S-5249-119
Passed Senate with an amendment by Unanimous Consent. (consideration: CR S5295-5296; text: CR S5295-5296)
Sponsored by Mark Kelly (D-AZ)
What it does
The bill would amend Section 193 of the Atomic Energy Act so uranium enrichment facilities are licensed for operation only, not for construction and operation together. It would replace the single mandatory hearing with a hearing on request by any person whose interest may be affected by operation, who must be admitted as a party. It would also allow an applicant to build before receiving an operating license, but only after the Nuclear Regulatory Commission (NRC) dockets the application, in compliance with applicable federal law, and entirely at the applicant's own risk. Applicants would have to certify that they will notify the state governor, local governments and certain Tribes at least 15 days before construction starts. The NRC would have to revise its rules within 180 days and may exempt pending applicants. The NRC's authority to regulate construction, to deny licenses, and judicial review would be preserved.
Who benefits
Uranium enrichment companies and applicants, who could begin building earlier and face a licensing process aligned with other fuel cycle facilities. Nuclear reactor operators and developers of advanced reactors that may need enriched fuel, which could see more domestic supply. Construction and manufacturing workers at new enrichment sites. Persons whose interests may be affected by operation, who would gain a right to request a hearing and be admitted as a party. State, local and Tribal governments, which would get advance written notice of construction.
Who is hurt
Residents and groups near proposed sites who may have fewer formal opportunities to contest construction, since the hearing would focus on operation and early building could proceed before a hearing concludes. Applicants who build early bear the financial risk if a license is later denied. NRC staff and budgets may face added workload from rulemaking within 180 days and from oversight of construction that occurs before licensing. Competing foreign or existing enrichment suppliers might face more domestic competition. Environmental and nonproliferation advocates may see weaker pre-construction review.
Supporters argue
Supporters argue that the current requirement to license construction and operation together slows new enrichment capacity, which the United States needs to reduce reliance on foreign suppliers such as Russia. They contend that aligning enrichment with other fuel cycle facilities, while keeping the NRC's power to deny licenses, requiring compliance with federal law, and placing financial risk on the applicant, speeds deployment without removing safety review. They also point to the new advance notice to governors, localities and Tribes and the broader right to request a hearing.
Opponents argue
Opponents argue that allowing construction before an operating license is issued weakens the safeguard of reviewing a facility's design before it is built, and that facts on the ground may pressure regulators toward approval. They contend that a hearing focused only on operation, with only 15 days' notice to states, localities and Tribes, gives affected communities less meaningful input. They also note that the NRC would have to rewrite its rules within 180 days and could exempt pending applicants, which may strain agency resources.
Constitutional context
Congress legislates here under its Article I powers, including the Commerce Clause and Necessary and Proper Clause, over nuclear materials regulated under the Atomic Energy Act. The bill preserves judicial review under section 189 and raises no distinct constitutional question; post-Loper Bright, courts would independently interpret the amended statute when the NRC's implementing rules are challenged. Takings and due process concerns are not meaningfully implicated.
Checks and balances
Congress directs the NRC, an independent executive agency, to rewrite its rules and grants it exemption discretion; the NRC keeps authority to deny licenses and regulate construction, and courts retain review under section 189 of the Atomic Energy Act.
Historical precedent
The Energy Policy Act of 1992 created the existing single-hearing licensing process for uranium enrichment facilities (section 193), which this bill would modify.