Public comments made last week by Federal Energy Regulatory Commission Chief of Staff Anthony Pugliese before the American Nuclear Society indicate that the agency is working with other federal government officials to identify power plants that are “absolutely critical” to the grid, E&E News reported.
As William Faulkner once said, “The past is never dead. It’s not even past.” Major infrastructure project developers may feel this way when preparing for environmental reviews as part of licensing action due to a new decision from the US Court of Appeals for the DC Circuit. In American Rivers v. FERC, Case Nos. 16-1195 & 16-2336 (2018), the DC Circuit found that the actions of the Federal Energy Regulatory Commission (FERC) were arbitrary and capricious when the agency issued a renewed operating permit to a hydroelectric plant. The DC Circuit concluded that the supporting environmental analysis treated the continued operation of the plant as the “environmental baseline” and therefore failed to consider the environmental impacts associated with the initial licensing, construction, and operation of the plants.
The facts of American Rivers are straightforward. When a utility applied to relicense its hydroelectric plants along the Coosa River in Alabama, the US Fish and Wildlife Service (USFWS) and FERC were required to analyze the environmental impacts of relicensing by the Endangered Species Act and the National Environmental Policy Act (NEPA). The two government agencies did so, but used the current status of the Coosa River, i.e., with multiple hydroelectric projects already built along the river, as the “environmental baseline” from which the analyses began. By utilizing this baseline, the analyses only considered changes to the current conditions of the river, while environmental groups argued that the existing plants on the river had already had detrimental impacts on various endangered aquatic animals and the environment. Those groups argued that beginning the analyses from the current “degraded” baseline was not permissible and that the analyses needed to consider the impacts from project construction and operation in the past.
The US Department of Homeland Security (DHS) recently confirmed that state-sponsored hackers successfully gained access to the control rooms of US electric utilities and likely had the ability to disrupt power flows. The Wall Street Journal report describes the activities as part of a long-running campaign targeting US utilities. These cyberattacks were first disclosed in a Technical Alert issued by DHS earlier this year. The attacks are another example of the need for continued vigilance in protecting industrial control systems and the importance of strong vendor and supply chain cybersecurity controls for utilities.
The attackers reportedly gained access to secure networks by first exploiting the networks of trusted third-party vendors through the use of familiar tactics, such as spear-phishing emails and watering-hole attacks. Armed with vendor access credentials, the attackers then pivoted into the utilities’ isolated “air-gapped” networks and began gathering information on their operations and equipment. The extent of the attack remains unclear based on publicly available information, and DHS did not state whether any nuclear power stations were targeted in this latest round of attacks. Importantly, however, DHS stated that some companies may not yet know they were victims of the attacks because the hackers used the credentials of actual employees to access networks, thus making detection more difficult.
Christopher Ford, assistant secretary of the Bureau of International Security and Nonproliferation at the US State Department, spoke on July 11 at the Project on Nuclear Issues (PONI) 2018 Summer Conference on nuclear technology transfer to China. PONI is a program hosted by the Center for Strategic and International Studies to further discussions on nuclear technology’s role throughout the world. Dr. Ford discussed how China’s explicit national policy of removing barriers between its civilian and military industries affects US export control policy for certain commercial nuclear technologies. This speech is important because, in our view, it publicly articulates the policy toward China that the US government has been implementing behind the scenes for some time.
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.
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.
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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- Navigating #MeToo Issues in the Energy Industry | July 19, 2018 | Morgan Lewis Webinar presented by Margaret Erin Rodgers Schmidt; Jane T. Accomando; Pamela Tsang Wu
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- Regulatory Challenges to Planning a More Resilient Transmission System | August 01, 2018 | Morgan Lewis Webinar presented by J. Daniel Skees; Stephen M. Spina; Arjun Prasad Ramadevanahalli
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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).
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.