II. Legislative Activity
A. Fusion Energy Act of 2024
Sen. Alex Padilla (D-CA) introduced the Fusion Energy Act of 2024 on April 17, 2024 (S. 4151). The bill would clarify regulation of fusion technology by amending the Atomic Energy Act of 1954 (AEA) and the Nuclear Energy Innovation and Modernization Act by codifying the NRC’s decision to establish a regulatory framework for fusion machines under its byproduct materials framework. It would also require the Nuclear Regulatory Commission to complete a rulemaking to establish a technology-inclusive regulatory framework for optional use by fusion machine license applicants.
The bill was referred to the Committee on Environment and Public Works on the day it was introduced.
B. American Nuclear Workforce Act
On April 26, 2024, Rep. Byron Donalds (R-FL) introduced the American Nuclear Workforce Act (H.R.8129), which is intended to incentivize people to work in the nuclear industry. It would require the Secretary of Energy to create an initiative to encourage states to work with institutions of higher learning to enhance dissemination of nuclear science and technology information. The schools would be encouraged to incorporate degrees that are relevant to the nuclear energy industry and to engage with the nuclear power industry to identify and communicate employment opportunities. The bill would also require DOE to establish a mentorship program to pair nuclear industry employee volunteers with students.
H.R. 8129 was referred to the House Committee on Education and the Workforce on the day it was introduced.
C. Efficient Nuclear Licensing Hearings Act
On May 8, 2024, Sen. Tim Scott (R-SC) introduced the Efficient Nuclear Licensing Hearings Act (S. 4288) to amend the AEA to streamline certain adjudicatory hearings. Specifically, it would eliminate the statutory requirement for the Nuclear Regulatory Commission to hold a mandatory adjudicatory hearing on every application for a new nuclear reactor.
Rep. Morgan Griffith (R-VA) introduced an identical bill in the House of Representatives (HR. 6464). S. 4288 was referred to the Committee on Environment and Public Works on the day it was introduced.
D. The U.S.-European Nuclear Energy Cooperation Act of 2024
On June 25, 2024, Rep. William Keating (D-MA) introduced the U.S.-European Nuclear Energy Cooperation Act of 2024 (H.R. 8824). The bill would require the Secretary of State to develop a strategy to strengthen U.S.-European nuclear energy cooperation and combat Russian influence on Europe’s nuclear energy sector. The Secretary of State would develop this strategy in consultation with the Secretary of Energy and other relevant federal agencies. Among other things, the strategy would include an assessment of the efforts to broaden U.S. participation in the European nuclear energy industry and an overview of how different reactor designs and fuel cycles under consideration in Europe could help reduce Russia’s influence over European energy supply. The strategy would be authorized to be appropriated $30 million for fiscal years 2025 to 2029.
The bill was referred to the House Foreign Affairs Committee the same day it was introduced.
E. Milestones for Advanced Nuclear Fuel Act
On June 7, 2024, Rep. Brandon Williams (R-NY) introduced the Milestones for Advanced Nuclear Fuel Act (H.R. 8674). The bill would mandate the Department of Energy (DOE) to initiate specific milestone-based development and demonstration projects that bolster the domestic nuclear fuel supply chain, including high-assay low-enriched uranium. These projects would require achieving certain technical and financial milestones before participants would receive awards through a competitive process.
In particular, the DOE would be required to implement milestone-based demonstration projects under its Fuel Cycle Research and Development program. DOE would have to complete and publicly release a study that evaluates the feasibility, potential benefits, and estimated lifecycle costs of recycling certain spent nuclear fuel into usable fuel for nuclear reactors. Further, DOE would be required to allocate funding for milestone-based advanced fuel cycle technologies development and demonstration projects, including uranium production, conversion, enrichment, deconversion, and waste reduction for advanced fuels.
The bill was considered and marked-up by the House Science, Space, and Technology Committee on June 13, 2024 and reported by that Committee on September 18, 2024.
On July 30, 2024, Rep. Byron Donalds (R-FL) introduced a series of bills relating to the nuclear industry. They include:
F. Nuclear Waste Reprocessing Act
The Nuclear Waste Reprocessing Act (H.R. 9202) directs the Secretary of Energy to promote and facilitate the commercialization of domestic spent nuclear fuel reprocessing. The bill finds that commercialization of domestic spent nuclear fuel reprocessing is essential to addressing the challenges posed by spent nuclear fuel and to advancing the development of sustainable nuclear energy in the U.S.
On the date it was introduced, the bill was referred to the House Committee on Science, Space, and Technology, and Energy and Commerce Committee.
G. Nuclear USA Act of 2024
The Nuclear USA Act of 2024 (H.R. 9201) would amend the Internal Revenue Code to make the restoration, expansion, or establishment of certain facilities used for fabricating nuclear fuel or reprocessing spent fuel eligible for the advanced manufacturing production tax credit. It would also designate uranium as a “critical mineral” in the Internal Revenue Code for the purpose of the advanced manufacturing tax credit.
The bill was referred to the House Ways & Means Committee on the day it was introduced.
H. Atomic Supply Chain Solutions Act
The Atomic Supply Chain Solutions Act (H.R. 9200) would require the Secretary of Energy to develop and submit to the relevant Congressional committees an evaluation of the domestic nuclear supply chain. The evaluation would address the importance of bolstering the nuclear supply chain to meet future demand for nuclear energy, lessons learned from the construction of Vogtle units 3 and 4, whether an American Society of Mechanical Engineers “N-type” nuclear certification is necessary for certain nuclear components, and an analysis of the potential benefits from using advanced manufacturing and innovative technologies. The bill would also express the policy of the U.S. to prioritize establishing a robust domestic high-assay, low-enriched uranium market.
On the day it was introduced, the bill was referred to the House Energy & Commerce Committee.
I. To amend the Atomic Energy Act of 1954 and the Nuclear Energy Innovation and Modernization Act to limit the type of applications reviewed by the Advisory Committee on Reactor Safeguards and to exclude reviews by the Advisory Committee on Reactor Safeguards from the Nuclear Regulatory Commission’s annual assessment and collection of fees and charges
As the title of the bill (H.R. 9199) describes, it would limit the NRC’s Advisory Committee on Reactor Safeguards (ACRS) from reviewing certain license applications unless the Committee makes a risk-informed determination that the application presents a novel issue or one of significant safety concern. It would also exclude ACRS reviews from fees that the NRC charges to license applicants.
The bill was referred to the Energy & Commerce Committee.
J. Maximize Risk-Informed, Performance-Based Licensing
The Maximize Risk-Informed, Performance-Based Licensing Act (H.R. 9198) would require the NRC to use risk-informed, performance-based licensing approaches to the maximum extent practicable to expedite the agency’s licensing processes. The bill would require the NRC to accomplish this consistent with a 1999 Commission Staff Requirements Memorandum, “Staff Requirements – SECY-98-144, White Paper on Risk-Informed and Performance-Based Regulation.” It would also require that the NRC staff receive annual training on the expectations and concepts in that white paper.
H.R. 9198 was referred to the House Energy & Commerce Committee.
III. Judicial Update
A. CISF Litigation
Although the DOE’s used fuel management program has been largely inactive, private companies launched two private, away-from-reactor consolidated interim storage facilities (CISFs). In 2021, Interim Storage Partners, LLC (ISP), a joint venture between Waste Control Specialists LLC and Orano USA LLC, received from the NRC a 10 C.F.R. Part 72 license for its CISF in Texas. In May 2023, the NRC issued a final license for Holtec’s New Mexico CISF. Both projects have faced legal challenges, the most notable of which are summarized below.
1. State of Texas v. NRC
On August 25, 2023, a Fifth Circuit panel issued an opinion vacating ISP’s NRC license in response to challenges from the State of Texas and Fasken Land and Minerals, Ltd. (Fasken). The panel unanimously ruled that the AEA did not give the NRC authority to issue a license to private parties for away-from-reactor spent fuel storage. According to the panel, the Nuclear Waste Policy Act is “a comprehensive statutory scheme for dealing with nuclear waste generated from commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority.” The panel also found that the NRC’s exercise of authority over away-from-reactor spent fuel storage was invalid under the major questions doctrine articulated in West Virginia v. EPA. Also notably, the court concluded 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 hearing before the NRC. 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 panel’s decision to recognize an exception to the Hobbs Act requirement and its rejection of the NRC’s interpretation of its powers under the AEA are both notably inconsistent with rulings from several other federal courts of appeals, creating a circuit split on both topics.
In a 9-7 vote, the Fifth Circuit denied the petitions for rehearing en banc. In June 2024, the federal government and ISP filed petitions for certiorari with the U.S. Supreme Court. Briefs in opposition to the petitions for certiorari were filed in August 2024, and petitioner replies were filed in September 2024.
2. Beyond Nuclear v. NRC
After Holtec International (Holtec) received its final license in May 2023, several petitioners filed briefs before the D.C. Circuit alleging that the NRC violated the NWPA and the Administrative Procedure Act when it refused to terminate the licensing proceeding or deny Holtec’s CISF application. Additionally, Sierra Club and six other non-profits filed a third brief raising numerous factual contentions and pushing the Fifth Circuit’s analysis in Texas v. NRC that the NRC lacked statutory authority to issue a license for away-from-reactor spent fuel storage facilities. The federal government and Holtec responded to the above petitioner briefs, and Nuclear Energy Institute (NEI) has filed an amicus brief in support of the NRC. The briefing was completed in January 2024 and oral argument was held on March 5, 2024, before Judges Rao, Walker, and Garcia. On August 27, 2024, the panel unanimously held that the NRC “reasonably declined to admit petitioners’ factual contentions and otherwise complied with statutory and regulatory requirements when rejecting the requests to intervene.” The D.C. Circuit rejected Beyond Nuclear’s arguments, holding that the NRC’s consideration of Holtec’s license is consistent with relevant legal requirements because the AEA “authorized the NRC to regulate the possession, use, and transfer of the constituent materials of spent nuclear fuel” and to license the storage of spent nuclear fuel at onsite and away-from-reactor facilities. Furthermore, the D.C. Circuit held that “Fasken’s late-filed contention sought to introduce information on mineral rights and extraction operations, but Fasken fails to demonstrate that this information was previously unavailable or materially different from information available during the licensing proceeding.” Accordingly, the “Commission’s rejection of Fasken’s untimely contentions was reasonable and consistent with its regulations.” Finally, the D.C. Circuit asserted that none of the Environmental Petitioners “raise[d] a material dispute of law or fact, and the Commission’s rejection of the contentions was reasonable and consistent with the legal requirements.”
3. Fasken Land & Minerals, Ltd. v. NRC
Fasken filed a petition for review in the Fifth Circuit challenging the NRC’s issuance of a license to Holtec. NRC, Holtec, and NEI as amicus responded in similar fashion to the arguments raised in the parallel Fifth Circuit case challenging ISP’s license. In March 2024, after the Fifth Circuit issued its opinion in Texas v. NRC vacating ISP’s license, a Fifth Circuit panel published a two-page order vacating Holtec’s license. The decision essentially applied Texas v. NRC to reach the same result. On June 25, 2024, the federal government and Holtec filed petitions for certiorari with the U.S. Supreme Court. Briefs in opposition to the petitions for certiorari were filed in August 2024, and petitioner replies were filed in September 2024.
B. Preemption
In April 2024, Holtec sued the State of New York seeking to overturn a state statute preventing the discharge of radioactive materials otherwise in compliance with federal regulations. Holtec has argued that the state law is preempted by the AEA and “blatant[ly] infringe[s] on the federal government’s exclusive right to regulate the discharge of radioactive materials from nuclear power plants.”
Holtec also is in the process of appealing the Massachusetts Department of Environmental Protection’s denial of a modification to the Pilgrim Plant’s discharge permit, asserting, among other bases, that the state is attempting to regulate radiological effluent in contravention to the AEA.
C. Spent Fuel Damages Decisions
Litigation continues on spent fuel damages claims against the DOE for its partial breach of the Standard Contract. Two notable legal position came out of the Court of Federal Claims in the last year:
- In Connecticut Yankee Atomic Power Co. v. United States, ___ Fed.Cl. ___, 2024 WL 705847 (2024), the court found that investment earnings on the Nuclear Decommissioning Trusts should not be used to offset the calculation of damages from DOE’s partial breach.
- In Georgia Power Co. v. United States, 166 Fed.Cl. 621 (2023), the court found that the government was entitled to an offset against the plaintiffs’ damages when the plaintiffs received a financial benefit as a consequence of the breach from returns on shareholder investments in infrastructure (like dry storage).
IV. Regulatory and Commission Developments
A. Marzano Confirmation Hearings
In July 2024, President Biden nominated Matthew Marzano, of Illinois, to fill the remaining open seat on the Commission. The Senate Committee on Environmental and Public Works held a confirmation hearing in early September 2024. At this point, the Senate is not expected to act on Marzano’s confirmation until after the November presidential election. If confirmed, Marzano would bring the Commission back to a full complement of five Commissioners.
B. Restarting Shutdown Reactors
1. Palisades
Holtec acquired the Palisades facility in Covert, Michigan from Entergy in 2022, immediately after Entergy shut down the reactor. Holtec has since obtained a $1.5B DOE loan guarantee under Title XVII of the Energy Policy Act of 2005, $300M in grant funding from the State of Michigan, and long-term power purchase agreements with regional power cooperatives to support restarting the plant. Over the past year, Holtec has filed several NRC actions to reinstate the operational licensing basis that was in place prior to the shutdown, essentially unwinding the changes implemented by Entergy and Holtec during the transition into decommissioning. NRC has published a new Inspection Manual Chapter to provide an inspection and approval framework for plants resuming power operations after docketing of the 10 CFR 50.82(a)(1) certifications of permanent shutdown and defueling, and NRC recently issued an inspection plan for the Palisades restart. The latest estimates from NRC staff indicate that NRC expects to reach a decision on the restart approvals by mid-2025, which is also when NRC staff expects to complete its environmental reviews. Holtec has indicated that the plant is expected to be back online by Q4 2025.
2. TMI-1
In September 2024, Constellation announced plans to restart Three Mile Island, Unit 1 (“TMI-1”), to be renamed Crane Clean Energy Center. TMI-1 shut down in 2019 and has been working towards SAFSTOR decommissioning since then. In connection with the proposed restart project, Constellation has entered into a 20-year power purchase agreement with Microsoft as part of Microsoft’s efforts to help decarbonize the grid. Constellation has begun the process to obtain NRC and PJM approvals for the restart, and the company projects that Crane Clean Energy Center will resume power operations in 2028. Constellation has also announced its plans to seek subsequent license renewal following the restart, which would extend the operations period out to at least 2054.
3. Duane Arnold
NextEra has publicly discussed that they are considering the possibility of restarting Duane Arnold. To date, NextEra has not made any formal announcements regarding a restart project. Duane Arnold shut down in 2020 and has been in SAFSTOR since then.
4. Petition for Rulemaking
In September 2024, NRC docketed a petition for rulemaking, submitted by two members of the public, requesting that NRC undertake rulemaking to provide a prescribed regulatory path to return shut down facilities to power operations. The petitioners have also filed a hearing request in the adjudicatory docket for the Palisades restart, requesting that the NRC defer action on Palisades until the agency has undertaken rulemaking to define a regulatory path for the return to power operations. NRC previously denied a similar petition for rulemaking in 2021, concluding that the same regulatory framework used to step down reactors’ licensing basis into decommissioning (i.e., license amendment requests, exemptions, and 50.54/50.59 changes) could be used to return a facility to power operations after certification of shutdown and defueling. Comments on the current petition for rulemaking are due December 3, 2024.
C. New Reactors
1. Vogtle 3 & 4
Vogtle Unit 4 achieved commercial operation in April 2024.
2. Part 50 Construction Permit Applications
During the reporting period, several small modular and advanced reactor projects have ramped up NRC licensing activity, most notably with the submittal and docketing of the first construction permit application for a commercial-scale project using a new reactor design. Nuclear vendors have been in pre-submittal discussions with NRC staff for years, including submission of topical reports, test reactor permits, and other licensing activity that is meant to pave the way for the licensing of the next generation of nuclear designs.
a. Kemmerer (Natrium)
In May 2024, NRC docketed TerraPower’s construction permit application to build a 345 MW Natrium sodium fast reactor in Wyoming. The project is the recipient of DOE’s Advanced Reactor Demonstration Program (ARDP) funding—one of two commercial scale projects to receive ARDP funding. NRC reviews of the construction permit application are still in the early stages, with NRC currently targeting Fall 2026 for completion of the Final Safety Evaluation Report and Final Environmental Impact Statement.
b. Seadrift (Dow, X-energy)
The other commercial-scale project to receive ARDP funding is the Dow and X-energy project at the Seadrift site at Dow’s facilities in Texas. X-energy submitted a letter of intent to file a construction permit application in early 2023, but the application has not yet been filed. The companies state that they expect construction to commence in 2026.
c. Carbon Free Power Project (NuScale)
NuScale and Utah Associated Municipal Power Systems announced the cancellation of the Carbon Free Power Project following an apparent failure to obtain sufficient financial commitments to continue with project development and construction. NuScale remains the only new design to obtain a design certification under Part 52. Most of the other projects dependent on new reactor designs appear to be proceeding under Part 50.
d. Non-Power Reactors
In 2023, NRC docketed the construction permit application for two test reactors using Kairos Power’s fluoride salt-cooled, high-temperature reactor design at Oak Ridge. NRC has finalized their safety evaluation and NEPA reviews and the Commission recently published a notice for the mandatory hearings on the application.
Abilene Christian University recently received a construction permit to build a Natura Resources’ MSR-1 molten salt research reactor. The project represents the first research reactor to be constructed in several decades. In addition to educational purposes, the project is intended to provide operational data to support the development of Natura’s 100 MWe commercial small modular reactor.
3. Part 53 Rulemaking
In March 2024, the Commission provided feedback to NRC staff on the draft Part 53 proposed rule staff sent to the Commission in March 2023. The Commissioners directed staff to revise portions of the draft proposed rule and return it to the Commission by September 2024—a deadline that staff does not appear to have met. Assuming the Commission is satisfied with staff’s revisions, NRC would likely publish the proposed rule in the Federal Register in late 2024 or early 2025. Given the size of the rule and expected extent of industry comments, it is unlikely that a final rule would be published earlier than 2026. In the meantime, several advanced nuclear and small modular reactor projects are proceeding with early development activities under the assumption that they will be licensed under Part 50.
D. Subsequent License Renewal
As previously reported, in 2022, the Commission directed the staff to initiate a rulemaking regarding the environmental impacts specifically of subsequent license renewal (SLR). The NRC staff did so, publishing a proposed rule concerning those impacts as well as an updated draft license renewal (LR) generic environmental impact statements (GEIS) that included the SLR impacts in the Federal Register on March 3, 2023. The proposed rule redefined the number and scope of environmental issues addressed by the NRC and license renewal applications. After a public comment period, the staff submitted a draft final rule and draft final GEIS to the Commission on February 21, 2024. The Commission approved the staff’s proposal without significant changes on May 16, 2024. In its approval, the Commission noted that the next ten-year review cycle for the LR GEIS would be due in 2031, with an effective date of 2034. The Commission directed the staff to “continue to engage regularly with industry stakeholders to determine interest in a third term of license renewal” and provide a rulemaking plan to the Commission accounting for the need for a GEIS for a third LR term if the staff is informed of such an intent prior to 2034. NRC published the final LR GEIS in August 2024.
E. Decommissioning 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 sent a final rule package to the Commission for approval in January 2024, but as of the reporting date, the Commission has yet to act on staff’s proposed final rule. The details of the decommissioning rulemaking, which has been underway for nearly a decade, have been addressed in prior reports.
