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.

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 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.

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.

The National Labor Relations Board (Board) published a Notice of Proposed Rulemaking and Request for Comments in the Federal Register on September 14. The proposed rule seeks to reestablish the standard for determining joint-employer status that existed before the Board’s 2015 Browning-Ferris Industries of California decision.

This is a potentially significant development for companies in the nuclear industry, particularly for those with unionized workforces. But the proposed rule is also important for nuclear companies with nonunion workforces because joint-employment issues frequently arise in whistleblower cases, in which contract employees seek to hold the utility liable under Section 211 of the Energy Reorganization Act, as well as their actual employer (the contracting company). Although the US Department of Labor (DOL)—not the Board—adjudicates Section 211 claims, DOL sometimes considers Board decisions in its adjudications. Consequently, the proposed rule, if ultimately promulgated, will likely inform future Section 211 cases.

The NRC’s Office of Nuclear Reactor Regulation (NRR) recently issued an update on the status of resolving the recommendations made by the NRC’s Office of Inspector General (OIG) in its audit of NRC’s Significance Determination Process (SDP) for reactor safety.  The update addresses the progress made towards resolving the four recommendations from the audit.

The first recommendation was to “assess SDP workflow and establish, communicate, and document clear and consistent expectations for staff and managers to complete their roles in the SDP.”  In its update, NRC reported on the Inspection Finding Resolution Management (IFRM) trial period and the results of an effectiveness review report.  The effectiveness review report made 11 recommendations, most notably that the IFRM process should be continued with some changes.  Staff is now revising procedures used to support the IFRM trial period, which will become the new IMC 0609, IMC 0609, Attachment 1, and IMC 0609 Attachment 5.  Staff intends to issue the revised procedures by the end of 2018.

The US Court of Appeals for the Seventh Circuit on September 13 affirmed a decision of the US District Court for the Northern District of Illinois that dismissed two complaints seeking to invalidate the Illinois Zero Emission Credits (ZEC) program.

The Illinois ZEC program was created in 2016 as part of the Future Energy Jobs Act. A ZEC is a credit that represents the environmental attribute of one megawatt hour of energy produced from an eligible zero-emission facility as defined by the statute. The Illinois Power Agency confers ZECs to eligible facilities generating zero-emission power and requires utilities to purchase those ZECs. The act set an initial price for ZECs based on a calculated “social cost” of carbon, but the price can adjust downward based on an index of wholesale power prices. While the eligible zero-emission generators will still participate in wholesale electricity markets, ZECs provide additional out-of-market payments to compensate the generators for their zero-emission power.