On November 19, the Nuclear Regulatory Commission (NRC) Commissioners approved the Staff’s proposed rulemaking plan for expanding physical security licensing options for advanced reactors.

As we previously reported, the NRC Staff sent a report to the Commission on August 1, 2018, that evaluated four options for revising regulations and guidance on physical security for advanced reactors. The report recommended revising applicable regulations and guidance and attached a proposed rulemaking plan. The report noted that the rulemaking would retain the current framework for security requirements in 10 CFR Part 73, but would provide alternatives for the physical security of advanced reactors. According to the report, changes to physical security for advanced reactors would

  • eliminate the need for future applicants to propose alternatives or request exemptions from physical security requirements;
  • recognize technology advancements and design features associated with the NRC-recommended attributes of advanced reactors; and
  • replace prescriptive regulations with risk-informed, performance-based requirements, among other benefits.

The US Nuclear Regulatory Commission (NRC) on October 11 issued its consent to the transfer of the Vermont Yankee Nuclear Power Station (Vermont Yankee) from Entergy Corporation (Entergy) to NorthStar Group Services, Inc. (NorthStar). The transfer paves the way for the accelerated decommissioning of Vermont Yankee, which could be completed as early as 2026.

Just as importantly for the nuclear industry as a whole, the NRC’s consent to the proposed transfer signals for the first time its willingness to consent to a transfer of a nuclear power plant license where: (1) title to the spent fuel is transferred to the new owner; and (2) spent fuel management costs will be recovered in a future settlement of litigation with the US Department of Energy (DOE). These are new precedents that have significant implications for future transfers of shutdown plants.

On October 11, the US government issued its long-awaited US Policy Framework on Civil Nuclear Cooperation with China. Those hoping that the policy announcement would revive stalled applications for exports of technology or equipment to China or open a pathway for future exports were mostly disappointed. While the announcement effectively revived stalled applications, the new policy framework “presumptively denies” all applications to transfer new technology to China, including any exports of technology or equipment for small modular reactors (SMRs) and non–light-water advanced reactors.

The August 2018 enactment of the Foreign Investment Risk Review Modernization Act (FIRRMA) came after more than two years of debate over the appropriate scope of jurisdiction for the Committee on Foreign Investment in the United States (CFIUS). Much has already been written about FIRRMA and its potentially ambitious reach, as well as about the interest by certain parties, including members of Congress, to keep CFIUS away from some transactions. The result was a law that amended a number of provisions defining CFIUS jurisdiction, both expanding and narrowing key parts of the Committee’s reach. The pilot program is focused on certain specific types of transactions, without regard to the country of the acquiring entity, that CFIUS can review under FIRRMA, including transactions involving “Nuclear Electric Power Generation.”

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The US Nuclear Regulatory Commission (NRC) staff is proposing to discontinue a rulemaking relating to third-party reviews of fitness-for-duty (FFD) and access authorization (AA) determinations. The NRC staff announced this proposal when it released reference material on October 1 in advance of an upcoming November 1 public meeting on the rulemaking. Rather than completing the rulemaking, the NRC staff proposes to “update NRC guidance to describe acceptable means of achieving an appeal process, including arbitration” to resolve disputes regarding FFD and AA denials and revocations. One thing this latest NRC action leaves unclear is how licensees required by an arbitrator to reinstate an individual previously found not to be trustworthy or reliable will be impacted under the NRC regulations and enforcement policy.

The US Court of Appeals for the Second Circuit on September 27 affirmed a decision of the US District Court for the Southern District of New York dismissing a complaint seeking to invalidate New York’s Zero Emissions Credit (ZEC) program. This decision comes on the heels of a Seventh Circuit decision affirming the validity of a similar ZEC program in Illinois. In its opinion, the Second Circuit noted that its conclusions accorded with the Seventh Circuit’s decision, which we wrote about in an earlier post.

In late September, the US Nuclear Regulatory Commission (NRC) made public a White Paper that it had initially issued internally to the Office of Nuclear Reactor Regulation (NRR) in March 2012. The White Paper, titled “NRC and Licensee Actions in Response to New Information from a Third Party,” discusses NRC expectations for how licensees should consider new information received from a third party that may affect a plant’s Final Safety Analysis Report (FSAR). It is our understanding that the White Paper is being released at this time due to a Freedom of Information Act (FOIA) request. Nonetheless, licensees should be aware of this White Paper and its potential impact should the NRC decide to apply this “guidance.”

The Nuclear Regulatory Commission (NRC) recently issued Revision 3 of Regulatory Guide (RG) 4.2, “Preparation of Environmental Reports for Nuclear Power Stations.”  Revision 3 provides a long-overdue update to RG 4.2, which was last revised in 1976.  Given the numerous changes to applicable environmental statutes, regulations, and executive orders since that time, the NRC issued two interim staff guidance (ISG) documents in 2014.  Revision 3 incorporates guidance from those ISGs insofar as it relates to information that an applicant must include in its Environmental Report (ER) for any requested permit, license, or other authorization to site, construct, and/or operate a new nuclear power plant.  Prior to issuing RG 4.2, Revision 3, the Staff published a draft version thereof in February 2017 and responded to comments received on the draft.

In a Federal Register Notice issued September 24, the NRC has implemented an inflation adjustment to the amount of Price-Anderson financial protection that is available effective November 1, 2018. The inflation adjustment is mandated every five years under the terms of the Price-Anderson Act, as amended (Section 170 of the Atomic Energy Act of 1954). The maximum total deferred premium will be increased from $121.255 million to $131.056 million, per operating reactor, per incident. The maximum annual assessment will be increased from $18.963 million to $20.496 million, per operating reactor, per incident.