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.
To address national security interests and prevent the unauthorized transfer of scientific and technical information to certain foreign entities, the US Department of Energy (DOE) issued Order No. 486.1 on June 7. The order prohibits DOE employees and contractors from participating in certain “talent recruitment programs” – specifically “talent recruitment programs” of foreign governments determined by the DOE to be a “foreign country of risk.” DOE contractors and subcontractors within the utility and nuclear sectors should be prepared to implement controls to ensure that neither they nor their employees or subcontractors participate in these foreign-sponsored programs for identified countries, which apparently include China and Russia.
The Environmental Protection Agency (EPA) issued three rules on June 19, granting additional powers to states to determine their projected energy resource mixes, including nuclear energy. In response to the rules, utilities should be prepared for possible changes to state policies defining what constitutes “clean” energy and supporting reliability. The rules are intended to go into effect 30 days from their issuance. However, the implementation timeline for the rules is not certain because several states and organizations have stated they intend to challenge the rules in the federal courts.
Representative Elaine Luria (D-VA-02) introduced the Nuclear Energy Leadership Act (NELA) (H. 3306) into the House of Representatives on June 18. According to a press release from the congresswoman’s website, NELA will help to “create high-quality jobs, strengthen national security, reduce foreign energy dependence, and promote emissions-free energy.” Original co-sponsors of the bill include Representative Denver Riggleman (R-VA-05), Representative Conor Lamb (D-PA-17), and Representative Rob Wittman (R-VA-01).
The House bill is the companion to Senate Bill 903 (S. 903) that Senators Lisa Murkowski (R-AK) and Cory Booker (D-NJ), along with 14 other original co-sponsors, reintroduced on March 27. Senators Murkowski and Booker, along with seven other bipartisan senators, originally introduced NELA on September 6, 2018, as Senate Bill 3422 (S. 3422). Although the Senate Subcommittee on Energy held hearings on S. 3422 in November 2018, it took no further action before the end of the 115th Congress. The bill consequently lapsed, requiring the senators to reintroduce it as S. 903. The bill now has 17 co-sponsors in the Senate.
The New Jersey Board of Public Utilities (BPU) approved applications submitted by PSEG Nuclear LLC seeking subsidies of up to $300 million annually, in the form of zero emission credits (ZECs), for PSEG’s Hope Creek and Salem 1 and 2 nuclear generating stations on April 18. The PSEG applications were filed on December 19, 2018, after New Jersey enacted legislation on May 23, 2018, establishing a ZEC program for the state (the ZEC Act).
President Donald Trump on January 14 signed into law the Nuclear Energy Innovation and Modernization Act (NEIMA), Pub. L. 115-86, after it was passed by Congress in late December 2018. NEIMA covers a wide variety of issues, but two main topics should be particularly welcomed by the nuclear industry: relief from US Nuclear Regulatory Commission (NRC) fee collection and the clear direction to speed the rollout of an NRC licensing framework for advanced nuclear reactors.
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.
A bipartisan group of nine US senators introduced the Nuclear Energy Leadership Act (NELA), S. 3422, on September 6. According to a press release announcing the bill’s introduction, NELA will “boost nuclear energy innovation and ensure advanced reactors can provide clean, safe, affordable and reliable power to meet national and global energy needs.” The legislation was introduced by Senators Lisa Murkowski (R-AK), Cory Booker (D-NJ), James Risch (R-ID), Shelley Moore Capito (R-WV), Mike Crapo (R-ID), Richard Durbin (D-IL), Joe Manchin (D-WV), Sheldon Whitehouse (D-RI), and Chris Coons (D-DE).
If enacted, NELA would provide support for advanced reactors, including a program to provide a source of low-enriched, high-assay uranium to advance nuclear reactor technology development. According to the sponsors, the bill plans to incentivize public-private partnerships among the federal government, research institutes, and private industry. The bill also includes education initiatives, workforce development, and training for nuclear science. In addition, NELA would direct the US Department of Energy (DOE) to provide a “versatile, reactor-based fast neutron source, which shall operate as a national user facility” by no later than the end of 2025.
Of particular note for advanced reactor fuel designs, NELA authorizes the issuance, through sale, resale, transfer, or lease, of low-enriched uranium from DOE stockpiles of high-assay, low-enriched uranium fuel to support fuel testing and nuclear demonstration projects. This program would make available high-assay low-enriched uranium, with at least two metric tons of uranium-235 available by the end of 2022 and 10 metric tons available by the end of 2025.
NELA also directs DOE to create programs to support demonstration projects for advanced reactor designs, identify areas for fundamental nuclear research, and grant the private sector increased access to the results of federally funded nuclear research. NELA specifically directs DOE to enter into at least four separate nuclear demonstration project agreements by 2028, and to explore advanced materials research and fuel designs through fundamental research. The bill also would allow the Secretary of Energy to establish a long-term pilot program to enter into a power purchase agreement for nuclear power for up to 40 years. The pilot program would be intended to give “special consideration” to “first-of-a-kind or early development nuclear technologies that can provide reliable and resilient power” to off-grid locations.
The US House of Representatives and Senate recently passed the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) as part of the reconciled conference report for the Fiscal Year 2018 National Defense Authorization Act (NDAA). The president signed the bill on August 13 and new legislation will take effect on a rolling basis. Although several broad based changes will affect all industries, the nuclear industry will be relieved that the final bill addresses the concerns the industry raised at the outset when the original bill created challenges for US companies’ ability to compete in international trade. However, the industry still needs to monitor the anticipated regulatory implementation as the US Department of Treasury drafts new regulations. Other agencies, including the US departments of Commerce (DOC) and Energy (DOE) will implement their policy and regulatory changes to address FIRRMA. Morgan Lewis discussed the potential steps nuclear companies could take to be ready for any changes resulting from FIRRMA in a previous Up & Atom post.
In a June 26 letter, a broad coalition of 77 former government officials, lawmakers, and industry leaders urged US Department of Energy (DOE) Secretary Rick Perry to take “concrete steps” to prevent the premature shutdown of any additional nuclear power plants.
The letter commends Secretary Perry’s support of the nuclear industry to date but asks him to specifically promote the national security significance of nuclear energy. In doing so, the letter underscores the key role that nuclear energy plays in national security, particularly as an essential component of electric grid resilience and the largest source of emission-free generation.
The letter acknowledges that discussions of the general importance of nuclear energy are underway at the Federal Energy Regulatory Commission as well as at the grid operator and state regulator levels, but asserts that only DOE has the power to integrate nuclear power into the broader national security imperatives. The letter notes that such an integration will take time to consider, but asks Secretary Perry to ensure that no more nuclear power plants are closed in the meantime.
This letter appears to support President Donald Trump’s June 1 request for DOE to take measures to prevent further closures of nuclear power plants due to a national security interest in securing the national power grid's resilience.