Unnecessary rules should be eliminated

Commissioners on the Nuclear Regulatory Commission are worried. They see a pending avalanche of license applications for new reactors, fuel production facilities, uranium mines, transportation containers, and waste repositories with an insufficiently sized and trained licensing workforce. They seem to be increasingly aware of their role in enabling a clean energy transition and they want to avoid being put into an untenable situation.

Many actions are being discussed to address this issue. But there’s a finite base of qualified and qualifiable people available and training new ones isn’t quick or simple.

It’s time to talk about eliminating burdens. Crossing out certain activities is often the only way to find enough hours in the day to complete the tasks that we must do.

Successful people and successful agencies find ways to ensure that the eliminated activities are the ones that truly are not necessary. Unsuccessful people or agencies often keep doing things that are easy, things that are being measured or activities that give them pleasure while allowing more important tasks to go undone.

Within the voluminous set of rules and requirements for licensing new nuclear power plants, there are several rules that are described as “not necessary for adequate protection” in official documents. If a rule is unnecessary, one can legitimately ask a number of important questions. “Why are we doing this?” “What is the benefit?” “What is the cost in both monetary and human resources?”

The most impactful question might be “Are there more important ways we could be investing our limited resources?” 

How did we get here?

While the US nuclear power plant construction industry was in a lengthy hiatus, eliminating most of the licensing activity that is a primary NRC function, regulators found other ways to occupy their time. 

Whenever there was an attention-getting outside event that could be construed as possibly affecting nuclear power plant safety or security, the agency felt pressured to invest a substantial portion of their available resources creating rules to respond to outside pressure. In many cases, the agency had to stretch to couch new requirements as being dictated by safety concerns. 

In some cases, even the most creatively conservative commissioners could not find a way to justify rules using their defined standard as being necessary to provide “reasonable assurance of adequate protection.” Instead, they admitted amongst themselves that the rule would at least make the public feel better and might result in less backlash if something really did go terribly wrong.

Following the well publicized event at Three Mile Island, the NRC spent the better part of a decade creating an array of new requirements designed to reduce the probability of another core damage event, even though the one they were reacting to did not produce any physical harm to the public.

The TMI action plan led to the requirement to perform 6,400 separate actions for operating reactors and the group of under-construction reactors that were categorized as Near Term Operating Licenses.

The Severe Accident Policy Statement includes a summary statement of the expected benefits provided by this impressively large number of new requirements.

“It is impractical to quantify all of the safety improvements obtained by these many changes. Nevertheless, the cumulative effect is undoubtedly a significant improvement in safety.” (Emphasis added.) It’s worth wondering how the commission developed such a strong sense of confidence without any verifiable or repeatable analysis.

In addition to the changes required of existing plants and those already under construction, the NRC added even more conditions on new nuclear power plants. The process was stimulated and justified by a 1985 “Policy Statement on Severe Reactor Accidents Regarding Future Designs and Existing Plants” that proposed criteria for new reactor designs even though they knew that existing plants posed no undue risk to public health and safety so existing plants wouldn’t be required to meet the new criteria. 

Why didn’t costly, unnecessary rules get resisted?

Not surprisingly, the nuclear power industry didn’t invest too much political capital in an effort to resist the new impositions. Operating companies were comforted by knowing that they would not have to comply since they didn’t have any plans to build new reactors. Vendors and contractors figured that the rules would apply to all new reactors, so if they ever were asked to begin building again, the extra work wouldn’t be such a bad thing. Until the mid to late 1990s, electric utilities were regulated monopolies with prices set on a cost-plus-rate-of-return basis. Costs imposed by federal regulators were rarely denied as imprudent expenditures.

At the July 2023 Advanced Reactor Summit, NRC Commissioner David Wright, who was an experienced public utility regulator before he was appointed to the NRC, shared an insight into the regulatory mindset. 

“We’ve got to look at things that are unnecessary. I think over time, when people don’t complain regulators take a little more skin from you. That gives you a little less skin in the game. We took more of that from you and I think balance is coming back to be a little more supportive.”

Aside: Prior to the regulator panel, Dan Stout from USNC had given a talk about the importance of putting skin into the game of building new nuclear reactors. End Aside.

It’s important to recognize, however, that our current situation is not entirely the result of regulators gradually adding new requirements because licensees did not complain. Both the Aircraft Impact Assessment rule and the original policy statement regarding future designs state that the rules were tightened as a result of pressure from people and groups that were not directly affected.

“The nuclear industry generally supported the proposed policy statement and suggested several modifications. Much of the criticism of the proposed policy statement by environmental groups and other interested persons focused on a perception of over-reliance on probabilistic risk assessment…The Policy Statement was revised as a result of these suggestions and criticisms…” Policy Statement on Severe Reactor Accidents Regarding Future Designs and Existing Plants Aug 1985 p. 3 

There have always been well organized and vocal interests that desired more rules and stricter enforcement. There’s no reason to expect those groups will change their position or their actions.

I checked with several former NRC staff members and commissioners – all of whom requested anonymity because of their current roles – to find out if Commissioner Wright’s position was an outlier. Most of them told me that they believed the public would have been better served if there had been some adversarial balance. In most regulatory environments, there are strong industry or public interest voices that don’t agree with activists that regularly press for additional regulatory burdens that do nothing but add cost. Until quite recently, that situation has been rare in the regulation of nuclear power plants.

Aside: The common law system that the US employs is called an adversarial system that, in theory, results in a reasonable system of laws and enforcement due to having strong advocates on both sides. Regulatory bodies like the NRC employ similar concepts because they are organized to be a legal body with compliance requirements and enforcement authority with a body of their own technical experts. End Aside. 

People who want nuclear energy to succeed should get involved and say do not want regulators to ratchet requirements. Assertions that new requirements will enhance safety even when adequate protection has already been achieved should be challenged as overreaching.

It’s not enough, however, to halt regulatory ratcheting now. Though it might not be easy, it might be worthwhile to click back or unwind existing requirements.

Targeting unnecessary requirements

People outside of the difficult process of improving the way that license reviews are conducted to enforce existing regulations can stimulate discussion that results in elimination of unnecessary rules.

No one needs to work on improving an eliminated rule. No one needs to be hired to produce the analysis and design the features required by the rule and no one needs to spend their valuable, limited time reviewing the applicant’s submission. No one needs to repeat the process every time a feature described in the operating license for the purpose of meeting the unnecessary rule needs to be modified.

The most impactful part of eliminating unnecessary requirements would be reducing the cost and speeding the process of building and maintaining new nuclear power plants. 

My personal motivation to begin identifying  unnecessary rules was sparked by Commissioner David Wright’s concluding remarks at the July 2023 Advanced Reactor Summit mentioned above.

“I have one more thing. Our main thing is safety. But when we define reasonable assurance, stop. Just stop.”

I spoke with Commissioner Wright after his talk. He confirmed that he had abbreviated the phrase describing NRC safety standard, which is “reasonable assurance of adequate protection.” He also stated that he believed that the NRC has an historic tendency to impose rules that go beyond that well established safety standard. 

Where should we start?

The Aircraft Impact Assessment rule (10 CFR 50.150) took almost a decade to create following the events of September 11, 2002. It requires all new plant designs to be able to prove – using “realistic analyses” – that they can safely absorb the direct impact of a large commercial airliner fully laden with jet fuel sufficient for intercontinental travel. The rule applies regardless of plant size or location. It doesn’t give any credit for actions that have been taken by the rest of the U.S. government and the aviation industry to reduce the possibility that an aircraft can be weaponized.

NRC published the final rule in the Federal Register on July 12, 2009. The full title of that notice is titled “Consideration of Aircraft Impacts for New Nuclear Power Reactors.” Several times in the notice the commission described this rule as being unnecessary.

“In light of the NRC’s view that effective mitigation of the effects of events causing large fires and explosions (including the impact of a large, commercial aircraft) can be provided through operational actions, the NRC believes that the mitigations of the effects of aircraft impact through design should be regarded as a safety enhancement which is not necessary for adequate protection.”

NRC document titled “Consideration of Aircraft Impacts for New Nuclear Power Reactors” P. 11

The commission provided further evidence that it considered the rule to be unnecessary by exempting all operating reactors and also exempting the holders of an approved construction permit.

“Applying the final rule to operating license applications for which there are existing construction permits could result in an unwarranted financial burden to change a design for a plant that is partially constructed. Such a financial burden is not justifiable in light of the fact that the NRC considers the events to which the aircraft impact rule is directed to be beyond-design-basis events and compliance with the rule is not needed for adequate protection to public health and safety or common defense and security.”

July 12, 2009 Federal Register titled “Considerations of Aircraft Impacts for New Nuclear Power Reactors” p. 28115 3rd column

The description of the rule as a safety enhancement referenced the lineage of policy statements regarding new criteria applicable to new reactor designs. There is evidence in the discussions and in the Commission Voting Record indicating that the Commission viewed its decision as being helpful to reactor plant designers by making their product more attractive to potential customers.

“I also considered it to be highly likely that the reactor designers would want to perform this assessment for their clients since it would be in both the designers’ and the clients’ interest to adopt practicable changes at the design stage rather than employing post construction mitigating measures and relying on operator actions as was necessary for the operating reactors.”

Dale Klein, Chairman US NRC Jan 9, 2009.

Commissioner Svinicki made several thought provoking comments in her voting record on the rule. (Scroll to13th page from beginning) Her statement should be read with the knowledge that she had just recently been appointed and with the understanding that a collegial body like the Commission can exert significant pressure on “the new person” to “go along.”

“The aircraft impact draft final rule currently before the Commission is a capstone in the NRC’s security-related efforts; efforts that began long before my service on the Commission. In studying this record in its totality, I have formed the view that the NRC’s regulatory response to the events of September 11, 2001 and the industry’s implementing actions stand as a singular achievement which has done more, in absolute terms, to further harden an already extremely robust and well-defended sector, to levels well beyond those of other sectors of this Nation’s critical infrastructure. Tens of thousands of both government and private sector man-hours have been and continue to be devoted to this cause and hundreds of millions of dollars have been spent.”

Commissioner Svinicki statement in voting record for 10 CFR 50.150

Sunsetting 10 CFR 50.150 and returning to the protection requirements that were in place when current reactors were designed and built is a good place to begin the process of eliminating burdensome rules. It’s worth remembering that operating reactors licensed under the old rules will continue operating under those rules for many decades to come.

It would not be surprising to hear pushback from people who were contributed to the tens of thousands of man-hours expended on creating the rules. No one likes to admit that their time was wasted. But that’s no reason to continue wasting time and resources.

Postscript: During the past several months, I’ve had the opportunity to engage in lengthy, wide ranging conversations with industry leaders, former senior NRC staff members and former NRC commissioners. I’ve also been in the audience for several presentations by similarly senior individuals and been able to ask questions. As might be expected, many of the more informative conversations were on deep background. Some industry leaders expressed concerns about the possibility that this article might reopen the question of whether or not existing reactors should be forced to comply with the rule. That is an exceedingly unlikely outcome.

The final piece represents my conclusions and opinions, and not those of any of my sources.

I’ll freely admit that I have had a vested interest in enabling nuclear energy development for many years. Eliminating unnecessary requirements will make it easier to build new plants. When building gets easier, projects become cheaper and schedules become more predictable. That makes them more financeable and in turn it makes the companies that build and operate those plants more valuable. Of course, it also makes our air cleaner, our energy system more secure and our future brighter.

If you notice that changes are happening at a rate that makes you interested in getting in on the ground floor, please make contact. At Nucleation Capital, we are investing in great, early stage companies that are involved in making advanced nuclear energy a reality on behalf of ourselves and our limited partners. My email address is logical – I’m rod and I work at nucleationcapital.com

Featured image credit – Jordi Cucurull “Boeing 747 landing at Barcelona in a golden sunset” Creative Commons Share Alike 2.0 Generic