Does the nuclear industry have a back door into its regulator?

This may be a rhetorical question

By Linda Pentz Gunter

When driving in Italy, my Italian friends inform me, a stop sign is just a “suggestion.” The speed limit is there as advice but is not mandatory.

Needless to say, this cavalier attitude to the law results in plenty of crashes. Alarmingly, the U.S. Nuclear Regulatory Commission (NRC) holds this same attitude towards enforcement of its own safety regulations. Compliance is increasingly ”voluntary”, and safety inspections are instead suggested “self-assessments”. Indeed, our research shows that the NRC has become allergic to any conjugation of the verb “require”, and has actually deleted it from its own rules designed to manage the next nuclear accident, and from regulations for the operation of aging nuclear power plants seeking to extend their licenses.

In December 2017, the Pacific Northwest National Laboratory (PNNL) released a report  which it posted on its website, and that of the Office of Science and Technical Information (OSTI) — a division within the Department of Energy. The abstract was posted to the International Atomic Energy Agency (IAEA) website where the links to the PNNL and OSTI report postings are now dead.

In its report, PNNL said that the “autopsy” of a closed nuclear power plant should be “required.” The idea is that when a nuclear power plant is permanently shut down, the decommissioning process provides access to key reactor safety systems, structures and components. With the reactor closed, these parts can — and should — be materially examined to assess the condition and reliability of those same parts in still operating reactors. Indeed, PNNL concluded that such strategic “harvesting” of actual aged samples was a “high priority,” if the government was to continue issuing extensions to reactor operating licenses.

The PNNL report —Criteria and Planning Guidance for Ex-Plant Harvesting to Support Subsequent License Renewal — was then abruptly removed from both the PNNL and OSTI websites. But not before Paul Gunter at Beyond Nuclear had downloaded it.

Why was it removed? Beyond Nuclear learned in our pre-hearing oral argument before the NRC Atomic Safety and Licensing Board on March 27, 2019, that the PNNL report was “just a draft.” NRC counsel, Kayla Gamin, told the court that PNNL posted the report on its website “by mistake.” Presumably the DOE and IAEA made the same error.

Beyond Nuclear was arguing its case against the Second License Renewal of Exelon’s Peach Bottom nuclear plant in Pennsylvania, two reactors that are the same GE Mark I boiling water reactor design as those at Fukushima-Daiichi. As part of our arguments against extending the Peach Bottom operating license out to 80 years, Beyond Nuclear says that closed GE Mark I reactors, such as Vermont Yankee and Oyster Creek, should be autopsied during decommissioning, and laboratory analysis should be conducted on the effects of aging and degradation on safety systems. This would provide essential information when considering whether reactors like Peach Bottom should continue to operate at all, let alone for a total of 80 years, twice as long as the original license anticipated.

Just days after Beyond Nuclear raised objections in court to the PNNL report’s removal, (having already flagged its disappearance in our written statement), a revised version of the report magically reappeared, dated March 31, 2019, and this time on the NRC’s public information site known as ADAMS — but not on the PNNL or OSTI sites.

Paul immediately did a side-by-side comparison of the two reports, and the real reason for taking down the original quickly emerged. Paul found that the NRC had gone through and removed every reference to “required”, “may require”, or “likely require”. The revised report was considerably condensed, down from 52 pages to 42. There was also substantial removal or replacement of the term “knowledge gap,” which appeared 18 times in the December 2017 report and only once in the March 2019 version.

The report is still in PNNL’s name with the same five authors listed. There is no mention of editing by the NRC but a disclaimer at the beginning says “This document supersedes and replaces the previous harvesting criteria and planning guidance (PNNL-27120), which was inadvertently released while still under development.”

This isn’t a redaction, it’s tampering with someone else’s work to suit the NRC’s  — or rather the nuclear industry’s — agenda.

The PNNL had apparently prematurely decided that reactor autopsies should be “required” and then the NRC decided that they shouldn’t.

Trojan implosion

When reactors close and are decommissioned, they should be “autopsied” a national lab said. (Photo of Trojan nuclear power plant implosion by Peter Woodman/Creative Commons.)

Shocking as this may be, it is nothing new. The Commission has been consistently advancing the nuclear industry’s financial agenda for decades. There are plenty of other examples of this captured behavior on the part of the NRC, including on fire protection, radiation leaks and severe accident preparedness.

Yet another — and arguably even more heinous — example of this regulatory capture happened in January 2019 when the Republican-dominated NRC Commission decided to cease ordering mandatory protections for US nuclear power plants from nuclear accidents caused by floods and earthquakes, which are now more severe than when the reactors were first licensed, many of them at least 40 years ago.

After the March 2011 Fukushima-Daiichi nuclear disaster, the NRC staff went to work preparing “beyond design basis event” requirements for US reactors, following the Administrative Procedures Act (APA). The shift to “beyond design basis events” was a significant “lesson learned” from the Fukushima experience. The Japan site’s original design basis event was considered to be a tsunami of ten feet, upgraded to 17 feet. That was what the nuclear plant was required to prepare for and withstand. But in March 2011, it was hit with a tsunami estimated at closer to 50 feet high that inundated the site and precipitated the triple meltdowns. Clearly, this was a textbook  “beyond design basis event”. And just as clearly, with climate change upon us, there will be more to come.

Extreme floods and earthquakes have become more frequent and more severe. Reactors in the US, the large majority of which are operating well into, if not beyond, their original 40-year licensing period, still adhere to their original design basis preparedness levels, just as Fukushima-Daiichi had. But the NRC staff rightly felt that these goal posts should now be moved to higher ground. Given accelerated climate change, greater threats from floods and earthquakes should be anticipated, and the country’s nuclear fleet should be required to make the necessary upgrades to withstand them. This, the NRC staff projected, would cost each nuclear site $1.7 million, along with an annual $23,000 fee to maintain the upgrade.

This is a miniscule cost of course, compared to the potentially unlimited expense of addressing a nuclear disaster after it has happened. The Chernobyl nuclear accident is estimated to have already cost more than five hundred billion dollars, a figure that continues to mount. Fukushima, still on-going, will likely cost as much or more, especially considering human suffering and enduring economic dislocation.

coastal flooding

Coastal flooding and extreme weather will become the norm, but the NRC Commission is not taking this seriously, says Senator Whitehouse. (Photo by GEORGE DESIPRIS from Pexels)

In November 2015, the NRC staff’s proposed “Mitigation of Beyond Design Basis Events Rule” was accepted in full by the then NRC Commission. It proposed that the NRC require the nuclear industry to take further steps beyond their licensed design to address “beyond design” seismic or flooding concerns that may not have been known or anticipated at the time the reactor’s license was first issued decades ago.

The rule went out for public comment and, in December 2016 , in response to that input, the NRC staff issued a draft final rule with mandatory requirements for flood preparation still in place. By July 2017, even the industry’s lobbying arm, the Nuclear Energy Institute (NEI), said it was on board with the rule and all of its mandatory requirements, writing in a letter to the NRC that “NEI and the industry support issuance of the proposed rule, and the comments we submitted at that time have been satisfactorily resolved.” 

But the commissioners were down to just three of the established five — one Republican, one Democrat and one Independent — and could not therefore get the necessary majority of three, so a vote on the Proposed Final Rule was postponed. (The fact that the Republican Commission chair, Kristine Svinicki, was not going to provide the third vote in favor of the rule was already a hint of things to come.)

In January 2019, with two Trump Republican Commission appointees now seated — Annie Caputo and David Wright, complete with their handy little conflict-of-interest backgrounds in the nuclear power industry — Svinicki called a vote on the rule. But not before someone inside the Commission office had taken out their big red editing pen and crossed out virtually any language that made safety enhancements a “requirement”, while adding language that specifically said such requirements should be “terminated.”

The revised Rule stated that “the inclusion of the proposed requirements for treatment of the reevaluated flooding and seismic hazards” was “inappropriate” and that the imposition of the many original requirements “would not result in a substantial increase in the overall protection of public health and safety.”

It passed by three votes to two along party lines and was released to the public on January 24, 2019.

Which brings us back to Italy. As Beyond Nuclear’s Paul Gunter pointed out, “the speed limit does not say ‘go as fast as you believe is safe.’”

The NRC Commission also slashed the price tag that each reactor unit would “voluntarily” have to pay to prepare for a new level of threat, down from $1.7 million per site to just $110,000 each. The recurring $23,000 annual fee was done away with altogether. What would this paltry sum buy? New flashlights? Jersey barriers? More portable diesel generators waiting to be washed away in the next annual 1,000-year flood? 

This turn of events so shocked Democratic senator, Sheldon Whitehouse of Rhode Island that, in a recent Energy and Public Works Oversight Committee hearing with the NRC Commissioners, he took it personally. That’s because Whitehouse has unfortunately been a long-time supporter of nuclear power and the work of the NRC. Whitehouse wanted to know why the Commission had unilaterally weakened the rule, and made it voluntary, with no public comments calling for such a change.

(View Whitehouse here at 13:19 and keep watching to see Senators Ed Markey (D-Mass.) and Chris Van Hollen (D-Md.) also expose the NRC for its captured behavior.)

At first, it seemed as if Whitehouse was just doing his best Claude-Rains-in-Casablanca impersonation, until you realize that he is genuinely shocked. And angry. Really angry.

“I am someone who has worked to get you more authority,” he said pointing right at the Commissioners. “It’s going to be a real problem for me to continue to trust in all of you if either of two things is true; one, there’s some kind of an industry back door into the Commission that gets a change like this done after the public comment period is closed, without any public comment, and apparently outside of the APA public process. That would be a very unfortunate set of events, probably also illegal. So I think this committee is entitled to an answer as to what exactly took place that caused that.

“The second is, you don’t take sea-level rise seriously. You don’t think this is a real risk for the nine nuclear plants that are within three kilometers of our coast or the four that have been deemed susceptible to sea-level rise and flooding. That’s not acceptable either.”

Whitehouse, along with Senator Tom Carper of Delaware, the top Democrat on the EPW committee, sent a letter, dated April 1, 2019 to NRC chair Svinicki, highly critical of the new rule issued by the Commission in January 2019. “What is most peculiar is that when our staff asked the NRC about any public comments calling for these changes, they were told there were none,” the senators wrote. “From what our staff have found, there seem to be no calls from outside groups or from career staff asking for the weakening of this rule.”

The two senators strongly challenged the Commission’s decision to gut the eight years of staff work on Fukushima lessons learned. “The new rule appears short-sighted to say the least,” they wrote. “U.S. nuclear power plants should not only incorporate lessons learned from one of the worst nuclear accidents in history, but the industry should also be preparing for the effects of climate change and sea-level rise.”

The letter went on to list six questions for the NRC Commission. The senators demanded answers by May 1, 2019. Beyond Nuclear will be asking the senators to share the NRC response.

Whitehouse, whose state, he took pains to remind the Commissioners during the EPW hearing, is a coastal one, “just so you know,” bitterly remonstrated that “I see this event as a potentially very significant bellwether as to the trustworthiness of this commission. And I have been trusting this commission!”

This sounds like a beautiful friendship that might be about to end.

Paul Gunter contributed to this story.

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