Can Congress Regulate Nuclear Directly?

The NRA's Two Stage Process

Figure 1. NRA Design Certification Stage. The design's safety is evaluated in the center column, with an NCA/NAB check in the right.

Harry Truman proclaimed the harnessing of fission was "too important a development to be made the subject of profiteering".\cite{ford-1982}[p 41] You would think a necessary corollary is fission is too important a development to be controlled by unelected bureaucrats. The Nuclear Reorganization Act(NRA) requires Congress to directly regulate nuclear power.

I know what you are thinking. We are going to ask a bunch of venal buffoons to regulate nuclear power? Worse, most of them are lawyers. Not one in fifty could tell you the difference between an ion and a fermion. Yes, the NRA requires that your fellow citizens, whom you duly elected, perform the responsibilities with which you entrusted them. Can Congress actually do that? It's a legitimate question. The NRA enlists a number of forces to help "guide" these far-from-perfect public servants,

Insurance market evaluates designs

By far the most important is the insurance market. The NRA does not require Congress (nor a bureaucrat who get zero credit for a risk well taken) to evaluate how "safe" a design is. This difficult, specialized job is delegated to the people that do it best. They do it best because their livelihoods depend on evaluating risk. As long as there is competition in the insurance market, if they set the premium too high they will lose profitable business. If they set the premium too low, they will be wiped out. The NRA enlists this talent by requiring each plant to pay for any harm that it inflicts on the public, and making the insurance market responsible for making that payment.

In order to evaluate the risk associated with insuring a plant, the underwriters rely heavily on Certification Societies (Certs) which is the NRA name for the professional inspectors which currently are called Classification Societies, or TUV's or INPO. Certs set the rules by which the plants are tested, built, and operated. They crawl all over a plant during its construction and continually inspect the plant during its operation. These organizations live or die on their ability to make sound technical judgements. They compete for the plants' certification business. If they make excessive demands, they will lose out to a more reasonable Cert. If they are too lax, the underwriters will not accept their certification and they will disappear.

But Congress dictates how radiation harm is evaluated

Congress is not totally off the hook. For this to work, nuclear must be commercially insurable and the compensation for radiation exposure must be a reasonable approximation to the actual harm, in this case increased risk of cancer, that a person has suffered from a release. The NRA requires Congress to take an active role here. Congress must

(a) specify the radiation harm model which predicts the Lost Life Expectancy (LLE) associated with each exposed individual's dose rate profile.

(b) set the dollar value of a Lost Life Day. There is precedent for this, for example, the Dialysis Standard.

(c) set legally negligible and acceptable cancer risk levels. The wording of the Clean Air Act makes its pretty clear that Congress believes a lifetime risk of cancer of 1 in a million is below regulatory concern, and a lifetime risk of 100 in a million is acceptable in the sense that no federal regulation shall require reducing the risk below that level. Congress need only made that judgement law.

[b] and [c] are filling in numbers. [a] will be the tough one.

1) The model must be consistent with the indisputable fact that our bodies have a marvelous ability to repair damage to our DNA. Nature had to provide us with this system to cope with our oxygen based metabolism, which damages our DNA at a rate that is at least 25,000 time faster than background radiation. But this repair system can be overwhelmed if the dose rate is high enough. As a result, the cancer incidence associated with 1000 mSv received all at once is over 10,000 times more dangerous than 1000 mSv received evenly over a lifetime. Congress's harm model must recognize this difference.

2) The model must be simple enough to easily implement.

3) The model must be pessimistic in the sense that legitimate uncertainty is resolved in favor or over-estimating cancer incidence.

The Sigmoid No Threshold Model(SNT) checks all the boxes. LNT, the current regulatory model, denies (1). LNT claims 1000 mSv received all at once has the same cancer risk as 1000 mSv received evenly over a lifetime. The NRA proposes Congress replace LNT with SNT. Congress need only vote yes or no.¹

Design Certification

The NRA envisions a two stage process:

1) Design Certification

2) Plant Siting, Build, and Operation of Certified Designs

The Feds take an active, lead role in the Design Certification process, but federal involvement in the siting, construction, and operation of individual plants of that design is entirely passive. This mimics the Constitution's division of state and federal responsibilities.

Figure 1 sketches the Certification stage. The Nuclear Certification Authority (NCA) provides testing facilities called protoparks on a user pays basis at the locations dictated by Congress. Any developer can apply to test his design. The Nuclear Monitoring Agency(NMA) computes the required testing bond using the technology agnostic process specified in the NRA. This is mechanical. If an Underwriter meeting the NRA's requirements is willing to write the bond amount, the developer can start testing. In setting the premium, the Underwriter not Congress evaluates the safety of the design.

However, both the developer's Cert Society and the NCA have to sign off on the test protocols, and approve continued testing in a step by step process Thus the NCA can stop testing; but, if it does, the Cert Society can appeal to the Nuclear Arbitration Board (NAB) which operates on a loser pays basis. The NCA can also refuse to sign off on the Cert's design certification, subject to the same appeal process.²

The Nuclear Arbitration Board is the second major guide that the NRA offers Congress. It serves as an appeals court for quickly resolving any disputes between the NCA and the NMA and the industry and it underwriters, While the NRA starts out with a powerful statement on the law's purpose and intent, it is inevitable that there will be gray areas in its implementation. Congress is ill suited for resolving these often highly technical issues. That's where the NAB comes in.

The NAB consists of seven commissioners:

1) one commissioner appointed by the Secretary of Energy,

2) one commissioner appointed by the Federal Energy Regulatory Commission Chairman,

3) one commissioner appointed by the EPA Administrator.

4) one commissioner appointed by the Council of Lloyd's.

5) one commissioner appointed by the American Public Power Association, representing investor owned utilities.

6) one commissioner appointed by the National Rural Electric Cooperative Association, representing the power coops,

7) one commissioner appointed by the Edison Electric Institute representing the munis.

The President has effective control of the first three commissioners. They indirectly reflect the current political will, but with different perceptives and skills. They can be over-ruled by the professionals responsible for providing electricity and their underwriters, but only if all four of the latter are unanimous.

The NRA contains provisions, modeled after the London Arbitration system, to induce and force quick decisions. Importantly, there is no public input at the federal level. The NAB operates much like the Federal Reserve Board.

The NAB can also punish NCA and Cert Society behavior that it deems inconsistent with the purpose and intent of the NRA. Both the NCA and the Cert Society will have to be very sure of their position before they risk going to the NAB. Despite very tight Specs, in my four years of building big tankers in Korea, we had innumerable disputes with the yards. But the threat of taking a losing argument to London Arbitration was such, that we were always able to work things out with little or no impact on the build schedule.

Congress need only perform the functions in its box. If it does, the NRA will result in the sound designs being expeditiously tested and certified, and the unsound designs quickly discarded.

Plant Siting and Operation

Figure 2. NRA Build/Operate Stage. Each plant's safety is evaluated in the center column, with local gov oversight on the right. Fed's role is passive, mechanical.

Under the NRA, the feds do not license individual plants. Once a design is certified, the feds have almost no say in whether or not that design gets built or where. The Fed's role in building and operating commercial plants is completely passive:

1) check that the site complies with the certification requirements,

2) compute the insurance that must be carried by that design at that location,

3) enforce the Congressional plant boundary triggers,

4) and shut the plant down if and only if it loses its insurance.

This is all handled by the Nuclear Monitoring Agency. No Congressional hours or input required.

The locals can run their permitting process any way they want. If a state wants to allow an interminable debate on whether or not to build a plant at a particular site, that's their business. If a state want to set up an "emergency energy agency" with draconian powers to eliminate special interest obstruction, that's also their business. Under the NRA, a state could set up a public monopoly to provide power to its citizens, or rely on a fully developed coop system, or anything in between.³ Implicit in the NRA approach is the abolition or gutting of NEPA.

Under the NRA, the locals are responsible for the backup check on the Certification Society's enforcement of the certification document. Usually, it will be economic for the locals to hire the technical expertise required to do this rather than maintain this capability in-house. A competing Cert Society would be an obvious choice.⁴ The locals have the most to lose if the plant has a problem. They also have a big stake in seeing that the plant operates successfully. The NRA puts the right people in charge of each plant. And Congress can go back to ripping off the taxpayer. They will just have to do it elsewhere.

1. Since LNT was not mandated by Congress but administratively adopted by the AEC, with as far as I call tell no Congressional notification or knowledge, Trump could make this switch with an E0. But unless the change is made law by Congress, that EO could be over-turned by a new administration.

2. The design certification is not a diploma you stick on the wall. It is a multi-volume document, defining siting requirements, building specs and codes, operator training, operating envelopes, maintenance procedures, etc. Think FAA type certification on steroids. Material changes to the design certification require NCA sign off, subject to the same appeal process.

3. This sets up a competition. Blue states could go the public monopoly route. Red states could op for something more market driven. It’s a curious fact that in the US, something like the opposite has happened. This says something about the depth of thinking in the Democrat and Republican parties.

4. The Classification Societies that regulate ocean transportation don't like each other. This is healthy. If the NRA is successful, nuclear plants will be built by vendors under turnkey contracts. A smart utility will have its own inspectors prowling around the construction site(s). The NRA encourages this by mandating very large deductables for any property insurance.