In a recent lawflash, our colleagues in the litigation and environmental practice analyze the implications of the recent DC Circuit ruling in favor of the EPA’s national priorities listing (NPL) decisions. Meritor, Inc. challenged the US Environmental Protection Agency’s (EPA’s) listing of one of their facilities on the NPL under recent regulatory revisions that allowed the agency to consider “subsurface intrusion.” The DC Circuit rejected Meritor’s arguments, concluding that EPA’s decision was reasonable and consistent with the governing regulatory provisions. This decision will likely have a significant effect on the evaluation and remediation of contamination beneath manufacturing, chemical, and other industrial facilities around the country.
A federal grand jury in the Eastern District of Kentucky issued an indictment against an individual for transportation of radioactive material generated from fracking activities without compliance with US Department of Transportation hazardous materials regulations. The indictment comes on the heels of increasing focus at the state and federal levels on the safe disposal of so-called “TENORM” wastes, i.e., technologically enhanced naturally occurring radioactive material wastes that are generated as a result of certain mining and manufacturing activities, including hydraulic drilling or “fracking.” The indictment highlights the need for companies to plan for the disposal of TENORM generated during their operations, including performing appropriate due diligence on any contractors they may engage to assist with disposal.
The White House’s Council on Environmental Quality (CEQ) recently published in the Federal Register a final rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act. The final rule is the latest in a series of actions taken by the Trump administration and the CEQ to “modernize and clarify” the CEQ’s National Environmental Policy Act (NEPA) implementing regulations to “facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.”
The CEQ’s NEPA regulations were first published nearly 40 years ago. In the ensuing decades, the scope and duration of federal agencies’ NEPA reviews have grown substantially. Accordingly, stakeholders have pushed to streamline the NEPA review process. In January 2020, CEQ published a notice of proposed rulemaking seeking public input on potential updates to its regulations. In response, CEQ received more than 1.1 million comments. The vast majority of these were form-letter submissions, but CEQ did receive 2,359 unique, substantive comments on the proposed rule. Key similarities and differences in the final rule, and potential implications for NRC license applicants, are summarized below.
To comply with the provisions of the Dodd-Frank Act, the NRC must amend its decommissioning financial assurance mechanisms in 10 CFR Part 30. The NRC promulgated these regulations in the 1980s and 1990s to allow licensees to use parent company and self-guarantee decommissioning financial assurance mechanisms. Owners and/or operators and parent company guarantors could qualify to use these guarantee mechanisms by either meeting financial test metrics or minimum guarantor bond credit rating criteria.
But following the financial crisis of 2007–2008, Congress determined that “ratings on structured financial products have proven to be inaccurate” and that “[t]his inaccuracy contributed significantly to the mismanagement of risks by financial institutions and investors, which in turn adversely impacted the health of the economy.” Accordingly, Section 939 of the Dodd-Frank Act directed each federal agency, including the NRC, to remove any reference to or requirement of reliance on credit ratings and to substitute standards of creditworthiness as each respective agency shall determine as appropriate for such regulations. In accordance with the Dodd-Frank Act, the NRC is proposing to amend 10 CFR Part 30 to remove these credit rating–based requirements.
The NRC Office of Nuclear Reactor Regulation (NRR) recently issued Revision 4 to Office Instruction LIC-203, “Procedural Guidance for Categorical Exclusions, Environmental Assessments, and Considering Environmental Issues.” The update reflects recent NRC organizational changes and internal procedures related to the agency’s environmental review activities. These changes do not impose any new obligations on NRC applicants. However, a proper understanding of the agency’s internal processes can be helpful in developing successful licensing strategies. The key changes are summarized below.
The NRC recently issued its report to Congress on the best practices for the establishment and operation of local community advisory boards (CABs) associated with decommissioning nuclear power plants. This report was required by Section 108 of the Nuclear Energy Innovation and Modernization Act (NEIMA), which was signed into law on January 14, 2019. To date, CABs have been put in place for some, but not all, decommissioning nuclear power plants and there is no formal protocol for their makeup or charter.
The comment period for the NRC’s draft Regulatory Issue Summary (RIS) on true identity verification requirements closed on June 15, 2020. The industry had asked for and received a 45-day extension from the original April 30 deadline to provide comments. As we previously reported, the draft RIS purports to “clarify” licensees’ requirements pursuant to 10 CFR § 73.56(d)(3) to verify the “true identity” of nonimmigrant foreign nationals who are granted unescorted access to nuclear power plants. Comments from the nuclear industry on the draft RIS strongly disagreed with the guidance and emphasized that the guidance “would substantially expand the existing requirement to verify the true identity of non-immigrant foreign nationals.” The industry suggests that the guidance should not be finalized because the draft RIS’s interpretation is unsupported by the language of the regulation and because the NRC did not conduct a backfit analysis under 10 CFR § 50.109. It remains to be seen, however, whether the NRC will be persuaded by the industry’s comments.
Our colleagues in the False Claims Act practice have just announced the publication of Civil False Claims and Qui Tam Actions, Fifth Edition. This comprehensive two-volume treatise— frequently cited by federal and state courts as authority on the False Claims Act (FCA)—provides a full history of the FCA, an in-depth analysis of its liability provisions and the case law interpreting them, extensive perspectives on FCA practice and procedure, and a survey of state and local false claims laws.
The US Department of the Treasury’s Committee on Foreign Investment in the United States (CFIUS) published proposed rule changes on May 21 addressing when parties must notify the Committee of proposed transactions. The current regulations require parties to file a notice when the target US business is classified by one of 27 North American Industry Classification System (NAICS) Codes. The proposed regulations would rely on the US export control regulations and regimes – and not on NAICS codes – to determine when parties must notify CFIUS. In short, although the proposed changes represent an expansion of the potential industries affected by the mandatory declaration requirements through the elimination of the 27 NAICS codes, they narrow the focus for the nuclear industry to those foreign persons (and the countries where they are located) that are subject to export licensing requirements.
The US Department of Labor’s chief administrative law judge (ALJ) issued an administrative order and notice on June 1, indefinitely suspending all in-person hearings before the Office of Administrative Law Judges (OALJ). The indefinite suspension is due to the ongoing coronavirus (COVID-19) pandemic, which continues to cause travel and social proximity risks. Thus, for now, hearings will continue to be held by telephone or videoconference.