On the administrative front, the makeup of the Nuclear Regulatory Commission (NRC or Commission) remains unchanged during the period covered by this report. President Biden has made no nominations to fill the Commission vacancies created by the departures of former Chairman Kristine Svinicki and former Commissioner Annie Caputo. Legislatively, numerous bills advancing development of new nuclear power, including advanced reactors, and preservation of existing nuclear power, have been proposed in Congress. NRC Rulemakings related to advanced reactor licensing and decommissioning have continued to move forward. The NRC also recently issued the license for the consolidated interim spent fuel storage facility (CISF) in Andrews County, Texas proposed by Interim Storage Partners (ISP); however, various petitions for review of the NRC’s order granting the license are pending in the federal courts. Additionally, numerous applications pending before the NRC related to new reactors, license renewal, license transfers, and the fuel cycle continue through the NRC review and adjudicatory processes. Most notably, the Commission reversed its 2020 ruling in the Turkey Point subsequent license renewal (SLR) proceeding and held that additional environmental analysis is required for pending and future SLR applications.
Sen. Capito (R-WVa) reintroduced the American Nuclear Infrastructure Act of 2021 (ANIA) on July 15, 2021. Senators Whitehouse (D-RI), Barrasso (R-Wyo.), Booker (D-N.J.), and Crapo (R-Idaho) joined in reintroducing the bill. The bill recognizes the importance of nuclear power in providing clean and reliable electricity. Therefore, it aims to improve the nation’s nuclear infrastructure, secure the country’s uranium supply chain, reduce carbon emissions, and strengthen America’s energy and national security.
ANIA seeks to reestablish American international competitiveness and global leadership in nuclear power by promoting advanced nuclear reactors. Specifically, it authorizes the NRC to lead a consensus-building process in international forums to establish regulations for advanced nuclear reactor designs. ANIA requires the NRC to resolve regulatory barriers to licensing advanced nuclear technologies and creates a prize (equal to the amount of licensing fees associated with the licensing action) to incentivize the successful licensing of next generation nuclear technologies and fuels.
To preserve the existing nuclear fleet, the bill directs the Environmental Protection Agency (EPA) to establish a targeted credit program to preserve nuclear plants at risk of prematurely shutting down. Under the program, EPA would establish a carbon emissions avoidance program to evaluate nuclear reactors projected to shut down prematurely due to economic factors. To certify a nuclear reactor as eligible to receive credits, EPA would confirm that: (1) the reactor has a good safety record, (2) the reactor is projected to cease operations due to economic factors, and (3) carbon emissions would increase if the reactor ceased operations and was replaced with other generation. The certified nuclear reactor would then submit a bid to EPA committing to a specific electricity generation output and describing the price that would be needed to continue operations at that output level. The bill authorizes appropriations of funds necessary to carry out the credit program from fiscal year 2022 through 2027.
On February 9, 2022, the Senate Environment and Public Works Committee held a hearing to discuss the bill.
On April 21, 2021, Sen. Duckworth (D-IL) reintroduced the “Sensible, Timely Relief for America’s Nuclear Districts’ Economic Development Act of 2021,” or STRANDED Act of 2021 (Act). Prior versions of this bill have been introduced several times in various forms in an attempt to assist communities that are located near decommissioned nuclear power plants that store spent nuclear fuel (SNF) onsite (“affected communities”). The bill would require that, no later than 180 days after the date of enactment of the Act, the Secretary of Energy must establish a prize competition to award prizes for proposals for affected communities to carry out alternatives to nuclear facilities, generating sites, and SNF storage sites.
The Department of Energy (DOE) would be required to establish the Stranded Nuclear Waste Task Force to study existing public and private resources and funding for affected communities. It would also be required to establish a grant program to assist localities near nuclear power plants by awarding those local communities $15 for each kilogram of SNF stored at the eligible civilian nuclear power plant in their community. The bill would authorize $175,000,000 to be appropriated to DOE for each fiscal year 2022 through 2026 to carry out the Act.
On February 9, 2022, the Senate Environment and Public Works Committee held a legislative hearing on the STRANDED Act.
On February 9, 2022, Rep. Levin (D-CA) introduced H.R. 6685, “Spent Fuel Prioritization Act of 2022.” The bill would amend the Nuclear Waste Policy Act of 1982 to prioritize acceptance of SNF from certain commercial power reactors. Prioritization would be given to a power reactor that is decommissioning or is decommissioned and is located in an area (1) that is more populated compared to other reactors, (2) that has the highest hazard of an earthquake, and (3) where the continued storage of SNF poses a significant national security concern.
The bill was referred to the House Committee on Energy and Commerce on February 9, 2022.
Introduced by Rep. Curtis (R-UT) on February 7, 2022, H.R. 6618, “Advanced Nuclear Reactor Prize Act,” would authorize the Secretary of Energy to make awards to cover regulatory costs related to licensing certain first-of-a-kind advanced nuclear reactors. The bill would amend the Nuclear Energy and Innovation Modernization Act (NEIMA) by awarding a prize to the first non-Federal entity that is issued an NRC operating license for an advanced nuclear reactor. The award amount would be equal to the total amount of licensing fees assessed to the advanced reactor licensee by the NRC, less any expenditures made with Federal funds.
The bill was referred to the House Committee on Energy and Commerce on February 7, 2022.
On July 9, 2021, Rep. Nunes (D-CA), on behalf of himself and several other Republican members from California, introduced the Clean Energy Protection Act. The bill is intended to ensure the continued operation of the Diablo Canyon nuclear power plant in California, which is currently scheduled to cease operations when its NRC operating licenses expire in 2024 (Unit 1) and 2025 (Unit 2). H.R. 4394 would require the state of California to issue all necessary permits and authorizations to Diablo Canyon to permit its continued operation. It would also require the NRC to issue Diablo Canyon a “license to expand the plant’s generating capacity by 8,000 megawatts.”
On January 13, 2022, first sponsorship of the bill was transferred to Rep. Calvert for the purpose of adding cosponsors.
Introduced by Rep. Gonzalez (R-OH) on July 29, 2021, the National Nuclear University Research Infrastructure Reinvestment Act of 2021 seeks to improve the nuclear research capabilities of U.S. universities to support development of advanced nuclear reactors. It is also intended to ensure the continued operation of university research reactors.
The bill would require the Secretary of Energy to revitalize the existing university infrastructure for nuclear science and engineering by establishing new university-based nuclear science and engineering facilities. It also aims to support workforce development for nuclear-related disciplines and specifically directs the establishment or enhancement of nuclear science and engineering capabilities at historically Black colleges and universities, Tribal colleges or universities, minority-serving institutions, community colleges, and associate-degree-granting colleges. The bill authorizes $55,000,000 be appropriated to DOE for each fiscal year 2022 through 2026.
On January 19, 2022, a House Committee on Science, Space, and Technology mark-up session was held and the bill was ordered to be reported by voice vote.
On June 4, 2021, Rep. DeFazio (D-OR) introduced the Infrastructure Investment and Jobs Act. As its name suggests, the legislation covered a broad range of infrastructure-related issues. Title III, Subtitle C, “Nuclear Energy Infrastructure,” specifically addressed domestic commercial nuclear reactors by establishing infrastructure planning for micro and small modular reactors and creating a civil nuclear credit program.
The civil nuclear credit program (also referred to as the “grant program”) focuses on preserving existing nuclear generation in competitive electricity markets. It requires the Secretary of Energy to create a new program to evaluate nuclear reactors that are projected to cease operations due to economic factors and to allocate credits for a four-year period to “certified nuclear reactors.” Interested nuclear generators must apply for DOE certification and applications must include information regarding operating costs, potential incremental air pollutants that would result from ceasing operations, the source of the uranium used in the reactor’s fuel assemblies (priority is given to reactors that rely on domestically-produced uranium), and a plan to sustain operations after the period for which credits are allocated.
Once DOE certifies an eligible nuclear reactor, the reactor must then submit a bid to DOE that describes the price of the desired credits not to exceed the projected average annual operating loss described in the certification process. The bill authorizes $6 billion to be appropriated to DOE for this grant program for fiscal years 2022 through 2026. President Biden signed the bill into law on November 15, 2021 (Public Law 117-58).
The litigation described in this section arises from the NRC’s licensing reviews and related adjudications for two proposed CISFs: the Interim Storage Partners (ISP) CISF in Andrews County, Texas, and the Holtec International (Holtec) CISF in Lea County, New Mexico. Although the two CISF projects are separate commercial ventures, the associated NRC license applications were filed less than a year apart and the proposed CISF sites are located on opposite sides of the Texas-New Mexico border. Moreover, petitioners seeking to intervene in the related NRC adjudicatory proceedings raised many of the same legal issues in their proposed contentions. The NRC issued the license for the ISP facility on September 13, 2021. The NRC has terminated the adjudicatory proceeding for the Holtec CISF application but has not yet issued the license.
As reflected below, the federal court litigation stemming from the ISP and Holtec CISF proceedings is procedurally complex because it involves petitions for review filed by multiple petitioners in four separate courts—the U.S. Courts of Appeals for the D.C., Fifth, and Tenth Circuits, and the U.S. District Court for the District of New Mexico. The courts have consolidated many of these petitions within their respective dockets. Both ISP and Holtec have intervened in the proceedings relating to their respective applications.
On February 2, 2021, Don’t Waste Michigan and several other environmental groups (referred to as Joint Petitioners in the proceedings before the Atomic Safety and Licensing Board (ASLB) and the Commission) filed a petition for review challenging two Commission decisions issued in the ISP proceeding – CLI-20-13 and CLI-20-14 – in the D.C. Circuit. The court consolidated the petition for review with a similar petition filed by Beyond Nuclear and a petition seeking review of CLI-20-15 filed by Sierra Club. In the three decisions at issue, the Commission upheld the ASLB’s determinations that each of the petitioners had failed to proffer an admissible contention. On March 5, 2021, with the parties’ consent, the court placed the cases in abeyance.
On August 20, 2021, Fasken Land and Minerals (Fasken) filed a petition for review of the Commission’s decisions in CLI-20-14 and CLI-21-9 (which denied Fasken appeals of the ASLB’s denial of its motions to reopen the proceeding and to admit a new contention). The court consolidated Fasken’s petition with the other parties’ petitions. The parties filed motions to govern future proceedings on October 12, 2021, proposing a briefing schedule that called for the filing of briefs in the first half of 2022. The court granted the motion but suspended briefing.
On November 15, 2021, Don’t Waste Michigan, Beyond Nuclear, and Sierra Club filed petitions for review of the NRC’s September 2021 issuance of the ISP license (as opposed to the adjudicatory decisions that denied admission of their proposed contentions). The court also consolidated these petitions with the previously-filed petitions. Don’t Waste Michigan and Sierra Club also jointly filed a petition challenging the Final Environmental Impact Statement and the Record of Decision for the ISP facility. The NRC moved to consolidate that petition with the others. By order dated February 15, 2022, the court granted the motion to consolidate and established a briefing schedule, with opening briefs due in March 2022.
On September 23, 2021, the State of Texas (including the Governor and the Texas Commission on Environmental Quality) filed a petition for review of the issuance of the ISP license in the Fifth Circuit. The NRC filed a motion to dismiss the petition, asserting that the court lacked jurisdiction under the Hobbs Act (28 U.S.C. § 2342) due to Texas’ failure to participate in the underlying adjudicatory proceedings. The court issued an order on November 19, 2021, indicating that it would carry the motion with the case and consider the jurisdictional arguments along with the merits.
On November 15, 2021, Fasken filed a petition for review of the issuance of the ISP license, alleging NRC violations of the National Environmental Policy Act (NEPA). On December 2, 2021, the NRC filed a motion to dismiss the petition for lack of jurisdiction (because the license is not independently appealable) or, in the alternative, to transfer the case to the D.C. Circuit. On December 21, 2021, the court issued an order indicating that the motion likewise would be carried with the case. Texas and Fasken filed their initial briefs on February 7, 2022. Pursuant to a court order issued on February 15, 2022, the NRC’s response brief is due on April 18, 2022, and intervenor ISP’s response brief is due on April 25, 2022.
On November 15, 2021, the State of New Mexico filed a petition for review of the issuance of the ISP license in the Tenth Circuit. Like Texas, New Mexico did not participate in the NRC adjudicatory proceedings on the ISP license application. On December 8, 2021, the NRC filed a motion to dismiss the proceeding for lack of jurisdiction (specifically, for failure to exhaust administrative remedies). Although the motion was fully briefed, the Tenth Circuit (like the Fifth Circuit) has opted to consider the jurisdictional issues with the merits of the case. Pursuant to the court’s January 18, 2022, order establishing a briefing schedule, petitioners’ opening brief is due by March 10, 2022. The State of New Mexico’s response brief is due sixty days after petitioners file their opening brief, and intervenor ISP’s response brief is due 10 days thereafter. Petitioners may file a reply brief 21 days after ISP’s response brief is filed.
This case arises from Holtec’s application for a NRC license to operate a CISF in Lea County, New Mexico. Beyond Nuclear and Don’t Waste Michigan (on behalf of several other co-petitioners) filed separate petitions for review challenging the Commission’s contention admissibility rulings in CLI-20-4. Beyond Nuclear, Sierra Club and another set of petitioners collectively known as Fasken seek review of the Commission’s rejection of the contention that issuance of the Holtec license would violate the Nuclear Waste Policy Act (NWPA), insofar as it would permit the interim storage of fuel to which DOE holds title. Don’t Waste Michigan seeks review of the Commission’s rejection of multiple contentions alleging violations of the Atomic Energy Act of 1954, as amended (AEA), and NEPA.
On July 6, 2020, the NRC and the Department of Justice (hereinafter referred to jointly as the “Government”) moved to hold the case in abeyance due to the ongoing adjudicatory proceedings before the Commission concerning contentions raised by Sierra Club and Fasken and the possibility that the license either might not be issued or might not permit action that Beyond Nuclear claims is illegal. The court granted the motion on October 8, 2020 and directed the parties to file motions to govern further proceedings within thirty days of the completion of NRC proceedings. On April 16, 2021, Sierra Club filed a petition for review challenging both CLI-20-4 and CLI-21-4 (which resolved the additional contentions that Sierra Club had raised). On June 25, 2021, Fasken filed a petition for review challenging the NRC’s resolution of its contentions, including the Commission’s decision in CLI-21-7. The court has consolidated all of the aforementioned petitions for review. It also directed the Government to file status reports beginning on April 29, 2021, and at ninety-day intervals thereafter, and the parties to file motions to govern further proceedings within thirty days of the completion of the NRC proceedings.
Although the adjudicatory proceeding before the NRC is complete, the NRC has not issued the license, and the petitions for review remain in abeyance pursuant to the court’s October 8, 2020, order. The Government filed its most recent status report on January 24, 2022, in which it noted that Holtec’s application remains under consideration by the NRC.
On March 29, 2021, the State of New Mexico filed an action in the U.S. District Court for the District of New Mexico challenging the legality of the ongoing licensing proceedings for the CISFs proposed by Holtec and ISP. New Mexico raises many of the same legal arguments under the NWPA, AEA, and NEPA that the parties, including New Mexico, have raised in proceedings before the NRC and/or the D.C., Fifth, and Tenth Circuits, as described in the Beyond Nuclear and Don’t Waste Michigan case summaries above.
On June 17, 2021, the Government filed a motion to dismiss the case for lack of jurisdiction. The Government asserts that under the Hobbs Act and the AEA, New Mexico must exhaust its administrative remedies by raising its concerns in contentions filed in the NRC adjudications on Holtec’s and ISP’s applications before seeking review in the U.S. Court of Appeals, which has exclusive jurisdiction to review “all final orders” of the NRC issued in a proceeding for the granting of any license. Therefore, the Government contends, New Mexico failed to exhaust its administrative remedies and also brought its claims in the wrong court. New Mexico filed an opposition to the motion to dismiss on July 19, 2021, to which the Government replied on August 16, 2021. The court issued its initial scheduling order on November 23, 2021 and held a hearing on the motion to dismiss on January 20, 2022. Its decision is pending.
On August 2, 2021, Ohio Nuclear-Free Network and Beyond Nuclear filed a petition for review challenging a June 11, 2021, license amendment issued by the NRC to American Centrifuge Operating, LLC authorizing the company to produce high-assay low-enriched uranium (HALEU) in the quantities and at the enrichment levels required by its HALEU demonstration contract with DOE. Significantly, neither of the two petitioners sought an NRC hearing on the license amendment request. On September 20, 2021, the NRC filed a motion to dismiss the case on the grounds that the court lacks jurisdiction because the petitioners are not “parties aggrieved” within the meaning of the Hobbs Act due to their failure to participate in the underling administrative proceedings. The court elected to refer the motion to the merits panel considering the case. American Centrifuge Operating has been granted leave to intervene as a party-respondent. Opening briefs are due in March 2022.
This case challenges the NRC’s May 3, 2021, denial of a petition for rulemaking (PRM-50-117) originally filed by George Berka on December 26, 2018. Citing climate change and grid reliability concerns, the petitioner requested that the NRC allow the owner or operator of a nuclear power reactor an opportunity to return a permanently-retired facility to full operational status. Specifically, Mr. Berka requested that the NRC revise 10 C.F.R. Part 52 to establish criteria that would allow retired reactors to return to operation after their licenses no longer authorize operation. The NRC denied the PRM on the grounds that the petition failed to raise any issue involving a significant safety or security concern, and the NRC’s current regulatory framework is adequate to address the issue raised by petitioner. The NRC also noted that developing a new regulatory framework that may go unused is not a prudent use of NRC resources.
Mr. Berka filed a petition for review of the NRC’s decision in the D.C. Circuit on May 28, 2021. As in his rulemaking petition, the thrust of Mr. Berka’s argument on appeal is that “returning shuttered nuclear power reactors to service represents the most economical and cost-effective means to deal with the pressing, imminent, and existential threat of climate change, and to return our vulnerable, electrical grid to the robust status that it once had.” He argues that, given the grave danger that climate change poses to society, as evidenced by natural disasters and grid reliability issues, the NRC should take a more expansive view of its jurisdiction under the AEA, and “rise to the challenge” by developing a “revised, more streamlined framework to re-license shuttered reactors.” The petition has been fully briefed, and the court’s decision is pending.
On December 4, 2020, the Oglala Sioux Tribe and Aligning for Responsible Mining filed a petition for review in the D.C. Circuit challenging the NRC’s decision to issue a materials license to Powertech (USA) Inc. for the Dewey-Burdock In Situ Uranium Recovery Facility. The petitioners raised numerous contentions under NEPA, the National Historic Preservation Act, and the AEA in the NRC adjudicatory proceeding. Except for an argument concerning the effectiveness of the license in the absence of a completed environmental impact statement, the court declined to hear petitioners’ arguments because no final agency action had occurred.
The petitioners filed their opening brief on April 19, 2021, asserting that the NRC erred in its resolution of the petitioners’ contentions relating to cultural resources and its evaluation of various environmental impacts, as reflected in CLI-16-20 and CLI-20-9, among other NRC decisions. The NRC and Powertech (intervenor) filed their response briefs on June 3, and June 10, 2021, respectively. The petitioners filed a reply brief on July 1, 2021. The court held oral argument on November 9, 2021 but has yet to issue its decision in this matter.
On January 31, 2020, Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper filed a petition for review challenging the issuance of a second license renewal of the operating license for Turkey Point Nuclear Generating Units 3 and 4 (Turkey Point). Although the proceeding before the ASLB related to the license renewal had been terminated, certain appeals of the Board’s decisions remained pending before the Commission. Consequently, on March 23, 2020, the NRC filed a motion to dismiss the case for lack of finality. On June 8, 2020, the court referred the motion to dismiss to the merits panel and directed the parties to address in their briefs the issues presented in the motion to dismiss. The parties completed briefing from July 2020 through October 2020. On March 4, 2021, the D.C. Circuit issued a decision dismissing the case, finding that the petition for review was incurably premature.
On January 22, 2021, the State of New York filed a petition for review challenging the NRC’s decision in CLI-21-1 denying the admission of New York’s proposed contentions concerning the transfer of the Indian Point Units 1, 2, and 3 operating licenses to Holtec for purposes of decommissioning the reactors. The petition also challenged a November 23, 2020, NRC order that provisionally approved the license transfer and a concurrently-issued exemption related to use of the Indian Point nuclear decommissioning trust fund. The court consolidated the petition with related petitions for review filed by Riverkeeper, Inc. and the Town of Cortlandt, NY. The petitioners asserted that the NRC violated the AEA, the Administrative Procedure Act (APA), and NRC regulations and policies.
On April 15, 2021, the petitioners and the current and former NRC licensees for the three retired Indian Point units announced a global settlement of their dispute, which required approval by the New York State Public Service Commission. On May 28, 2021, the petitioners filed a motion for the voluntary dismissal of each of the three petitions for review. On June 3, 2021, the D.C. Circuit granted the motion, thereby terminating the litigation.
The Nuclear Energy Institute (NEI), the trade association for the commercial nuclear technologies industry, filed a petition for review on November 15, 2019, against the NRC in the D.C. Circuit. NEI sought to challenge the NRC’s conclusion, expressed in Regulatory Issue Summary (RIS) 2016-11 and reaffirmed in a letter to NEI dated September 16, 2019, that the NRC (instead of Agreement States) must approve requests from reactor licensees made pursuant to 10 C.F.R. § 20.2002 to dispose of VLLW. As discussed below, the D.C. Circuit did not grant NRC’s threshold motion to dismiss the case but later denied NEI’s petition on the grounds that the September 2019 letter did not constitute reviewable final agency action.
By way of background, beginning in 1986, the NRC held that Agreement States were authorized to approve disposal of VLLW generated by NRC reactor licensees. In RIS 2016-11, however, the NRC reversed course and asserted that only the NRC can grant such approvals. On February 28, 2019, NEI sent a letter to the NRC communicating substantive, procedural, and fairness concerns that arose from the NRC’s new position, as evidenced in part by the NRC’s threatened enforcement action against South Texas Project Nuclear Operating Company (STPNOC) (which long had disposed of VLLW from its reactors pursuant to an Agreement State authorization from the State of Texas) for failure to comply with RIS 2016-11. Seven months later, the NRC provided a summary response to NEI’s concerns in which it asserted that RIS 2016-11 was correct and licensees “must” comply with this “requirement.”
In its November 2019 petition for review, NEI contended that the NRC had unlawfully imposed a new rule via the RIS without a comment period which violated the AEA and the NRC’s own rules and regulations. NEI further asserted that the NRC had acted arbitrarily and capriciously and abused its discretion by concluding, without explanation, that authority over VLLW disposal was reserved to the NRC.
The NRC moved to dismiss NEI’s petition on February 10, 2020. It argued that the NRC’s reaffirmation of its prior decision did not constitute final agency action reviewable under the Hobbs Act because the NRC’s interpretation of the regulation (10 C.F.R. § 20.2002) was articulated more than sixty days prior to the filing of the petition for review and had not been “reopened” as a result of NEI’s request, made by letter, that the NRC reconsider its position. NEI opposed the motion in March 2020, and the NRC filed its reply in April 2020. On June 2, 2020, the court issued an order directing that the parties address jurisdictional issues in their merits briefs. The parties completed briefing from September 2020 through February 2021, and oral argument was held on April 8, 2021.
On May 4, 2021, the court issued a per curiam order dismissing the case for lack of jurisdiction. It ruled that the NRC’s September 16, 2019, letter to NEI did not have legal effect, in and of itself, sufficient to constitute reviewable agency action under the Hobbs Act because it did not articulate a position that the NRC had not previously expressed. The court found that “the Commission did alter [its] requirements at some point,” but disagreed with NEI about when exactly the change in requirements had occurred. It rejected the NRC’s argument that this legal change took place in a 2012 letter to Agreement States and declined to decide whether RIS 2016-11 was a final order that imposed legal consequences on licensees. Instead, the court found that notwithstanding any ambiguities and disclaimers in the RIS itself, NEI “was aware the Commission considered the RIS to be mandatory and enforceable” in February 2019, when NEI sent a letter to NRC identifying concerns with NRC citing the RIS as the basis for potential enforcement action against STPNOC. As the court ruled on jurisdictional grounds, it did not reach the merits of the NRC’s position under 10 C.F.R. § 20.2002. NEI did not file a petition for rehearing or seek review before the Supreme Court.
On July 16, 2019, Lawrence Criscione, an NRC employee, filed a whistleblower retaliation suit against the NRC in the U.S. District Court for the District of Maryland, alleging that the NRC illegally retaliated against him and deprived him of his right to petition Congress. Mr. Criscione’s complaint made many of the same allegations contained in a 2014 administrative complaint that he had filed with the Department of Labor (DOL). However, because DOL did not finally resolve his claim within one year, he sought de novo consideration of his claims in district court pursuant to 42 U.S.C. § 5851(b)(4).
On December 6, 2019, the Government moved to dismiss the case. The Government asserted, in part, that the United States had not waived its sovereign immunity relative to claims against the NRC arising under the Energy Reorganization Act and that certain acts of retaliation alleged by Mr. Criscione were barred by the statute of limitations. On October 6, 2020, the district court granted the motion to dismiss on sovereign immunity grounds. The court ruled that although the Energy Reorganization Act prohibits retaliation, it does not unequivocally provide a right to sue the NRC. Mr. Criscione appealed the decision to the U.S. Court of Appeals for the Fourth Circuit.
The Fourth Circuit suspended briefing in the Criscione case pending its resolution of another case, Peck v. NRC, in which the petitioner raised the same sovereign immunity issue. The Peck case arose in February 2017, when Dr. Michael Peck filed a whistleblower retaliation complaint under 42 U.S.C. § 5851 against the NRC before the DOL’s Occupational Safety and Health Administration. On December 19, 2019, the DOL’s Administrative Review Board affirmed the agency’s dismissal of the complaint for lack of subject matter jurisdiction, ruling that the Energy Reorganization Act does not constitute a waiver of sovereign immunity with regard to claims of whistleblower retaliation brought against the NRC.
Dr. Peck petitioned for review of the decision in the Fourth Circuit. On April 30, 2021, the Fourth Circuit denied the petition, agreeing with the Government that the United States had not waived its sovereign immunity for claims of this type. The court’s opinion, however, contained language indicating that a retaliation claim could be brought against individual agency employees responsible for whistleblower retaliation. Therefore, on June 14, 2021, the Government filed a petition for rehearing requesting that the court strike the language at issue. One week later, the court granted this petition and issued an order striking the language in question. On July 13, 2021, the Fourth Circuit denied Dr. Peck’s petition for panel rehearing and rehearing en banc.
In the interim, on May 3, 2021, after the Fourth Circuit in Peck had issued a ruling that adopted the Government’s sovereign immunity argument, the court affirmed the decision of the district court in the Criscione case and subsequently denied a petition for rehearing en banc. On November 29, 2021, Dr. Peck and Mr. Criscione jointly filed a petition for a writ of certiorari to the U.S. Supreme Court, challenging the Fourth Circuit’s determination. The Government waived its right to oppose the petition, and the Court denied the petition for certiorari on January 24, 2022.
On August 29, 2019, Public Watchdogs, a non-governmental organization, filed a complaint and a request for a temporary restraining order against the NRC in the U.S. District Court for the Southern District of California. The group challenged the NRC’s 2015 issuance of a license amendment for SONGS Units 2 and 3 concerning the use of a dry cask storage system manufactured by Holtec and maintained by Southern California Edison (SCE) at SONGS. Public Watchdogs raised claims against the NRC under the APA and against SCE, Holtec, and others under the Price-Anderson Act and California law (public nuisance and strict liability) and sought to suspend future loading of spent fuel into the Holtec system. The court did not issue immediate relief and directed that the defendants respond.
On September 6, 2019, the Government filed a motion to dismiss the claim against the NRC for lack of jurisdiction. The Government asserted that the because the appeal challenged an NRC licensing decision, under the Hobbs Act, it could only have been brought in the Court of Appeals within sixty days of issuance of the license amendment. On September 10, 2019, the Government filed a separate response to the request for injunctive relief, reasserting its jurisdictional arguments and contending that Public Watchdogs could not succeed on the merits and had failed to establish irreparable harm, and that the safety concerns raised by the organization should have been raised with the NRC via a petition for enforcement action under 10 C.F.R. § 2.206 or a petition for rulemaking under 10 C.F.R. § 2.802. The other defendants also filed responses on September 20, 2019, asserting that the state law claims were barred for lack of jurisdiction and preempted by the AEA, and that permitting fuel loading to continue would not cause irreparable harm.
The court held a hearing on the motions on November 25, 2019, and issued a decision on December 3, 2019, dismissing the complaint with prejudice. The court found that Public Watchdogs had raised issues that were reviewable solely under the Hobbs Act or were time barred; that involved enforcement decisions that were unreviewable as a matter of law; or that the organization lacked standing. The court also dismissed the claims against the private defendants for failure to state a claim upon which relief could be granted.
On December 31, 2019, Public Watchdogs appealed the district court’s decision to the Ninth Circuit. On December 29, 2020, the Ninth Circuit affirmed the district court’s ruling that it lacked jurisdiction to consider the allegations in the complaint against the NRC. It further held that the district court correctly found it lacked jurisdiction over Public Watchdogs’ claims against the private defendants because those claims also challenged NRC licensing orders or NRC decisions that were ancillary or incidental to NRC licensing decisions.
Although Public Watchdogs did not seek further review of the dismissal of its claims against the NRC, it petitioned the Supreme Court for review of the dismissal of its claims against the private defendants. On November 1, 2021, at the invitation of the Supreme Court, the Solicitor General filed a brief on behalf of the Government opposing certiorari. On December 6, 2021, the Court denied Public Watchdogs’ certiorari petition.
On March 30, 2020, Public Watchdogs filed another petition for review in the Ninth Circuit, this time challenging the NRC’s decision to reject Public Watchdogs’ request, made pursuant to 10 C.F.R. § 2.206, to suspend decommissioning operations at SONGS. The organization also filed a request for temporary injunctive relief, seeking the same relief while the petition for review was pending. Public Watchdogs asserted that the NRC had abdicated its statutory responsibility under the AEA by permitting fuel to be stored in allegedly unsafe canisters and by approving a site decommissioning plan that assumes that DOE will begin accepting spent fuel during this decade and will remove all spent fuel by 2049.
The court denied the motion for injunctive relief on April 30, 2020 and directed the parties to file briefs on the merits. It heard oral argument on September 1, 2020 and dismissed the petition for review on January 13, 2021. The court found that Public Watchdogs had failed to overcome the presumption that the NRC’s denial of the § 2.206 petition is unreviewable and, in particular, that Public Watchdogs had failed to demonstrate that the NRC had abdicated its statutory authority to protect the public health and safety. Public Watchdogs did not file a certiorari petition with the Supreme Court in this case.
This case arose on March 15, 2019, when Michael Aguirre filed a complaint in federal district court challenging the NRC’s treatment of two requests made under the Freedom of Information Act (FOIA) for documents related to a spent fuel canister misalignment incident and the discovery of shim pins in an empty canister at SONGS. The NRC denied Mr. Aguirre’s request for expedited processing and administratively closed his requests for failure to make an advance payment for the materials requested and to respond to a request for clarification.
Mr. Aguirre subsequently filed several additional complaints in which he challenged the NRC’s responses to additional FOIA responses in which he requested, among other records, communications between SCE and the NRC concerning enforcement action taken following a 2018 spent fuel canister misalignment incident. The district court dismissed or entered summary judgment against all of Mr. Aguirre’s complaints for failing to exhaust administrative remedies.
In an August 23, 2021, decision, the Ninth Circuit affirmed the district court’s rulings, holding that “Aguirre failed to constructively or actually exhaust his administrative remedies as to the four FOIA requests at issue in these appeals, and he likewise failed to establish the futility of seeing the NRC’s administrative process through to its end.” Noting that this was an issue of first impression for the court, the Ninth Circuit “joined sister circuits” in holding that “a requestor must exhaust his administrative remedies under FOIA so long as an agency properly responds before suit is filed”, as the NRC did in this case. The court also rejected Mr. Aguirre’s “vague assertion” that the NRC has a “pattern or practice” of improperly delaying its production of responsive records. Mr. Aguirre did not seek Supreme Court review of the Ninth Circuit’s decision, so the matter is closed.
As of the date of this report, the Commission has three members: Chairman Christopher T. Hanson (D) and Commissioners Jeff Baran (D) and David Wright (R). President Biden has made no nominations to fill the Commission vacancies created by the departures of Kristine Svinicki, the former Chairman who resigned on January 20, 2021, and Annie Caputo, the former Commissioner whose term expired on June 30, 2021.
The NRC staff is moving forward with its development of 10 C.F.R. Part 53, which will establish a new framework for licensing and regulating advanced nuclear reactors. Under the NEIMA (P.L. 115-439), the NRC must complete its work and publish a final rule by December 31, 2027. To comply with NEIMA, the NRC staff presented its proposed plan for developing Part 53 to the Commission in April 2020 (SECY-20-0032) and the Commission approved the plan in October 2020 (SRM-SECY-20-0032).
The Commission initially directed the NRC staff to publish the final rule by October 2024. As noted in an NRC staff update on the Advanced Reactor Program Status (SECY-22-0008), the NRC staff subsequently requested and received a nine-month extension of the original schedule, largely based on industry input, in order to: (1) obtain additional stakeholder engagement and discussions focused on the prospect of an alternative to the probabilistic risk assessment (PRA)-led framework in the current Part 53 preliminary proposed rule language; (2) obtain additional insight from industry organizations representing a variety of designers, suppliers, and possible operating companies; and (3) ensure concurrent timelines for interrelated rulemaking and guidance activities tied to the development of Part 53. In the meantime, the NRC staff has begun releasing its proposed rule language to support interactions with the Advisory Committee on Reactor Safeguards and other stakeholders. Under the approved extension, the NRC staff will provide the Part 53 proposed and final rule packages to the Commission by February 2023 and December 2024, respectively. The NRC expects to publish the final rule by July 2025.
In November 2021, the Commission approved the NRC staff’s recommendation to publish a proposed rule amending NRC regulations for nuclear power plants transitioning from operations to decommissioning (SRM-SECY-18-0055). The Commission’s approval comes nearly seven years after the rulemaking process began (SRM-SECY-14-0118) and three-and-a-half years after the NRC staff originally sought Commission approval to publish the proposed rule (SECY-18-0055). Although the Commission’s action revives the stalled rulemaking process, it also directs the NRC staff to delete certain proposed changes that were widely supported by the industry. The Commission also mandated additional opportunities for external stakeholder involvement in the rulemaking process, as well as the decommissioning process for each plant, which are likely to further prolong the NRC’s already-lengthy rulemaking and oversight processes.
By way of background, current NRC regulations make few distinctions between operating reactors and those that are being decommissioned. Thus, many licensees have been forced to seek one-off exemptions and license amendments on a case-by-case basis as they progress through the decommissioning process. The rulemaking is intended to acknowledge the reduced radiological risks associated with power reactors that have permanently ceased operations and removed all fuel from the reactor vessel. Under the proposed rule, the Commission would adopt an optional graded regulatory approach commensurate with the radiological risk reductions at each of four levels of decommissioning: (1) permanent cessation of operations and removal of all fuel from the reactor, (2) sufficient decay of fuel in the spent fuel pool such that it would not reach ignition temperature for the zirconium alloy cladding of the fuel within ten hours after a hypothetical loss of all water in the spent fuel pool, (3) transfer of all fuel to dry storage, and (4) removal of all fuel from the site. However, the Commission directed the staff to perform further analysis of bounding parameters, including those related to high burnup fuel.
Notably, the Commission rejected the NRC staff’s proposal to allow licensees to use nuclear decommissioning trust funds for spent fuel management without seeking a regulatory exemption. Under the current regulations, those funds may only be used for radiological decommissioning activities. The NRC staff initially proposed allowing licensees that had accumulated more than sufficient funds to complete radiological decommissioning and met certain criteria to use those excess funds to cover spent fuel management expenses. Without this change, licensees will need to continue seeking regulatory exemptions on a case-by-case basis. The Commission also directed NRC staff to update the generic minimum decommissioning cost estimate formula in 10 C.F.R. § 50.75(c). Any changes to this formula could have significant impacts on the requirements for funding of decommissioning trusts. Finally, the Commission rejected the NRC staff’s recommendation that it stop issuing “preliminary approval” of the irradiated spent fuel management plans for shutdown reactors.
On March 3, 2022, the NRC published a Notice of Proposed Rulemaking in the Federal Register. Comments on the proposed rule will be accepted for 75 days, through May 17, 2022.
In July 2021, the NRC staff submitted a rulemaking plan to the Commission (SECY-21-0066) related to its decennial update to the NRC’s Generic Environmental Impact Statement for License Renewal of Nuclear Plants (LR GEIS) and corresponding codified conclusions in 10 C.F.R. Part 51, which were last updated in 2013. Following a series of scoping and comment meetings, the staff identified several issues for possible revisions and updates, including: (1) greenhouse gas emissions, (2) groundwater quality, and (3) threatened, endangered, and protected species. The NRC staff also proposed to clarify that the LR GEIS and corresponding codified conclusions in Part 51 apply to both initial and subsequent license renewal environmental reviews, consistent with the Commission’s holding in the Turkey Point subsequent license renewal (SLR) adjudicatory proceeding (CLI-20-3).
On February 24, 2022, the Commission (with Commissioner Wright dissenting) issued another order in the Turkey Point SLR adjudicatory proceeding (CLI-22-2) “reversing” its earlier decision. In essence, the two Commissioners who dissented from the majority view in CLI-20-3 (but who now comprise the majority of the three-member Commission) declared that the LR GEIS “did not address subsequent license renewal.” The Commission also issued a separate adjudicatory order applicable to all pending SLR proceedings (CLI-22-3) essentially discarding all SLR environmental reviews performed to date and directing the staff to perform new evaluations based on, at the election of the applicant, either: (1) new site-specific information provided by the applicant or (2) the future updated GEIS and revisions to Part 51, once completed. On the same day, the Commission disapproved the NRC staff’s proposed rulemaking plan on the GEIS update and directed it to submit a new one within thirty days (SRM-SECY-21-0066) “to clearly include, but not be limited to, a thorough evaluation of the environmental impacts of renewing the operating license of a nuclear power plant for one term of SLR.” The Commission requested a separate evaluation, within sixty days, regarding “options for a future effort that would incorporate any changes determined to be necessary for the 10-year regulatory update cycle.”
On March 28, 2008, Southern Nuclear Operating Company (SNC) submitted its application for combined licenses for two AP1000 reactors for Vogtle Electric Generating Plant, Units 3 and 4. The NRC issued the COLs for both units to SNC on February 10, 2012. However, operation of the units may not begin unless and until the NRC finds that certain acceptance criteria for the inspections, tests, analyses, and acceptance criteria (ITAAC) defined in the COL have been met. On January 18, 2022, SNC notified the NRC that its scheduled date for loading fuel into Unit 4 is September 2, 2022. On February 2, 2022, the NRC published a notice of intended operation for Unit 4 in the Federal Register (87 Fed. Reg. 5851), providing the public an opportunity to request a hearing on conformance with the acceptance criteria in the COL. Hearing requests are due by April 4, 2022.
On January 6, 2022, the NRC denied, without prejudice, Oklo Power, LLC’s (Oklo) application for a COL to construct and operate the company’s compact fast advanced micro-reactor, called Aurora, at INL. Oklo’s application was the first advanced reactor application to be docketed by the NRC. The staff initially planned to conduct the review using a novel two-part review process. However, according to the staff’s denial letter, Oklo did not provide sufficient information on certain licensing and technical matters to enable staff to complete its technical review of this first-of-a-kind technology within the timeline imposed by Congress in the NEIMA. The company can submit a revised Aurora application in the future and is expected to do so.
On September 29 and October 31, 2021, Kairos Power submitted its two-part application for a construction permit for an advanced test reactor. The NRC accepted the application for docketing on November 29, 2021. The reactor, named Hermes, is a low-power test reactor to support development of Kairos Power’s fluoride salt-cooled, high-temperature reactor technology. The NRC staff estimated a twenty-one-month review schedule based, in part, on Kairos’ substantial pre-application engagements and completed or nearly-completed reviews of ten topical reports relevant to the Hermes. As of the date of this report, this is the only advanced reactor application under active NRC review.
As of the date of this report, the NRC has renewed the operating licenses for ninety-five units at sixty nuclear power plants, authorizing operation from forty to sixty years beyond initial licensing, most recently for Seabrook Unit 1 on March 12, 2019. The NRC expects to receive license renewal applications for four additional units at three nuclear power plants before March 2024 (Clinton Unit 1, Comanche Peak Units 1 and 2, and Perry Unit 1). In terms of agency review of SLR applications, the NRC issued the first “subsequent” renewed licenses, authorizing operation from sixty to eighty years beyond the initial licensing, to Turkey Point Units 3 and 4 in December 2019. Since then, the NRC has issued subsequent renewed licenses to Peach Bottom Units 2 and 3 in 2020 and Surry Units 1 and 2 in 2021. Currently, the NRC is reviewing four other SLR applications: North Anna Units 1 and 2, Point Beach Units 1 and 2, Oconee Units 1, 2, and 3, and St. Lucie Units 1 and 2. The NRC also expects to receive SLR applications for five additional units at three sites before December 2023 (Monticello Unit 1, Browns Ferry Units 1, 2, and 3, and Summer Unit 1). As discussed below, various petitioners initiated contested proceedings to challenge certain of these license applications.
Florida Power & Light Company (FPL) filed a first-of-its-kind application with the NRC in January 2018, seeking a second renewal of the operating licenses for Turkey Point Units 3 and 4. Two hearing requests were filed, the first by Southern Alliance for Clean Energy (SACE) and the second jointly by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Joint Petitioners). SACE later withdrew from the proceeding, and so its contentions were extinguished. Joint Petitioners proposed five contentions challenging FPL’s environmental report (ER). The ASLB (LBP-19-3) found portions of two contentions admissible and granted the hearing request but denied the remaining contentions and sua sponte referred a portion of its decision (in which it concluded that the LR GEIS applies to SLR) to the Commission. The Commission (with Commissioner Baran dissenting) affirmed the referred portion of the ASLB’s ruling (CLI-20-3).
Subsequently, the ASLB dismissed the admitted contentions as moot following the issuance of the staff’s draft environmental impact statement (EIS) (LBP-19-6). Joint Petitioners then moved to amend those two mooted contentions, proposed four new contentions, and requested a waiver to challenge the draft EIS as to certain Category 1 issues. The ASLB denied Joint Petitioners’ motion, finding all of the proposed new or amended contentions inadmissible and terminating the adjudicatory proceeding (LBP-19‑8). Joint Petitioners appealed all of the ASLB’s rulings. Notwithstanding the pending appeals: (1) the NRC staff issued the requested licenses on December 4, 2019, and (2) Joint Petitioners filed a Petition for Review dated January 31, 2020, with the U.S. Court of Appeals for the District of Columbia Circuit purporting to challenge the NRC’s issuance of the renewed licenses. That petition was dismissed by the court on March 4, 2021, as premature, given that the administrative appeals remained pending.
On February 24, 2022, the Commission issued an order (CLI-22-2) “reversing” its earlier decision in CLI-20-3, which affirmed the ASLB’s conclusion that the LR GEIS applies to SLR. In essence, the two Commissioners who dissented from the majority view as to CLI-20-3 (but who now comprise the majority of the three-member Commission) declared the dissent to be the new controlling law (i.e., that the LR GEIS “did not address subsequent license renewal”). As noted above, the Commission also issued a separate adjudicatory order (CLI-22-3) effectively discarding all SLR environmental reviews performed to date, directing the staff to perform new evaluations, and dismissing Joint Petitioners’ pending appeals without prejudice. Because the Turkey Point subsequently renewed operating licenses (SROL) had already been issued, the Commission ordered that the expiration dates for those licenses be reverted to the expiration dates for the previous renewed operating licenses (ROL), i.e., 2032 and 2033, and ordered briefing from the parties to determine whether the SROLs should be vacated and the ROLs reinstated while staff completes the new evaluations.
In July 2018, Exelon Generation Company (Exelon Generation) submitted an SLR application for Peach Bottom Units 2 and 3. Beyond Nuclear filed a hearing request and proffered two contentions. Contention 1 asserted that the SLR application did not comply with applicable regulations. Contention 2 asserted that the license renewal framework in 10 C.F.R. § 51.53(c)(3) and Part 50, Appendix A only applies to initial license renewal, not subsequent license renewal, and therefore Exelon Generation’s failure to address Category 1 issues in its ER violated NEPA. Beyond Nuclear later moved to amend its hearing request to reference an updated document it relied on for both proposed contentions. In June 2019, the ASLB granted Beyond Nuclear’s request to amend but denied the hearing request for failing to proffer an admissible contention and terminated the proceeding (LBP-19-5). Beyond Nuclear appealed that decision to the Commission. In September 2019, Beyond Nuclear also filed motions with the Commission seeking leave to reopen the record of the proceeding and to file a new contention challenging the adequacy of the discussion of design basis accidents in the NRC staff’s Draft Supplemental Environmental Impact Statement. On March 5, 2020, while the appeal and motions were pending, the NRC issued the renewed licenses. In November 2020, the Commission (CLI-20-11, with Commissioners Baran and Hanson dissenting) applied the reasoning from the Turkey Point decision (CLI-20-3) and upheld the ASLB’s ruling.
As noted above, on February 24, 2022, the Commission issued an order (CLI-22-2) “reversing” its earlier decision in CLI-20-3. On the same day, the Commission also took “the opportunity to reconsider the Commission’s decision in CLI-20-11” and “reverse[d]” the portion of CLI-20-11 related to contention 2 (CLI-22-4). The Commission also issued a separate adjudicatory order (CLI-22-3) discarding all SLR environmental reviews and dismissing Beyond Nuclear’s pending motion without prejudice. Because the Peach Bottom SROLs had already been issued, the Commission ordered that the expiration dates for those licenses be reverted to the expiration dates for the previous ROLs, i.e., 2033 and 2034, and ordered briefing from the parties to determine whether the SROLs should be vacated and the ROLs reinstated while staff completes the new evaluations.
Virginia Electric and Power Company (Dominion) submitted an SLR application for North Anna Units 1 and 2 in August 2020. On December 14, 2020, Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia filed a Petition to Intervene and Request for Hearing proffering a single contention and requesting a waiver of specific NRC regulations. In sum, the contention alleged that the ER and the LR GEIS failed to analyze the environmental impacts of a 2011 beyond-design-basis earthquake near the plant. The ASLB issued a unanimous decision on March 29, 2021, denying the waiver petition, denying the hearing request and petition to intervene, and terminating the proceeding (LBP-21-4). The ASLB found that petitioners failed to make a prima facia showing for their waiver request and that their proposed contention was inadmissible on multiple grounds.
On April 23, 2021, the petitioners appealed that decision to the Commission. They also filed a separate motion on September 29, 2021, seeking leave to reopen the record of the proceeding and to amend the basis statement for their previously-rejected contention based on allegedly new information in the NRC staff’s August 2021 Draft Supplemental Environmental Impact Statement. On February 24, 2022, the Commission dismissed without prejudice the appeal and the motion and terminated the proceeding (CLI-22-3). The Commission’s action was related to its holding in CLI‑22-2 that the LR GEIS “did not address” SLR. The Commission noted that a new opportunity to file contentions would be offered after the NRC staff issues a new site-specific EIS for North Anna.
NextEra Energy Point Beach, LLC (NextEra) submitted an SLR application for Point Beach Units 1 and 2 in November 2020. Physicians for Social Responsibility – Wisconsin (PSR WI) filed a Petition to Intervene and Request for Hearing, proffering four contentions on March 23, 2021. Contention 1 asserted that NextEra’s ER failed to consider alternatives to mitigate aquatic impacts. Contention 2 (which PSR WI subsequently moved to amend) claimed that Point Beach’s continued operation violated General Design Criterion 14 because its reactor pressure vessels had not been adequately tested. Contention 3 alleged that the ER failed to sufficiently evaluate the full potential for renewable energy sources, such as solar power, as an alternative. Finally, contention 4 contended that Point Beach’s design creates an elevated risk of turbine missiles owing to the poor alignment of its major buildings and structures.
On July 26, 2021, the ASLB issued an order (LBP-21-5) granting PSR WI’s motion to amend contention 2 but denying its petition and hearing request and terminating the adjudicatory proceeding. The ASLB found that PSR WI had established representational standing to intervene but failed to submit an admissible contention. On August 20, 2021, PSR WI appealed the ASLB’s decision. On February 24, 2022, the Commission dismissed proposed contention 3 without prejudice (CLI-22-3). The Commission’s action was related to its holding in CLI-22-2 that the LR GEIS “did not address” SLR. The Commission noted that it would issue a separate ruling on the appeals as to the other contentions and that a new opportunity to file contentions would be offered after the NRC staff issues a new site-specific EIS for Point Beach.
Duke Energy (Duke) submitted an SLR application for Oconee Units 1, 2, and 3 in June 2021. On September 27, 2021, Beyond Nuclear and Sierra Club (Petitioners) filed a Petition to Intervene and Request for Hearing (Petition), proposing three contentions challenging Duke’s ER. Contention 1 asserted that Duke incorrectly relied on 10 C.F.R. § 51.53(c)(3) and the analyses of Category 1 environmental issues in the LR GEIS, which Petitioners argued did not apply to SLR; and Contentions 2 and 3 claimed that Duke’s evaluation of Severe Accidents (the equivalent of a Category 1 issue) failed to fully evaluate the impacts and mitigation alternatives of a hypothetical reactor accident triggered by flooding from the failure of an upstream dam. Because Contentions 2 and 3 challenge the NRC’s codified generic conclusion regarding Severe Accidents, the Petition also requested a waiver, which is needed to bring such a challenge.
Oral argument was held via video conference on November 16, 2021, and the ASLB issued its decision on February 11, 2022. The ASLB denied the Petition, because Petitioners failed to satisfy the “stringent” waiver standard, and terminated the proceeding (LBP-22-1). While Petitioners’ appeal opportunity was still pending, the Commission took sua sponte review of the ASLB’s decision, dismissed all three proposed contentions without prejudice, and terminated the proceeding (CLI-22-3). The Commission’s action was related to its holding in CLI-22-2 that the LR GEIS “did not address” SLR. The Commission noted that a new opportunity to file contentions would be offered after the NRC staff issues a new site-specific EIS for Oconee.
FPL submitted an SLR application for St. Lucie Units 1 and 2 on August 3, 2021. The NRC docketed the application on September 24, 2021, and published a hearing opportunity notice in the Federal Register on September 29, 2021 (86 Fed. Reg. 53986). No hearing requests or petitions to intervene were filed.
On February 25, 2021, Exelon Generation Company (Exelon Generation) requested NRC consent to transfer the indirect ownership interests in twenty-one active nuclear reactors and three reactors undergoing decommissioning as part of a corporate restructuring in which Exelon Generation was transferred to a newly created entity spun-off from its existing parent, Exelon Corporation, with ownership shares in the new company distributed pro rata to Exelon Corporation’s existing shareholders. Four petitioners submitted petitions to intervene and hearing requests on the proposed transfer. Two of the petitioners, the State of Illinois and EDF Inc., ultimately withdrew their petitions before the Commission ruled on them.
The NRC staff issued its consent to the proposed transfer on November 16, 2021, and the transaction became effective on February 1, 2022, with the spun-off company renamed Constellation Energy Corporation. A few weeks later, on February 14, 2022, the Commission issued its decision (CLI-22-1) denying the remaining petitions filed by (1) the Environmental Law and Policy Center (ELPC), and (2) Eric Epstein and Three Mile Island Alert, Inc. (TMIA), both of which generally challenged the financial qualifications and decommissioning funding assurance of the new company.
The Commission found that ELPC failed to submit an admissible contention either because its claims were mooted by a supplement to the license transfer application (which ELPC disregarded) or because it generally failed to provide adequate support for its contentions or demonstrate a genuine dispute with the license transfer application. With respect to Mr. Epstein and TMIA, the Commission found that both lacked standing and that their proposed contentions were inadmissible because they related to matters of Pennsylvania state law and, therefore, were beyond the scope of the proceeding and also because they were unsupported and failed to raise a material dispute with the license transfer application.
On December 23, 2020, Entergy Nuclear Operations, Inc. (ENOI), on behalf of Entergy Nuclear Palisades, LLC, Holtec, and Holtec Decommissioning International, LLC (HDI), submitted an application to the NRC to sell the Palisades Nuclear Plant (Palisades) and the Big Rock Point Plant, including the on-site ISFSIs, to Holtec’s subsidiary Holtec Palisades, LLC once Palisades permanently ceases operation, which is scheduled to occur in May 2022. Upon the closing of the transaction, Holtec Palisades would become the licensed owner of the sites, with operating authority transferred from ENOI to HDI. The NRC staff consented to the transfer on December 13, 2021.
Four petitions to intervene and requests for a hearing on the transfer application were filed with the NRC. First, Michigan’s Attorney General challenged the financial qualifications and adequacy of the proposed decommissioning funding for the two sites, including reliance on nuclear decommissioning trust funds for spent fuel management and site restoration costs. ELPC filed a hearing request, as did a group of joint petitioners (Beyond Nuclear, Michigan Safe Energy Future, and Don’t Waste Michigan), raising similar challenges to the financial qualifications and decommissioning funding assurance demonstrations in the application. For example, one proposed contention challenged the assumed 2% rate of return for the decommissioning trust fund. The joint petitioners also challenged the applicants’ reliance on a categorical exclusion from environmental review under NEPA and raised claims about the corporate character of Holtec. Finally, a member of the public, Mark Muhich, filed a petition seeking to intervene and request a hearing on the transfer. As of the date of this report, the Commission had not yet ruled on the hearing requests.
Within the past few years, two applications were filed with the NRC seeking approvals to construct and operate CISF for away-from-reactor storage of SNF, one by Holtec and the other by ISP (a joint venture of Waste Control Specialists, LLC and Orano CIS, LLC). The NRC issued the ISP license on September 13, 2021. Various petitions for review of NRC orders in the ISP proceeding are pending before the courts of appeals for the D.C., Fifth, and Tenth Circuits, and a related district court proceeding is pending in the District of New Mexico, as discussed in the Judicial section above. As of the date of this report only the Holtec application remains pending at the NRC.
On March 31, 2017, Holtec submitted an application for a CISF to be built in Lea County, New Mexico. The application sought initial authorization for a facility that would house 500 canisters of SNF and a license term of forty years. On March 19, 2018, the NRC published in the Federal Register a notice of the acceptance and docketing of Holtec’s application; and on July 16, 2018, the NRC published a notice of opportunity, by September 14, 2018, to request a hearing and petition for leave to intervene. Several groups elected to participate and submitted various petitions and motions purporting to challenge the application. The ASLB held oral argument on standing and contention admissibility in Albuquerque, New Mexico, on January 23 and 24, 2019, and on May 7, 2019, LBP-19-4 denied all hearing requests and terminated the proceeding. In a series of decisions across the next two years (the last of which was CLI-21-7, issued April 28, 2021), the Commission denied all associated appeals and denied (or referred the ASLB’s denial) of multiple motions seeking the admission of new contentions. Petitions for review of various NRC orders are being held in abeyance before the D.C. Circuit pending completion of NRC proceedings.
Although no contested matters remain pending in Holtec’s NRC adjudicatory proceeding, the staff’s review of the application remains ongoing. By letter dated November 21, 2021, the staff noted that it was unable to complete its review pursuant to the original schedule due to various deficiencies and delays in Holtec’s responses to staff requests for additional information. Staff agreed to issue a new review schedule after receiving and reviewing the requested information. As of the date of this report, the staff has not issued an updated schedule.
The NRC inspects and assesses the safety and security of operating commercial nuclear power reactors and responds to any decline in their performance under either the NRC’s Reactor Oversight Process (“ROP”) or its traditional Enforcement Policy process—depending on the nature of the noncompliance. Adequate protection is presumptively assured by compliance with NRC requirements. Under the ROP, the NRC evaluates a noncompliance using various quantitative and qualitative risk assessment approaches. After a noncompliance of NRC requirements is identified under traditional enforcement, the NRC assesses its significance by considering: (1) actual safety consequences; (2) potential safety consequences; (3) potential for impacting the NRC’s ability to perform its regulatory function; and (4) any willful aspects of the noncompliance.
Currently, all ninety-three commercially operating nuclear power reactors are being operated in a manner that preserves the public health and safety. Specifically, roughly 97% of the operating fleet is being operated under only routine inspection oversight. Currently, two plants (Callaway and Davis-Besse) are being operated under regulatory oversight, which includes a supplemental inspection and follow-up of corrective actions by the NRC. The objectives of the supplemental inspections are two-fold: (1) to assure that the root causes and contributing causes of performance issues are understood; and (2) to assure that corrective actions taken to address and preclude repetition of significant performance issues are prompt and effective.
On November 8, 2021, the NRC OE rescinded both a Notice of Violation (NOV) (in its entirety) and an Order Imposing Civil Monetary Penalty of $606,942, issued to TVA on August 24, 2020, and October 29, 2020, respectively. The genesis of these enforcement actions (EA-20-006 and EA-20-007) stemmed from two investigations conducted by the NRC Office of Investigations that identified four alleged violations of 10 C.F.R. § 50.7 (Employee Protection). The alleged violations involved adverse actions taken against Sequoyah nuclear plant employees for engaging in protected activities. One such alleged adverse action concerned a harassment complaint filed by a former Director of Corporate Nuclear Licensing against two employees who raised concerns. One employee was placed on administrative leave and eventually terminated (by the former Vice President of Regulatory Affairs) after an internal investigation, which also resulted in an alleged violation § 50.7. The other employee also was placed on administrative leave but eventually resigned to take another position.
In the NOV, the NRC concluded that TVA discriminated against the former Sequoyah employees for engaging in protected activity. On November 30, 2020, TVA requested a hearing challenging the October 2020 order, which was subsequently assigned to the ASLB. TVA argued that it “took appropriate steps to place one employee … on paid administrative leave and to terminate another employee…for engaging in inappropriate and unprofessional workplace conduct, which was inconsistent with TVA’s code of conduct.” Subsequently, TVA filed two Motions for Summary Disposition with the ASLB on August 16, 2021.
On November 3, 2021, the ASLB granted TVA’s motion for summary disposition of Violations 1, 2, and 3 as a matter of law; and denied TVA’s motion for summary disposition of Violation 4 (in part) because material facts were in dispute. After the ALB’s ruling, the NRC OE decided to rescind both the NOV and the October 2020 order.
