Skip to main content

NRC’s Post-Fukushima Recommendations Will Be Mandatory for U.S. Nuclear Energy Facilities

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.

Comments

Anonymous said…
Maybe we should be promoting which NTTF Recomendations we are implementing voluntarily, along with a schedule for completion. This would be the proactive course of action and show leadership.

Popular posts from this blog

How Nanomaterials Can Make Nuclear Reactors Safer and More Efficient

The following is a guest post from Matt Wald, senior communications advisor at NEI. Follow Matt on Twitter at @MattLWald.

From the batteries in our cell phones to the clothes on our backs, "nanomaterials" that are designed molecule by molecule are working their way into our economy and our lives. Now there’s some promising work on new materials for nuclear reactors.

Reactors are a tough environment. The sub atomic particles that sustain the chain reaction, neutrons, are great for splitting additional uranium atoms, but not all of them hit a uranium atom; some of them end up in various metal components of the reactor. The metal is usually a crystalline structure, meaning it is as orderly as a ladder or a sheet of graph paper, but the neutrons rearrange the atoms, leaving some infinitesimal voids in the structure and some areas of extra density. The components literally grow, getting longer and thicker. The phenomenon is well understood and designers compensate for it with a …

Missing the Point about Pennsylvania’s Nuclear Plants

A group that includes oil and gas companies in Pennsylvania released a study on Monday that argues that twenty years ago, planners underestimated the value of nuclear plants in the electricity market. According to the group, that means the state should now let the plants close.

Huh?

The question confronting the state now isn’t what the companies that owned the reactors at the time of de-regulation got or didn’t get. It’s not a question of whether they were profitable in the '80s, '90s and '00s. It’s about now. Business works by looking at the present and making projections about the future.

Is losing the nuclear plants what’s best for the state going forward?

Pennsylvania needs clean air. It needs jobs. And it needs protection against over-reliance on a single fuel source.


What the reactors need is recognition of all the value they provide. The electricity market is depressed, and if electricity is treated as a simple commodity, with no regard for its benefit to clean air o…

Why Nuclear Plant Closures Are a Crisis for Small Town USA

Nuclear plants occupy an unusual spot in the towns where they operate: integral but so much in the background that they may seem almost invisible. But when they close, it can be like the earth shifting underfoot.

Lohud.com, the Gannett newspaper that covers the Lower Hudson Valley in New York, took a look around at the experience of towns where reactors have closed, because the Indian Point reactors in Buchanan are scheduled to be shut down under an agreement with Gov. Mario Cuomo.


From sea to shining sea, it was dismal. It wasn’t just the plant employees who were hurt. The losses of hundreds of jobs, tens of millions of dollars in payrolls and millions in property taxes depressed whole towns and surrounding areas. For example:

Vernon, Vermont, home to Vermont Yankee for more than 40 years, had to cut its municipal budget in half. The town closed its police department and let the county take over; the youth sports teams lost their volunteer coaches, and Vernon Elementary School lost th…