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Vermont Senators Patrick Leahy and Bernie Sanders along with Representative Peter Welch recently introduced the Nuclear Plant Decommissioning Act of 2020. The bill, if enacted, would provide grants to local communities affected by the closure and decommissioning of a nuclear plant. One grant would provide funds to support local decommissioning advisory boards, which would eventually be paid for by a filing fee for Post-Shutdown Decommissioning Activities Reports (PSDARs). The other grant would provide economic development funds to local communities affected by plant closures. Along with these two grant programs, the bill would also establish direct payments to communities where spent nuclear fuel is stored during and after decommissioning at a rate of $15 per kilogram of spent fuel.

The NRC staff published Regulatory Issue Summary (RIS) 2020-02 on August 31 requesting potential advanced reactor applicants to provide information on their plans for engaging with the agency during fiscal years (FYs) 2023 through 2025. The NRC’s stated goal in the RIS is to “promote early communication between the NRC and potential applicants” that will assist the NRC in planning for “focus area reviews, acceptance reviews, licensing reviews, and inspection support” for new advanced reactors.

The NRC also issued the RIS “to communicate to stakeholders the agency’s process for scheduling its reviews.” The onus is now on applicants that expect to need NRC licensing support to proactively engage with the regulator. Companies that intend to engage with the NRC sooner than FY 2023 should consider using methods other than responding to the RIS to communicate those plans to the NRC.

The Internal Revenue Service (IRS) and the US Department of the Treasury (Treasury) published a final rule in the September 4 Federal Register updating IRS regulations under Internal Revenue Code (Code) Section 468A. The final rule adopts most of the changes from the notice of proposed rulemaking (NOPR), which was released for comment in December 2016. That said, the IRS and Treasury made a few important changes to the final rule, as discussed below.

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.

Read the full LawFlash

A federal grand jury in the Eastern District of Kentucky issued an indictment against an individual for transportation of radioactive material generated from fracking activities without compliance with US Department of Transportation hazardous materials regulations. The indictment comes on the heels of increasing focus at the state and federal levels on the safe disposal of so-called “TENORM” wastes, i.e., technologically enhanced naturally occurring radioactive material wastes that are generated as a result of certain mining and manufacturing activities, including hydraulic drilling or “fracking.” The indictment highlights the need for companies to plan for the disposal of TENORM generated during their operations, including performing appropriate due diligence on any contractors they may engage to assist with disposal.

The White House’s Council on Environmental Quality (CEQ) recently published in the Federal Register a final rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act. The final rule is the latest in a series of actions taken by the Trump administration and the CEQ to “modernize and clarify” the CEQ’s National Environmental Policy Act (NEPA) implementing regulations to “facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.”

The CEQ’s NEPA regulations were first published nearly 40 years ago. In the ensuing decades, the scope and duration of federal agencies’ NEPA reviews have grown substantially. Accordingly, stakeholders have pushed to streamline the NEPA review process. In January 2020, CEQ published a notice of proposed rulemaking seeking public input on potential updates to its regulations. In response, CEQ received more than 1.1 million comments. The vast majority of these were form-letter submissions, but CEQ did receive 2,359 unique, substantive comments on the proposed rule. Key similarities and differences in the final rule, and potential implications for NRC license applicants, are summarized below.

To comply with the provisions of the Dodd-Frank Act, the NRC must amend its decommissioning financial assurance mechanisms in 10 CFR Part 30. The NRC promulgated these regulations in the 1980s and 1990s to allow licensees to use parent company and self-guarantee decommissioning financial assurance mechanisms. Owners and/or operators and parent company guarantors could qualify to use these guarantee mechanisms by either meeting financial test metrics or minimum guarantor bond credit rating criteria.

But following the financial crisis of 2007–2008, Congress determined that “ratings on structured financial products have proven to be inaccurate” and that “[t]his inaccuracy contributed significantly to the mismanagement of risks by financial institutions and investors, which in turn adversely impacted the health of the economy.” Accordingly, Section 939 of the Dodd-Frank Act directed each federal agency, including the NRC, to remove any reference to or requirement of reliance on credit ratings and to substitute standards of creditworthiness as each respective agency shall determine as appropriate for such regulations. In accordance with the Dodd-Frank Act, the NRC is proposing to amend 10 CFR Part 30 to remove these credit rating–based requirements.

The NRC Office of Nuclear Reactor Regulation (NRR) recently issued Revision 4 to Office Instruction LIC-203, “Procedural Guidance for Categorical Exclusions, Environmental Assessments, and Considering Environmental Issues.” The update reflects recent NRC organizational changes and internal procedures related to the agency’s environmental review activities. These changes do not impose any new obligations on NRC applicants. However, a proper understanding of the agency’s internal processes can be helpful in developing successful licensing strategies. The key changes are summarized below.

The NRC recently issued its report to Congress on the best practices for the establishment and operation of local community advisory boards (CABs) associated with decommissioning nuclear power plants. This report was required by Section 108 of the Nuclear Energy Innovation and Modernization Act (NEIMA), which was signed into law on January 14, 2019. To date, CABs have been put in place for some, but not all, decommissioning nuclear power plants and there is no formal protocol for their makeup or charter.

The comment period for the NRC’s draft Regulatory Issue Summary (RIS) on true identity verification requirements closed on June 15, 2020. The industry had asked for and received a 45-day extension from the original April 30 deadline to provide comments. As we previously reported, the draft RIS purports to “clarify” licensees’ requirements pursuant to 10 CFR § 73.56(d)(3) to verify the “true identity” of nonimmigrant foreign nationals who are granted unescorted access to nuclear power plants. Comments from the nuclear industry on the draft RIS strongly disagreed with the guidance and emphasized that the guidance “would substantially expand the existing requirement to verify the true identity of non-immigrant foreign nationals.” The industry suggests that the guidance should not be finalized because the draft RIS’s interpretation is unsupported by the language of the regulation and because the NRC did not conduct a backfit analysis under 10 CFR § 50.109. It remains to be seen, however, whether the NRC will be persuaded by the industry’s comments.