Up & Atom

The NRC is undergoing a period of transition, including the unexpected departure of Commissioner Christopher Hanson.

The US Supreme Court continues to reshape administrative law. In its recent decision, Seven County Infrastructure Coalition v. Eagle County, Colorado, the Court unanimously (8-0) instructed federal courts to defer to administrative agencies on the depth and breadth of environmental reviews required by the National Environmental Policy Act (NEPA).

President Donald Trump recently established the National Energy Dominance Council through an executive order aimed at increasing the United States’ energy production and achieving energy dominance. The executive order seeks to promote the use of US natural resources, including uranium, and the Council has been tasked with providing recommendations to the president within 100 days, including actions that can be taken to bring small modular nuclear reactors online.

The NRC’s Office of Investigations (OI) recently published its Annual Report for Fiscal Year 2024, summarizing its activities from October 1, 2023 through September 30, 2024. According to the annual report, OI opened 82 new cases in FY 2024, the same number it opened in FY 2023. But OI increased its number of case closures in FY 2024 and closed 82 cases compared to 72 closures in FY 2023, a 14% increase. In total, OI conducted 129 investigations in FY 2024. Below, we analyze how OI investigations compare to the previous fiscal year and significant OI investigations highlighted in the Annual Report.

The US Department of Energy’s failure to transport and store spent nuclear fuel (SNF) pursuant to the Nuclear Waste Policy Act has required the government to reimburse the industry for substantial storage costs, and future payments are expected to increase. The DOE expects that its SNF liability has increased approximately 10% within the past year. While there are no expectations for a spent fuel storage solution in the United States anytime soon, other countries are establishing nuclear waste repositories.

The National Environmental Policy Act of 1969 (NEPA) requires federal agencies, including the Nuclear Regulatory Commission (NRC), to evaluate the potential environmental impacts of their proposed actions. That statute also established the White House Council on Environmental Quality (CEQ), which was tasked with issuing NEPA implementation guidelines.

The demand for energy is anticipated to rise significantly due to the increased deployment of artificial intelligence (AI) technologies, which are highly energy intensive. As we discussed in a recent thought leadership piece, there is a strong intersection between nuclear power and AI. Not only is nuclear power generation well-positioned to address the growing need for powering AI, but the nuclear power industry and its primary regulator, the US Nuclear Regulatory Commission (NRC) are looking to leverage AI to increase efficiency and strategic decision-making.

The US Supreme Court’s recent Loper Bright decision overturned its 1984 Chevron decision, which, over the last 40 years, had become a fundamental doctrine in administrative law. That doctrine, known as the “Chevron deference,” instructed reviewing courts to defer to agency interpretations of ambiguous statutory provisions if a permissible construction of the statute. While many agencies relied on Chevron deference to defend challenges to their rulemakings and other regulatory actions, the NRC has rarely needed to do so.

Morgan Lewis routinely assists licensees in connection with NRC allegations, investigations, and enforcement. The following are summaries of trends and findings in the NRC’s 2023 Allegation Program Annual Trends Report and Enforcement Program Annual Report.

The NRC’s Acting Executive Director for Operations recently issued the results from the NRC staff’s annual Reactor Oversight Process (ROP) self-assessment for calendar year 2023. Out of the 17 metrics it evaluated, the NRC staff found that two did not meet or exceed expected performance, resulting in “yellow” findings. This is an overall improvement from the 2022 self-assessment, which had two “yellow” and two “red” findings due, in part, to continuing challenges from the COVID-19 pandemic. Overall, the staff concluded that the “ROP remained effective in achieving its goals of being objective, risk-informed, understandable, and predictable, as well as in supporting the agency’s strategic goals.”