April 2010
Vol. 2, No. 1
Depleted uranium is primarily composed of U-238 (the
most naturally abundant isotope of uranium) and is the
by-product of the enrichment process in which the
concentration of U-235 (which accounts for about 0.7
percent of natural uranium) is increased to the
concentrations necessary to fuel light-water reactors.
Thus, depleted uranium is “depleted” in U-235 and is
mostly U-238. As a waste stream “depleted uranium”
is not specifically referenced in the waste classification
tables in 10 CFR 61.55, which means it’s subject to
the catchall provision of 10 CFR §61.55(a)(6), which
provides that “[i]f radioactive waste does not contain
any nuclides listed in eitherTable 1 or 2, it is ClassA.”
But depleted uranium is not like most other ClassA
waste; its decay chain, which includes radon, results in
it becoming more hazardous over time—other lowlevel radioactive waste becomes less hazardous over
time. While relatively inert from a radiological hazard
standpoint today, depleted uranium increases in activity
over long periods of time; peak dose for depleted
uranium comes at more than one million years.
NRC HOLDS PUBLIC MEETINGS ON THE
DISPOSAL OF LARGE QUANTITIES OF
DEPLETED URANIUM
Kevin C. Roach
The NRC hosted public workshops during September
2009 in Bethesda, Maryland, and Salt Lake City
,
Utah, to discuss its upcoming rulemaking to amend 10
CFR Part 61 to consider unique waste streams,
including large quantities of depleted uranium. The
rulemaking would require site-specific analyses for the
near-surface disposal of unique waste streams. These
changes would update the regulations to require a sitespecific analysis for wastes not considered in the
original Part 61 rulemaking.
Both meetings featured issue-framing presentations by
the NRC staff followed by round table discussion
among a diverse group of stakeholders, including state
and federal government agencies, nonprofit advocacy
organizations, and industry. Agenda items, themes for
discussion, and areas of panelist agreement and
disagreement were largely the same at both meetings.
Members of the public were also invited to comment
on or ask questions about the agenda items following
the round table discussions at both meetings. Most of
the discussion focused on depleted uranium, the unique
waste stream that was considered in the staff’s
Commission paper on this issue (SECY-08-0147,
available at http://www.nrc.gov/reading-rm/doccollections/commission/secys/2008/secy2008-0147/
2008-0147scy.pdf).
Panelists at both workshops discussed the differences
between rules and guidance. In this case the discussion
focused on whether specific requirements should be
imposed through a rulemaking, or whether guidance
should be used to specify one way to comply with
more general regulations. Some panelists believed that
industry can, and has in the past, reliably and efficiently
achieve a defined safe outcome if given the flexibility of
general regulations and guidance. Others argued that
the public interest requires that regulators should
provide specific requirements that provide little latitude
1
to industry in matters of safety because defined
requirements are the only way to ensure transparency
and public confidence.
Special Committee on Nuclear Power
Newsletter
Vol. 2, No. 1, April 2010
Tison Campbell, Editor
Panelists also discussed whether to include a definition
of “unique waste streams” in the text of the rule. Some
were concerned that an overly restrictive definition
wouldn’t provide the necessary flexibility to capture
currently unknown or underrepresented waste streams.
For example, when the NRC drafted the environmental
impact statement for the Part 61 waste classification
tables, significant quantities of depleted uranium were
not part of the commercial waste streams and were
therefore not analyzed. Some panelists believed that
requiring site-specific performance assessment
obviates the need for a definition of unique waste
streams because the appropriateness of disposing of a
given radionuclide would be determined by the
performance assessment. Other panelists, while
conceding the difficulty of defining a term as
amorphous as “unique waste streams,” were
uncomfortable proceeding without a definition.
In this issue:
NRC Holds Public Meetings on the
Disposal of Large Quantities of Depleted
Uranium
Kevin C. Roach ................................ 1
Nuclear Power Committee Forms Group
on LinkedIn
Tamar Cerafici .................................. 3
An Update on New Nuclear
Tyson R. Smith ................................. 5
Small Modular Reactors
Charles F. Rysavy, Stephen K. Rhyne,
and Roger P. Shaw ........................... 6
Nearly all panelists agreed that NRC should prescribe
the “period of performance”—the length of time that
must be considered in the site-specific analysis—in the
text of the rule. But there was disagreement over what
the period of performance should be due to the
uniquely persistent nature of depleted uranium relative
to other radioisotopes frequently found in traditional
low-level radioactive waste streams. There was
general agreement with the notion that models lose
reliability when forecasting for more than 10,000 years.
Some insisted, however, that a credible site-specific
performance assessment must at least consider the
peak dose of the waste. These participants argued that
depleted uranium should not be stored in a nearsurface disposal facility without an accurate model of
the performance of a facility that includes the peak
dose. Other panelists asserted that a workable and
adequately protective approach would be to specify a
10,000-year period of performance for the quantitative
analysis with a qualitative analysis for the time from
10,000 years to peak dose.
Copyright © 2010.American Bar Association.
All rights reserved. No part of this publication
may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means,
electronic, mechanical, photocopying, recording,
or otherwise, without the prior written permission
of the publisher. Send requests to Manager,
Copyrights and Licensing, at theABA, e-mail:
copyright@abanet.org.
Any opinions expressed are those of the
contributors and shall not be construed to
represent the policies of theAmerican Bar
Association or the Section of Environment,
Energy, and Resources.
In December 2009, 5,400 barrels of depleted uranium
arrived at EnergySolutions’ Clive, Utah, facility for
2
disposal. Since that time, Utah Governor Gary Herbert
and the Department of Energy have agreed that the
first shipment of depleted uranium—approximately
11,000 metric tons—would be temporarily stored at
the Clive site pending further study and that the
additional scheduled shipments would be stopped and
the depleted uranium will be shipped to another
disposal site (http://www.tooeletranscript.com/view/
full_story/6442992/article-Governor-Herbert-derailsDU-trains?instance=home_news_left).
NUCLEAR POWER COMMITTEE FORMS
GROUP ON LINKEDIN
Tamar Cerafici
Special Committee on Nuclear Power
Co-Chair
“ . . . for the most basic of economic exchange, finding
a job, many people will be better off to appear in the
company of friends.”—Mikolaj Piskorski,“I’m not
on the market, I’m here with friends: Finding Jobs
or Spouses On-Line,” August 11, 2007, http://
www.allacademic.com/meta/p182544_index.html.
More information on the public workshops and the
unique waste streams rulemaking can be found at the
NRC staff’s unique waste streamWeb site: http://
www.nrc.gov/about-nrc/regulatory/rulemaking/
potential-rulemaking/uw-streams.html. The NRC staff
plans to submit its technical basis to the Commission in
September 2010, with a proposed rule to follow in
September 2011, and a final rule in September 2012.
Agreement state licensees will have three years after
the issuance of the final rule to issue equivalent
regulations.
Anyone reading this article—regardless of their age—
can point to a time when knowing their best friend’
s
father’s second cousin got them that fishing week in
Maine, or a skiing lodge in Utah. Or when an interview
with your dad’s poker partner in law school got you a
reference to another firm, and led to an interview with
another poker partner with a 50-year-old debt to
settle, and another interview (and eventually a job) with
another parental acquaintance whose first college crush
was on your mother (this actually happened to the
author). That’s a social network. Online social
networks are a common way of building business and
contacts for lawyers, but lawyers of a certain age are
still reluctant to exploit the Internet’s social networking
capabilities. Lawyers who aren’t using some form of
Internet social networking by now have been practicing
in caves.As I explain below, social networking via new
software applications on theWeb (Web 2.0) plays an
important part in building our own professional
relationships. It’s also the best (and rapidly becoming
the preferred) method of quickly and easily
disseminating information throughout a large network.
Kevin Roach is an attorney in the Office of the
General Counsel at the U.S. Nuclear Regulatory
Commission. The views expressed in this article are
solely those of the author and do not necessarily
represent the positions of the U.S. Nuclear
Regulatory Commission.
One Million Trees
Project—
Right Tree for the Right Place
at the Right Time
According to the social networking expert Julia
Angwin, we have a natural urge to turn to our network
to build a productive support group in times of stress.
There is a sociological reason for this that predates the
Internet; we build up so-called weak ties between
acquaintances and their acquaintances. It’s these
“weak ties” that create a bridge between
acquaintances and various close groups of friends. The
weak ties, according to researcher Mark Granovetter,
are your windows to the world. The group of “weak
Join Section efforts to plant one million trees by 2014.
This project calls on ABA members to contribute to
the goal of planting one million trees across the
United States in the next five years. In addition to
planting trees, the Section also intends, through
public outreach and partnering efforts, to raise the
nation’s awareness of the multiple benefits of trees.
For more information, visit
www.abanet.org/environ/envlaw/
3
Post.aspx?ID=538 (last visited Dec. 9, 2009) to
access the ABA’s Legal Technology Web site, which
has a storehouse full of articles onWeb 2.0
applications.
ties”—normally friends’ friends or friends of your
friends’ friends—creates a “pool” of information and
opportunity that we normally wouldn’t have available
to us (Professor Piskorski calls this the “pooling
effect”).
The Special Committee on Nuclear Power is only a
couple of years old, and it’s a small group.We want to
make the most of our talented members, and find more
efficient ways to know them better! While members
can ask questions and facilitate discussions on the
committee’s listserv, we have struggled as a committee
leadership to find ways that will include members of the
Section of Environment, Energy, and Resources, while
providing an important resource for other nuclear
lawyers to join in any discussions. Further,listserv
discussions can sometimes fill up the e-mail boxes of
recipients, while network members are notified by a
short e-mail that a discussion has started.
The ABA has recognized the importance of this
“pooling effect” for a number of years. It sponsors, for
example, SoloSez, a 2000-plus-member listserv
sponsored by the General Practice, Solo and Small
Firm Division (ABA’s Solo Center, http://
www.abanet.org/soloseznet/ (last visited Dec. 9,
2009)). Special Committee on Nuclear Power
members also receive frequent e-mails from the
committee leadership—we have our own listserv,
available through the committeeWeb site.
But the ABA has begun to recognize the importance of
online social networking.At theABA’s annual meeting,
the program included several hours’ worth of CLE
devoted to teaching lawyers how to use the social
networking resources on theWeb. There are several
special committees withinABA sections (particularly
the General Practice, Solo and Small Firm Division)
that are designed to expand the use of networking—to
develop practices, funnel information, and strengthen
relationships between members. SeeABA Site-tation,
http://new.abanet.org/sitetation/Lists/Posts/
Accordingly, we’ve developed a group on
LinkedIn.com called “Nuclear Law.” Joining is easy,
especially if you’re a member of LinkedIn.We hope to
populate it with discussion and articles by committee
members. The rules of engagement will be posted at
the site.
Why are we doing this? LinkedIn has more than 48
million professionals signed into the service; it’s often
4
been described as “Facebook for grown-ups.” But
LinkedIn is much more refined than some of its
cousins. Where Facebook allows limited linking,
LinkedIn allows three degrees of connections. It’s like
having your own Rollodex, my Rollodex, and my
connections’ Rollodexes, and so on. It also means you
have a really deep pool of opinions, ideas, and
expertise from which to draw. We believe that we can
learn more about you, and about new developments in
the industry, with this social networking tool. It’s free,
and it’s easy to join.
AN UPDATE ON NEW NUCLEAR
Tyson R. Smith
Special Committee on Nuclear Power
Co-Chair
The first applications for licenses to construct and
operate new nuclear power reactors were filed in
2007. At the time, the applications were the first in
nearly 25 years—but they were not the last.To date
the Nuclear Regulatory Commission (NRC) has
received 17 combined construction permit and
operating license (COL) applications for 26 new
nuclear reactor units.Although several applicants have
requested that the NRC suspend review of COL
applications pending a better climate for financing or a
change in reactor technology, several more applications
are expected in the next 18 months.
Once you’ve joined LinkedIn, here’s how to join the
group:
Go to www.linkedin.com. Search for “nuclear law” in
the “Groups Directory.” To search the Groups
Directory:
1. Click on User Groups or Groups found on the
left navigation bar on the home page.
2. Select the Groups Directory tab.
3. Find the Search Groups box on the right-hand
side of the page.
4. Type in “nuclear law.” Click on Search.You’ll
find four groups with that phrase; choose the
group owned byTamar Cerafici.
A review of the COL applications and associated
licensing proceedings provides some insights into the
changes in public perception of nuclear power.The
vast majority of the new units are being proposed near
existing plants. Strong local opposition to these new
nuclear units has not materialized, and no state
governments have opposed the proposed new
reactors. This lack of resistance suggests that
communities and states are comfortable with additional
reactors at these sites, and understand and appreciate
the benefits nuclear power offers as a source of clean
energy, reliable electricity, tax revenue, and
employment. Indeed, the public near the proposed
sites has generally embraced new nuclear and
recognized its environmental and economic benefits for
their communities.
Don’t panic: the committee’s Web site at
www.abanet.org/environ is not going away. This group
is about the “pooling effect,” while the site is still
available to inform and provide membership
opportunities and tools.We’ll still use the listserv to
notify committee members of important information.
We’ll use LinkedIn to announce important committee
business (with a quick reference to the membership
site) and we’ll use the committee site to alert members
of interesting discussions on LinkedIn.
These circumstances are quite different than those that
existed during the 1970s and 1980s. Then, local
communities often represented the source of the
strongest opposition to new nuclear—fearing both the
environmental and financial risk to ratepayers
associated with nuclear power projects.And,
combined with significant economic factors, the
opposition had some success in stopping development
of many nuclear projects.Yet, the nuclear industry’s
record over the past 20 years has shown that nuclear
power plants can be good, safe neighbors and an
integral part of the local community.
Students, firm associates, and anyone who will listen
have heard my continuing mantra—”your network is
everything.” Keep it up, keep it fresh, and keep people
interested in you. Social media sites are a great way to
manage your network, and ensure that your “weak
ties” stay strong.
Tamar Cerafici is an environmental and nuclear
lawyer. She can be reached at tnelaw@gmail.com,
or gnplegal.com.
5
Despite these positive developments, applications for
new nuclear units have not gone unchallenged. Of the
17 COL applications, theAtomic Safety and Licensing
Board has granted a request for hearing and petition to
intervene in eight of the proceedings. In six of the
proceedings in which the petition was granted, the
presiding licensing board admitted contentions related
to low-level waste disposal. Other admitted
contentions discuss alleged impacts on aquatic
resources and species, effects on threatened and
endangered species, water and wastewater discharge,
groundwater impacts, the cost of a facility,foreign
investment in the project, off-site contamination,
accident scenarios, and a failure to consider
alternatives.
SMALL MODULAR REACTORS
Charles F. Rysavy, Stephen K. Rhyne, and
Roger P. Shaw
Most of the new generation nuclear plants envisioned
by the “nuclear renaissance” are large-scale reactors
employing advanced safety features and enhanced
reliability. Another sector of the industry, however, is
turning away from “bigger is better” toward “smaller is
better” reactors, often referred to as small modular
reactors (SMRs).
The concept of small modular nuclear reactors is not
new, but interest in SMRs exploded in 2009. In
October 2009, the Nuclear Regulatory Commission
hosted a two-day workshop with stakeholders to
discuss the generic issues associated with the licensing
of SMRs. Public Meetings forAdvanced Reactors,
http://www.nrc.gov/reactors/advanced/publicmeetings.html (last visited Dec. 9, 2009) (hereinafter
NRC Public Meeting). Richard Black, Office of
Nuclear Energy, Department of Energy (DOE),
emphasized at the conference that DOE is prepared to
devote substantial attention to bolstering the
development of such reactors, including cost sharing of
research and development and NRC licensing fees. He
also announced that DOE will hold a workshop in
2010 on funding opportunities for SMRs.
Tyson R. Smith is an attorney at Winston & Strawn
LLP who concentrates his practice in the area of
nuclear energy regulation. Tyson can be reached at
trsmith@winston.com.
CALL FOR
NOMINATIONS
The Environment,
Energy, and Resources
Government Attorney of the
Year Award will recognize
exceptional achievement by
federal, state, tribal, or local
government attorneys who have worked or are
working in the field of environment, energy, or
natural resources and are esteemed by their
peers and viewed as having consistently
achieved distinction in an exemplary way. The
award will be for sustained career
achievement, not simply individual projects or
recent accomplishments. Nominees are likely
to be currently serving, or recently retired,
career attorneys for federal, state, tribal, or
local governmental entities. The deadline for
nominations has been extended to May 25,
2010.
Interest in SMRs has continued to escalate in 2010.
The Nuclear Energy Institute and its cosponsor, the
Office of Nuclear Energy at DOE, held a Small
Reactor Forum in February, which brought together
representatives from industry, the NRC, and DOE. In
March, the NRC devoted several sessions of its
Regulatory Information Conference to SMRs. Most
recently, Dr. Steven Chu, U.S. Secretary of Energy,
wrote an op-ed piece in theWall Street Journal
endorsing SMRs (http://www.energy.gov/news/
8782.htm).
According to the InternationalAtomic Energy Agency,
SMRs could find a market in some 30–40 countries.
One United States-based company has stated publicly
that there is serious interest in more than 100 units of
its small modular reactor (Stevie Smith,Hyperion
For more information, visit
www.abanet.org/environ/sectaward/
6
enhanced safety and reliability and more effective
proliferation safeguards. Finally, SMRs can serve as
distributed sources of power and as cogeneration
sources.
Hopes Mini Nuclear Reactors Will Power the
World, Nov. 11, 2008, http://www.thetechherald.com/
article.php/200846/2429/Hyperion-hopes-mininuclear-reactors-will-power-the-world). Even
Congress has demonstrated significant interest in
SMRs, as evidenced by three recent Senate bills to
amend the Energy Policy Act of 2005: Senate Bill
2052, the Nuclear Energy Research Initiative
Improvement Act of 2009, S. 2052, 111th Cong.
(2009), would provide funding for research on SMRs;
the Nuclear Power 2021Act, S. 2812, 111th Cong.
(2009), would establish a program to achieve the goal
of designing and certifying two SMR designs by 2018,
to be operational by 2021; and Senate Bill 2776, the
Clean Energy Act of 2009, S. 2776, 111th Cong.
(2009), would mandate a number of nuclear energy
policy initiatives, including funding to support license
reviews for SMR designs.
Most SMRs are not merely scaled down versions of
large-scale reactors, but rather are new in design,
siting, construction, operation, and decommissioning
requirements. Appropriately, the legal and regulatory
issues these units will generate likewise will not merely
be scaled down versions of the issues faced by their
much larger brethren. The NRC’s new reactor
licensing regulations in 10 C.F.R. Part 52 are designed
to provide a more streamlined process for new
generation large-scale reactors. Some facets of this
new process will be equally advantageous to SMRs,
while others will range from awkward to nearly
unworkable when applied to the licensing,
construction, and operation of SMRs. Creative
navigation of the existing regulations by both the NRC
and licensees will solve some problems, but others can
be solved only by amending the regulations.
SMRs have a number of characteristics that illustrate
the unique role that they can play in our energy mix: (1)
SMRs are relatively small in power output, on the
order of 25 megawatts electrical (MWe) to 350 MWe,
versus large-scale reactors that can have a power
output of more than 1,200 MWe; and (2) several
SMR designs are modular. These two characteristics
demonstrate the differences between SMRs and
traditional large-scale reactors. Unlike traditional
reactors, many SMRs would be manufactured and
assembled at the factory and shipped to the site as
nearly complete units, resulting in much lower capital
costs and much shorter construction schedules. SMRs
also permit greater flexibility through smaller,
incremental additions to baseload electrical generation,
and more SMRs can be added and linked together for
additional electrical output as needed. SMRs are ideal
power sources for discrete locations that require an
uninterruptible source of power independent of the
electrical grid. These may include remote locations
unconnected to the grid or key military installations.
The recently passed National DefenseAuthorization
Act, Pub. L. No. 111-84, § 2845 (2009), requires that
a study be conducted on the feasibility of building new
reactors at military sites, in part because of the
“potential energy security advantages” of not being
dependent on the grid in times of war or natural
disaster. The unique design of SMRs may also provide
For example, the NRC’s annual fee to operate each
licensed nuclear reactor is $4.5M under 10 C.F
.R.
Part 171, which would likely pose problems for the
operation of many SMRs. In March 2009, the NRC
published an advanced notice of proposed rulemaking
that contemplates a variable fee structure based on
thermal limits for each power reactor. 74 Fed. Reg.
12,735 (Mar. 25, 2009).This or a similar change will
be necessary to make SMRs financially viable.
Likewise, the size of the decommissioning fund,
insurance, and other liability issues could make SMRs
uneconomical if not tailored to the smaller units.
Moreover, the form of the combined operating and
construction license (COL) must take into
consideration that certain sites are likely to start out
with a single SMR but later add multiple small reactors
as needs evolve. Flexibility is one of the SMR’
s
primary benefits, and the governing regulatory structure
most allow (and preferably embrace) that flexibility,
while simultaneously ensuring the safety of these
reactors.
Another issue to consider is that the current Emergency
Planning Programs require a 10-mile Emergency
7
Planning Zone (EPZ) for all reactors, based on the size
of existing large-scale reactors (Emergency Plans, 10
C.F.R. § 50.47 (2009)). This requirement is almost
certainly unjustifiable for a SMR, since these smaller
reactors are much less powerful, and in many cases the
actual containment/reactor system will be placed
underground. Fortunately, a smaller EPZ is not without
precedent.
to make resource adjustments to handle SMR
applications (see NRC Public Meeting, Meeting
Slides—NRC (discussing the resource priorities of the
Office of New Reactors)). The NRC has already
begun pre-application discussions with a number of
SMR companies, but it is likely that SMRs will take a
back seat to large-scale plants for the time being.Id.
DOE has a unique and possibly essential role in
overcoming this challenge. Encouragingly, it has stated
that it intends to support the industry’s efforts to bring
SMRs to domestic markets (NRC Public Meeting,
Meeting Slides—DOE). Included among DOE’s
proposed programs is a cost-share partnership for
first-of-a-kind SMR design and licensing that may be
initiated as early as 2011 (NRC Public Meeting,
Meeting Slides—DOE). DOE also intends to work
with NRC and the industry to evaluate unique licensing
issues for SMRs, and to work on enhancing the
regulatory framework and licensing process with the
NRC (NRC Public Meeting, Meeting Slides—DOE).
Another aspect of SMRs that will require new
, or
substantially revised, regulations is the likely
combination of SMR power generation capabilities
with process heat applications in cogeneration facilities
(NRC Public Meeting, Meeting Slides—NRC). Such
facilities could include the production of steam for
desalination, hydrogen production, chemical
production, and petroleum refining. Regulations will
need proper consideration to ensure that potential
accidents at the facility using the steam cannot
adversely affect the safe operation of the SMR.
Other characteristics of the proposed SMRs will
create unique legal and regulatory challenges, including
import/export requirements for technology, materials,
and equipment; design certification; operating license
restrictions; accident consequence analysis;
maintenance programs; environmental programs;
safeguards and security; nonproliferation; foreign
country regulations; foreign ownership; IAEA
standards; Price Anderson Act; insurance and liability;
financial qualifications; decommissioning funding;
license duration; inspection programs; and staffing,
especially for passive operation plants.
Charles F. Rysavy is a partner with the law firm of
K&L Gates LLP, has practiced law for more than
20 years, and has over 15 years of legal experience
with the nuclear industry.
Stephen K. Rhyne is a partner with the law firm of
K&L Gates LLP, has practiced law for more than
30 years, and has been involved with the nuclear
industry for over five years.
Roger P. Shaw, a former scientist with the law firm
of K&L Gates LLP, currently is the principal of the
Shaw Partners LLC consulting firm, has over 30
years of experience with the nuclear industry, and
is the former director of radiation protection for
the Three Mile Island and Oyster Creek Nuclear
Plants.
Regulatory resources present one of the greatest
challenges to a robust SMR program in the United
States. The NRC Office of New Reactors, which is
already working on the licensing of a number of largescale reactors, is already overburdened and will need
Your Source for Books from the
Section of Environment, Energy, and Resources
and ABA Publishing
www.ababooks.org
8