Nuclear Energy Report 2009

Nuclear Energy Report 2009

Congress continued to address the management and storage of nuclear waste during the past year. Senator Lindsey Graham (R-SC) introduced a bill that would require the president to certify that Yucca Mountain remains the designated site for the development of a nuclear repository, while Senate Majority Leader Harry Reid (D-NV) introduced a bill that would establish a commission to explore alternatives for the storage of nuclear waste if Yucca Mountain fails to become fully operational. In April 2009, Representative Nita Lowey (D-NY) introduced H.R. 1936, which would create additional requirements for the licensing of commercial nuclear facilities, and H.R. 1937, which would require the Nuclear Regulatory Commission (NRC) to retain and redistribute certain fines collected from nuclear facilities for safety violations. President Obama signed the Omnibus Appropriations Act of 2009, which appropriated $ 792 million to the Department of Energy and $ 173 million to the NRC. Other bills proposed the use of nuclear power to help the United States gain energy independence.

On the judicial front, the Court of Federal Claims awarded damages for claims against the government resulting from the Department of Energy's (DOE) failure to meet its statutory and contractual obligations to collect spent nuclear fuel (SNF). The U.S. Court of Appeals for the Federal Circuit remanded several decisions for failure to use the standard contract acceptance rate in the calculation of damages awarded for the government's breach. The Federal Circuit and the Court of Federal Claims allowed assignment of SNF claims against the government after considering the Anti-Assignment Act. The Second Circuit affirmed the NRC's decision not to require that an applicant for renewal of a nuclear power plant license be held to the same standards as one for an initial license. The Third Circuit held that the NRC is not required to examine the environmental impact of a hypothetical terrorist attack on the facility in license renewals. The U.S. Supreme Court held that the Department of Commerce reasonably treated separative work unit contracts as sales of goods for the purposes of the Tariff Act and that the Environmental Protection Agency permissibly employed a cost benefit analysis in cooling water intake structure regulations under section 316(b) of the Clean Water Act.

Recent developments at the NRC include new reactor activities, license renewals, and rulemaking efforts. To date, the NRC has received seventeen combined operating license (COL) applications for twenty-six new units. In addition, the NRC has issued operating license renewals for fifty-one units, and fourteen other renewal applications are currently under review. The NRC has also completed several longstanding rulemaking efforts, approving a final rule that requires an aircraft impact assessment for all new nuclear power plants and issuing a final rule that amends NRC security regulations and adds new security requirements pertaining to nuclear power reactors. The NRC has also developed NRC Staff guidance on limited work authorizations and proposed a rulemaking to revise its Waste Confidence Decision. In the enforcement arena, the NRC has approved a case-by-case extension of the enforcement discretion period. Finally, in September 2008, the NRC accepted for docketing the DOE's license application for the proposed high-level nuclear waste repository at Yucca Mountain, triggering a three-year deadline for the NRC to decide whether or not to grant a construction authorization.
 
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This report is a selection from The Annual Report, published by the Section of Public Utility, Communication and Transportation Law, which is a comprehensive review of developments in the areas represented by the Section's committees.
 
The Section of Public Utility, Communications and Transportation Law  brings together members of the bar interested in the rapidly changing legal environment in the communications, cable TV, internet, electricity, gas, oil pipelines, aviation, motor carriers, railroads, and water industries. The third oldest Section in the ABA, the Section was established in 1917 when public interest demanded regulation of these fields. The Section currently has approximately 3,900 members, plus over 3,000 law students.
 
Current issues include legal developments reflecting deregulation, competition and technological advances. The Section has become increasingly concerned with legal issues arising in this atmosphere of change, including those brought on by the events of 9/11 and the Enron debacle. Issues such as:
  • Competition in the communications industry in light of the 1996 Telecommunications Act
  • Corporate governance past Enron
  • Industries coping with terrorism
  • Access to the gas transmission systems
  • Restructuring of the electricity industry
  • Fresh water shortages and protection of the water supply
  • Setting of competitive transportation rates.