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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2022

Nuclear Law Committee Report


  • The Nuclear Law Committee Report for YIR 2022.
  • Summarizes significant judicial and administrative legal developments in 2022 in the area of nuclear law.
Nuclear Law Committee Report
Micha Pawlitzki via Getty Images

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Judicial Developments

A. Ohio Nuclear-Free Network v. U.S. NRC


Ohio Nuclear-Free Network and Beyond Nuclear petitioned for review of a U.S. Nuclear Regulatory Commission (NRC) decision to issue an amended materials license to American Centrifuge Operating, LLC. Petitioners asserted “that the NRC issued the amended license without first preparing an Environmental Impact Statement (EIS),” which, Petitioners contended, “was required by the National Environmental Policy Act (NEPA), 42 U.S.C § 4332(c).”

The D.C. Circuit dismissed the petition and held that it lacked jurisdiction to hear the case under the Hobbs Act. The Court explained that when “‘intervention in agency adjudication or rulemaking is prerequisite to participation therein, standing to seek judicial review of the outcome will be denied to those who did not seek—or who sought but were denied—leave to intervene.’” The Court explained that because Ohio Nuclear-Free Network and Beyond Nuclear failed to properly intervene “in the underlying NRC proceeding, they are not ‘parties aggrieved’ by the agency’s order,” and therefore the Court held that it lacks jurisdiction to review their petition.

The Court reasoned that the AEA and the NRC’s regulations “address the manner in which interested persons may become parties” to the type of proceeding at issue in this case. The Court then held that invocation of “the appropriate and available administrative procedure” is a “statutorily prescribed prerequisite for th[e] Court’s jurisdiction to entertain a petition [for] review.” Therefore, the Court denied Ohio Nuclear-Free Network’s and Beyond Nuclear’s petition for review.

B. Oglala Sioux Tribe v. U.S. NRC

The Oglala Sioux Tribe and its nonprofit association, Aligning for Responsible Mining, sought review of the Nuclear Regulatory Commission decision to grant a source material license to Powertech (USA), Inc., to extract uranium from ore beds in South Dakota. The Tribe asserted numerous arguments, including that the NRC “failed to meet its obligations under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA).”

The Court first addressed the Oglala Sioux Tribe’s challenge that the Commission failed to use a formal scoping process for its supplemental environmental impact statement, as is required. The Court did not address whether the Agency met the formal scoping requirements though, and instead pointed out that the Commission “placed notices in local papers, received comments on the notices,” met with various parties to gather information, etc. The Court explained that absent evidence that the Agency’s NEPA process resulted in prejudice to the Tribe, the Tribe’s petition cannot be granted because the Agency’s actions accomplished the same objectives that the more formal scoping process is meant to accomplish.

The court then discussed the Tribe’s argument that the Commission failed to adequately address the Tribe’s cultural resources in its environmental impact statement. The Court made clear that an Agency does not necessarily violate NEPA when it is unable to acquire certain information; instead, an Agency can also satisfy NEPA by explaining that certain information was unavailable and detailing what actions the Agency took to try to access the information. Here, the Court held that because the Atomic Safety and Licensing Board decisions created a publicly available record of information regarding why this information was unavailable, there was no need to require its inclusion in the environmental impact statement itself. The Court stated that the Commission’s efforts to gather cultural resources were reasonable and, because of the information’s public availability, a remand for the Agency to update the EIS was not necessary.

Finally, the Court dismissed a number of arguments related to the adequacy of the Commission’s site-specific analyses and addressed a series of challenges regarding the Agency’s obligations under the NHPA. The Court held that the Agency satisfied its consultation obligation under the NHPA by attempting to engage with the Tribe over a two-year period, that a survey is not required for the Agency to meet its NHPA obligations, and that the Agency’s use of phased approach to identifying historic property was permissible.

For all of the foregoing reasons, the Court denied the Oglala Sioux Tribe’s Petition for review.

Administrative Developments

A. Commission Makeup

On August 11, 2022, the Commission issued a press release announcing that Commissioner Annie Caputo had been sworn in on August 9, 2022, and that Commissioner Bradley Crowell was scheduled to be sworn in later in August. Commissioner Crowell was then sworn in on August 26, 2022. Commissioner Caputo is currently serving the remainder of a five-year term that will end on June 30, 2026 and Commissioner Crowell is serving the remainder of a five-year term that will end on June 30, 2027. These two appointments returned the Commission to a full complement of five commissioners.

B. Legislation and Rulemaking

1. Inflation Reduction Act

The Inflation Reduction Act of 2022 attempts to reduce the deficit, “fight inflation, invest in domestic energy production and manufacturing, and reduce carbon emissions.” Many of the provisions of the Inflation Reduction Act pertain to nuclear energy. For example, there are provisions related to production tax credits for nuclear power plants, there are technology-inclusive investment tax credits that can apply to nuclear energy production, and there is research and funding allocated to high assay low enriched uranium production and to environmental justice initiatives.

(1) Production Tax Credits for Operating Nuclear Plants: The legislation creates a credit of $15 per megawatt-hour for electricity produced by existing nuclear plants. The credit gradually declines as power prices rise above $25 per megawatt-hour.

(2) Technology-Inclusive Investment Tax Credits for Clean Electricity: The legislation also creates a new technology-neutral tax credit for all clean electricity technologies, including advanced nuclear and power uprates. The value of the credit will be at least $25 per megawatt-hour, and will adjust based on inflation for the first ten years of plant operation.

(3) Research Funding for High Assay Low Enriched Uranium: The Inflation Reduction Act includes $700 million for research, development and production of domestic high assay low enriched uranium (HALEU) fuel.

(4) Funding for Environmental Justice Initiatives: The Inflation Reduction Act includes $60 billion in grants and tax incentives to support environmental justice initiatives.

2. Part 53 Rulemaking

Consistent with the Nuclear Energy Innovation and Modernization Act (NEIMA), the Nuclear Regulatory Commission is continuing to establish a technology-inclusive, risk-informed, and performance-based regulatory framework, also referred to as the 10 C.F.R. Part 53 rulemaking. In the past year, the Commission staff has held public meetings with stakeholders, has met with the Advisory Committee on Reactor Safeguards, has released preliminary proposed rule language, and has received comments and stakeholder feedback on the proposed rule language. The Commission Staff has stated that it is currently on track to “allow for publication of the final rule significantly ahead of the NEIMA deadline of December 2027.”

3. License Renewal Generic Environmental Review Rulemaking

On March 25, 2022, the Commission staff submitted a rulemaking plan regarding the environmental reviews of nuclear power plant operating licenses. On April 5, 2022, the Commission issued SRM-SECY-22-0024 approving the staff’s recommendation to proceeding with rulemaking. Following the SRM, the staff submitted a proposed rule to the Commission. The proposed rule would amend 10 C.F.R. Part 51 by removing the word “initial” in 10 C.F.R. 51.53(c)(3) and revising 10 C.F.R. Part 51, Table B-1. The proposed rule package is currently under Commission review.

C. New Licenses, License Renewals, and Applications

There approximately ninety-two operating commercial nuclear power reactors in the United States. Ten of the reactors have been operating for over fifty years; forty-two have been operating for between forty and fifty years; thirty-seven have been operating for between thirty and forty years; two have been operating between twenty and thirty years, and one has been operating for less than nineteen years.

The most recent plant to begin operation, Vogtle Unit 3, just recently came online. The Commission issued a press release announcing that it had authorized the fuel load and commercial operation of Vogtle Unit 3 as the first new reactor under the 10 C.F.R. Part 52 licensing process on August 3, of this 2022.

On the non-power reactor front, there are approximately thirty-one licensed and operating research and test reactors currently operating in the United States. The NRC is currently reviewing construction permit applications from Kairos Power and Abilene Christian University for an advanced test reactor and an advanced research reactor, respectively.

D. Agreement State Applications and Amendments

In 2022, two states, Connecticut and Indiana, remain in the process of becoming agreement states. Both states have enacted legislation and are currently drafting regulations to be reviewed by the Commission. Recently, West Virginia also expressed interest becoming an agreement state—West Virginia has yet to begin the formal review process with the Commission, but is likely to initiate the process in the near future. Finally, Wyoming has sought to amend its agreement to include coverage for source material that is produced during mineral processing activities.

E. Adjudicatory Decisions

The number of Commission decisions trended slightly downward again this year, with nine decisions being issued in 2022, compared to the ten decisions that were issued in 2021. A few of the decisions issued in 2022 are briefly summarized below.

On February 24, 2022, the Commission issued CLI-22-2 reversing a previous Commission precedent and holding that 10 C.F.R. Section 51.53(c)(3) only applies to initial license renewal application environmental reports. The Commission explained that the 2013 Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS) does not address the period of subsequent license renewal, and therefore the Commission held that the environmental review for Turkey Point Units 3 and 4 was not sufficiently complete. Consistent with the order, the Commission directed the NRC staff to update the GEIS to address the subsequent license renewal period of nuclear power plants.

Following the Turkey Point decision, the Commission directed all parties whose license renewal applications would be affected by the holding in CLI-22-2 to submit their views on the practical effects of leaving the subsequently renewed licenses in place while the Staff works to update its environmental analysis to comply with the new holding.

On July 15, 2022, the Commission issued CLI-22-9, denying a petition for intervention and request for hearing in a license transfer application. While this proceeding involved four facilities, the petition for intervention focused on the indirect transfer of “the possession only license for Three Mile Island Nuclear Station, Unit 2 (TMI-2).” The petition raised challenges to the decommissioning funding assurance and the financial qualifications of TMI-2 Solutions. The Commission held that because this transfer proceeding did not involve any changes to the license, the licensee, the decommissioning schedule or estimated costs, “or to the decommissioning funding and financial qualifications arrangements in place for TMI-2,” the petitioner failed to raise a material dispute with the license transfer application. Overall, the Commission explained that “[the petitioner] has not offered an admissible contention linking the proposed change in majority ownership to the adequacy of [the] decommissioning funding and [] other existing financial assurance methods.” Therefore, the commission denied the petition for intervention and request for a hearing.

The contributor of this chapter is Travis Jones, an attorney at the U.S. Nuclear Regulatory Commission. His contributions are made in a personal capacity and do not necessarily reflect the views of the agency.