The US Court of Appeals for the Eleventh Circuit on July 11 affirmed the decision of the US District Court for the Southern District of Florida that dismissed a putative class action complaint seeking class certification for more than 1 million customers, injunctive relief, and disgorgement of rates collected under Florida’s Nuclear Cost Recovery System (NCRS).

The NCRS is a regulation promulgated by Florida’s Public Service Commission (PSC) after the passage of Florida’s 2006 Renewable Energy Technologies and Energy Efficiency Act (the Act). The NCRS allows a utility, subject to PSC approval, to preemptively charge its customers through an electricity rate increase for “costs incurred in the siting, design, licensing, and construction” of a nuclear project through its completion. The utility retains the funds collected under the NCRS even if the project is never completed. Here, plaintiffs sought to recover monies collected by two utilities under the NCRS for nuclear projects.

As we reported last month, on June 20, the Council on Environmental Quality (CEQ) initiated the rulemaking process to revise its National Environmental Policy Act (NEPA)–implementing regulations by publishing an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register. The ANPR seeks public comments on “potential revisions to update the regulations and ensure a more efficient, timely, and effective NEPA process consistent with the national environmental policy stated in NEPA.” On July 11, the CEQ announced that it is extending the comment period, which was scheduled to close on July 20, for 31 days until August 20, 2018, in response to public requests for a time extension. See 83 Fed. Reg. 32,071 (July 11, 2018). The Federal Register notices also provide instructions for filing comments on the ANPR.

In a June 26 letter, a broad coalition of 77 former government officials, lawmakers, and industry leaders urged US Department of Energy (DOE) Secretary Rick Perry to take “concrete steps” to prevent the premature shutdown of any additional nuclear power plants.

The letter commends Secretary Perry’s support of the nuclear industry to date but asks him to specifically promote the national security significance of nuclear energy. In doing so, the letter underscores the key role that nuclear energy plays in national security, particularly as an essential component of electric grid resilience and the largest source of emission-free generation.

The letter acknowledges that discussions of the general importance of nuclear energy are underway at the Federal Energy Regulatory Commission as well as at the grid operator and state regulator levels, but asserts that only DOE has the power to integrate nuclear power into the broader national security imperatives. The letter notes that such an integration will take time to consider, but asks Secretary Perry to ensure that no more nuclear power plants are closed in the meantime.

This letter appears to support President Donald Trump’s June 1 request for DOE to take measures to prevent further closures of nuclear power plants due to a national security interest in securing the national power grid's resilience.

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The times they are a-changin’ and we need to change with them. Colloquially speaking, this is the overarching theme of SECY-18-0060, “Achieving Modern Risk-Informed Regulation,” an NRC Staff-authored paper that seeks Commission approval of several significant proposed revisions to the NRC’s regulatory framework. The May 2018 paper, only recently released to the public, represents another milestone in the agency’s “transformation initiative,” which seeks to identify and implement potential enhancements to the NRC’s regulatory framework, culture, and infrastructure. Such changes are intended to facilitate the NRC’s “effective, efficient and agile regulation of new technologies”—particularly advanced non-light water reactors (non-LWRs)—in a manner that still advances the Commission’s core safety and security missions under the Atomic Energy Act of 1954, as amended.

The US Nuclear Regulatory Commission (NRC) issued interim guidance on June 15 for dispositioning Severity Level (SL) IV violations that do not have an associated performance deficiency (PD). The interim guidance states that these violations will instead be issued to licensees without any required review by NRC headquarters. According to the NRC, this interim guidance is designed to reduce NRC Staff resources that previously were necessary for associated exercises of enforcement discretion by the Offices of Enforcement and Nuclear Reactor Oversight. The NRC believes these resource expenditures are “unwarranted in light of the very low safety significance of these violations, the fact that similar violations with an associated PD wouldn’t normally require such a review, and the fact that the violation needs to be corrected by the licensee regardless of whether or not a PD exists.”

This interim guidance can be used for non-willful and NRC-identified, licensee-identified, or self-revealed SL IV violations without an associated PD, as long as the violation meets the criteria described in Section 2.3.2 of the Enforcement Policy for disposition as a non-cited violation. An NRC-identified or self-revealed SL IV violation without an associated PD must be documented according to Table 3 in Inspection Manual Chapter (IMC) 0611. A licensee-identified SL IV without an associated PD must be documented according to Table 8 in IMC 0611. Violations dispositioned using this interim guidance also will not be assigned a Reactor Oversight Process (ROP) color. SL I, II, and III violations without an associated PD that are being considered for enforcement discretion will continue to follow existing guidance in Inspection Manual Chapter (IMC 0611).

We reported last month that the Council on Environmental Quality (CEQ), the US federal agency responsible for coordinating and overseeing federal agency implementation of the National Environmental Policy Act (NEPA), had signaled its intention to update the CEQ’s longstanding NEPA-implementing regulations (40 CFR Parts 1500-1508). On June 20, the CEQ initiated the rulemaking process by publishing an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register (83 Fed. Reg. 28,591). The ANPR seeks public comments “on potential revisions to update the regulations and ensure a more efficient, timely, and effective NEPA process consistent with the national environmental policy stated in NEPA.” The deadline for comments is July 20, 2018.

The commissioners from the Nuclear Regulatory Commission (NRC) and the Federal Energy Regulatory Commission (FERC) held a joint meeting to discuss grid reliability and cybersecurity, including issues such as nuclear new build that factor into power availability. Both NRC and FERC staff provided presentations on the activities of both agencies to promote a stable, resilient, and secure grid, and a representative from the North American Electric Reliability Corporation (NERC) addressed grid reliability.

Massachusetts Senator Edward Markey submitted a letter on April 23 to Chairman Kristine Svinicki of the Nuclear Regulatory Commission (NRC) expressing serious concerns over the storage of spent nuclear fuel at US nuclear sites, particularly at shutdown nuclear plants. Mr. Markey stated that the “NRC regulations must ensure that dry casks are not vulnerable to flooding, corrosion, and other damage, especially as climate change contributes to rising sea levels and increasingly severe and unpredictable storms.” About a month earlier, following the March 21, 2018, oversight hearing in the Senate Environment and Public Works Committee, Mr. Markey had submitted similar questions to the NRC, including “how and whether climate change projections are integrated into the NRC’s Safety Standards and how they will be included in the NRC’s forthcoming rule governing decommissioned nuclear plants.” In his most recent letter, he requested responses to four specific questions on the issue, including: “What is the protocol for continual monitoring of spent fuel sites?”, “What time span and which climate models are used for post-Fukushima flooding reevaluation?”, and “What research has the NRC done on possible corrosion of the dry casks by exposure to salt water?”

The US Court of Appeals for the Fifth Circuit on June 1 dismissed all of the claims brought by Texas seeking to compel a final decision on Yucca Mountain’s suitability as a nuclear waste repository. See Texas v. United States et al., Case No. 17-60191. The Fifth Circuit found that most of Texas’s claims were untimely, and the remaining, timely claims failed because they were outside of the court’s jurisdiction.

Texas petitioned the Fifth Circuit on March 14, 2017, arguing that several federal entities, including the Nuclear Regulatory Commission (NRC) and the US Department of Energy (DOE), had violated their obligations under the Nuclear Waste Policy Act of 1982 (Waste Act) by failing to accept waste by 1998; failing to complete the Yucca Mountain licensing project by 2012; and exploring “consent-based” siting as an alternative option for waste storage. Texas sought, generally, “equitable relief prohibiting [the Department of Energy] from conducting any other consent-based siting activity and ordering Respondents to finish the Yucca licensure proceedings.” After filing its petition, Texas moved for declaratory and injunctive relief, to which Nevada responded with a motion to dismiss.