NRC Losing Another Commissioner on June 30

Morgan Lewis - Up & Atom
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Morgan Lewis - Up & Atom

Commissioner Annie Caputo has announced her plans to leave the NRC when her term expires next week, on June 30, 2021. This will leave the Commission with the bare minimum number of commissioners needed to conduct business.

BACKGROUND

Under the Atomic Energy Act of 1954, as amended (AEA), the Commission is composed of five seats with staggered five-year terms. One term expires each year on June 30. Commissioners are nominated by the president and subject to confirmation by the Senate. The AEA provides that no more than three commissioners can be affiliated with any single political party.

Former Commissioner William C. Ostendorff departed the agency when his term expired on June 30, 2016. Commissioner Caputo, a Republican, was nominated by President Donald Trump in 2017 to serve the remainder of the term for that vacant seat, which expires on June 30, 2021. Prior to that, a nuclear engineer by trade, Commissioner Caputo served as a senior policy adviser for the Senate Environment and Public Works Committee (which oversees the NRC). She was confirmed by the Senate and then sworn in as a commissioner in June 2018. Because President Joseph Biden has neither renominated Commissioner Caputo nor nominated a replacement for her, the seat will become vacant after June 30, 2021.

President Biden also has not nominated a replacement to fill the vacancy created by former Chairman Kristine Svinicki’s resignation on January 20, 2021. Thus, beginning July 1, 2021, the Commission will be composed of Chairman Christopher Hanson (D), and Commissioners Jeff Baran (D) and David Wright (R), with two vacant seats.

IMPLICATIONS

Although the day-to-day operations of the NRC are largely carried out by agency staff, functions pertaining to policy formulation, rulemaking, and adjudications, with certain exceptions, are reserved for the Commission itself. These are known as the “collegial functions” of the Commission, and voting on these matters is largely governed by statutes—specifically, the Government in the Sunshine Act and the Energy Reorganization Act—which specify that a "quorum for the transaction of business shall consist of at least three members present" and that "[a]ction of the Commission shall be determined by a majority vote of the members present."

In essence, votes from at least three Commissioners are required to act on any matter within the scope of the “collegial functions.” The NRC’s Internal Commission Procedures provide that a vote to “abstain” may be counted to constitute a bare quorum. However, because the Commission will be down to three members as of July 1, the recusal, absence, or non-participation of any one Commissioner could deprive a matter of the necessary quorum. The result would be that the Commission could not act on that matter (i.e., could not approve or disapprove a policy matter, rulemaking, or adjudicatory order).

We will continue to monitor and report on any significant NRC policy changes following Commissioner Caputo’s departure and any nominations to fill the vacancies.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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