Over the past few months, anti-nuclear groups have regularly attacked our industry for allegedly resisting implementing changes at our facilities in the wake of the incident at Fukushima Daiichi. While that’s simply not the case, it’s a perception that often gets reinforced in the press—and this morning’s mailbag contained yet another example.
Politico Pro posted an article this morning, “NRC Won’t Make Post-Fukushima Safety Recommendations Mandatory,” that is misleading and egregiously inaccurate. At issue is how the term “mandatory” is used to show how the Nuclear Regulatory Commission will both implement and mandate its post-Fukushima recommendations.
The lede states:
The NRC on Thursday cemented a to-do list of post-Fukushima safety recommendations for U.S. nuclear plants but won't make them mandatory.
That caught the attention of Jason Zorn, NEI’s assistant general counsel, who made it clear to me in no uncertain terms that this is incorrect. I spoke with him this afternoon to explain why in further detail:
The story focuses on the commission’s decision that it was premature to conclude that the Fukushima-related lessons learned are “necessary for adequate protection.” However, a new requirement does not have to be based on "adequate protection" to be mandatory. As long as the NRC acts through a legally binding vehicle, such as an order or a rulemaking, the result will be legally binding. The commission's decision on "adequate protection" in the staff requirements memorandum (SRM) goes only to whether these recommendations will be subjected to a full regulatory analysis or not, and has nothing to do with them being "mandatory."
Zorn points to SECY 11-0137—the SRM that prioritizes how the NRC will respond to the Fukushima lessons learned—and said that the second paragraph cannot be taken out of context from the first.
The first paragraph clearly shows that the commission has approved the NRC staff’s post-Fukushima recommendations to impose many of the lessons learned through orders or rulemaking. Both orders and rulemaking impose legally binding and enforceable requirements. In other words, they all will become mandatory at some point; it’s just a matter of how you are going to get there that’s the difference.
He explains that the SRM’s second paragraph shows that the NRC has yet to decide what level of protection (either “adequate protection” or “‘extra’ adequate protection”) each recommendation will fall under before each is mandated. The paragraph states:
In the absence of a fully developed justification for a proposed new requirement, the Commission finds it premature to initiate actions on the Near Term Task Force recommendations under the premise of assuring or redefining the level of protection of public health and safety that should be required as adequate in accordance with the backfit rule. The Commission will evaluate the staff’s basis for imposing new requirements when documented in notation vote papers for any new requirements promulgated by orders or rulemaking.
The commission will need further evidence to support each recommendation being categorized as either “adequate protection” or “‘extra’ adequate protection” before being required. Zorn states:
The commission simply said that they want the staff to look at the underlying basis and do a full analysis of impacts and benefits where appropriate. In contrast, requirements imposed under an adequate protection basis can be imposed with essentially no meaningful regulatory analysis. The staff’s original recommendation to impose many of the recommendations through orders or rulemaking was left completely intact by the commission.
So what’s next? Zorn replies:
The details are far from final. The task force will come back to the commission in a few months with their analysis of each recommendation and the commission will vote whether each should fall under the “adequate” or “extra adequate” categories. The NRC has these processes in place to ensure that new requirements are adequately understood and justified before they are imposed.
I think Zorn “adequately” (pardon the pun) explained why the Politico Pro piece is misleading. Hopefully his explanation will make it to Rep. Edward Markey (D-Mass.) who issued a press release yesterday with the same misinterpretation:
While I welcome the step the commission took today, I am disappointed that a majority of the Commissioners voted to reject the recommendation of the NRC Near-Term Task Force on Fukushima that the safety upgrades be made mandatory and not leave their implementation subject to a future cost-benefit analysis.
Inside Look at “Adequate Protection”
Since I had Zorn’s attention for a few minutes, I also asked him if he could explain the background on “adequate protection.” His explanation was fairly easy to understand.
The Atomic Energy Act authorizes the NRC to impose requirements (i.e. make them “mandatory”) by regulation or order. Once a regulation, order or license is issued, it is legally binding and enforceable, meaning the NRC can issue a penalty or take other enforcement action if a licensee violates the terms.
Separately is the fact that the Atomic Energy Act also basically allows the NRC to impose new requirements under one of two options: “necessary for adequate protection” or “‘extra’ adequate protection.” In a nutshell, it is within the NRC’s discretion to decide into which category a particular new requirement (i.e. the aforementioned regulations, orders or plant licenses) will fall.
The “necessary for adequate protection” category gives the NRC the authority to impose requirements that it believes are necessary for the adequate protection of public health and safety or common defense and security. It is important to note that this does NOT mean that the NRC’s requirements must achieve “absolute protection” (i.e. zero risk), which would be impossible to achieve. It also is important to note that the NRC cannot generally consider costs when deciding whether or not something is necessary for adequate protection.
If the NRC chooses to impose a new requirement as “‘extra’ adequate protection,” it must show that the requirement would have a substantial increase in the overall safety of the plant and the costs to implement are justified. This analysis is known as a “backfit analysis,” which is outlined in the NRC’s regulations at 10 C.F.R. § 50.109. This category requires substantial NRC research and cost-benefit analyses before being implemented. Examples of requirements that have been imposed in the past as “extra adequate protection” are the station blackout rule, aircraft impact assessment rule, and 1994 vehicle bomb rule.
But the bottom line is, once a new requirement is imposed by order or rulemaking—either under the “adequate” or “extra adequate” protection category—it is considered mandatory by the NRC and is both legally binding and enforceable.