B. Nuclear Fuel Security Act of 2023
On February 15, 2023, Sen. Joe Manchin (D-WV) introduced the Nuclear Fuel Security Act of 2023 (S. 452) to establish and expand programs to increase domestic supply of certain types of LEU. Specifically, the bill would require DOE to create a program to increase the quantity of LEU and high-assay low-enriched uranium (HALEU) produced by U.S. companies. S. 452 would also require DOE to expand the existing American Assured Fuel Supply Program to ensure the availability of certain types of domestically-produced uranium in the event of a supply disruption. Lastly, the bill would require DOE to establish a demonstration program to make certain types of LEU available from its inventories, stockpiles, or allies to meet the needs and schedules of advanced nuclear reactor developers until the national commercial enrichment and deconversion capability exists in the United States.
H.R. 1086, a companion bill in the House of Representatives under the same name, was introduced by Rep. Latta (R-OH) on February 17, 2023.
On May 17, 2023, the Committee on Energy and Natural Resources ordered S. 452 to be reported with an amendment favorably. On July 11, 2023, the bill was placed on the Senate Legislative Calendar.
C. International Nuclear Energy Act of 2023
On March 15, 2023, Sen. Joe Manchin (D-WV) introduced the International Nuclear Energy Act of 2023 (S. 826) to facilitate the development of a whole of government strategy for nuclear cooperation and nuclear exports. The bill would establish an Office of the Assistant to the President and Director for International Nuclear Energy Policy to coordinate civil nuclear export control policies and develop a strategy for engaging with foreign governments on civil nuclear cooperation.
The bill would also create a Nuclear Exports Working Group comprised of senior-level officials from various federal agencies, including the Departments of State, Commerce, and Energy, as well as the NRC. This working group would develop a 10-year civil nuclear trade strategy to include targets for exporting civil nuclear technologies, materials, and fuels.
S. 826 would also require the President to commence an international initiative for outreach to nations seeking to start civil nuclear energy programs. It would require the administration to establish financing relationships with allied nations to promote nuclear exports from the United States and assist new civil nuclear energy programs.
S. 826 is substantially similar to H.R. 2938, an identically-named bill which was introduced by Rep. Byron Donalds (R-FL) on April 27, 2023. It is also substantially similar to the Recoup American Nuclear Global Leadership Act, (H.R. 3486), which was also introduced by Rep. Donalds on May 18, 2023.
On the day of its introduction, S. 826 was referred to the Committee on Foreign Relations.
D. Department of Energy and Nuclear Regulatory Commission Whistleblower Protection Act
As she has done in the past, on March 30, 2023, Sen. Tammy Duckworth (D-IL) introduced the Department of Energy and Nuclear Regulatory Commission Whistleblower Protection Act (S. 1112). The bill would amend the Energy Reorganization Act of 1974 to clarify that DOE or NRC employees may seek civil remedies if their employer discriminates against them for raising nuclear safety concerns.
S. 1112 was referred to the Committee on Energy and Natural Resources on March 30, 2023.
E. Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2023
On March 30, 2023, Sen. Shelley Moore Capito (R-WV) introduced the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2023 (ADVANCE Act) (S. 1111). The bill would enhance U.S. civil nuclear leadership, support the licensing of advanced nuclear technologies, strengthen the domestic nuclear fuel cycle and supply chain, and improve the regulation of nuclear energy.
The ADVANCE Act would establish a joint initiative between the Commerce Department and DOE to facilitate outreach to nations seeking to develop advanced nuclear energy programs. The bill would also reduce regulatory costs associated with licensing advanced nuclear reactor technologies and require the NRC to assess the timeliness of their licensing efforts. S. 111 would also provide the NRC with hiring authority to better enable the agency to hire and retain highly-specialized staff to work on advanced reactor licensing. Lastly, the bill would extend the nuclear indemnification policy under the Price-Anderson Act from December 31, 2025 to December 31, 2045.
On May 31, 2023, the bill was favorably voted out of the Senate Environment and Public Works Committee. It was subsequently amended to the National Defense Authorization Act for Fiscal Year 2024, which the Senate passed on July 27, 2023.
F. To Direct the Administrator of the Environmental Protection Agency to Consider Nuclear Power to be a Green Source of Energy, and for Other Purposes
On April 6, 2023, Rep. Byron Donalds (R-FL) introduced To Direct the Administrator of the Environmental Protection Agency to Consider Nuclear Power to be a Green Source of Energy, and for Other Purposes (H.R. 2487). The bill would direct the Administrator of the Environmental Protection Agency (EPA) to consider nuclear power to be a green source of energy when determining whether a participant in the Green Power Partnership meets the minimum electricity use requirement. The bill would prohibit any federal funds from being used for the Green Power Partnership unless nuclear power is included as a green source of energy under the program.
H.R. 2487 was referred to the House Energy & Commerce Committee on April 6, 2023 and subsequently to the Subcommittee on Energy, Climate and Grid Security on April 14, 2023.
G. 21st Century American Atomic Energy Age Act
On May 18, 2023, Rep. Wittman (R-VA) introduced the 21st Century American Atomic Energy Age Act (H.R. 3553), which would establish the Office of Nuclear, Economic, Environmental, and National Security at the NRC. This office would be responsible for the principal licensing and regulatory functions of the Commission under the Atomic Energy Act of 1954 (AEA), review the economic, environmental, and national security benefits of nuclear facilities and materials, and determine the need to develop another NRC office that would review the agency’s licensing and regulatory functions for the purpose of increasing the development and use of nuclear energy. The bill would also require the NRC to provide technical assistance to applicants for a small modular reactor operating license or construction permit. Lastly, H.R. 3553 would prohibit the use of nuclear fuel produced in, or imported from, Russia to operate any small modular reactor in the United .States.
H.R. 3553 was referred to the House Energy & Commerce Committee, as well as the Committees on Homeland Security and Armed Services, on May 18, 2023.
H. Spent Fuel Prioritization Act of 2023
On June 6, 2023, Rep. Mike Levin (D-CA) introduced the Spent Nuclear Fuel Prioritization Act of 2023 (H.R. 3862). The bill would amend the Nuclear Waste Policy Act of 1982 (NWPA) to prioritize the acceptance of spent nuclear fuel from certain commercial nuclear power reactors. Priority would be given to decommissioned or decommissioning reactors located in an area with the largest population and that are subject to the highest hazard of an earthquake. The Secretary of Energy would also need to determine that the continued storage of spent nuclear fuel at the reactor site poses a significant national security concern.
H.R. 3862 was referred to the House Committee on Energy and Commerce and subsequently to the Subcommittee on Environment, Manufacturing, and Critical Materials.
I. Civil Nuclear Exports Act of 2023
On June 12, 2023, Sen. Joe Manchin (D-WV) introduced the Civil Nuclear Exports Act of 2023 (S. 1928). Consistent with other legislation introduced by Sen. Manchin, this bill is geared toward enhancing the U.S.’s ability to compete in existing and emerging nuclear markets to reduce reliance on Russian and Chinese civil nuclear technologies. Specifically, S. 1928 would modify the Export-Import Bank Act of 1945 to modify the prohibition on financing in the Export-Import Bank Act by specifying the financing of civil nuclear facilities, materials, and technologies that support the nuclear energy sector.
The bill was referred to the Committee on Banking, Housing, and Urban Affairs.
J. NRC Office of Public Engagement and Participation Act of 2023
On July 11, 2023, Rep. Mike Levin (D-CA) introduced the NRC Office of Public Engagement and Participation Act of 2023 (H.R. 4530). The bill would establish at the NRC the Office of Public Engagement and Participation. This new office would support public participation in proceedings before the NRC (including providing educational, legal, and technical guidance), advocate for the public interest for matters before the NRC, and coordinate assistance to persons participating in NRC proceedings. The bill would also allow for the NRC to provide compensation for attorney’s fees, expert witness fees, and other costs of participating in a NRC proceeding, if the agency finds that the proceeding is significant and the compensation is warranted due to significant financial hardship.
The bill is substantially similar to Section 319 of the Federal Power Act, which was enacted into law in 2021 and directed the Federal Energy Regulatory Commission to establish the Office of Public Participation. H.R. 9215 contains more explicit guidance regarding the responsibilities of the NRC Office of Public Engagement and Participation than Section 319 of the Federal Power Act, though both contain nearly identical provisions regarding the availability of compensation.
Rep. Levin introduced this same legislation in 2022 (H.R. 9215). H.R. 4530 was referred to the House Energy and Commerce Committee.
K. Nuclear Red Tape Reduction Act
On July 17, 2023, Rep. Byron Donalds (R-FL) introduced the Nuclear Red Tape Reduction Act (H.R. 4676). The bill is intended to direct the NRC to further use risk-informed and performance-based approaches to licensing to the maximum extent practicable. The bill would also streamline the adjudicatory hearing process for license or permit applications. Lastly, the bill would require the NRC to produce a report for the House Energy and Commerce and the Senate Environment and Public Works Committees describing the NRC’s authority to determine the terms of renewed licenses.
H.R. 4676 was referred to the House Energy and Commerce Committee on July 17, 2023.
III. Consolidated Interim Storage – Judicial and Regulatory Update
Although the federal used fuel management program has been largely inactive for more than a decade, private companies have launched two private consolidated interim storage facilities (CISFs)—one in Texas and the other in New Mexico. Interim Storage Partners, LLC (ISP), a joint venture between Waste Control Specialist and Orano USA, received a 10 C.F.R. Part 72 license for its CISF in 2021. In May 2023, the NRC issued a final license to Holtec International’s (Holtec) New Mexico CISF. Both projects have faced legal challenges, and the federal courts are actively handling several lawsuits challenging the NRC’s licensing of these facilities.
A. Judicial Challenges to ISP’s License
1. Don’t Waste Michigan v. NRC; State of New Mexico v. NRC.
Since the last report, there have been no developments in Don’t Waste Michigan v. NRC nor State of New Mexico v. NRC.
2. State of Texas v. NRC
The State of Texas and Fasken Land and Minerals, Ltd. (Fasken) petitioned the Fifth Circuit for review of the NRC’s issuance of the ISP license. The NRC moved to dismiss both petitions for review.
In February 2022, Texas and Fasken each filed briefs before the Fifth Circuit. In its brief, Texas argues that the NRC lacked authority to issue the license under both the Atomic Energy Act (AEA) and the Nuclear Waste Policy Act (NWPA). Texas also argues that the NRC violated the National Environmental Policy Act (NEPA) for failing to assess risks associated with potential terrorist attacks, as well as falling short of the requirements of the Administrative Procedure Act (APA). In its brief, Fasken argues that the NRC’s decision was arbitrary and capricious and an abuse of discretion, violating the APA, NEPA, and NWPA.
In April 2022, the NRC and intervenor ISP filed briefs opposing the Texas and Fasken petitions. The NRC and ISP argue that the Fifth Circuit lacks jurisdiction over the petitions for review because, among other reasons, neither petitioner seeks review of an NRC final order as a party aggrieved under the Hobbs Act because neither participated in the adjudicatory proceedings before the NRC and neither seeks review of the NRC’s decision denying them party status. The NRC and ISP also argue that the NRC’s issuance of the license was fully consistent with the APA, AEA, NEPA, and NWPA as the NRC has statutory authority to license private, away-from-reactor spent fuel storage.
Briefing was completed in May 2022 and oral argument was held August 29, 2022. On August 25, 2023, the Fifth Circuit issued an opinion vacating ISP’s independent spent fuel storage installation (ISFSI) license. The court unanimously ruled that the NRC lacks statutory authority to license the ISP facility and found that the AEA does not give the NRC authority to issue a license to private parties for away-from-reactor spent fuel storage. According to the court, the NWPA is “a comprehensive statutory scheme for dealing with nuclear waste generated from commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority.”
Regarding the issue of standing, the court stated that Texas is entitled to challenge the NRC’s license for ISP, even though it failed to participate in the Atomic Safety and Licensing Board (ASLB) hearing. The court recognized an exception to the Hobbs Act party-aggrieved status requirement where “‘a person may appeal an agency action even if not a party to the original agency proceeding’” when “‘the agency action is attacked as exceeding [its] power.’”
The Fifth Circuit’s rejection of the NRC’s interpretation of its powers under the AEA is inconsistent with rulings from several other federal courts of appeals which empower the NRC with broad authority to interpret its own statutory mandate. This decision sets up a clear circuit split, raising the question of whether the NRC or ISP will petition for rehearing en banc or for certiorari.
B. Judicial Challenges to Holtec’s License
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 spent nuclear fuel for a license term of forty years. Several groups intervened in the licensing process and submitted various petitions and motions purporting to challenge the application. In May 2019, an ASLB 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 2021), the Commission denied all associated appeals and motions seeking the admission of new contentions. Petitions for review of various NRC orders were held in abeyance before the D.C. Circuit pending completion of NRC proceedings.
Since the last report, there has been no update in State of New Mexico v. NRC.
1. Beyond Nuclear v. NRC
Once Holtec received its final license in May 2023, several petitioners filed separate opening briefs before the D.C. Circuit. On September 1, 2023, Beyond Nuclear filed a brief seeking review of the NRC’s license approval for Holtec to construct and operate a CISF. Beyond Nuclear alleges the NRC violated the NWPA and the APA when it refused to terminate the licensing proceeding or deny Holtec’s CISF application. Fasken and Permian Basin Land and Royalty Owners also filed a brief, arguing that the NRC abused its discretion and acted arbitrarily and capriciously when it denied their contentions regarding mineral extraction operations beneath and surrounding Holtec’s site. Additionally, Sierra Club and six other non-profits filed a third brief raising seven different issues and adopting Beyond Nuclear’s arguments asserting that the Holtec facility is illegal under the NWPA. The State of New Mexico and the City of Fort Worth filed amicus briefs in support of petitioners on September 9, 2023. The NRC and Holtec have not yet responded to the Petitioner briefs. As of now, oral arguments have not yet been scheduled.
2. Fasken Land and Minerals v. NRC
On July 11, 2023, Fasken and Permian Basin Land and Royalty Owners filed a petition for review in the Fifth Circuit, challenging the NRC’s issuance of a license to Holtec in May 2023. On July 28, 2023, the NRC filed a motion to dismiss the proceeding as an improper challenge to the license under the Hobbs Act. On August 14, 2023, Fasken filed a response in opposition to the NRC’s motion while Holtec filed in favor of the motion. The NRC then filed its response on August 25, 2023 on the same date that the Fifth Circuit issued an opinion vacating ISP’s ISFSI license. In light of this decision, on September 6, 2023, the NRC asked that the motion to dismiss may either be carried with the case to the merits panel; or deferred until the mandate issues in Texas. Fasken responded to this letter on September 7, 2023, asking that their petition for review be granted and the Holtec license be vacated immediately.
C. State Legislation
On February 13, 2023, the New Mexico Senate passed S.B. 53, which was ultimately passed by the House and signed into law. The bill bans the storage of nuclear waste in New Mexico and, more specifically, prohibits public agencies from granting permits for a nuclear-waste disposal project unless certain conditions are met, including the state consenting to storage of the waste.
On August 11, 2023, Illinois Governor J.B Pritzker vetoes Senate Bill 76, a bill that would have ended the state’s moratorium on constructing new nuclear reactors. Governor Pritzker argued that while small modular reactors have the potential to power certain sectors of the Illinois economy, Senate Bill 76 did not provide regulatory protections for the health and safety of Illinois residents who would live and work near the new reactors. He also cited vague definitions in the bill regarding advanced reactors, which he thought would open the door to constructing large-scale light water reactors in the state.
IV. Commission Developments
A. Decommissioning
1. Rulemaking
On March 3, 2022, the NRC published in the Federal Register a Notice of Proposed Rulemaking regarding a proposed rule for operating reactors transitioning to decommissioning. NRC staff is currently in the comment review period following the closing of public comments in August 2022. The NRC received over 4,000 comments on the proposed rulemaking in addition to the periodic public meetings held on the proposal. NRC staff is expected to complete the comment-review period and send a final rule package to the Commission for approval in the fall of 2023, with a final rule published in mid-2024. The details of the decommissioning rulemaking, which has been underway for nearly a decade, have been addressed in prior reports.
2. Industry Trends
The asset transfer model, in which the incumbent utility transfers the shutdown facility, NRC licenses, decommissioning liability, and decommissioning trust funds to a new company to execute decommissioning, is still the most prevalent means of decommissioning within the industry.
Entergy Nuclear Operations used this model to transfer Palisades to subsidiaries of Holtec in 2022. During the transfer application process, several parties filed contentions against the transfer, including the Michigan Attorney General. NRC staff approved the license transfers in December 2021, and the transaction closed in June 2022; however, in July 2022, the Commission (which acts as the presiding officer in license transfer proceedings) admitted four portions of the Michigan Attorney General’s financial challenge and rejected the other contentions filed in the proceeding.
In that order (CLI-22-08), a three-member Commission admitted financial contentions similar to those previously rejected by a full Commission (over two Commissioners’ dissent) in proceedings involving Holtec’s acquisition of Oyster Creek, Pilgrim, and Indian Point. The evidentiary hearing on portions of the Michigan Attorney General’s admitted contentions took place in February 2023 before a single member licensing board. The board certified the record to the Commission in March 2023. A final decision by the Commission is likely to take several months.
The Michigan Governor also announced that the state is in discussion with Holtec regarding a potential restart of Palisades, and the state has passed legislation allocating funds for the restart. Holtec submitted a regulatory engagement plan to the NRC and participated in public meetings to discuss the licensing process for restarting Palisades. Holtec has also announced that it is in the process of applying for a DOE loan to support restart expenditures. In September 2023, Holtec announced that it had entered into power purchase agreements with two electric power cooperatives for all of the facility output, once it resumes operations. Palisades would be the first facility to resume operations following the certification of permanent removal of fuel, at which point the facility license no longer authorizes operations.
B. Subsequent License Renewal
As previously reported, NRC staff published a proposed rule concerning subsequent license renewal (SLR) generic environmental impact statements (GEIS) in the Federal Register on March 3, 2023. The proposed rule redefines the number and scope of environmental issues addressed by the NRC and license renewal applications. The proposed rule is the result of NRC staff thoroughly re-evaluating SLR as directed by SECY-22-0024. From the previous regulation in 2013, the total amount of environmental issues addressed rose from seventy-eight to eighty, and the number of Category 2 issues to be addressed in plant specific environmental impact statements increased from seventeen to twenty. These changes include: (1) consolidation of some issues within their respective categories; (2) addition of greenhouse gas effects on climate change to Category 1; (3) movement of severe nuclear accident impacts from Category 2 to Category 1; (4) division of one Category 2 issue into three separate issues addressing various endangered species and habitats; and (5) addition of National Marine Sanctuaries and climate change impact on environmental resources to Category 2. As with the current regulation, Category 1 considerations are addressed in the GEIS, and licensees must address any varied impacts of Category 1 items at the specific site and all Category 2 items. Under the proposed regulation, SLR applications will be subject to the same supplemental environmental impact statement (SEIS) requirements as an initial license renewal (LR). Additionally, the NRC simultaneously published a draft of the revised LR GEIS for comment. The draft revised LR GEIS and proposed regulation specifically cover both initial LR and the first SLR. The comment period for this proposed regulation ended May 2, 2023.
C. Vogtle Units 3 and 4
On August 3, 2022, Georgia Power Company and Southern Nuclear Operating Company, Inc. received NRC authorization under 10 C.F.R. § 52.103(g) to load fuel in Vogtle Unit 3, marking the first reactor to achieve this milestone under the NRC’s Part 52 framework. Fuel loading began in October 2022. Following pre-operational testing, Unit 3 safely began commercial operations in July 2023.
Unit 4 completed hot functional testing (HFT) in May 2023. HFT verifies the successful operation of reactor components and systems together and confirms the reactor’s readiness for fuel load. Unit 4 received its 103(g) finding in July 2023 and began fuel load in August 2023. Unit 4 is expected to enter service in late 2023 or early 2024.
E. Enforcement Update
The NRC enforcement report for calendar year 2022 illustrates that the total number of escalated enforcement actions agency wide remains higher than the five-year average. The report contains detailed write-ups of three significant cases from 2022: a proposed civil penalty for three severity level III problems and ten violations by the Air Force Medical Readiness Agency, a confirmatory order following a settlement agreement between the NRC and the National Institute of Standards and Technology, Center for Neutron Research, and a confirmatory order following mediation with Avera McKennan following an investigation and two apparent violations.
