Up & Atom

The National Environmental Policy Act of 1969 (NEPA) requires federal agencies, including the Nuclear Regulatory Commission (NRC), to evaluate the potential environmental impacts of their proposed actions. That statute also established the White House Council on Environmental Quality (CEQ), which was tasked with issuing NEPA implementation guidelines.

The demand for energy is anticipated to rise significantly due to the increased deployment of artificial intelligence (AI) technologies, which are highly energy intensive. As we discussed in a recent thought leadership piece, there is a strong intersection between nuclear power and AI. Not only is nuclear power generation well-positioned to address the growing need for powering AI, but the nuclear power industry and its primary regulator, the US Nuclear Regulatory Commission (NRC) are looking to leverage AI to increase efficiency and strategic decision-making.

The US Supreme Court’s recent Loper Bright decision overturned its 1984 Chevron decision, which, over the last 40 years, had become a fundamental doctrine in administrative law. That doctrine, known as the “Chevron deference,” instructed reviewing courts to defer to agency interpretations of ambiguous statutory provisions if a permissible construction of the statute. While many agencies relied on Chevron deference to defend challenges to their rulemakings and other regulatory actions, the NRC has rarely needed to do so.

Morgan Lewis routinely assists licensees in connection with NRC allegations, investigations, and enforcement. The following are summaries of trends and findings in the NRC’s 2023 Allegation Program Annual Trends Report and Enforcement Program Annual Report.

Congress recently passed legislation to ban imports of Russian uranium products into the United States. The Prohibiting Russian Uranium Imports Act (HR 1042) (the Act) was approved by the House of Representatives on December 11, 2023, and the Senate on April 30, 2024. President Biden plans to sign the bill, and the ban would go into effect 90 days later.

The NRC’s Acting Executive Director for Operations recently issued the results from the NRC staff’s annual Reactor Oversight Process (ROP) self-assessment for calendar year 2023. Out of the 17 metrics it evaluated, the NRC staff found that two did not meet or exceed expected performance, resulting in “yellow” findings. This is an overall improvement from the 2022 self-assessment, which had two “yellow” and two “red” findings due, in part, to continuing challenges from the COVID-19 pandemic. Overall, the staff concluded that the “ROP remained effective in achieving its goals of being objective, risk-informed, understandable, and predictable, as well as in supporting the agency’s strategic goals.”

The House Subcommittee on Energy, Climate, and Grid Security held a hearing on April 10, 2024 to examine federal responsibility for the permanent disposal of spent nuclear fuel (SNF), along with opportunities for mitigating disposal challenges—such as through reprocessing and recycling fuel—to advance nuclear energy for the nation.

With the change of a single number, Congress has provided continued support for the nuclear power industry by renewing the Price-Anderson Act. Congress amended Section 170 of the Atomic Energy Act of 1954 (commonly known as the Price-Anderson Act or PAA) by changing its expiration date to December 31, 2065 from December 31, 2025. Congress also increased fourfold the liability coverage for DOE contractors for a nuclear incident occurring outside the United States to $2 billion from $500 million. Finally, Congress revised the definition of “nuclear incident” to remove requirements for the underlying nuclear material.

Leaders from 34 countries met in Brussels, Belgium on March 21 for the first Nuclear Energy Summit. The purpose of the summit was to provide participating governments the opportunity to share their vision and plans for using nuclear power to achieve net-zero emissions and promote sustainable development.

The NRC’s Office of Investigations (OI) recently published its Annual Report for fiscal year 2023, summarizing its activities from October 1, 2022 through September 30, 2023. According to the annual report, OI opened 82 new cases in FY 2023 compared to 70 in FY 2022, a 17% increase. It also closed 72 cases in 2023 compared to 67 in FY 2022, a 7.5% increase.