Up & Atom

The Nuclear Regulatory Commission (NRC) hosted a public meeting on April 13 to discuss and solicit stakeholder feedback on the cumulative effects of regulation regarding final changes made to the fitness-for-duty (FFD) drug testing requirements in 10 CFR Part 26 (Part 26). The NRC published the proposed rule in the Federal Register on September 16, 2019, to align Part 26 with certain drug testing provisions in the 2008 Health and Human Services Guidelines.

The US Supreme Court rang eight bells on March 29, rejecting the petition by US Navy sailors to review last year’s Ninth Circuit decision upholding dismissal of their lawsuit in Cooper v. Tokyo Electric Power Co. Holdings Inc. The Supreme Court’s rejection ends the long-running litigation stemming from claims of injury by US Navy sailors deployed to Japan to provide humanitarian assistance after the March 2011 earthquake and tsunami off the coast of Japan. The sailors claimed injury from radiation emitted from the damaged Fukushima-Daichi power plant and sued plant operator Tokyo Electric Power Holdings Inc. (TEPCO) and reactor designer General Electric Company (GE) for negligence, strict product liability, and wrongful death.

The NRC recently approved a revision to its Policy Statement, “Enhancing Participation in NRC Public Meetings.” If you have attended an NRC public meeting in the past few decades, you may be familiar with the NRC’s triage of different meeting types, designated as “Category 1,” “Category 2,” or “Category 3.” The latest revisions redefine the categories of public meetings and the level of public participation permitted at each.

The NRC recently held a meeting to discuss the path forward on its plans to address inconsistencies between the two primary licensing paths for new reactors. The agency estimates that its streamlining effort will result in net averted costs to industry and the NRC of tens of millions of dollars. Comments on the first phase of this undertaking are due in April, and interested stakeholders should consider taking advantage of this opportunity to influence agency policy.

With respect to the impact of COVID-19 on OI activities, former Director Andy Shuttleworth noted that the OI implemented new strategies and established new procedures to carry out its investigative role during the pandemic. These included establishing new procedures for conducting remote interviews, moving toward a fully digital and paperless process, and using virtual tools to collaborate with other federal agencies on investigations. We note that while OI investigators are still conducting virtual interviews, in-person interviews are resuming in some cases.

The US Department of Labor (DOL) announced on February 19 that the Occupational Safety and Health Administration (OSHA) will begin investigating whistleblower complaints of retaliation under the Criminal Antitrust Anti-Retaliation Act and the Anti-Money Laundering Act. Morgan Lewis previously reported on the Criminal Antitrust Anti-Retaliation Act in its December 16 and December 28 LawFlashes, and on the Anti-Money Laundering Act in its January webinar discussing key whistleblower developments in the past year.

For a more detailed analysis of President Joe Biden’s executive orders addressing the “existential threat” of climate change, read the energy practice LawFlash.

A LawFlash prepared by lawyers in our environmental practice discusses the implications of the DC Circuit’s recent decision vacating the Environmental Protection Agency’s Affordable Clean Energy (ACE) rule on the Clean Power Plan. 

The NRC held a public meeting on January 26 to discuss potential options for licensing fusion energy systems. This meeting is part of the NRC’s work to develop regulations to license and regulate advanced nuclear reactors as directed by the Nuclear Energy Innovation and Modernization Act (NEIMA). Advanced reactors typically conjure up images of nuclear fission (i.e., splitting atoms), but Congress also wants the NRC to explore regulating fusion reactors (fusing atoms—like in the sun). During the meeting, NRC staff received presentations on the different fusion technologies, their risks, and how existing NRC regulations could be used to regulate fusion.

President Joe Biden has elevated Democratic Commissioner Christopher T. Hanson to serve as Chairman of the US Nuclear Regulatory Commission (NRC).  Mr. Hanson succeeds former Republican Chairman Christine Svinicki—the longest-serving Commissioner in the history of the agency—who stepped-down on January 20, 2021.  Although timing is uncertain, President Biden also is expected to nominate a fifth Commissioner to fill the former Chair’s vacant seat.  If that pick shares Chairman Hanson’s views, the agency’s longstanding threshold for intervenor challenges to license applications could be overturned.