The Nuclear Regulatory Commission (NRC) is seeking public comment on two draft protective order templates intended for use in adjudicatory hearings related to the inspections, tests, analyses, and acceptance criteria (ITAAC) in combined licenses (COL) issued under 10 CFR Part 52.

By way of background, NRC regulations in 10 CFR Part 52 allow the NRC to issue COLs authorizing both construction and operation of a nuclear power plant in a single license. This approach is an alternative to the traditional two-step licensing process codified in 10 CFR Part 50 and is intended to facilitate early resolution of safety and environmental issues before construction begins.

The US Court of Appeals for the Eleventh Circuit on July 11 affirmed the decision of the US District Court for the Southern District of Florida that dismissed a putative class action complaint seeking class certification for more than 1 million customers, injunctive relief, and disgorgement of rates collected under Florida’s Nuclear Cost Recovery System (NCRS).

The NCRS is a regulation promulgated by Florida’s Public Service Commission (PSC) after the passage of Florida’s 2006 Renewable Energy Technologies and Energy Efficiency Act (the Act). The NCRS allows a utility, subject to PSC approval, to preemptively charge its customers through an electricity rate increase for “costs incurred in the siting, design, licensing, and construction” of a nuclear project through its completion. The utility retains the funds collected under the NCRS even if the project is never completed. Here, plaintiffs sought to recover monies collected by two utilities under the NCRS for nuclear projects.

The Nuclear Regulatory Commission (NRC) staff recently published its views on the applicability of a 1987 policy statement to the holders of combined licenses (COLs) who defer or terminate the construction of new reactor projects.

During construction of nuclear power plants licensed by the NRC, plant owners occasionally decide to either postpone or stop construction. In late 1987, the Commission issued its Policy Statement on Deferred Plants (52 Fed. Reg. 38,077) to address the procedures that apply to nuclear power plants under these circumstances, including “deferred plants,” which could reactivate construction, and “terminated plants,” which have announced that construction has been permanently stopped. The policy statement addresses topics such as maintenance, preservation, and documentation of equipment; the process for reactivating construction; and withdrawal of a construction permit.

The New York Times recently published an important article discussing the tightening supply and uncertain future of MO-99, a short-lived medical isotope widely used for medical diagnostics in the United States and worldwide. Currently, there are only six suppliers of MO-99 in the world, all of them government-owned nuclear research reactors located outside of the United States. As noted in the article, one US company—SHINE Medical Technologies—has plans to build a domestic supply chain in Wisconsin to ensure a reliable supply, shielded from potential interruptions that could readily impact a foreign-only supply chain. They have already received Nuclear Regulatory Commission (NRC) approval in the form of a Construction Permit issued in 2016 to begin work on the facility. There was no material opposition to the NRC permit for SHINE, perhaps in recognition of the importance of nuclear medicine in our day-to-day health and well-being. A few other companies are also seeking to build MO-99 domestic production facilities. While nothing is ever easy in the nuclear world and we cannot predict who will get to the finish line first, it seems that the successful addition of a domestic supply of MO-99 is an important first step towards “health independence.” And much like the current focus on US energy independence, it seems equally worthy of national attention.

Read the article here.

The Nuclear Regulatory Commission (NRC) staff recently agreed with NuScale Power’s proposal for the NuScale small modular reactor to eliminate the use of Class 1E electrical systems as part of its reactor design certification process. Class 1E is a safety classification used at all currently-operating commercial nuclear power reactors for electrical equipment and systems that are essential to emergency reactor shutdown, containment isolation, reactor core cooling, and containment and reactor heat removal. The NRC staff’s first-of-a-kind approval recognizes the inherent passive safety features and designs of an advanced reactor, which should result in attendant benefits in the ease of procurement, construction, and operation of the relevant systems. Although the NRC staff’s approval is currently limited to the NuScale design, this approval is significant as it supports the important evolution of the NRC regulatory framework to account for the design, operation, and safety enhancements of both small modular reactor and advanced reactor designs. 

The US Department of Energy’s Advanced Research Projects Agency-Energy (ARPA-E) has published a new funding opportunity for up to $20 million as part of its Modeling Enhanced Innovations Trailblazing Nuclear Energy Reinvigoration (MEITNER) program. The objective of the funding is to foster development of new, innovative, and enabling technologies for existing advanced reactor designs in an effort to establish the basis for a modern, domestic supply chain supporting nuclear technology. The funding opportunity encourages collaboration across disciplines and the formation of diverse and experienced project teams to facilitate scientific and technological discoveries. The Concept Paper submission deadline is December 4, 2017, at 5:00 pm ET. Further information can be found here.

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.

The US Nuclear Regulatory Commission (NRC) announced on November 7 a number of changes to the NRC Enforcement Policy (Policy). This Policy update involves a significant change in the way the NRC implements its enforcement mandate. The most significant aspect of the changes involves making the Policy more efficient by bringing construction activities into the context of power reactor discussions. This merging of different types of licensees also is reflected by the addition of enforcement situation examples, which are referred to by NRC staff when determining the appropriate severity level of a traditional enforcement action. Of course, as always, licensees should stay alert for any unanticipated or unintended consequences from this issuance. Please see our LawFlash, NRC Announces Updates to Enforcement Policy, for more details regarding the specific changes being proposed.

The UK government has confirmed its commitment to move forward with the construction and operation of Hinkley Point C, the first new nuclear plant to be licensed in the United Kingdom since 1987. As a condition, the British government has stated that it will take a special or “golden” share to prevent the sale of significant ownership interests in Hinkley Point C and future nuclear plants without the government’s consent. However, such a condition should not impose a significant impediment to development of new nuclear power in the UK. In that regard, the condition is no more onerous (and probably less burdensome) than existing requirements in the United States to obtain Nuclear Regulatory Commission (NRC) approval for direct or indirect changes in ownership.