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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2023

Nuclear Law Committee Report

Joseph Deandreis McManus


  • The Nuclear Law Committee Report for The Year in Review 2023.
  • Summarizes significant legal developments in 2023 in the area of nuclear law, including the Nuclear Waste Policy Act, emergency preparedness, Commission decisions, and more.
Nuclear Law Committee Report
Photo by Mike Kline (notkalvin) via Getty Images

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I. Judicial Developments

A. Texas v. U.S. NRC

The State of Texas and the Texas Commission of Environmental Quality (Texas), along with two oil and mineral firms (Fasken) (both collectively, Petitioners) filed a petition for review of the U.S. Nuclear Regulatory Commission’s (NRC, or Commission) decision to issue a special nuclear materials (SNM) license to store spent nuclear fuel to Interim Storage Partners LLC (ISP) at the United States Court of Appeals for the Fifth Circuit. Specifically, Texas argued, among other things, that the NRC lacked the authority to issue a license under the Atomic Energy Act (AEA) to ISP away from reactor spent fuel storage.

The Court proceeded to analyze the Petitioners’ standing under the Administrative Orders Review Act, or the Hobbs Act. The Court observed that the Hobbs Act gives a “party aggrieved” by the final order the standing to file a petition to review the order in the court of appeals wherein the venue lies. The Commission argued that neither Texas nor Fasken had standing under the Hobbs Act because neither is a “party aggrieved,” because Texas only submitted comments on the license proceeding and did not participate in the available administrative procedures, and Fasken may only challenge the order denying its intervention as a party, not later being able to seek review of the final judgment on the merits. Utilizing a plain text reading of the Hobbs Act, the Court disagreed with the Commission. The Court opined that “[t]he plain text of the Hobbs Act merely requires that a petitioner seeking review of an agency action be a ‘party aggrieved.’” Accordingly, the Court explained that because Texas and Fasken participated in “some way” in the NRC’s administrative proceedings (Texas, submitting comments, and Fasken, submitting a hearing petition), the Petitioners had met the Hobbs Act requirements. Although the Court realized that its interpretation of the Hobbs Act would likely conflict with other Circuits because other Circuits have heightened participation requirements under relevant case law, the Court wrote that it did not need to resolve that tension because the Fifth Circuit recognizes an ultra vires exception to the party-aggrieved status requirement. This exception applies in either of the “two rare instances” where standing is given to a person “even if not a party to the original agency proceeding”—(1) “where ‘the agency action is attacked as exceeding [its] power’ and (2) where the person ‘challenges the constitutionality of the statute conferring authority on the agency.’” Under this standard, the Court observed that both Texas and Fasken had challenged the NRC’s authority under the AEA or the Nuclear Waste Policy Act (NWPA) for issuing the SNM license to ISP. The Court accordingly found that the Petitioners had standing.

The Court then agreed with the Petitioners that “[t]he Commission ha[d] no statutory authority to issue the license,” and that issuance of the license contradicted Congressional policy under the NWPA. The Court took a textual approach in its analysis, opining that the Atomic Energy Act authorizes the Commission “to issue such licenses only for certain enumerated purposes—none of which encompass storage or disposal of material as radioactive as spent nuclear fuel.” Notwithstanding the Commission’s argument that it could issue the license to ISP because the AEA conferred upon the NRC the enumerated authority to issue licenses for the possession of SNM, source material, and biproduct material, and these materials are constituent material of SNM, the Court was not persuaded. Moreover, the Court wrote that the issued license could not be reconciled with the NWPA, because the NWPA was created by Congress as the comprehensive statutory scheme for addressing spent nuclear fuel accumulation in the country. Accordingly, the Court granted the Petitioner’s petition for review and vacated ISP’s license.

The NRC and ISP petitioned the Fifth Circuit for en banc review of the Panel’s decision. On March 14, 2024, the Fifth Circuit denied the petitions, leaving the decision in place.

II. Administrative Developments

A. Commission Makeup

President Biden renominated Commissioner Jeffery Baran (D) for an additional five-year term. On June 14, 2023, the Senate Environment and Public Works Committee reported favorably to advance Commissioner Baran’s nomination to the Senate Floor. However, the Senate declined to vote on the President’s nomination before Commissioner Baran’s term expired on June 30, 2023. To date, the Senate has taken no action to bring another vote regarding Mr. Baran’s nomination. Accordingly, the Commission is operating with four Commissioners, and there is currently a vacancy at the Commission that will remain open for the near future.

If not renominated and approved by the Senate, Chair Christopher Hanson’s term is set to expire on June 30, 2024. Commissioner David Wright’s term is due to expire on June 30, 2025, if not renominated and approved by the Senate for another term. Commissioner Annie Caputo is currently serving a term that will end on June 30, 2026, and Commissioner Bradley Crowell’s term is due to expire on June 30, 2027, if their terms are not renewed.

B. Rulemakings

1. 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. On March 1, 2023, the NRC staff provided a proposed Part 53 rule to the Commission for approval. The NRC staff states that the draft proposed rule “provide[s] an integrated, performance-based, and technology-inclusive regulatory framework that covers the areas of staffing, personnel qualifications, training programs, operator licensing examinations, and human factors.” The staff notes that the framework would add new flexibilities such as provisions for automatic load-following and online refueling, among others. The NRC staff also continued its stakeholder engagement on various initiatives on the proposed regulatory framework, “including hosting public meetings on micro-reactor licensing, developing a PRA to support a construction permit application, and issuing draft Technology-Inclusive Content of Application Project and ARCAP guidance documents.”

To date, Commissioners Caputo and Wright have voted on the proposed rule, and although both have commended the staff and stakeholders on the effort taken to develop the proposed rule, both voted to “approve” and “disapprove” the rule and provided extensive comments to the NRC staff for consideration.

2. Regulation of Fusion Energy Systems

On January 3, 2023, the NRC staff sent the Commission SECY-23-0001, “Options for Licensing and Regulating Fusion Energy Systems.” On April 13, 2023, the Commission approved the NRC staff’s Option 2 and accordingly directed the NRC staff to develop regulations for fusion energy systems under the existing Part 30 byproduct material regulatory framework. Additionally, the Commission directed the NRC staff to provide guidance for the program by developing a new volume that addresses fusion energy systems under NUREG-1556, “Consolidated Guidance About Materials Licenses”.

3. Part 110 Rulemaking for Advanced Reactor Export Licensing

On May 16, 2023, the Commission approved the NRC staff’s recommended Alternative 3 in its SRM-SECY-0029, “Rulemaking Plan for the Implementation of Changes to Reflect Advanced Reactor Export Licensing Considerations to incorporate clarifying changes on advanced reactor concepts into NRC regulations governing the export of nuclear reactor equipment and material. The Commission also requested that the NRC staff consider additional proposed changes to 10 C.F.R. Part 110, Appendix A, to reflect items like control drums or novel equipment used for reactivity control in advanced reactors. The Commission additionally pointed out that the term “reactor pressure vessel” is expected to be replaced with “reactor vessel” to reflect differences in design and operating conditions and requested the staff consider whether the term should continue to include “pressure.” The Commission stated that the staff should ensure that there is clarity on whether salt as a coolant should be governed as a nuclear material or a component under the applicable regulations.

4. Part 140 Increase in Maximum Amount of Primary Nuclear Liability Insurance

The NRC’s regulations at 10 C.F.R. Part 140, “Financial protection requirements and indemnity agreements,” implement the financial protection requirements for certain persons and NRC licensees required under the Price-Anderson Act. The Price-Anderson Act requires that “the amount” of primary financial protection required shall be the maximum amount available at reasonable cost and on reasonable terms from private sources. On July 14, 2023, American Nuclear Insurers, the underwriter of American nuclear liability policies, informed the NRC that it was increasing the maximum available primary nuclear liability limit from $450 million to $500 million, effective January 1, 2024. Accordingly, on October 19, 2023, the NRC promulgated a final rule which amended 10 C.F.R. § 140.11. This final rule was effective on January 1, 2024, and increased the required amount of primary nuclear liability insurance from $450 million to $500 million for each nuclear reactor that is licensed to operate, is designed for the production of electrical energy, and has a rated capacity of 100,000 electrical kilowatts or greater.

5. Emergency Preparedness for Small Modular Reactors and Other New Technologies

On August 14, 2023, the Commission issued SRM-2022-0001, which approved the NRC staff’s final rule for emergency preparedness for small modular reactors (SMRs) and other new technologies (ONT). The final rule amends 10 C.F.R. Part 50 which impacts SMRs, non-light water reactors, research and test reactors, and medical radioisotope facilities. Among other things, the final rule provides four major provisions: a new alternative performance-based emergency plan framework, including requirements for demonstrating effective response in drills and exercises; a requirement for a hazard analysis of any facility contiguous to or near an SMR or ONT, that considers any hazard that would adversely impact the implementation of emergency plans developed under the new framework; a scalable approach for determining the size of the plume exposure pathway emergency planning zone; and it requires any applicant of the above technologies to describe the ingestion response planning in the emergency plan, including offsite capabilities and resources available to prevent contaminated food and water from entering the ingestion pathway. The final rule was effective December 18, 2023, and the NRC concurrently issued Regulatory Guide 1.242, “Performance-Based Emergency Preparedness for [SMRs], Non-Light-Water Reactors, and Non-Power Production or Utilization Facilities” which identifies methods and procedures that the NRC staff considers acceptable for SMR and ONT applicants to comply with performance-based emergency preparedness requirements in 10 C.F.R. Part 50.

C. New Licenses, License Renewals, and Applications

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

The following are currently undergoing initial license renewal review by the NRC staff: Comanche Peak Units 1 and 2 (Texas); Perry Unit 1 (Ohio); and Diablo Canyon Units 1 and 2 (California). With regards to subsequent license renewal (SLR) (i.e., additional 20 years of operation after 60 years), the staff is currently reviewing six applications, with six more SLR applications expected from 2024-2028. The NRC notes that, with the Commission’s issuance of certain orders in 2022 and SRM-SECY-21-0066, “Rulemaking Plan for Renewing Nuclear Power Plant Operating Licenses – Environmental Review,” it would impact certain SLR applications because the applicants would not be able to rely on the NRC’s 2013 Generic Environmental Impact Statement in their environmental report portion of their SLR application until an updated GEIS is finalized.

Regarding the newest power reactors constructed in the United States, on July 28, 2023, the NRC issued a press release announcing that it authorized the licensee, Southern Nuclear Operating Company, to load fuel and begin commercial operations of Vogtle Unit No. 4 in Georgia. Three days later, on July 31, 2023, Vogtle Unit No. 3 began commercial power operations on July 31, 2023, making it the first nuclear power reactor fully licensed and operating under the 10 C.F.R. Part 52 licensing scheme.

On December 12, 2023, after holding a mandatory (uncontested) hearing, the Commission issued CLI-23-5 affirming that the NRC staff’s review on the safety and environmental matters regarding Kairos Power LLC’s (Kairos) construction permit application for its Hermes Test Reactor was sufficient and accordingly granted the construction permit. The construction permit would allow the construction of a 35-megawatt thermal test reactor on a brownfield site in Oak Ridge, Tennessee. The Hermes test reactor proposes to use a combination of tri-structural isotropic (TRISO) fuel and molten fluoride salt coolant. Kairos expects to complete construction by the end of 2026 and operate the test reactor for four years.

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

D. Agreement State Applications and Amendments

In 2023, two states, Connecticut and Indiana, remain in the process of becoming agreement states and are currently drafting regulations to be reviewed by the NRC. On January 9, 2023, the Governor of West Virginia submitted its letter of intent to the NRC Chair in becoming an agreement state. Further, on August 24, 2023, the NRC staff sent SECY-23-0075 to the Commission, which if approved, would amend Wyoming’s agreement under AEA Section 274.b. to give Wyoming regulatory authority over source material that is recovered during mineral processing activities which are primarily undertook for the purpose other than obtaining source material content, instead of the NRC.

E. Adjudicatory Decisions

The number of Commission decisions continued its trend down again this year, with only five decisions being issued in 2023, compared to nine decisions that were issued in 2022. Three adjudicatory decisions issued in 2023 are summarized below:

On March 17, 2023, the Commission issued CLI-23-1, which concerned an application by Susquehanna Nuclear, LLC (the Applicants) for an indirect transfer and conforming license amendments of the operating licenses for Susquehanna Steam Electric Station, Units 1 and 2, as well as the general license for the Susquehanna independent spent fuel storage installation (ISFSI). The Applicants sought to transfer these licenses to reflect a corporate restructuring resulting from bankruptcy proceedings of its parent company. An individual petitioned to intervene in the proceeding, proffering two contentions: one questioning the Applicant’s compliance with ISFSI decommissioning financial assurance regulations given its bankruptcy status, and one arguing that the Applicant failed to comply with the NRC’s Bankruptcy Review Team (BRT) compliance mandates.

Regarding the contention that questioned the Applicant’s decommissioning financial assurance, the Commission found that the Applicant’s application did in fact address the financial assurance for decommissioning and that the Applicants asserted that their status in bankruptcy did not affect the decommissioning funding assurance of the ISFSI. As such, the Commission held that the petitioner failed to raise a material dispute with the application. As to the contention that concerned the NRC’s BRT, the Commission observed that the decision to establish a BRT was the NRC staff’s decision as part of its review, and therefore outside the scope of the proceeding. The proceedings were accordingly terminated because there were no admissible contentions.

On September 11, 2023, the Commission issued CLI-23-2, which concerned a request by a member of the public for an oral hearing and leave to intervene on an export license application by the U.S. Department of Energy and National Nuclear Security Administration (DOE/NNSA). The DOE/NNSA’s application sought to export up to 130 kilograms of highly enriched uranium (HEU) at 93.20% in broken metal form to a facility in France. The Petitioner requested that the NRC limit the amount of HEU that DOE/NNSA may export under its license.

The Commission observed that, under its regulations at 10 C.F.R. Part 110, it would grant a hearing in an export licensing proceeding if the hearing would be in the public interest and would assist it in making statutory determinations required by the AEA. Further, NRC regulations require that a hearing must “specify, when a person asserts that his interest may be affected, both the facts pertaining to his interest and how it may be affected.” The Commission accordingly analyzed the Petitioner’s interest under these standards. The Petitioner described his past and ongoing professional work on non-proliferation issues which related to public information and education programs, and argued that his ability to carry out these functions would be significantly impaired unless he was granted a hearing on the issues. The Commission rejected this argument, holding that the Petitioner had not demonstrated that his educational activities would be adversely affected if the export license was issued to the DOE/NNSA; the Commission further noted that the Petitioner had not shown how a hearing would be in the public interest in assisting the Commission in making the required statutory and regulatory determinations. Although the Commission held that the Petitioner failed to meet the regulatory requirements for a hearing, it determined that the Petitioner’s request amounted to a public comment on the application and was accordingly referred to the NRC’s Office of International Programs for appropriate action.

On October 5, 2023, the Commission issued CLI-23-3, which concerned a license amendment request to a 10 C.F.R. Part 70 SNM license that would allow the licensee, Nuclear Fuel Services, Inc. (NFS) to provide uranium purification and conversion services at its Erwin, Tennessee facility. In response to the hearing opportunity, Erwin Citizens Awareness Network, Inc. (ECAN) proffered four contentions challenging the license amendment request: Contention A, asserting a need for a nuclear weapons proliferation assessment under the National Environmental Policy Act (NEPA); Contention B, challenging the purpose and need statement portion in the environmental report; Contention C, asserting an inadequate consideration of legacy contamination in the cumulative effects analysis; and Contention D, arguing that the NRC’s fuel cycle facility regulations are inadequate with regards to quality assurance. Although the Atomic Safety and License Board (ASLB, or Board) found that ECAN established standing in the proceeding, it held that none of the contentions brought forward were admissible for hearing. The ASLB accordingly terminated the proceeding. ECAN accordingly appealed the decision to the Commission.

Under a clear error of law or abuse of discretion standard, the Commission held that ECAN failed to demonstrate that the ASLB erred or abused its discretion. Regarding Contention A, the Commission observed that the Board correctly applied Commission precedent whereby neither the AEA nor NEPA mandates a proliferation assessment by an applicant due to the comprehensiveness of 10 C.F.R. Part 70. With respect to Contention B, the Board held that ECAN’s challenge of purpose and need statement being too “narrow and time limited” resulting in an alleged inadequate consideration of the no-build alternative did not address certain “critical facts” in the applicant’s supplemental environmental report, and therefore the contention was inadmissible. On appeal, ECAN contested this statement, arguing that it had only received the “critical facts” by oral argument and therefore was unable to challenge the application. However, the Commission held that the information was in fact in the supplemental environmental report, and ECAN could not show clear error by the Board; the Commission accordingly affirmed the Board’s decision that the contention was inadmissible. Regarding Contention C, ECAN argued that NFS’s supplemental environmental report was devoid of a cumulative impacts analysis, to include past actions that would prevent future contamination, which would accordingly make future contamination reasonably foreseeable. ECAN also asserted that the supplemental environmental report was inadequate with regards to PFAS and sinkholes at the site, and that air emissions would double if the amendment was granted. Concerning these issues, the ASLB had determined that ECAN had not demonstrated either that these issues were within the scope of the proceeding or that NRC regulations or applicable statute demanded a further analysis by the applicant. The Commission affirmed the Board’s finding that the contention was inadmissible, as ECAN did not show that the Board erred. As to Contention D, the Commission observed that because ECAN had not submitted a waiver petition as required to challenge an NRC regulation, and because ECAN failed to point to any error by the ASLB in its decision, the Commission affirmed the Board’s decision in finding the contention inadmissible. Accordingly, the Commission affirmed the Board’s decision to terminate the proceeding.

The authors contributions are made in his personal capacity and do not reflect Westinghouse’s views.