As we reported in 2017, the United Kingdom’s exit from the European Union, set for March 29, 2019, will also include withdrawal of the United Kingdom from the European Atomic Energy Community (Euratom). Exports of nuclear materials, goods, and services from the United States to the United Kingdom currently are authorized through the US–Euratom agreement and the Euratom Cooperation Act of 1958. Essentially, these arrangements are the substitute for a bilateral agreement for cooperation in the peaceful uses of nuclear energy pursuant to Section 123 of the Atomic Energy Act of 1954, as amended (a 123 Agreement), with each of the 28 member countries of Euratom.
The Office of the Federal Register (OFR) is impacted by the partial government shutdown, and is now operating under the special procedures set forth in its December 10, 2018, notice (83 Fed. Reg. 63540) that anticipated a potential funding hiatus. In order to comply with the Antideficiency Act, the OFR will not publish routine notices, but rather it is requiring that agencies such as the Nuclear Regulatory Commission (NRC) certify that any notice to be published in the Federal Register meets an applicable exemption for “emergencies involving the safety of human life or protection of property.” By the express language in 31 USC § 1342, as amended in 1990, this exemption “does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.” Therefore, the NRC staff has indicated that publication of a notice for a licensing action, such as a notice of an application for a license amendment, could be delayed due to the above limitations.
A partial government shutdown currently looms on the horizon. The US Nuclear Regulatory Commission (NRC), however, has a budget funded through FY 2019, so it would not be impacted if the government shuts down.
The NRC did experience the effects of a federal government shutdown in 2013. Then, the NRC furloughed 3,600 of 3,900 staff members. The 300 essential personnel who stayed on included about 150 resident inspectors. All public meetings were suspended, and Atomic Safety and Licensing Board hearings were postponed. However, the Inspector General’s Office, as well as the NRC’s hotline for safety and security concerns, continued to function.
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.”
Join us for these upcoming programs:
- Transmission Upgrades and Reconductoring Technologies Conference │ October 10, 2018 Conference │ Presenter: J. Daniel Skees
- Ensuring Your COP Meets Regulatory Requirements & Avoids Legal Challenges │ October 17, 2018 │ Conference │ Presenter: Geraldine E. Edens
- Nuclear Regulatory Roundup Q3 2018 │ October 23, 2018 │ Webinar │ Presenters: Alex Polonsky, Stephen Burdick
- Implications of NERC’s Proposed New Reliability Standard │ October 31, 2018 │ Webinars │ Presenters: J. Daniel Skees; Arjun Prasad Ramadevanahalli; Serge Agbre
- Legal Perspectives on NERC Cyber Security Supply Chain Risk Management Standard │ November 14, 2018 │ EBA Roundtable │ Presenter: J. Daniel Skees
Visit the Morgan Lewis events page for more of our latest programs.
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.