For some time we have been thinking about one of the underlying aspects of the NRC’s current safety culture initiative which is to establish a “policy statement” for nuclear safety culture. As we know the use of a policy statement in this area dates back to 1989. A subtext to this approach is whether the NRC should “regulate” nuclear safety culture, presumably through the issuance of regulatory rules and requirements. We recognize that the “regulate” issue is very much a hot button and we are not addressing it at this time. Instead we thought it might be worthwhile to consider in some detail just what is a Commission policy statement and what it might or might not accomplish.
On the NRC website we looked at what was available regarding policy statements. There is a Commission Policy Statements page with a listing of the current set of policy statements, organized by topic. However, most policy statements relate to the conduct of business by the NRC itself with fewer statements addressing substantive regulatory and safety criteria. We could not locate on the website information regarding how policy statements are intended to be used in the regulatory process. For that we turned to recent NRC Issuances,* which are adjudicatory decisions by Atomic Safety and Licensing Boards and the Commission itself, to obtain guidance on the applicability and weight accorded NRC Policy Statements.
“Policy Statements are neither rules nor orders, and therefore do not establish requirements that bind either the agency or the public.”**
This comes from a Commission decision for a case involving the scope of environmental review for an early site permit. The Commission references a D.C. Circuit Court case that found:
“A general statement of policy . . . does not establish a ‘‘binding norm.’’ It is not finally determinative of the issues or rights to which it is addressed. The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.” (p. 240)
In its decision, the Commission goes on to state:
“For the [Atomic Safety and Licensing] Board to suggest that the strictures of the Policy Statement may be enforced as law, or that it in some way creates a substantive mandate, accords too much weight to the Policy Statement.” (p. 240)
So far so good. But after finding that the staff’s review satisfied applicable statutory and regulatory requirements (but did not comport with the letter of the policy statement), the Commission ends its decision on a more confusing note.
“We expect conformance with the Policy Statement, and relevant associated guidance, in future licensing actions of this magnitude.” (p. 248)
In another matter involving a policy statement governing the admissibility of contentions in license renewal proceedings, Commissioners Merrifield and McGaffigan joined in a concurring opinion to observe:
“If we are not willing to enforce our policy statements, the statements become meaningless.”***
Finally, an earlier ASLB decision seems to address policy statements on a practical level, where the Board feels “compelled” by Commission policy:
Notwithstanding these clear inconsistencies, we find ourselves compelled by Commission rulings and policy statements to accept this approach by the Staff because the Commission has advised that their ‘‘longstanding practice . . . grounded in sound policy’’ is to ‘‘leave [ ] to the expert NRC technical staff prime responsibility for technical fact-finding on uncontested matters.’’****
Based on all of this what is the likely impact of the safety culture policy statement on NRC license holders? On the one hand it appears that the NRC will “expect” licensees to meet the intent and the particulars of its policy statement. It seems safe to assume the NRC staff will apply the policy in its assessments of licensee performance. On the other hand, if a licensee does not meet some aspect of the policy it could find solid footing in a challenge to the enforceability of the policy statement. The greatest difficulty is to square the rhetoric of NRC Commissioners and staff regarding the absolute importance of safety culture to safety, the “nothing else matters” perspective, with the inherently limited and non-binding nature of a policy statement.
* NRC Issuances are published as NUREG-0750. Individual volumes are available here.
** 66 NRC 215 (2007) at 217, In the Matter of: DOMINION NUCLEAR NORTH ANNA, LLC (Early Site Permit for North Anna ESP Site) CLI-07-27 Nov 20, 2007.
*** 65 NRC 1 (2007) at 8, In the Matter of: ENTERGY NUCLEAR VERMONT YANKEE, LLC, and ENTERGY NUCLEAR OPERATIONS, INC. (Vermont Yankee Nuclear Power Station) CLI-07-1 Commissioner Jeffrey S. Merrifield, with Whom Commissioner Edward McGaffigan, Jr. Joins, Concurring Jan 11, 2007.
**** 64 NRC 460 (2006) at 492, ATOMIC SAFETY AND LICENSING BOARD In the Matter of EXELON GENERATION COMPANY, LLC (Early Site Permit for Clinton ESP Site) Dec 28, 2006.