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.

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.

President Donald Trump directed Energy Secretary Rick Perry late last week to “prepare immediate steps to stop the loss” of “fuel-secure power facilities” arguing that a decline in coal and nuclear generation is jeopardizing the nation’s security. The federal government has not yet disclosed what those steps might be or which generation facilities are at issue. Nonetheless, press reports from CNN and Bloomberg, among others, suggest that the US Department of Energy (DOE) is considering a directive requiring Independent System Operators and Regional Transmission Operators (ISOs/RTOs) to purchase energy from designated “fuel-secure” plants for a period of up to, and possibly more than, 24 months to prevent any near-term decommissioning.

The US Department of Justice (DOJ) and the Federal Energy Regulatory Commission (FERC) filed a joint brief on May 29 in the US Court of Appeals for the Seventh Circuit, stating that Illinois’ zero emission credit (ZEC) program for eligible nuclear plants in Illinois is not preempted by the Federal Power Act (FPA). Because the panel in a substantially similar case pending in the Second Circuit has indicated that it would review the government’s filing in the Seventh Circuit case, the views of FERC and DOJ could be critical as this issue plays out in the federal court system.

The Illinois legislature passed a law in 2016 requiring utilities to purchase ZECs at administratively set prices from nuclear plants in the state. Generators that compete with the ZEC-receiving nuclear plants challenged the law, arguing that the ZEC program is preempted by the FPA. The district court upheld the program, and the generators appealed the decision to the Seventh Circuit. FERC did not take a position in the trial court but has now done so after the Seventh Circuit invited the US government to file a brief.

Annie Caputo and David A. Wright, nominated by President Donald Trump and confirmed by the US Senate last week, were sworn in on May 30 as commissioners of the US Nuclear Regulatory Commission (NRC). Ms. Caputo will serve the remainder of a five-year term ending June 30, 2021, and Mr. Wright will serve the remainder of a five-year term ending June 30, 2020. The Senate also reconfirmed Jeffrey Baran to serve a second term as commissioner, with the new term expiring on June 30, 2023. He will be sworn in at a later date.

Ms. Caputo and Mr. Wright join Mr. Baran, Chairman Kristine Svinicki, and Commissioner Stephen Burns on the five-member Commission, which now has no vacancies for the first time since December 2014. Their recent appointments allow the Commission to avoid losing its quorum on June 30, 2018, when Mr. Baran’s current term expires. Ms. Svinicki, Ms. Caputo, and Mr. Wright are Republicans; Mr. Baran is a Democrat; and Mr. Burns is an independent. The NRC’s enabling statute, the Atomic Energy Act of 1954, prohibits more than three NRC commissioners from any single political party from serving simultaneously.

The Nuclear Regulatory Commission (NRC) staff has publicly released a copy of SECY-18-0055 (dated May 7, 2018), which seeks Commission approval to publish a proposed rule to amend NRC regulations related to the decommissioning of nuclear power reactors. If approved, the NRC Staff will publish the proposed rule in the Federal Register for a 75-day public comment period. The proposed rule, which is accompanied by a draft regulatory analysis and a draft environmental assessment, represents the latest step in a rulemaking process that the NRC staff commenced in December 2014, when the Commission directed the staff to proceed with an integrated rulemaking on power reactor decommissioning in response to the increasing number of power reactors entering decommissioning. Notably, since 2013, six power reactors have permanently shut down, defueled, and entered decommissioning, and 12 additional reactor units are slated to do the same.

The types of potential accidents at decommissioning reactors are substantially fewer, and the risks of radiological releases are substantially lower, relative to those at operating reactors. Certain NRC decommissioning regulations, however, do not specifically account for this important difference between shutdown and operating plants. This fact has prompted decommissioning licensees to request resource intensive regulatory exemptions and related license amendments. Accordingly, the principal purpose of the proposed rule is to increase regulatory efficiency by aligning decommissioning requirements with the reduction in radiological risk that occurs over time (such that fewer plant-specific exemptions and license amendments are necessary) while still adequately protecting public health and safety and maintaining security. The proposed rule seeks to achieve this end by adopting a “graded approach” in several areas that is commensurate with the reductions in radiological risk that occur as a plant progresses through the decommissioning process (i.e., by removing all spent fuel from the reactor vessel, allowing sufficient decay of the fuel in the spent fuel pool, transferring all fuel to dry storage, and removing all fuel from the site).