NRC Chairman Kristine Svinicki, far right, Commissioner Stephen Burns, second from right, and Commissioner Jeff Baran, left, chat with Sen. Lamar Alexander, R.-Tenn., at a hearing held by the Senate Appropriation Committee’s Subcommittee on Energy and Water Development in June 2017.
A member of the U.S. Nuclear Regulatory Commission is warning that a political impasse over Senate confirmations of two new Republican nominees and reconfirmation of a Democratic commissioner is threatening to damage the NRC's public image by leaving the agency without a quorum, in which case the chair can make decisions all on her own.
Expanding upon comments made Feb. 21 at an advanced nuclear summit at Texas A&M University, independent Commissioner Stephen Burns said in an interview that the credibility of NRC's rulemaking would be called into question if the U.S. Senate fails to approve Republican nominees Annie Caputo and David Wright and Democratic incumbent Commissioner Jeff Baran before Baran's current term expires at the end of June.
The NRC's five-member commission needs at least three members to reach a quorum. Otherwise, as authorized under a statute from the Carter administration, the commission's rulemaking and adjudication responsibilities are delegated to the chair, who is currently Republican Kristine Svinicki.
The three NRC nominations are still being blocked from a full vote on the Senate floor as a result of Democrats tying Baran's reconfirmation to the other two nominees. The Senate Committee on Environment and Public Works advanced Caputo's and Wright's nominations in July 2017 and Baran's in October 2017.
A committee spokesman said in an email that Senate Democrats have not assessed their members' views on Caputo's and Wright's nominations by "hotlining," which is the bypassing of regular voting procedures in the Senate to vote on legislation with little or no debate but only with the unanimous consent of all senators. "Without this hotline, the nominations cannot advance for unanimous consent," spokesman Mike Danylak said.
Burns expressed support for all three nominees, who he said are "in the same boat," but expressed hope that all three will be approved. Nonetheless, if the Senate fails to act in time, Burns said the NRC will carry on and operate at a "less than ideal situation" with Svinicki as the lone decisionmaker, although she would be required to consult with Burns.
As a result of this delegated authority and the work already done by NRC staff, Burns said NRC might be better positioned to operate without quorum than the Federal Energy Regulatory Commission was for seven months in 2017. He added that it helps that the NRC can draw upon its experience of operating without a quorum for more than seven months in 1995 and 1996 after one NRC commissioner's term expired and another resigned.
Burns said he does not question the legality of delegating authority to the NRC chair in such a scenario but stressed that decisions would lack the credibility of those approved by three to five members. While routine matters and budget rollouts would be decided without an afterthought by an undermanned NRC, Burns speculated that some controversial or high-level rulemaking decisions might be postponed until a quorum is restored. But he acknowledged that those decisions would be left up to Svinicki.
Burns' comments at the summit hosted by the United States Nuclear Infrastructure Council did not go unnoticed.
"As a former NRC chairman, current commissioner and long-time agency general counsel, Commissioner Burns' concerns resonate loud and clear," said David Blee, executive director of the NIC, which advocates for America's global supply chain in the nuclear energy sector.
"Without approval of the pending package of interlinked commission nominations the NRC will be plunged into a single administrator situation which is untenable for a safety agency and impactful," Blee said in an email. "It is our hope that when the Senate returns from its recess that it will recognize the urgency of the nominations and move swiftly to overdue confirmation."