Safety: US Industry Proposes Reigning in Independent NRC Advisor

A draft bill introduced in the US House, backed by US pro-nuclear groups, would limit the purview of the independent technical advisory committee tasked with reviewing safety aspects of US Nuclear Regulatory Commission (NRC) licensing and license amendment applications. The industry and industry-sympathetic groups backing the legislation say they intend to direct the Advisory Committee on Reactor Safeguards (ACRS) to more "novel" applications, but some safety experts caution that narrowing the scope of the ACRS would diminish important technical expertise that informs the final decisions of the five-member NRC board.

Draft legislation introduced in a US House committee last week would amend the Atomic Energy Act of 1954 to give the NRC more authority over the scope of ACRS reviews. Rep. Tim Walberg, a Michigan Republican, introduced draft legislation (known as the Nuclear Advisory Committee Reform Act) that aims to limit the scope of the ACRS to "novel or first-of-a-kind nuclear reactor designs, design modifications, technologies, or regulatory activities as the Commission may specifically request." The draft House bill would also impose term limits of two terms of four years each, rather than the current language for four-year terms with no cap on how many.

The ACRS is typically made of 15 committee members (though that number is currently 12) who are typically technical experts with decades of experience in nuclear energy. The committee members are appointed by the five-member NRC board, and supported by 20 full-time staff dedicated to ACRS activities, according to NRC spokesperson Scott Burnell.

The NRC "needs to be granted the authority, which it currently doesn’t have under Atomic Energy Act, to have some flexibility about how it deploys ACRS to really look at the most technically difficult issues and free up some time for them to focus on that and remove the current requirement that they have to review in some cases relatively mundane licensing areas where they don’t frankly add value,” former NRC Commissioner Jeff Merrifield, now chairman of the US Nuclear Industry Council’s Advanced Nuclear Working Group, said in House Energy and Commerce Committee hearing on Jul. 11. Merrifield’s comments came in response to a question from Rep. Walberg, who asked if his draft bill would “actually produce better outcomes?”

Some safety experts do not believe it would. Union of Concerned Scientists Nuclear Power Safety Director Ed Lyman told Energy Intelligence in an email that the “advanced reactor crowd doesn't like how the ACRS asks hard questions and sometimes finds safety issues that both the applicants and staff missed (accidentally or deliberately).” Victor Gilinsky, a former NRC commissioner, told Energy Intelligence that the “NRC issues often turn on technical matters, and yet the political system chooses commissioners in a way that ensures that most of them don't have a technical background and can't possibly have more than a superficial understanding of technical issues. They need expert opinion beyond what their technical assistant provides.”

Modernization or Minimization?

For the draft bill’s author, Rep. Walberg, the goal is to focus the ACRS on “new and novel projects,” but in the Jul. 11 House committee hearing, he asked the NRC Executive Director for Operations Dan Dorman to define the role of ACRS.

The Breakthrough Institute, a climate and energy think tank that advocates pro-nuclear policies, also testified at the hearing in support of regulatory reforms and rolling back ACRS authority. The Breakthrough Institute has publicly taken issue with ACRS' input into the draft advanced reactor rulemaking process. In its November 2022 greenlight of the draft Part 53 rule, the ACRS has pushed back against industry pressures, and it's not the first time. In February 2021 ACRS meeting, ACRS Chair (then-Vice Chair) Joy Rempe suggested that while the vendors and reactor designers might have an economic case to make for not doing a full probabilistic-risk assessment, "the regulators should only be concerned about safety and let the buyer beware and look at the economic risk assessment."

In a Nov. 22 letter to the NRC, the ACRS recommended the commission move forward with the Part 53 advanced reactor rulemaking, which allows applicants to choose between two regulatory pathways: one more innovative approach based on probabilistic risk assessments, and the other a more traditional deterministic approach. The ACRS found that the Part 53 draft rule and guidance "are adequate to solicit public comments" but recommended expanding rules on identifying potential risks and performing defense-in-depth to mitigate those risks, two items with which the Breakthrough Institute has contended. The Breakthrough Institute argues that the Part 53 draft rule is "overly prescriptive" and "not sufficiently performance-based as mandated by the Nuclear Energy Innovation and Modernization Act of 2019" and implied that the independence of the ACRS "has been undermined in this instance."

The proposals in Walberg’s draft bill “are consistent” with the March report by the Nuclear Innovation Alliance on the ACRS, Merrifield said at the Jul. 11 hearing. Merrifield helped author that report, which is based on interviews with 35 individuals, including current and former ACRS members and staff, former NRC commissioners and staff, and members of the ACRS stakeholder community. "Some interviewees were concerned that, as more advanced and new reactors pursue licensing while, in parallel, existing reactors pursue subsequent license renewal, the requirement of the ACRS to review every application could quickly fill the ACRS calendar, making it more difficult for advanced and new reactors to obtain a slot on the meeting schedule and delaying completion of mandated licensing reviews," the report states.

The draft bill is also backed by Third Way. "The crucial benefit provided by this bill is that it gives NRC the flexibility to be more efficient in reviewing subsequent applications, thereby aligning with industry and NRC expectations for standardization of designs,” Third Way Climate and Energy Program Senior Policy Advisor Ryan Norman told Energy Intelligence. “ACRS will continue to have a major role in that, but the statutory process needs to be brought into the 21st century so that it's not an unavoidable bottleneck.”

Nuclear Energy Institute Senior Director of Regulatory Affairs Andrew Mauer stopped short of backing the draft legislation but told Energy Intelligence in an email that “it is appropriate to review how” the ACRS operates "with an eye toward timeliness and a fresh assessment of their review scope and depth. The ACRS reviews should occur in a timely manner that does not extend the timelines for Commission approval, while focusing on unique and safety significant aspects of reactors designs, rather than essentially duplicate the NRC staff’s thorough review.”

Lyman called the policy effort “an all-out attack on the ACRS right now spearheaded by these groups” that "appear designed to scare the committee and bring it into the fold." But not everybody thinks the ACRS needs to be preserved. Safety expert and NRC critic Dave Lochbaum, who was interviewed for the report authored by Merrifield, recalls only one instance in which the “ACRS made a difference” — during “the decommissioning of Maine Yankee in the late 1990s” when the “owner sought to slash security and emergency planning.” At that time, under then-Chairman Dana Powers, the ACRS pushed back that “a hazard remained for decades as long as irradiated fuel was in a spent fuel pool.”