Legislation to advance new nuclear technologies and establish interagency and international engagement

Today, April 3, the Senate Energy and Public Works Committee (“EPW”) introduced new legislation that continues to demonstrate bipartisan support for advanced nuclear reactor developments, including expanding levels of interagency and international cooperation in advanced nuclear, with many provisions of the bill directed at the U.S. Nuclear Regulatory Commission (“NRC” or “Commission”).

A bipartisan group of senators—five Republicans and five Democrats—led by Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate EPW, along with Senators Tom Carper (D-Del.), Chairman of the Senate EPW, and Sheldon Whitehouse (D-R.I.), introduced the bill, titled “Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act” (the “ADVANCE Act”), to  facilitate American nuclear leadership and the development and deployment of new nuclear technologies.  According to Senator Capito in an EPW Press Release, “America can and should be a leader when it comes to deploying nuclear energy technologies, and this bipartisan legislation puts us on a path to achieve that goal.”  Other co-sponsors of the bill include Senators John Barrasso (R-Wyo.), Cory Booker (D-N.J.), Mike Crapo (R-Idaho), Lindsey Graham (R-S.C.), Martin Heinrich (D-N.M.), Mark Kelly (D-Ariz.), and Jim Risch (R-Idaho). 

The ADVANCE Act focuses on supporting nuclear technology because it is important to combating climate change and strengthening energy security, independence, and U.S. geopolitical interests.  As explained in the one-pager accompanying the legislation, “preserving and expanding our nation’s use of clean and reliable nuclear energy is essential to advancing America’s energy and national security interests and achieving our environmental goals.”  In addition to the existing operating fleet—which generates about 20 percent of the electricity in the United States and more than half of its carbon free energy—new nuclear reactors are also needed to provide more carbon free power, while also bringing necessary reliability and diversity to the United States’ electric infrastructure.

Based on the introduced text, the ADVANCE Act would empower the NRC to lead in international forums, establish new federal government initiatives to facilitate outreach to nations that are seeking to develop advanced nuclear energy programs, and streamline the financial and regulatory pathways for U.S. advanced reactor deployment.  Among other things, the ADVANCE Act would—

  • Increase NRC support for foreign nuclear regulatory programs and international technical standards for reactors and establish a new non-fee base program within the NRC to support these efforts. 
  • Place additional restrictions on certain types of imports pertaining to Russian or Chinese origin fuel, and place additional restrictions on certain types of exports.
  • Provide that the Secretary of Commerce and Secretary of Energy establish an initiative to modernize civil nuclear outreach to embarking civil nuclear energy nations.
  • Adjust the fees for NRC advanced reactor applications.
  • Establish a financial prize for NRC advanced reactor applications (subject to appropriations).
  • Amend the Nuclear Energy Innovation and Modernization Act (“NEIMA”) to remove “fusion” from the definition of “advanced reactors.”
  • Direct the NRC to identify and report on regulations, guidance, or policy necessary to license and oversee nuclear facilities at brownfield sites, including sites with retired fossil fuel facilities.
  • Extend the Price-Anderson Act to 2045.
  • Establish a new traineeship subprogram under the University Nuclear Leadership Program.
  • Direct the NRC to provide a report to Congress on the readiness and capacity to license additional conversion and enrichment capacity.
  • Direct the Department of Energy (“DOE”) to submit an annual report on the spent nuclear fuel and high-level radioactive waste inventory in the United States.
  • Authorize of appropriations for superfund actions at abandoned mining sites on Tribal land.
  • Direct the NRC to establish an initiative to enhance preparedness and coordination to qualify and license advanced nuclear fuel.
  • Authorize the Chairman of the Commission to appoint up to 90 persons to positions with highly specialized scientific, engineering, and technical competencies, and up to 90 persons to positions to be filled by exceptionally well-qualified individuals necessary to fulfill the mission of the Commission.
  • Establish a grants program for communities impacted by the shutdown of nuclear power plants.
  • Make a technical correction to the financial test for research and test reactors set forth in the Atomic Energy Act.

We walk through some of the specific sections of the ADVANCE Act below.

  • International nuclear reactor export and innovation activities.  (Section 101).  This section requires the NRC:
      • To coordinate all work of the Commission relating to (1) nuclear reactor import and export licensing, and (2) international regulatory cooperation and assistance relating to nuclear reactors, including with countries that are members of the Organization for Economic Cooperation and Development (“OECD”). To support interagency and international coordination with respect to—
        • The consideration of international technical standards to establish the licensing and regulatory basis to assist the design, construction, and operation of nuclear systems; 
        • Efforts to help build competent nuclear regulatory organizations and legal frameworks in countries seeking to develop nuclear power; and
        • Exchange programs and training provided to other countries relating to nuclear regulation and oversight to improve nuclear technology licensing.
      • With respect to exchange programs and training, the NRC shall coordinate, as applicable with the Secretary of Energy, National Laboratories, the private sector, and institution of higher education.
      • The NRC is authorized to establish the International Nuclear Reactor Export and Innovation Branch within the NRC’s Office of International Programs.  This program is to carry out international nuclear reactor export and innovation activities that the NRC determines appropriate and within the NRC’s mission.
      • These new additional international activities would be excluded from the NRC fee base.
  • Denial of certain domestic licenses for national security purposes (Section 102).  This section provides new restrictions on enriched uranium that is fabricated into fuel assemblies for nuclear reactors by a Russian or Chinese entity (“covered fuel”).  Specifically, covered fuel—
      • Cannot be possessed or owned by entities subject to the NRC’s jurisdiction without a license.
      • In evaluating such a license request, the Commission must first consult with the Secretary of Energy and Secretary of State before issuing the license.  A license will not be issued if the Secretary of Energy and Secretary of State jointly determine that possession or ownership of covered fuel poses a threat to the national security of the United States that adversely impacts the physical and economic security of the U.S. 
      • If both agencies have made this determination, the NRC must notify Congress of the determination.
  • Export license requirements (Section 103).  This section provides additional export restrictions on certain types of nuclear exports to certain countries, including the following:
      • Countries that—
        • Have not concluded and ratified an Additional Protocol to its safeguards agreement with the International Atomic Energy Agency, or
        • Have not ratified or acceded to the amendment to the Convention of the Physical Protection of Nuclear Material.
      • The NRC must not issue an export license to a country meeting the above criteria for the transfer of—
        • Unirradiated nuclear fuel containing special nuclear material (excluding low-enriched uranium);
        • A nuclear reactor that uses unirradiated nuclear fuel containing special nuclear material (excluding low-enriched uranium); and
        • Any plant or components listed in Appendix I of 10 CFR Part 110 that is involved in the reprocessing irradiated nuclear fuel elements, the separation of plutonium, or the separation of uranium-233, to certain countries, unless the NRC determines it will not be inimical to the common sense and security.
      • If the NRC makes a determination to authorize a transfer meeting these criteria, then it must also notify the appropriate committees of Congress.
  • Coordinated international engagement (Section 104).  This section requires the Secretary of Commerce and Secretary of Energy to establish an initiative to modernize civil nuclear outreach to embarking civil nuclear energy nations.  Including by doing the following-
      • The Secretaries of Commerce and Energy are authorized to establish and carry out an international initiative to modernize civil nuclear outreach to embarking civil nuclear energy nations, in compliance with export control laws. 
        • The Secretary of Commerce must expand outreach by the Executive Branch to the private investment community to create public-private financing relationships to assist in the export of civil nuclear technology to embarking civil nuclear energy nations, and seek to coordinate, to the maximum extent practicable, the work carried out by the Commission, DOE, Nuclear Energy Agency, the IAEA, and other agencies, as appropriate, and improve the regulatory framework to allow for the efficient and expeditious exporting and important of items under the Secretary of Commerce’s jurisdiction.
        • The Secretary of Energy must assist nongovernmental organizations and appropriate offices, administrations, agencies, laboratories, and programs of the Federal Government in providing education and training to foreign governments in nuclear safety, security, and safeguards through engagement with IAEA.
      • Nations that qualify for this outreach, or those “embarking civil nuclear energy nation[s]” are ones that do not possess a civil nuclear program, are in the process of developing or expanding a civil nuclear program, including safeguard and a legal and regulatory framework, or are  in the process of selecting, developing, constructing, or utilizing an advanced nuclear reactor or advanced civil nuclear technologies, and eligible to receive funding from the world bank. 
      • The phrase “embarking civil nuclear energy nation” in this section does not include China, Russia, Belarus, Iran, North Korea, Cuba, Syria, or any other country not party to certain international conventions and protocols. 
  • Fees for advanced nuclear reactor application review (Section 201).  This section amends the Nuclear Energy Innovation and Modernization Act, or NEIMA, to set a specific reimbursement rate for NRC advanced nuclear reactor applications. 
    • The rate equals the hourly rate calculated by the Commission for mission-direct program salaries and benefits for the nuclear reactor safety program.
    • Mission-indirect program support and agency support expenses that would otherwise be charged to the applicant are excluded from the Commission’s fee recovery requirements.
  • Advanced nuclear reactor prizes (Section 202).  This section amends NEIMA to add criteria on awarded prizes for advanced reactor licensing activities.
    • Subject to the availability of appropriations, the Secretary is authorized to award a financial prize to eligible entities to which the Commission issues an operating license for advanced nuclear reactor under 10 CFR Part 50 or 52. 
    • The award categories include—
    • The first advanced nuclear reactor licensed by the NRC;
    • An advanced nuclear reactor that uses isotopes derived from spent nuclear fuel or depleted uranium as fuel for the advanced nuclear reactor and is the first advanced nuclear reactor for which the Commission issues a license; or
    • An advanced nuclear reactor that is a nuclear integrated energy system composed for two or more co-located or jointly integrated subsystems of energy generation, energy storage, or other technologies, in which no fewer than one subsystem is a nuclear energy systems and the purpose of which is to reduce greenhouse gas emissions in both the power and nonpower sector and to maximize energy production and efficiency and is the first advanced nuclear reactor for which the Commission issues a license;
    • An advanced reactor that operates flexibly to generator electricity or high temperature process heat and is the first advanced nuclear reactor for which the Commission issues a license; and
    • The first advanced nuclear reactor for which the Commission grants approval to load nuclear fuel pursuant to the technology-inclusive regulatory framework.
    • The amount of the award must be equal to the total amount assessed by the Commission and collected from the eligible entity receiving the award for costs relating to the issuance of the license (including construction permits and early site permits).
    • An award must not exceed the total amount expended (excluding any expenditures made with Federal funds received for the applicable project and an amount equal to the minimum cost- share required under section 988 of the Energy Policy Act of 2005 (42 U.S.C. 16352)).
  • Clarification on fusion regulation (Section 205). This section amends NEIMA Section 103(a)(4) by adding the subsection titled “Exclusion of fusion reactors” stating that “the term ‘advanced reactor applicant’ does not include an applicant seeking a license for a fusion reactor.”
  • Regulatory issues for nuclear facilities at brownfield sites (Section 206).  This section directs the Commission to identify and report on regulations, guidance, or policy necessary to license and oversee nuclear facilities at brownfield sites, including sites with retired fossil fuel facilities.
    • Within one year after the enactment of this Act, the Commission is authorized to evaluate the extent to which modification of regulations, guidance, or policy is needed to enable timely licensing reviews for, and support to the oversight of, reactors at brownfield sites, including sites with retired fossil fuel facilities.  The Commission must consider how licensing reviews for reactors at brownfield sites may be expedited by considering matters related to siting and operating these facilities at or near a retired fossil fuel site to support the reuse of existing site infrastructure, including—electric switchyard components and transmission infrastructure, heat-sink components, roads, railroad access, and water availability.
    • Within two years of enactment of this Act, the Commission shall develop and implement strategies to enable timely licensing reviews for, and to support oversight of, reactors at brownfield sites, including retired fossil fuel sites, or initiate a rulemaking to enable timely licensing reviews for, and to support oversight of, reactors at brownfield sites.
  • Investment by allies (Section 301). This section allows certain foreign entities to receive a reactor license under the Atomic Energy Act if the NRC determines that issuing such license is not inimical to the common defense and security or the health and safety of the public. This section applies to an entity from a country that is a member of the Group of Seven as of November 25, 2020 (i.e., Canada, France, Germany, Italy, Japan, United Kingdom, and the United States) or the Republic of Korea.​​​​​​​
  • Extension of the Price-Anderson Act (Section 302).  This section extends section 170 of the Atomic Energy Act of 1954, commonly known as the “Price-Anderson Act” to December 31, 2045.
  • Nuclear energy traineeship (Section 402).  This section establishes a new traineeship subprogram under the University Nuclear Leadership Program to provide focused training to meet critical mission needs of the NRC and nuclear workforce needs relating to nuclear safety and tradecraft. 
    • The Commission is authorized to establish a nuclear energy traineeship subprogram under which the Commission, in coordination with the institutions of higher award traineeships that provide focused training to meet critical mission needs of the Commission and nuclear workforce needs, including needs that relate to (1) nuclear criticality safety; and (2) the nuclear tradecraft workforce.
    • The Commission must coordinate with the Secretary of Energy to prioritize the funding of traineeships and encourage appropriate partnerships among National Laboratories; colleges and universities; trade schools; the nuclear energy industry; and other entities, as the NRC determines to be appropriate.​​​​​​​
  • Report on Commission readiness and capacity to license additional conversion and enrichment capacity to reduce reliance on uranium from Russia (Section 403).  This section directs the Commission to submit a report to Congress, not later than 180 days after the date of enactment, on the readiness and capacity of the Commission to license additional conversion and enrichment capacity and fuel cycle facilities to reduce reliance on Russian nuclear fuel.
  • Annual report on the spent nuclear fuel and high-level radioactive waste inventory in the United States (Section 404).  This section directs the Secretary of Energy to annually submit a report to Congress that describes the annual and cumulative payments made by the United States to the holder of a standard contract due to a partial breach of the contract under the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101 et seq.) resulting in financial damages to the holder and the amount spent to reduce projected legal payments.​​​​​​​
  • Authorization of appropriations for superfund actions at abandoned mining sites on Tribal land (Section 405).  This section authorizes appropriations for the Environmental Protection Agency Administrator to conduct response actions, including removal and remedial planning activities, studies and other action taken pursuant to Superfund authorities at abandoned mine land on Tribal land.  It also authorizes appropriations for the Administrator to conduct remedial and removal actions under Superfund at similarly located eligible non- National Priorities List sites and sites listed on the National Priorities list.
  • Development, qualification, and licensing of advanced nuclear fuel concepts (Section 406).  This section directs the Commission to establish an initiative to enhance preparedness and coordination to qualify and license advanced nuclear fuel.  ​​​​​​​
  • Commission workforce (Section 501).  This section authorizes the Chairman of the Commission to appoint, without regard to the civil service laws, up to 90 persons to positions with highly specialized scientific, engineering, and technical competencies and up to 90 persons to positions to be filled by exceptionally well-qualified individuals necessary to fulfill the mission of the Commission.
    • The Commission is authorized to provide one-time hiring bonuses to any employee appointed under this authority in an amount not to exceed the least of—$25,000; the amount equal to 15 percent of the annual rate of basic pay of the employee; and the amount of the limitation that is applicable for a calendar year under section 5 USC 5307(a)(1).
    • To the maximum extent practicable, the NRC Chairman shall appoint certain positions in accordance with the merit system principles set forth in 5 USC 2301. 
    • The Chairman may fix the rate of basic pay for the merit-based positions.  The annual rate of basic pay may not exceed the per annum rate of salary payable for level III of the Executive Schedule under 5 USC 5314 without regard to the civil service laws.​​​​​​​
  • Nuclear closure communities (Section 601).  This section authorizes the Secretary of Commerce to establish a grant program to provide grants to assist with economic development and fund community advisory boards in communities that have been, or will be, impacted by a nuclear power plant that has ceased, or will cease operations as of the date of enactment.
  • Financial test for research and test reactors (Section 602).  This section makes a technical correction to the Atomic Energy Act to permit the Commission to issue a license for a research and test reactor if not more than 75 percent of the annual costs to the licensee of owning and operating the facility are devoted to the sale of non-energy services, energy services, or a combination of non-energy services and energy services.

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For more information on the ADVANCE Act, please contact Amy Roma, Partner, or Stephanie Fishman, Associate.

Contacts
Amy Roma
Partner
Washington, D.C.
Stephanie Fishman
Senior Associate
Washington, D.C.

 

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