In June, Progress Energy released a statement heralding the failure of a local petition to shut down the company's Shearon Harris nuclear plant due to "claims of inadequate fire protection measures."
The Nuclear Regulatory Commission, the federal agency that oversees the industry, rejected "all three portions of the petition, noting that the agency has granted the Harris Plant 'enforcement discretion' as it makes changes to its fire protection program," Progress asserted in the statement.
At first glance, the announcement seemed a victory for Progress, which has faced years of scrutiny from local and national advocacy groups for Harris' fire-protection violations.
Yet as Harris refuels this fall—the deadline petitioners had given for action from the NRC—the plant remains under investigation for its violations by the U.S. Government Accountability Office and the NRC's Office of the Inspector General.
At a meeting in Raleigh last month, representatives from both offices were in the audience as one NRC commissioner explained regulators' proposed change in approach to fire safety at Harris. Offered as a transition from "prescriptive" to "risk-based" standards—in other words, a shift from objective to subjective safety requirements—the move would essentially retroactively negate Harris' violations, according to some of the industry's watchdogs, one of whom likened it to changing a school zone speed limit from "25 mph" to "Drive safely."
About 30 miles from the facility that houses one of the country's largest reserves of spent nuclear fuel, NRC Commissioner Gregory Jaczko discussed Shearon Harris' persistent fire-protection issues and admitted his agency could be doing a better job.
"[Fire protection] is, in the end, something that's doable. It doesn't have anything to do with the nuclear reaction. It's something that we can deal with in a very simple way, but right now, we're not," Jaczko said at the Raleigh meeting, where he hosted the three main filers of the petition to shut down Harris.
The panel included members of Durham's N.C. Waste Awareness and Reduction Network and the D.C.-based groups Union of Concerned Scientists and Nuclear Information and Resource Service (now operating under the name Beyond Nuclear). Those three groups, along with N.C. Fair Share and Students United for a Responsible Global Environment, demanded in their September 2006 petition that the NRC either shut down the Wake County plant or fine it $130,000 per violation, per day, until it came into compliance.
These violations include Harris' reliance on ineffective fire-barrier materials and its substitution of safe mechanical functioning with "operator manual actions"—a complex series of human procedures intended to prevent disaster in the event of a fire. In 2006, long after Harris began using them, NRC permitted operator manual actions "in lieu of required fire barriers," as long as plants also implemented "compensatory measures" to move toward fire-protection compliance. However, in the 2007 decision not to shut down Harris, an NRC report lists "compensatory fire watch and operator manual actions"—both operator manual actions—as "additional" compensatory measures.
In its 20-year history, Harris has had at least four fires—including a 1988 electrical fire that took three hours and 30 firefighters to quell; it shut down the plant for two weeks. Fires at nuclear plants represent up to half of the risks for a catastrophic accident, according to federal studies.
Harris began its current streak of violating safety laws in 1991 when the NRC informed plants that Thermo-Lag, a fire barrier material, had failed performance tests two years earlier, according to NRC reports. Over the next 16 years, Harris repeatedly hid violations from the NRC, documents show. In 1997, for example, it reported it had "corrected" the Thermo-Lag problem, yet five years later, during a routine inspection, the NRC found the plant still was using the material—while covering up gaps in its fire-protection systems with operator manual actions that remained untested by federal regulators.
The agency responded over the years by using "enforcement discretion" (which allows the NRC to choose not to enforce a safety violation "even though, technically, a non-compliance situation may exist"). Now, under the "risk-based" model, a new standard based on statistical predictions for the behavior of fire would render Harris' past violations moot, say critics of the plan.
The NRC commissioner admitted inefficiencies with enforcement at Harris—including a "dysfunctional" system of transparency, civil penalties that are "not high enough to make a difference," and a period of enforcement discretion he insisted should end—but said fire-protection issues at the plant weren't serious enough for shutdown.
"The most powerful tool the agency has is shutting the plant down. You start there, to some extent, and work backwards. I haven't seen enough information from the staff that this has risen to the level of requiring plants to shut down," he said.
Beyond Nuclear spokesman Paul Gunter interrupted Jaczko to ask, "Can we help you make that argument?"
"Maybe we could shift the discussion from [shutting facilities down] to other regulatory tools. That's where it gets more challenging," Jaczko replied.
However, Barbara Janeway, a Carrboro resident in the audience, said she wasn't sold on the NRC's other "tools."
"You said the monetary penalties don't do anything, and I'm scared," Janeway said.
"I don't want you to be scared," Jaczko told Janeway. "If there was a significant enough safety concern that would cause you to be concerned, I would call immediately for any plant to get shut down—no hesitation."
"This is a complicated issue," he added. "The NRC is an agency, and we have tremendous authority to do a lot of things. Sometimes the perception is that the only way to get something done is by shutting a facility down, and that's not true."
Jim Warren, director of N.C. WARN, said at the meeting that Progress had repeatedly "gamed" the NRC and the public by falsely promising to correct barrier problems.
"The answers are often simple: We tell [the plants] to do it, and they do it. In practice, it's not always so simple," Jaczko offered.
Warren didn't buy that argument.
"I think of all nuclear power's dangers and problems and risks to the public, the toothless enforcement of NRC as a watchdog agency—that's the most dangerous aspect of nuclear power," he said after the meeting.
Gunter attributed NRC's "inability or unwillingness to enforce its own regulations" to the agency's reliance on plant licensing fees for 90 percent of its budget.
"If you're shutting down nuclear power plants, under the current collections system, you're cutting your own budget," he said.
At the meeting, Jaczko presented the new risk-based model—which Progress says it will submit for approval in June 2008—as a solution to the NRC's inability to enforce safety requirements, while advocates on the panel said the new rules would exacerbate the root of the problem: Harris' non-compliance.
"On the surface, [non-compliance] sounds bad. But most of this falls under the category of, 'We have an understanding of what [the non-compliances] are, but we don't believe [the plants] need to be shut down.' That's why, ultimately, if we move forward with this other approach, it gives you a much cleaner answer. With Shearon Harris, we're close to getting there," Jaczko said.
He added: "These are very difficult things to explain, and that's not how I want to regulate. I want to regulate in a way that [plants] need to comply with Appendix R [the current fire protections standards], not they need to comply with Appendix R and they have 68 exemptions, and I can walk you through those 68 exemptions—that's not the way to do it. It's not an effective regulatory procedure."
The panelists, all of whom agreed the NRC's enforcement was ineffective, did not bite on Jaczko's proposal.
"If the NRC has not demonstrated the ability to enforce a prescriptive standard, it's going to be incredibly difficult—and we believe a dubious effort—to enforce a more broadly termed performance standard, which can be argued from both sides endlessly," Gunter said of the risk-based model.
"It makes absolutely no sense, nor is it prudent in the interest of public safety, for NRC to now abandon an enforcement policy," he said after the meeting.
Pittsboro Mayor Randy Voller, one of only two elected officials—both from Chatham County—at the Raleigh meeting, said a statistical model could serve as a diagnostic tool but not the standard for "getting down to the nitty-gritty of safety."
"They can certainly do modeling statistics and say there's a near-100 percent probability that everything's fine, but then some worker could've had a bad day, and then you have a safety problem, and how would you know that?" he said.
Julie Hans, spokeswoman for Shearon Harris, said the new risk-based model would give the plant "flexibility to look at the risk."
"We have the ability to look at that particular scenario and say, 'What's the most effective way to do this? Do we go down and flip the breaker, without waiting for some automatic action to take place, just as a precaution?'" she said, referring to operator manual actions, which she said "could be a part of the new regulations."
She added that these procedures are contained in a database, a notebook and a chart.
"At what point does Willy run and get the notebook and graph?" Warren asked. "If this were something involving a minor safety issue, then it might be different, but the fact is that fire is a top-risk factor that overlaps with the whole security infrastructure at power plants—which is why Jaczko is down here."