Splitting Stigmas

In the most recent special session of the West Virginia Legislature, Governor Jim Justice placed on the agenda a bill to make West Virginia an Agreement State with the Nuclear Regulatory Commission (“NRC”). This legislation (House Bill 208) was modeled after draft legislation from the NRC and which the West Virginia Legislature edited and received a tentative agreement from the NRC that if HB 208 was passed, the NRC would accept it as properly conforming to the State Agreement program requirements.

HB 208 was passed by both houses of the Legislature with only modest opposition, and the Governor signed the bill on October 16, 2024. With the legislation in place, what does it mean and what happens next?

Becoming an Agreement State with the NRC means that West Virginia gains regulatory authority to license and regulate byproduct materials (radioisotopes); source materials (uranium and thorium); and certain quantities of special nuclear materials. West Virginia currently loses out on collecting over $1 million in fees from licensees annually, as licensees pay fees directly to the federal government rather than the State. Those fees, and additional ones as nuclear companies come to West Virginia, will now stay with and benefit West Virginia directly!

The NRC conducts training courses and workshops; evaluates technical licensing and inspection issues from Agreement States; evaluates State rule changes; participates in activities conducted by the Conference of Radiation Control Program Directors, Inc.; and provides early and substantive involvement of the States in NRC rulemaking and other regulatory efforts. The NRC also coordinates with Agreement States the reporting of event information and responses to allegations reported to NRC involving Agreement States.

HB 208 creates a radiation control act and department within the Department of Health, creating jobs and allowing the state to maintain oversight over source materials, such as radiological materials for medical treatment, basic forms of uranium or thorium (mined or recovered), and the proper disposal of low-level radioactive waste (“LLRW”). Additionally, the bill creates jobs, as West Virginia will need to employ their own inspectors to inspect licensees’ facilities and projects to ensure compliance with the radiation control act regulations. Those inspectors will be based here in the state, and their training will be provided and funded by the NRC.

The NRC maintains oversight and regulation over all enriched uranium fuel, spent nuclear fuel, siting of nuclear power plants, and the operation of nuclear power plants. Under the NRC, nuclear power plants, enriched uranium fuel, and spent nuclear fuel, have proved to be one of the safest forms of energy in all aspects, as well as one of the cleanest.

Now that HB 208 has been signed into law, I believe that nuclear power companies will actively consider setting up operations in West Virginia, since appropriate regulations will be in place to provide the companies with certainty as to the “rules of the road,” and which agencies will be providing the oversight.

As far as West Virginia’s role in regulating and handling LLRW, West Virginia is already part of a compact to handle such waste. The states of Delaware, Maryland, West Virginia, and the Commonwealth of Pennsylvania formed a compact in 1988 to provide for the regional management and disposal of LLRW in response to federal law, Low-Level Radioactive Waste Policy Act of 1980 and Low-Level Radioactive Waste Policy Amendment Act of 1985. Congress consented to the Appalachian States Low-Level Radioactive Waste Compact in May 1988.

The commission currently consists of 10 members: four from Pennsylvania and two each from Delaware, Maryland, and West Virginia.

The Appalachian States Low-Level Radioactive Waste Compact Act, Pennsylvania Act 1985-120, empowers the commission to carry out certain duties, the most significant of which are as follows:

• Conduct research and establish regulations to promote reduction in volume and curie content of LLRW generated within the region.
• Ensure the LLRW generated within the region is safely disposed.
• Designate “host states” to establish LLRW disposal facilities as required by the compact.
• Prepare contingency plans for the management and disposal of LLRW if a regional disposal facility is closed or unavailable.
• Examine all records or operators of regional disposal facilities pertaining to operating costs, profits, charges, fees or surcharges and make recommendations to the host state.
• Provide public information concerning LLRW management and disposal needs, technologies and problems.
• Keep current and annual inventories of all generators by name and quantity of LLRW generated within the region. Inventory information shall include volume, curie content, chemical composition and toxicity of such waste.
• Keep an inventory of all regional facilities and specialized facilities in the nation.
• Enter into temporary agreements with non-party states or other regional boards for the emergency disposal of the regional LLRW.
• Publish an annual report detailing its programs, operations and finances.

With this important legislation in place to help West Virginia establish the necessary regulations, work cooperatively with the NRC, and establish the needed radiation controls, West Virginia is now open for business to nuclear companies looking for new locations for operation. 

Nuclear projects have received a great deal of interest recently, with some of the largest companies in the world turning to nuclear energy to power their electricity-intensive projects and businesses. Microsoft has signed a power purchase agreement with Constellation Energy to reopen Unit 1 of Three Mile Island Nuclear Generating Station, which only closed recently in 2019. Microsoft will purchase energy from the restarted plant for a period of 20 years to power its data centers. Unit 1 will provide 835 megawatts of electricity, or enough to power about 700,000 homes.

Google has signed an agreement with Kairos Power to purchase nuclear energy from multiple small modular reactors (“SMRs”). Overall, this deal will enable up to 500 MW of new, 24/7 carbon-free power to U.S. electricity grids and help more communities benefit from clean and affordable nuclear power.

Not to be outdone, Amazon just announced that it is investing $500 Million into X-Energy, a leading developer of next-generation SMR reactors and fuel and working on projects in Washington State with utility Energy Northwest, as well as in Virginia with Dominion Energy to develop and deploy X-Energy’s SMRs. (X-Energy has a feature article in the Spring/Summer 2023 edition of our firm's Views & Visions magazine.) In Virginia alone, Amazon is looking to bring at least 300 megawatts of power to the Virginia region, where Dominion projects that power demands will increase by 85% over the next 15 years.

By becoming an agreement state, and with an established all-of-the-above energy strategy, West Virginia can now be a top contender for such projects and investments. Nuclear energy can bring jobs, revenue, and clean firm energy to West Virginia, which can continue to be an energy leader for the nation. For additional information on our team and services, please check out our firm’s Nuclear Energy web page and be sure to follow me on Twitter @AtomicAttorney.