On September 26, the US Court of Appeals for the Ninth Circuit issued an interesting order in the ongoing Navy sailor suit, Cooper et al. v. Tokyo Electric Power Company, Inc., seeking the US Department of State’s views on the pending appeal.

The case involves a tort action brought by US Navy personnel who allege that they suffered radiation-related injuries while providing humanitarian relief from Navy ships located off the shores of Fukushima, Japan, in March 2011. Defendant Tokyo Electric Power Company (TEPCO) owns and operates the Fukushima-Daiichi Nuclear Power Plants, which were damaged as a result of the earthquake and resulting tsunami. Plaintiffs brought suit in the US District Court for the Southern District of California, contending that TEPCO was negligent in operating the plant.

On September 26, Senators Ron Wyden (D-OR), Edward Markey (D-MA), and Claire McCaskill (D-MO) introduced bill S.3394 to amend the Energy Reorganization Act of 1974 (ERA) to modify provisions regarding the protection of employees of the US Department of Energy (DOE) and Nuclear Regulatory Commission (NRC).

This legislation, which impacts all employers covered by the ERA (not just the DOE and NRC as the title suggests), was at least partially prompted by the July 2016 Government Accountability Office (GAO) Report that—in no uncertain terms—criticized the DOE’s weak whistleblower protections. In that report, GAO noted that DOE almost never finds contractors accountable for unlawful retaliation against whistleblowers.

In a September 15, 2016, letter to Exelon, the Nuclear Regulatory Commission’s (NRC’s) executive director for operations (EDO) granted Exelon’s appeal of the NRC’s attempted imposition of a backfit by using the compliance exception to the backfit rule. Using that exception would have allowed the NRC to impose the backfit without justifying its actions from a cost-benefit perspective.

Although this event has been much reported by the various nuclear-related publications, we point you to something contained within the EDO issuance that may have gone unnoticed by those who do not routinely face backfit situations (or choose to not pursue this area of regulatory challenge). In a September 15, 2016, memorandum to William Dean, the director of the Office of Nuclear Reactor Regulation, the EDO repeated numerous times that he recognized the associated technical issues, but in the end, focused on whether the threshold for meeting the compliance backfit exception was met. The threshold involved whether the NRC Staff’s position addressed a failure to meet known and established commission standards because of an omission or a mistake of fact. New or modified interpretations of what constitutes compliance therefore do not fall within the compliance exception.

The UK government has confirmed its commitment to move forward with the construction and operation of Hinkley Point C, the first new nuclear plant to be licensed in the United Kingdom since 1987. As a condition, the British government has stated that it will take a special or “golden” share to prevent the sale of significant ownership interests in Hinkley Point C and future nuclear plants without the government’s consent. However, such a condition should not impose a significant impediment to development of new nuclear power in the UK. In that regard, the condition is no more onerous (and probably less burdensome) than existing requirements in the United States to obtain Nuclear Regulatory Commission (NRC) approval for direct or indirect changes in ownership.