Waiting on the Nuclear Regulatory Commission

It’s been almost eight months now since the staff of the Nuclear Regulatory Commission forwarded its proposed new framework for licensing advanced nuclear reactors to the NRC’s five (now four) commissioners last March. Four years in the making, the proposed framework, in the estimation of the nuclear industry, the NGO community, and a broad bipartisan majority in Congress, was a non-starter, largely applying the same baroque licensing and regulatory framework that has so hobbled the legacy nuclear industry for decades to new advanced nuclear technologies, in fairly obvious and direct contravention of direction from Congress in the Nuclear Energy Innovation and Modernization Act of 2019 to modernize nuclear licensing.

In March, the commission’s chair, Christopher Hanson, promised commission action by the end of May. That deadline has since been pushed back to August and now the end of the year. In the interim, over 60 members of Congress, including majorities of both the Senate Environment and Public Works and the House Energy and Commerce committees, which oversee the NRC, have written the commission, urging it to fix fundamental flaws in the proposed framework regarding overly conservative radiological risk standards, overly prescriptive regulatory requirements, and a failure to account for the full range of new technologies that the commission will likely need to license and regulate. The letter also asked the commission to consider previous and ongoing efforts by public stakeholders.

The feedback from Congress largely reflects a broad consensus among stakeholders, inclusive of public interest advocates for nuclear energy, like the Breakthrough Institute, national laboratories, and the nuclear industry. A six-month expert elicitation led by the Breakthrough Institute, based upon two daylong workshops and extensive followup consultation with a wide range of stakeholders, finds strong agreement on critical steps needed to fix the proposed framework and move forward with a modernized licensing framework for advanced reactors. Key points of consensus include:

• Establishing a single, high-level framework for licensing advanced reactors that is flexible, performance-based, and distinct from the current frameworks established for licensing large light water reactors.

• Removing cumulative health standards that are not observable epidemiologically from the rule. A performance-based licensing framework cannot be based upon health outcomes that cannot be measured.

• Follow established commission policy for advanced reactors, which recognizes defense-in-depth is an “attribute that could assist in establishing the acceptability or license-ability of a proposed advanced reactor design” without requiring it in the rule. Applicants should have flexibility to identify safety functions, design criteria, and other characteristics that meet performance-based safety requirements.

• Allowing for the use of an alternative risk assessment to the probabilistic risk assessment methodology (PRA) in all current and proposed licensing frameworks, based upon technologically and actuarially plausible risk parameters and reasonable uncertainty margins.

• Remove the ALARA (As Low As Reasonably Achievable) standard from all design requirements of the Part 53 framework.

• Remove requirements from the rule that add beyond design basis accidents to Design Basis safety analysis requirements, consistent with established commission policy that advanced reactors “provide the same degree of protection of the environment and public health and safety and the common defense and security that is required for current-generation light-water reactors.”

Since July, both Republican appointees to the commission, Annie Caputo and David Wright, have cast their votes and made them public (once a proposed rule or action has been submitted, commissioners can submit their vote at any time and choose whether to make those votes public prior to the full commission voting).

Both Wright and Caputo cast their votes in a manner that is broadly consistent with the congressional and stakeholder consensus, voting to reject the rule unless it is substantially revised. And while one might reasonably quibble with various issues (Wright offers very high-level principles for the new framework while Caputo has provided a very specific and detailed rewrite of the entire framework), both commissioners have clearly voted for a rule that would be far different from the rule that the staff has proposed and broadly consistent with bipartisan direction from Congress.

What remains to be seen is how the two Democratic appointees, Chair Hanson and Commissioner Bradley Crowell, will vote on the proposal. Hanson and Crowell will need to reach some agreement with Caputo and Wright to move forward with a modernized framework.

Both Democratic commissioners have made public but vague acknowledgments that the staff proposal leaves something to be desired. But how far either is willing to stray from the proposal developed by the NRC staff is not yet clear and will likely provide an acid test as to whether the commission, under its current leadership, is capable of advancing a modernized regulatory framework.

Today, there is a clear bipartisan consensus, from Congress to the American public to the key stakeholders at the NRC, for far-reaching change at the agency. In the coming weeks, we will find out whether that consensus extends to the four NRC commissioners tasked with determining the future of advanced nuclear energy technology. America needs a new generation of advanced nuclear reactors to meet its climate, environmental, and energy security commitments in the 21st century. Let’s hope the commission is up to the task and willing to seize this unique opportunity.