Tuesday, July 8, 2014

The Problems with "Reasonable" Regulation: Guest post by Chris Staubus

Chris Staubus
The Problem with "Reasonable" Regulations.  Guest Post by Chris Staubus.

Meredith Angwin’s post has hit on a concept being used by regulators in areas beyond nuclear power.  Many would think it is “reasonable” to use “best available technology” for such things as cooling water intakes to prevent harm to fish populations and for carbon capture to prevent release of carbon to avoid the impacts of man-made global warming.  There is a much longer list of where “reasonable” is the foundation for regulatory regimes.

Why does “reasonable” seem so pervasive?  It is because it is the battle of emotions over science.  If you are against “reasonable” you are by definition “unreasonable” – emotion.  If regulation is set at a numeric limit –science – many can’t even enter the conversation because of lack of education or lack of interest to delve into the basis for the limit.  One can create a lot more social impact for change by arguing with “emotion” than with science.  More people can join in the argument for “reasonable” than there are scientists, engineers and technologists to refute “reasonable.” By the example Meredith Angwin points out, it is obvious “reasonable” leads to “unreasonable.”

“Reasonable” is also driven by regulators: they never want to regulate less.  So as they regulate more, where  can they push?  They can look at what is “reasonable” or at the state of the art for “best available technology.”  This is a continuous process never ceasing from generation to generation of regulators.  Each batch of regulators wants to do something for their cause of safety, protection of people or environment.

However, once the “reasonable” train leaves the station, the end of the line is “unreasonable.”

Reviewing the Regulatory Environment

A couple points about what has happened to the regulatory environment in our industry.

1. The Frog 

Industry and society need to prevent being slowly boiled like a frog.  If you put a frog in boiling water he will jump out.  He recognizes the danger.  If you put the frog in lukewarm water and slowly increase the heat he doesn’t recognize the problem until it is too late.  This is what has happened in the nuclear power industry.  In the early years our education system didn’t help most in society to understand nuclear power, opening up the regulator and industry to focus on safety at any cost.  After all, that would be “reasonable.”  Now as the heat has been turned-up we are about cooked, because the regulatory burden to get a plant licensed, its cost in time and money along with the additional cost to build and operate have taken an economic power source and has made it significantly less competitive.  Some hope this trend will lead to its extinction.

Our takeaway –
Especially with industries with long asset lifecycles, even small changes in the regulatory regime will suck the lifeblood out of viable products and services.

2.  Excess Regulation Everywhere
As consumers and voters, we  need to be alert to how the regulatory environment is changing for foundational industries in this country.  The EPA is changing its regulations, using clean air and clean water acts  as a basis.  What will this potentially do to the daily services and products we consume?  Is there anyone that doesn’t think regulating carbon emissions won’t cost them in their electric bills, fuel or even food bills?  When a utility must pick-up the tab for putting in new cooling towers or new intake structures in response to EPA 316b requirements, this is going to hit their customers in the pocket book.  That means not only homes, but businesses that use power in the production of their goods and services may leave the region or the country seeking lower cost inputs.  What is the cost to society for the loss of those jobs?

Other areas to consider are close to home:  water management, storm water regulations, and property use. Basically, we have to think about the consequences in every case where there are permits, fees and regulations that are being changed.  It is difficult to imagine a regulatory envelope getting smaller.

Our takeaway –
We need to think long term and hold our governments accountable for regulation that is more than just “reasonable.”  As scientists, engineers and technologists we can’t be silent, passive and inert.  We have a voice.

3.  Innovation versus Regulation
Major innovation has never been driven by regulation.  In fact regulation tends to hamper innovation.  So one can say society is actually poorer for regulation that inhibits innovation.  At best regulation has created innovations at the margins to protect existing business and revenue streams.  It has not created innovations that have advanced people’s standard of living.  Hence, we are poorer with heavy regulation as a society.  Concerning innovation, regulation is on the par with central planning which is driven by central planners or in this case regulators.  This is not to criticize individuals doing sound jobs.

Success in regulation, by definition, imposes limits.  It places limits to prevent doing too much of something.  This creates a culture that limits.

Our takeaway –
Whenever there is change in the regulatory regime, society must fully understand its implications and think about what yet-to-be-created innovation may be blocked by this regulatory regime or government policy.

Unreasonable Effects on Society

Society will definitely be poorer when regulators pursue “reasonable.”  We must seriously consider how to push back against this emotional gambit.  It seems evident arguing with facts has limited effectiveness.


About this guest post

Chris Staubus holds a BS in Marine Engineering and an MBA.  He has nearly four decades in the power and utility industries.  He is currently  the General Manager for an engineering consulting firm which supports operating nuclear power plants and nuclear new builds, domestically and internationally.

My recent post, Protecting Against Nothing, the Failings of ALARA, compared the ever-more-stringent requirements of "ALow AReasonably Achievable" (ALARA)  with the more straightforward concept used in drinking water regulation. For drinking water, the question is not "what is achievable" or "what is reasonable."  Drinking water has to meet threshold benchmarks (no more than so many ppm of this ion).  This is a better, more simple way to achieve and assess safety.

In response to that post, Chris Staubus sent me a thoughtful email, and he gave me permission to use his email as a guest post.


Anonymous said...

One problem I have noticed with the current regulatory paradigm (in the nuclear business anyway) is that it is almost always a ratchet, and once the regulations on anything are tightened, you almost never see them loosened again, even if there is the science to justify doing so. A good example would be the ill-fated attempt to implement the BRC concept. I was involved with that in my state and their was a proverbial firestorm of outrage among legislators and activist groups. As soon as anyone perceives that you are loosening the regulatory bonds, they trot out the old emotional arguments ("you're advocating a less-safe process", or "don't do it, our children's safety is at stake"), and those generally trump any scientific arguments.

Anonymous said...

What is "the BRC concept?"

Anonymous said...

Below Regulatory Concern was an attempt to establish a process by which a holder of a byproduct materials license could dispose of materials in a manner not requiring licensed disposal facilities, if they could show, by (conservative) analysis, that disposal in normal landfills or other means would not cause demonstrable harm to a member of the public. The idea was that if you had quantities in the range of, say, single atoms of byproduct material in say, a cubic gigaparsec of volume, you likely could throw those in the trash and not have any harm come of it. Of course, legislators and activist groups screamed bloody murder from the rooftops over it.

jimwg said...

Not being whimsical here but maybe a seed for a sincere test trial to show up insanity of radiophobia and rad limits. Can one make a case by applying NRC and EPA rules to shut down Grand Central Station and the Empire State Building lobby and half of downtown Manhattan buildings "for the public safety" based on particle emissions of granite and other stones they're made of? If a desert insect can summon a legion of Green lawyers, why not flag some open minded law school eagles looking for a way to make their name to try this?

James Greenidge
Queens NY

Anonymous said...

Well, actually, I used that as an example when I was testifying for our legislators about the proposed BRC rules. Our Statehouse is also made of granite so the background radiation inside is anywhere from two to three times higher than outside. I showed this with a micro-rem meter I brought. Also handed out Radioactive Materials stickers for the legislators to stick on their foreheads because of the 14C they carried around in their living tissues. We also had some bricks, bananas, and a container of salt substitute (KI) to show them that these were the kinds of things they'd be regulating in they passed the legislation they were considering to counteract the NRC's BRC rules. Their whole argument was, "we have to DO something to cover the gap" they thought the NRC was opening by allowing BRC to be used. Well, there was no "gap. It was all hype and FUD.

Mitch said...

I'm game for that! If a minnow can stop industry or development of any kind, why not a radio health hazard legal case here to shut down NYC? People seriously sue for all kinds of ridiculous exaggerated reasons to protect the environment like tritium in VY's ground water or digging up the plant's deep foundations?