Former Nuclear Regulator Expresses Concerns with Preliminary 10 CFR Part 53

On October 19, 2022, Rani Franovich, a Senior Policy Advisor for Nuclear Energy Innovation at the Breakthrough Institute (BTI) and former NRC staff member, presented a verbal comment (see transcript pp. 272-283) to a subcommittee of the ACRS, an independent advisory body to the Commission. NRC regulations state: “The advice or recommendations of an advisory committee should be the result of the advisory committee's independent judgment.” [See 10 CFR 7.1(d)(2)(iv).] The subcommittee is responsible for reviewing the draft Rule package and recommending the next steps to the Commission on the staff’s preliminary development of 10 CFR Part 53. In her comment, Franovich took issue with the overly prescriptive rule language, arguing that it was not sufficiently performance-based as mandated by the Nuclear Energy Innovation and Modernization Act of 2019 (NEIMA).

On November 1, 2022, BTI submitted a written comment to the full committee, and Franovich presented a summarized version verbally during the November 2, 2022, meeting of the full committee (see transcript pp. 102-104). In its letter, BTI noted that the preliminary rule did not afford “developers or applicants sufficient flexibility to determine how to meet performance objectives in ways that encourage and reward improved outcomes.” (See p. 2.) BTI urged the ACRS to recommend the Commission redirect the staff to

• expeditiously work with external stakeholders in a more open, collaborative manner;
• come to an agreement on unresolved issues – like what should be governed by regulation versus guidance; and
• significantly streamline the rule to be more performance-based and appropriately risk-informed. (See p. 5.)

In her verbal comment, Franovich added: “Timely agreement on these matters can be reached if the NRC staff changes its regulatory posture, adopts a customer service ethic, and is open and receptive to relocating detailed prescriptive requirements to guidance. For all these reasons, the preliminary Part 53 rule does not satisfy NEIMA… nor does it conform with prior Commission direction disapproving codification of safety goals applying quantitative health objectives (QHOs).” (See transcript pp. 103-104.)

During their November 2, 2022, letter-writing deliberations, ACRS members expressed concern multiple times that the NRC staff would be unlikely or unwilling to make significant changes to the preliminary rule because there isn't sufficient time before the package is to be delivered to the Commission. One ACRS member questioned whether the Commission wanted to hear the ACRS’s honest assessment of the preliminary rule. Although ACRS members removed language from their letter expressing endorsement of the Rule package, they also removed many of their stronger reservations because “the train has left the station.” These expressions of concern and self-censorship imply that the Committee’s independence, as required by § 7.1(d)(2)(iv), has been undermined in this instance.

In her November 22, 2022, letter to NRC Chair Chris Hanson, ACRS Chair Dr. Joy Rempe affirmed that the preliminary rule is overly prescriptive and largely borrowed from existing regulations in 10 CFR Parts 50 and 52:

In general, rule language should establish the requirement (the ‘what’) and guidance should provide an acceptable way of meeting the requirement (the ‘how’). In some cases, the requirements are established at a higher functional level to provide flexibility associated with being technology inclusive. The Rule contains a mixture of ‘what’ and ‘how’. Staff attributes this to the historical nature of some of the rule language borrowed from 10 CFR Parts 50 and 52. (See p. 3.)

Dr. Rempe also acknowledged that the preliminary Rule “may still be too long relative to many stakeholder expectations, which threatens the likelihood of its use.” (See p. 5.) Nevertheless, and despite these flaws, the ACRS deemed “the Rule package and associated guidance… adequate to solicit public comments.” (See p. 1.)