, and enable a just energy transition. “In general, [nuclear energy] improves safety, reliability, energy security, and many other goals, including potentially helping to transition from fossil fuel power plants to advanced nuclear power plants in many states,” Stein said. “Research from the Breakthrough Institute indicates that between 50 and 150 gigawatts of nuclear will be needed by 2040 to achieve these goals, which means the deployment of hundreds of reactors in the coming decades. The NRC must be ready to efficiently and effectively license these reactors, but that doesn’t necessarily mean that they are doing it in a regulatory paradigm that is set up to also achieve something else of importance to the NRC—consideration and commitment to the public welfare.”

Stein continued: “The Atomic Energy Act states that nuclear power should be used to make the maximum contribution to the general welfare. The Energy Reorganization Act is the act that set up the NRC and split it away from what eventually became the Department of Energy, which was tasked with promotion of energy sources. But, in that, the NRC was given licensing and related regulatory functions, which didn’t change the purpose of focusing on the general welfare. So how do we consider improving the general welfare as it relates to the NRC and nuclear energy in regulation? Well, there is real potential to quickly improve the general welfare of the public by reducing pollution.”

Relying on World Health Organization statistics, Stein said that more than 90,000 early deaths occur annually in the United States from ambient air pollution—such as CO₂ and fine particulate matter—most of which comes from burning fossil fuels. “But we have to be careful when talking about what is potentially viable as a regulatory paradigm,” he cautioned. “Many of the benefits of nuclear energy can inform commissioner decisions or broader policy but are simply not a basis for regulatory decision-making. Those include many of the benefits that are normally focused on green energy, reliability, jobs. All of these sound like promotion of nuclear energy, and the NRC strictly says they do not promote nuclear energy.”

However, Stein added, a direct focus on the negative impacts to public health from fossil fuel use and the improvements to health from replacing fossil fuels with nuclear energy can provide a clear regulatory basis for action. “This is something that a regulator uses for decision-making,” he said. “[The Environmental Protection Agency] already considers this.”

The NRC safety goals, Stein noted, state that the risks to life and health from nuclear power plant operation should be comparable to or less than risks of electricity generation by viable competing technologies. “Currently, viable competing technologies in the market include fossil fuels,” he said. “And as I have just mentioned, they provide significant direct public health impacts and environmental impacts. But the NRC doesn’t actually make this comparison, to the detriment of the general welfare of the public. The safety goals say the NRC should consider this, but they don’t actually do it in reality.”

Still, according to Stein, changes are coming. “Just 10 days ago, Congress changed the National Environmental Policy Act through House Resolution 3746 to direct all agencies to consider an analysis of negative environmental impacts of not implementing a proposed decision,” he said.

Merrifield: A former NRC commissioner, Merrifield made his position regarding the current NRC’s performance as a regulator clear from the outset. While acknowledging that it has a talented and dedicated staff, as well as commissioners and senior managers dedicated to protecting public health and safety, Merrifield said he believes “the agency has lost its way.”

The Atomic Energy Act, he noted, states that the “development, use, and control of atomic energy shall be directed so as to make the maximum contribution to the general welfare, subject at all times to the paramount objective of making the maximum contribution to the common defense and security, and to promote world peace, improve the general welfare, increase the standard of living, and strengthen free competition in private enterprise.” Those words, Merrifield reminded the audience, remain the law of the land.

“At a time when global climate change is a real and present threat to our common defense and security, and given that nuclear energy is the only non-carbon, proven energy system that can reliably deliver 24/7 energy, enabling its safe usage is an obligation of the NRC under the Atomic Energy Act and Energy Reorganization Act,” he said.

Today’s NRC fails to fully recognize the positive encouragement of nuclear energy contained in the Atomic Energy Act, according to Merrifield. Instead, it is overly conservative and does not consistently apply common-sense principles in regulating the technologies it oversees. “I think the current impasse on creating a new regulatory framework for advanced reactors under Part 53 is the most recent example of this gap,” he said. “As the late commissioner Ed McGaffigan, who I respected greatly, frequently stated, the agency’s mission is to provide reasonable assurance of adequate protection, not absolute protection.”

Merrifield identified a number of culprits for this state of affairs, including what he termed the NRC’s “culture challenge.” Said Merrifield: “From where I stand, the roots of the agency’s issues go back to the late 2000s, when the NRC was dubbed one of the ‘best places to work’ in the federal government, and even more recently when the agency began to be referred to as the ‘gold standard’ of nuclear regulators—a term I personally dislike. I believe these concepts fostered a trend of complacency and self-satisfaction of the type that the agency would have found unacceptable in one of its regulated entities. While the agency continued to claim that it, too, had a self-questioning attitude and sought continual improvement, I do not believe this is consistently the case today.”

Another contributor to this cultural trend, according to Merrifield, is the administration of the differing professional opinion (DPO) process by the commission’s senior executives. “Having lived through the Davis-Besse event, and having learned the lessons of the NASA Challenger accident, I am well aware of the vital importance of allowing minority views to be heard and considered,” he said. “We were committed to that goal when I was a commissioner and I remain a strong proponent of that process to this day. But the intention of the DPO process is not to give minority views a veto of the regulatory review. DPOs should be heard, evaluated, and acted upon promptly, even where the DPO does not carry the day. Ultimately, the NRC is a hierarchical organization, and senior managers must make difficult calls. Unfortunately, some senior managers today go well out of their way to avoid DPOs, even if not justified by the regulations or the safety case. This reticence causes the regulatory process to bog down and results in the imposition of unnecessary cost and delay for the regulated licensees. In my view, there needs to be much more balance in this process.”

In addition, Merrifield said he has heard from many licensees that the NRC staff claims to be limited in what they can say to applicants seeking clarification of agency rules and guidance due to the NRC’s role as an independent regulator. “Really?” said Merrifield. “There is absolutely nothing wrong with the agency providing clarifications and assistance to licensees attempting to understand and meet the complex, difficult, and sometimes inscrutable guidance and rules of the NRC. Responding to questions and engaging with licensed entities with direct responses is the responsibility of the agency, and it should not hide behind its role as an independent safety regulator.”

Merrifield also cited the agency’s diversity of experience and background as an area of concern. “When I came to the agency in 1998, we had a wide range of staff who had previously served in the Atomic Energy Commission, the Army and Navy reactor programs, the Department of Energy and its national labs, and individuals with experience in the industry,” Merrifield recalled. “Many of these individuals had experience in operating reactors, so they brought with them a well-rounded background, which helped foster the positive regulatory record that the agency developed in the early 2000s, which resulted in significant improvement in agency and industry performance and an embrace of risk-informed regulation.

“There are many individuals who have worked at the NRC for the entirety of their careers and have done exceptionally well,” Merrifield continued, “but I do believe there are too many men and women at the agency who lack other diverse experience, resulting in a significant amount of insularity of thought and process within the agency.”

Kotek: NEI’s Kotek began his presentation by noting that much of the interest in new nuclear is being driven by the imperative to reduce carbon emissions. “Here in the U.S., we don’t have a national clean energy standard or a price on carbon,” he said. “We do have several states that have committed to going 100 percent carbon free by 2050 or sooner, but the number of utilities that have pledged to significantly reduce or eliminate their carbon emissions by midcentury goes far beyond what is being driven by state policies. These commitments are being driven in large part because that’s where customers want to go. Big energy end users in these utility service territories are demanding increasing the clean energy. They know that that’s where the global economy is headed.”

According to Kotek, to achieve a low-carbon, affordable, and reliable grid, utilities are increasingly concluding that certain actions need to be taken, such as keeping the current nuclear fleet on line. Citing a recent NEI survey of utility chief nuclear officers, he said that more than 90 percent of the existing fleet now expects to pursue subsequent license renewal. Based on the survey, NEI also projects at least four subsequent license renewal applications by 2026 and 19 by 2030, at least 24 power uprate applications by 2030, eight extended fuel cycle applications by 2030, and more than $7 billion in other capital investments over the next 10 years.

“And in new nuclear, we’ve got an enormous increase in interest in building the next generation of nuclear power plants,” Kotek enthused. “We’ve seen about 60 percent of our member utilities expressing that interest. All told, they see by the 2050s about 100 gigawatts of new nuclear generation here in the U.S. And about half the utilities are considering early site permit applications even today. . . . So, a huge volume of permitting activity could be heading the NRC’s way in the not-too-distant future, and I think that’s why you’re hearing conversations like this one, because we know that unless the agency gets more efficient in and really gears up for the wave of applications that we think is headed their way, they could really become a stumbling block.”

Issues with NRC licensing practices constitute one of seven potential constraints that need to be addressed if the nation is to realize a significant build-out of new nuclear on the timescales needed to meet decarbonization-by-2050 commitments, according to Kotek. Other problematic areas identified by NEI include early-mover success, siting, public perception, supply chain, workforce, and the ability to facilitate exports. “We’re not as efficient and we’re not as competitive as we should be against the state-owned enterprises in Russia and China, for example, that really will form the competition to see who is going to lead that next generation of nuclear build around the world,” Kotek said.

Because his NEI colleague Jennifer Uhle—the organization’s vice president of technical and regulatory services and a former regulatory expert with the NRC—had been originally scheduled to speak at the session, Kotek also included in his talk some prepared remarks from Uhle on why regulation is difficult.

Uhle

“Let’s take a look at the licensing process for operating plants and advanced reactors to illustrate a point,” Uhle wrote. “In both cases, the NRC and the industry will consider risk, as well as deterministic insights. For advanced reactors, perhaps risk insights will be considered a bit more than for the operating plants, but the framework calls for both to be considered. So, what is risk? Risk analysis is a tool that evaluates the remaining risk when the regulations are satisfied. Essentially, [probabilistic risk analysis] evaluates the residual risk, and the NRC has to make a decision as to whether this residual risk is low enough to provide reasonable assurance of adequate protection. In the case of operating plants, we saw the NRC determined that the residual risk from station blackout was too high, and NRC promulgated a rule to reduce this residual risk. On the other hand, after Fukushima, NRC determined that requiring filtered vents did not reduce residual risk enough to warrant imposing this requirement. An important fact that must be considered is that residual risk is never zero.”

To illustrate why residual risk is never zero, Uhle wrote, “Think of operating plants that rely on safety-related AC power. If a plant had no emergency diesel generators, the residual risk would be high. So, a utility would install one EDG [emergency diesel generator], and the residual risk would decrease. But the residual risk would never go to zero, even with a very large number of EDGs, because of common-cause failure. There is always a failure mode, however low the likelihood, and there is always uncertainty. This makes NRC’s job challenging. The NRC must make decisions accounting for uncertainty. The Atomic Energy Act directs the NRC to regulate the plants so that adequate protection is ensured. NRC’s own regulations specify that to issue a license, the NRC must have reasonable assurance that the regulations are met. This combination gives us NRC’s well-known metric of reasonable assurance of adequate protection. The metric reflects the fact that residual risk is never zero and uncertainty is always present.

“But it seems as though the NRC staff has lost sight of this and seems to be getting to the point of requiring absolute assurance. This results in an unnecessarily burdensome framework and prevents the agency from fulfilling its complete mission from the Atomic Energy Act that the U.S. policy is to use nuclear power to ‘the maximum contribution to the general welfare.’ I want to close by saying that decision-making while accounting for uncertainty through the use of risk insights, redundancy, diversity, and safety margins has resulted in safe operating plants, and advanced reactors are even safer. But we need an efficient as well as an effective regulator.”

In Uhle’s opinion, the NRC should adjust its decision-making processes so that reasonable assurance of adequate protection is required, as envisioned by the Atomic Energy Act. And to do that, she recommends the NRC train its professional staff and senior leadership on the principles of residual risk, handling of uncertainty, and the safety benefit of risk-informed regulation. “Without this,” Kotek said, “she thinks modernization of the regulatory process will be hampered.”

ANS Annual Meeting coverage on Nuclear Newswire:

• "Failure is not an option"
• Mapping the winding road to used fuel disposal
• The State of Nuclear