Getting it right: why the NRC Chairman said "No" to a Nuclear Power Plant

Four of the five commissioners at the Nuclear Energy Regulatory Commission voted to approve the first new nuclear power plant reactors in a generation on Thursday February 9, 2012. However, NRC Chairman Gregory Jaczko voted against the Vogtle license.  He alone wanted a binding commitment from Southern Company that it would make safety changes prompted by the March 2011 nuclear disaster in <?xml:namespace prefix = st1 />Japan. Are you saying to yourself "What's wrong with that?"

We wandered what was really behind Chairman Jaczko’s ‘No” vote and so we dove into the NRC’s site to find out. What we came up with is quite unbelievable and alarming. The NRC’s Chairman wrote a 12 page dissent that details why he did not vote “yes”. What it boils down to is that he wanted the license for the Vogtle project to contain a license condition that would require Southern Company to implement safety changes that come out of the Japanese nuclear accident review.

There is absolutely nothing extraordinary about Chairman Jaczko’s request. In fact, many federal licenses that are issued for a variety of energy projects and other federal permits contain conditions that are required. If a company does not like the conditions it can try to convince the agency with evidence not to include them or to consider another approach. Safety, however, is usually not negotiable.

As you’ll see if you read the entire dissent, it appears that Southern Company’s license that was approved does not require them to implement any safety measures that are learned from the Japanese incident review that is still taking place. In other words, Southern Company may have to consider the measures, but actual fixes are not required by the license that they received last week. Hypothetically then if the Japanese review comes up with expensive fixes to ensure safety, Southern Company can either ignore them or just tell the NRC to read it’s license which does not contain any requirements.

The time to address future safety fixes is now not when the plants are being constructed or when completed. Grandfathering the Vogtle plants is not an option either unless one considers the needs of Southern Company to outweigh the public interest for safe operating nuclear power plants.  

What the NRC Chairman was getting at and why it’s important

Here are some of the most revealing  elements from Chairman Jaczko’s dissent which is on pages 86 to 98 of the Commission Order for the Vogtle Nuclear Units [PDF] issuing the license: 

1) “I simply cannot authorize issuance of these licenses without any binding obligation that these plants will have implemented the lessons learned from the Fukushima accident before they operate.”

2) Commission Approved Safety Enhancements Must be Implemented to Ensure Reasonable Assurance of Safe Operation of New Vogtle Reactors

3) Nuclear Reactor Safety Enhancements Have Been Identified Based on New Information and Insights From the Fukushima Accident

4) A License Condition is The Appropriate Regulatory Vehicle to Require Implementation of Fukushima Safety Enhancements Before Operation

Who’s really in charge at the NRC?

There is nothing out of the ordinary in the points that the NRC Chairman made in his dissent. However, we found a reference to NRC Staff refusing to draft licensing conditions which we found rather amazing. Staff can refuse to do an analysis for a Commissioner, but we have never heard of Staff telling the Chairman to take a hike. See what you think.

“Anticipating the need to impose this license condition, I asked the Staff to recommend language for such a condition in my post-hearing questions. My questions followed submission of the Staff’s information paper stating that the Commission could choose to adopt some or all of the Near-Term Task Force recommendations and implement them in the COLs through license conditions or, alternatively, issue the COLs and later modify, add, or delete any terms or conditions of the COLs to reflect any new Commission requirements.

In its response, the Staff declined to provide the requested language, citing two reasons. First, the Staff objected that the license condition would have to be drafted “such that it could not be interpreted as evidence that the staff does not have reasonable assurance of adequate protection of the public health and safety at the time the COL is issued.” But this is not the Staff’s decision to make in a mandatory hearing—it is a decision for the Commission. And, for the reasons discussed above, I cannot find reasonable assurance without the license condition.” Sounds like a case of the tail wagging the dog. The golden rule is Staff analyzes and recommends and the Commissioners decide.

Court Challenge is likely and will affect future nuclear licensing

Prior to the February 9th licensing decision, 9 Groups believed that that the NRC was failing to fully consider Fukushima Lessons before issuing a Final License to construct and operate two New Nuclear Reactors at Vogtle Project. The NRC probably handed the groups an easy court victory by not conditioning the licenses to include references to safety measures learned at Fukushima.

It’s true that tsunamis don’t occur in Georgia, but earthquakes do and so do hurricanes and tornadoes. Besides that, we are talking about a nuclear project not a dam and reservoir, pipeline, fracking, etc. If there is a radiation leak, people will get sick and the area will not be habitable for years.

The Fukushima Safety review issues are part of the evidence in the proceeding. It has to be considered by the NRC Commissioners and they have to decide whether or not to include the requirements in a license. Courts generally give administrative agencies a great deal of discretion. The courts don’t ever delve into the technical aspects of the decision, however, they will look for a reasonable explanation why an agency did not include the conditions in the license. The Courts can even remand the case back to the agency with a requirement that they provide the explanation. The big question is whether the Courts will “stay the license”---legaleze for not allowing Southern Company or NRC to proceed with construction until the court makes a decision.

On a larger scale, the Court case and the Vogtle licenses will set the pace and tone of nuclear power plant licensing for years to come. With TV coverage and suffering in Japan still in people’s minds, many people will be wondering “what were they [NRC] thinking?” and conclude that the agency does not have their safety in mind. What do you think? Was the NRC’s decision flawed?
Please let us know.