Our energy lawyers have prepared a LawFlash addressing the notice of proposed rulemaking (NPRM), “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act,” published today in the Federal Register by the White House’s Council on Environmental Quality (CEQ). The proposed rule has four major elements: (1) to modernize, simplify, and accelerate the NEPA process; (2) clarify terms, application, and scope of NEPA review; (3) enhance coordination with states, tribes, and localities; and (4) reduce unnecessary burdens and delays.

To date, the commercial nuclear power industry has expressed strong support for the types of rule changes proposed by the CEQ in its NPRM, as they are intended to streamline and expedite the federal agency NEPA review process. Those in the industry that depend on federal agency action when advancing projects and securing permits should actively participate in the proposed rulemaking and help the CEQ build a sufficient agency record to defend against any later litigation challenges to new regulations.

Read the full LawFlash.

The NRC Staff held a public meeting on December 12 at its headquarters in Rockville, Maryland, to discuss subsequent license renewal (SLR) lessons learned. This was the second such meeting this year, with a third planned for early 2020.

The purpose of the meeting was to discuss comprehensive lessons learned regarding key technical issues common to the first three SLR applications submitted to the agency for review and approval. Ultimately, the objective is to update and clarify NRC’s SLR regulatory guidance documents, capturing key lessons learned and further ensuring a review process that is both effective and efficient for future applicants. At the outset of the meeting, the NRC Staff made clear that the next planned meeting will focus on process-related improvements and lessons learned.

Nuclear Power Corporation of India Limited (NPCIL) announced on October 30 that the malware “Dtrack” had been found on the administrative network of the Kudankulam Nuclear Power Plant (KKNPP) in early September 2019. KKNPP is the largest nuclear power plant in India, equipped with two Russian-designed VVER pressurized water reactors, each with a capacity of 1,000 megawatts. Both reactor units feed southern India’s power grid.

On November 4, KKNPP issued a press release stating that its reactors are operating normally and emphasizing that all critical systems for KKNPP and other NPCIL plants are “air-gapped and impossible to hack.” The term “air-gapped” is often used in the cybersecurity context to describe isolated control processing technologies or systems that are not connected to the internet or external networks, and are therefore considered safe from cyberthreats.

The Nuclear Regulatory Commission (NRC) and its Advisory Committee on Reactor Safeguards (ACRS) have been busy in recent weeks assessing issues related to the licensing of non-light water reactors (non-LWRs).

First, the NRC’s Division of Advanced Reactors transmitted a draft white paper titled “Non-Light Water Review Strategy” on September 30, 2019. As the title suggests, the white paper will “support the [NRC’s] review of applications for non-LWR designs submitted prior to the development of the technology-inclusive, risk-informed and performance-based regulatory framework . . . in 2027.” In so doing, the white paper describes both the contents of such applications and “an approach NRC staff may use to review the license basis information.”

The Nuclear Regulatory Commission (NRC) held a public meeting on August 8 to provide information and receive comments on the regulatory basis supporting the NRC’s rulemaking on physical security requirements for advanced reactors. The public meeting was the latest step in the NRC’s rulemaking process, which began on August 1, 2018, with the NRC Staff’s report to the Commission evaluating options for revising physical security regulations for advanced reactors. The Commission approved the NRC Staff’s proposed rulemaking plan on November 19, 2018. We previously reported on the NRC Staff’s report, the Commission’s Approval, and the publication of the regulatory basis for comment.

During the public meeting, NRC Staff summarized the regulatory basis and their recommendation for a limited-scope rulemaking. NRC Staff explained that the purpose of the rulemaking is to provide requirements and guidance for advanced reactor physical security and reduce the need for physical security exemptions—specifically from regulations requiring each site to have at least 10 armed responders for emergency security response (10 CFR § 73.55(k)(5)(ii)), and an on-site secondary alarm station to monitor potential issues (10 CFR § 73.55(i)(4)(iii)).

Please be aware that it appears the NRC has taken an unusual step of requesting public comment on SECY 2019-67, which is focused on proposed enhancements to the Regulatory Oversight Program (ROP). Comments are due by October 7, 2019. Please see 84FR38675. We previously reported on this SECY, which was provided by NRC Staff to the Commission, notwithstanding no requirement to do so for several of the proposed revisions. This action may have been prompted by a July 15 letter to NRC Chairman Kristine Svinicki jointly signed by the Chairman of the Committee on Energy and Commerce; Chairman of the Committee on Energy and Commerce subcommittee on Energy; Chairwoman, Committee on Appropriations; and the Chairwoman of the Committee on Appropriations Subcommittee on Energy and Water Development, and Related Agencies. We will continue to monitor developments regarding ROP modification initiatives.

NRC staff proposed to the Commission (see SECY-2019-067) certain changes to the Reactor Oversight Process (ROP) on June 28. Overall, these changes, if approved by the Commission, will result in a net reduction in the amount of time the NRC spends on planning and implementing certain inspections, and how it addresses the results of those inspections in the ROP. Proposed focus areas are as follows:

  1. Eliminate the minimum four-quarter requirement for consideration of greater-than-Green inspection findings
  2. Revise greater-than-Green–related performance indicator treatment
  3. Change the description of a White inspection finding from "low to moderate" safety significance to "low" safety significance, and change the description of a Yellow inspection finding from "substantial" to "moderate" safety significance
  4. Revise the sample sizes, which action is expected to reduce NRC inspection person-hours for several common inspections
  5. Revise the frequency of the Problem Identification & Reporting inspection from two three years
  6. Revise the Emergency Planning Significance Determination Process to focus more heavily on functions that have the greatest impact on public health and safety

The Ohio House of Representatives approved HB 6 on July 23, providing up to $150 million in financial support for the two operating nuclear plants in the state. A version of the House bill was passed by the Ohio Senate last week, and Governor Mike DeWine signed the bill into law shortly after the legislation passed the House.

Read the full text of HB 6 >>

The Nuclear Regulatory Commission (NRC) published a Federal Register notice on July 16 requesting comments on a regulatory basis supporting a “limited scope” rulemaking to develop physical security requirements for advanced reactors. For this rulemaking, “advanced reactors” means “light-water small modular reactors (SMRs) and non-light water reactors (non-LWRs)” which includes, but “is not fully coextensive with,” the definition of an “Advanced Nuclear Reactor” in the recently enacted Nuclear Energy Innovation and Modernization Act. The deadline to submit comments is August 15.

We previously reported on this rulemaking process, which started with the NRC Staff’s August 1, 2018, report to the Commission, evaluating options for revising physical security regulations for advanced reactors. We also reported on the Commission’s approval of the NRC’s Staff’s proposed rulemaking plan, which occurred on November 19, 2018. The NRC’s physical security requirements for large LWRs—in 10 CFR § 73.55>—is focused on preventing significant core damage and spent fuel sabotage. Current regulations require each site to have at least 10 armed responders for emergency security response (10 CFR § 73.55(k)(5)(ii)), and an on-site secondary alarm station to monitor potential issues (10 CFR § 73.55(i)(4)(iii)).

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.