The Council on Environmental Quality (CEQ), the US federal agency tasked with coordinating and overseeing federal agency implementation of the National Environmental Policy Act (NEPA), has signaled its intention to update the CEQ’s longstanding NEPA-implementing regulations (40 CFR Parts 1500-1508). That intention is reflected in the spring 2018 version of the semiannual “Unified Agenda of Federal Regulatory and Deregulatory Actions” (Unified Agenda) published by the Regulatory Information Service Center and the Office of Management and Budget’s Office of Information and Regulatory Affairs. According to the CEQ's statement in the Unified Agenda, “[w]hile CEQ has issued memoranda and guidance documents over the years, CEQ believes it is appropriate at this time to consider updating the implementing regulations.”

The US Department of Energy’s National Nuclear Security Administration (NNSA) recently posted new guidance “to highlight and explain continuing obligations relating to [10 CFR] Part 810, especially as they relate to post-employment activities such as independent consulting or employment by a nuclear related company.” Based on prior NNSA statements, this guidance is a direct response to recent criminal cases, which highlighted for NNSA that retirees from US nuclear companies might not be aware of their continuing obligations to protect Part 810-controlled information. The training does a good job of summarizing Part 810’s requirements, and is a good step towards protecting US national security and non-proliferations interests, but the slide deck contains a few statements that require clarification.

NNSA’s guidance takes the form of a slide presentation and a template certification for employees to sign after they take the training.

A recent LawFlash by our antitrust lawyers explains that the focus on “no-poaching” agreements is part of a growing trend for competition enforcers in the United States, the European Union, and Asia. To ensure that their hiring practices do not run afoul of anti-competition laws, employers—including those in the energy industry—should take several steps, such as training their HR staff in antitrust rules and reviewing their hiring agreements. Agreements with competitors not to poach each other’s staff or to fix pay rates at specific levels may be considered illegal anti-competitive behavior and at risk for large fines and criminal convictions in certain jurisdictions. Employers should consult their legal teams and consider the current and historical practices in this area to ensure that they are in compliance with best practices and to minimize exposure in respect of any historical conduct. Read the full LawFlash.

The US Department of Commerce (DOC) issued a Final Rule on April 5 to add a new Export Control Classification Number (ECCN) to the Commerce Control List (CCL) for targets used for tritium production. The new ECCN, “1A231” requires a license for shipments of the targets, components used for production of the targets, and the associated technology for all destinations except those that are members of the Nuclear Suppliers Group (NSG) (except China). However, the Final Rule actually reduces the restrictions on these components and related technology from the level of previous control.

ECCN 1A231 defines the affected targets as those “made of or containing lithium enriched in the lithium-6 isotope ‘specially designed’ for the production of tritium through irradiation, including insertion in a nuclear reactor” or components “specially designed” for such targets. A Technical Note in the ECCN states that components “specially designed” for “target assemblies for the production of tritium may include lithium pellets, tritium getters, and specially-coated cladding.” The new rule also adds the related “production” and “use” technology for ECCN 1A231 to existing ECCNs 1E001 and 1E201.

The US Nuclear Regulatory Commission (NRC) staff recently published a paper, SECY-18-0035, with an update regarding its development of a Controlled Unclassified Information (CUI) Program for the agency. The staff is still in the early stages of developing the program, which it plans to implement over the next three and a half years.

The US National Archives and Records Administration (NARA) published the CUI Rule on September 14, 2016 (81 Fed. Reg. 63,324), to implement Executive Order 13556, which President Barack Obama issued on November 4, 2010. The CUI Rule seeks to standardize the current patchwork of more than 100 agency-specific policies for handling sensitive unclassified information that requires safeguarding or dissemination controls. The NRC CUI Program will eventually replace the current Sensitive Unclassified Non-Safeguards Information (SUNSI) program, and will also include Safeguards Information (SGI).

The Nuclear Regulatory Commission (NRC) staff recently published its views on the applicability of a 1987 policy statement to the holders of combined licenses (COLs) who defer or terminate the construction of new reactor projects.

During construction of nuclear power plants licensed by the NRC, plant owners occasionally decide to either postpone or stop construction. In late 1987, the Commission issued its Policy Statement on Deferred Plants (52 Fed. Reg. 38,077) to address the procedures that apply to nuclear power plants under these circumstances, including “deferred plants,” which could reactivate construction, and “terminated plants,” which have announced that construction has been permanently stopped. The policy statement addresses topics such as maintenance, preservation, and documentation of equipment; the process for reactivating construction; and withdrawal of a construction permit.

The US Nuclear Regulatory Commission (NRC) Office of Investigations (OI) recently published its Office of Investigations Annual Report FY 2017, which provides an overview of OI’s activities during the past fiscal year.

Notably, the report reveals that the largest category of OI investigations continues to be discrimination cases. “Discrimination” in this context refers to retaliation for engaging in protected activities established in Section 211 of the Energy Reorganization Act of 1974, as amended. Of the 115 OI investigations opened in FY 2017, 41 (36%) were discrimination cases. Although the number and proportion of discrimination investigations have slightly decreased from FY 2016, during which 46 (39%) of the opened cases were discrimination cases, discrimination has remained the largest case category for the past two years.

On February 7—the same day that the US Nuclear Regulatory Commission (NRC) issued its updated Regulatory Analysis focused on making the decommissioning process more efficient and less costly—two pieces of legislation were reintroduced in the Senate that would have the opposite effect.

The Safe and Secure Decommissioning Act of 2018 (S. 2396), introduced by Senator Kamala Harris (D-Calif.) and cosponsored by Senators Edward Markey (D-Mass.), Bernie Sanders (D-Vt.) and Kirsten Gillibrand (D-NY), would prohibit the NRC from authorizing waivers or exceptions to emergency planning requirements until all fuel has been moved to dry storage containers. According to Senator Gillibrand, “Americans should know that safety is the most important priority at nuclear plants across the country, including at plants that are being decommissioned.” This legislation, however, appears to be aimed at directly countering the NRC’s current plan to pursue rulemaking to propose a graded approach to emergency planning that is commensurate with the reductions in radiological risk at the four stages (or levels) of decommissioning:

The US Nuclear Regulatory Commission (NRC) published a notice in the February 7 Federal Register of the availability of its new Regulatory Analysis for Regulatory Basis: Regulatory Improvements for Power Reactors Transitioning to Decommissioning. This update considers comments received on the preliminary draft regulatory analysis that was issued for public comment on May 9, 2017. At nearly 200 pages, the updated analysis presents the costs, benefits, and other economic impacts to industry, government, and society from the NRC staff recommendations considered in the regulatory basis. In the end, however, the staff maintains the course it set several years ago. And importantly, the staff continues to emphasize that it has not identified any safety or security concerns in the current regulatory framework for decommissioning power reactors, but notes that by revising its regulations to achieve a long-term regulatory framework for decommissioning, the NRC can reduce the filing and processing of individual licensing actions and make the decommissioning process less costly and more efficient and predictable. This continues to be an important goal, especially considering that most nuclear plants are being shut down primarily for economic reasons.

The key finding of the analysis is that there continues to be sufficient justification to proceed with rulemaking in the areas of Emergency Preparedness; Physical Security; Cyber Security; Fitness for Duty—Drug and Alcohol Testing; Minimum Staffing and Training Requirements for Non-Licensed Operators, Including Certified Fuel Handlers; Decommissioning Funding Assurance; Offsite and Onsite Financial Protection Requirements and Indemnity Agreements; and Application of the Backfit Rule. The focus on these areas is not surprising as they generally reflect current standard decommissioning practices—implemented now through time-consuming and costly individual licensing actions including amendments and exemptions.