Putting aside the climate change politics swirling around US President Donald Trump’s recent executive order on “Promoting Energy Independence and Economic Growth,” what does the order mean for the nation’s electric generation portfolio? Can the gradual decline in the role of coal-fired generation be reversed?

The executive order, released on March 28, 2017, calls for increased domestic energy production from coal, natural gas, nuclear material, and other domestic sources, explicitly balancing the need to “promote clean and safe development” of energy resources with “avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” In addition to revoking various Obama-era executive orders on climate change and carbon emissions and rescinding various reports issued by federal agencies on these topics, the executive order also directs the Environmental Protection Agency (EPA) to review the Clean Power Plan in the context of the domestic production policy adopted in the executive order and to, “as soon as practicable, suspend, revise, or rescind” the rule.  

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It reads like a spy novel: a fictitious company rents a storefront and applies to the Nuclear Regulatory Commission (NRC or Commission) and state regulators for a license to acquire radioactive materials and succeeds in getting the license—but it isn’t fiction. The year was 2014, and the fictitious company was the US General Accounting Office (GAO) trying to determine the adequacy of the NRC’s security and accountability program for radioactive sealed sources. Since the issuance of the 2015 GAO report describing the vulnerabilities in the NRC’s radioactive source security (RSS) program, the NRC has been examining ways to improve it.

As part of its internal examination, the NRC recently released an informational paper (SECY-17-0025) announcing updates on its activities involving security and accountability for radioactive sources. On the heels of the 2015 GAO report, the NRC created two working groups to identify RSS program enhancements. A steering committee led by the NRC and state representatives reviewed these initial working groups’ recommendations and endorsed some for further evaluation.

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The recently published US Nuclear Regulatory Commission (NRC) Office of Investigations (OI) Annual Report noted a 28% increase in the number of discrimination investigations in FY 2016 as compared to FY 2015. “Discrimination” in this context refers to retaliation for engaging in protected activities established in Section 211 of the Energy Reorganization Act of 1974, as amended. OI conducts investigations at both reactor and materials sites, either at the request of specific NRC officials or on its own initiative. Of the 119 cases opened in FY 2016,

• 39% were discrimination investigations;
• 20% were investigations into suspected material false statements;
• 24% were investigations into potential violations of other NRC regulatory requirements; and
• 17% were assists to NRC staff.

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On March 1, the US Nuclear Regulatory Commission (NRC) released a report from the NRC’s Office of the Inspector General (OIG) titled “Audit of NRC’s Oversight of Security at Decommissioning Reactors.”

As noted in the report, as of February 2017, there are 20 nuclear reactors undergoing decommissioning in the United States, and four other plants have advised NRC of their intent to cease operations by 2019. The objective of the audit was to determine whether NRC’s oversight of security at these decommissioning reactors provides for adequate protection of radioactive structures and systems. While somewhat light on details, OIG found that NRC’s oversight of security at decommissioning reactors provides for adequate protection—with two areas for improvement related to fitness-for-duty and fatigue management.

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Senator Benjamin Cardin (D-MD), along with a bipartisan group of senators that includes John McCain (R-AZ), Marco Rubio (R-FL), Lindsey Graham (R-SC), Amy Klobuchar (D-MN), and Dick Durbin (D-IL), introduced S.94, the “Counteracting Russian Hostilities Act of 2017.” While widely reported on for its proposed sanctions on the Russian Federation for cyberattacks on the United States, S.94 also contains a little-discussed provision aimed at civilian nuclear trade with Russia.

Section 209 of the bill would penalize any person who makes an investment that directly and significantly contributes to enhancing the ability of the Russian Federation to construct civil nuclear power plants. While the bill certainly covers the construction of civil nuclear plants in Russia, it is broadly phrased in a manner that could cover Russia’s construction of civil nuclear plants in other countries as well. The restriction on investments is limited to nuclear power plant construction, but the bill also would penalize any person who sells, leases, or provides goods, services, technology, information, or support to the Russian Federation that “could directly and significantly facilitate the maintenance or expansion of the construction, modernization, or repair of civil nuclear plants by the Russian Federation.” The dollar threshold for investments or goods, services, etc. is $1 million per transaction and $5 million per 12-month period.

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On February 23, the Federal Energy Regulatory Commission (FERC) and the US Nuclear Regulatory Commission (NRC) held a joint meeting to discuss “Grid Reliability, Protection of Critical Infrastructure Information, and Nuclear Power Plants.”

During the meeting, Bill Dean, Director of NRC’s Office of Nuclear Reactor Regulation, gave a presentation titled “Nuclear Power Plants Operations: Outlook and Outputs.” Mr. Dean noted that the 99 commercial power reactors currently in operation in the United States produce approximately 100,000 MWe, and of those 99 reactors, 87 have been issued renewed operating licenses for an additional 20 years of operation (i.e., up to 60 years). But even with renewed licenses, currently operating plants will reach 60 years of operation as early as 2029, and without subsequent license renewal (SLR) (allowing plant operation up to 80 years), electric generation from nuclear plants will drop to nearly zero by approximately 2050.

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On February 13, the US Nuclear Regulatory Commission (NRC) held a second public meeting regarding the role of third parties in reviewing and possibly reversing licensee access authorization and fitness-for-duty (FFD) determinations. The NRC currently is preparing a draft regulatory basis document to identify issues in the existing regulatory framework, the scope of those issues, and how to resolve them. The regulatory basis will propose one of several possible solutions, which include taking no action, revising regulations, revising guidance, or issuing a Commission Policy Statement.

We previously reported on NRC’s first public meeting on this topic held in November 2016. The NRC also held a closed meeting in December 2016 with representatives from the International Brotherhood of Electrical Workers (IBEW). IBEW requested the closed meeting to discuss and challenge specific details within SECY-15-0149, the NRC staff paper which, among other things, is the underlying basis for the current pre-rulemaking activities. IBEW also requested the February 13 public meeting; however, it is unclear why, as IBEW did not present any views or comments that it had not already presented at prior meetings.

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Over the last few years, a Defense Science Board task force evaluated energy systems for remote or forward operating bases, and its final report, dated August 2016, was recently made available to the public. The task force’s goal is to replace the diesel generators that serve as the standard electrical power source at these military bases. Alternate energy sources evaluated by the task force included very small modular nuclear reactors (vSMRS). vSMRs are designed to operate at less than 10 megawatts and to fit in a typical shipping container—in comparison to utility-scale reactors, which typically operate at 1,000 megawatts and are not mobile.

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Section 50.69 of the regulations of the Nuclear Regulatory Commission (NRC) provides an option for licensees of nuclear power plants to establish a program for risk-informed treatment of structures, systems, and components (SSCs), such as quality assurance and maintenance. Implementation of Section 50.69 should result in less burdensome treatment requirements for SSCs that have low safety significance, as determined through a risk-informed categorization process.

The industry has developed a draft template for license amendment requests (LARs) to implement 10 CFR 50.69. The purpose of the template is to expedite NRC review and approval of LARs submitted pursuant to Section 50.69.

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Congratulations to Morgan Lewis client NuScale Power on submitting to the Nuclear Regulatory Commission (NRC) the first-ever application for design approval of a small modular reactor (SMR). The NuScale SMR is designed to supply safe, affordable, clean, reliable power in scalable plants whose facility output can incrementally increase depending on demand. Its significant operational flexibility is also complementary to other zero-carbon sources like wind and solar.

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