January 27, 2023

Ep 379: Jim Glasgow - Fmr. Senior Attorney, U.S. DOE, NRC, AEC

Fmr. Senior Attorney
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Show notes

Jim Glasgow [00:00:00] Well, I'm delighted to be here. And it certainly, in a way, feels good to be able to put on a suit and drive downtown. I used to do that every day for 50 years to pursue law practice, and now I practice law from home, mostly, with the Hunton, Andrews & Kurth law firm, which I joined back in September of 2021. But I got here not through any great plan, starting early in life. I planned to be a professional musician, and that worked just fine for my college and high school days. I made a fair amount of money being a clarinetist and playing a saxophone, alto and tenor, in the Tucson Symphony, as well as Tucson Pops Orchestra, various bands, jazz bands, and also my own group called The Sophisticats. We were not a great crowd pleaser except for older audiences.

Jim Glasgow [00:00:58] But then when I got into college, I realized that I wasn't really cut out for my pre-medical studies. I didn't take a lot of physics, chemistry, math and other things that have helped me in this industry. But when it came to deciding what to do, the debate team participation at the University of Arizona in Tucson was what carried the day for me. I ended up liking presenting things and having to make arguments on the debate team, and that led to law school. But that again was at the University of Arizona College of Law. I was a bit tied to Tucson. I needed to make money to get my way through school, and I couldn't do that by just going anywhere. I had to keep drawing on the contacts I had. Amazingly, that experience is still relevant to my law practice. It sounds odd, but I've found reasons to work clarinet playing into client events.

Anton van Saase [00:01:53] Nice. That is something different.

Jim Glasgow [00:01:55] Well, and probably enough about that. But when I got out of law school, my big break, frankly, was getting a clerkship with Chief Judge Richard Chambers of the U.S. Court of Appeals for the Ninth Circuit in San Francisco. I showed up and had one year of a great learning experience. Being a law clerk, as you know, is a lot more than filing papers. You're essentially a sounding board for the judge and a drafter of opinions, first draft. But that led to coming to Washington, D.C. to work for the Justice Department. I hadn't planned to do that, but I was always interested in natural resources, water rights and the like.

Jim Glasgow [00:02:36] So perhaps that makes sense that I wound up with the Land and Natural Resources Division at Justice. And that was when a lot of things were happening. That was 1970 that I started. But the National Environmental Policy Act, NEPA, had been passed in 1969, and little did I know, but the experience even that I had gained as being a law clerk about NEPA, as it's pronounced, turned out to be quite valuable. When I got to the Justice Department, a lot of my cases had to do with NEPA. Not all of them. One of them harked back to the Refuse Act of 1899, Section 13 of the Rivers and Harbors Act, to be precise, 42 USC § 407. See, I had to write that so many times in briefs that I still remember it. The Justice Department used that, quite oddly, to bring a case against a nuclear utility for thermal pollution. Well, that's not exactly discharge of matter, but rather of energy. But still, the district judge upheld the Department's use of the case. I went to Miami a lot of times to argue procedural motions, prepared for trial. We settled the case. I signed the decree, the judge approved it. A huge cooling canal system, over 4,000 acres was deployed.

Anton van Saase [00:04:05] Was it Turkey Point?

Jim Glasgow [00:04:05] Yes, it was indeed Turkey Point. 4,000 acres of mangrove swamp were sacrificed to a labyrinthine cooling canal. Water went around and around like an automobile radiator and came out into Card Sound lots cooler than it had previously been discharged. So that maybe as an inauspicious start to working for and in favor of nuclear power, but indeed I did. I think that was my last act taken, arguably, against a nuclear plant. My big break at Justice was, frankly, as a 27 or 28 year old kid being thrown into what really had emerged as perhaps the most important case that particular Land's Division had at the time. The opponents were five auto companies and they didn't like the fact that Administrator Bill Ruckelshaus of the EPA had denied their request for a one year extension to get their tailpipe emission compliant with the Clean Air Act emission limits. Fortunately, the Act gave a one year extension if the companies could show they needed it. They tried to show it; the EPA said, "No.".

Jim Glasgow [00:05:24] The companies took them to the circuit court. I was assigned to brief and argue the case, which I did, and it was one of those hugely accelerated briefing schedules, a lot of pressure. I walked into court and there are about, oh, a dozen lawyers for the companies sitting there at the table. Only one for the government, yours truly. But the court accepted the arguments that it was putting forth for the U.S. Justice Department and ultimately and quickly ruled mostly in the government's favor on all of the key points, such as APA, Administrative Procedure Act issues, NEPA issues, National Environmental Policy Act, that is. I'd sent the matter back to Ruckelshaus saying, "This is the most important industrial case of the decade. We need you to have some more hearings, have some more findings." On that second go around, Ruckelshaus changed his mind and granted the extension. I think it was sobering to think how many jobs were in the offing. The Department liked what I'd done, gave me a big cash award, and I got lots of job offers.

Anton van Saase [00:06:37] Nice.

Jim Glasgow [00:06:38] Loaned me out to the Atomic Energy Commission. That's why I'm here today.

Anton van Saase [00:06:43] Yeah, that's the interesting segway into there, of course. You got the orders to the Atomic Energy Commission that became obviously the NRC. Were you there when the transfer happened?

Jim Glasgow [00:06:52] Yes, I went through the whole thing. I might possibly be the only lawyer still in practice who has gone through the full loop of agencies involved in nuclear power matters. In other words, Justice was lots involved, obviously AEC, NRC where I went after the AEC folded at the end of '74. But I spent time at both AEC and NRC, mostly as an appellate lawyer, defending the licensing decisions of the AEC and later the NRC against challenges that were mostly filed in the Courts of Appeal, because the Administrative Procedures Review Act, the so called Hobbs Act, trusted their jurisdiction exclusively in the Courts of Appeal when it came to final awarders of those agencies. If somebody thought they were aggrieved and had an interest, they could go to court. They usually were required to have exhausted their administrative remedies. And if they had not participated in the agency's proceeding, then often they were precluded from going to court.

Anton van Saase [00:08:08] So let me ask you a question. Do you think that the approach of the AEC and the people and the goals they had, etc., did they change when it became the NRC?

Jim Glasgow [00:08:21] I didn't see a lot of change. Some would think there should have been change because the rationale for abolishing the AEC was that it combined promotional and regulatory functions. The AEC was charged with the national security aspects of nuclear power, frankly, weapons development, but also R&D on new reactor systems. And there were a lot of R&D projects on, well, some far-fetched systems. Reactors for airplanes, oh, yes, there was a big one that really didn't get off the ground. I'll spare you the rest of that. But the the climate seemed to me to be a meticulously fair regulatory climate at the AEC. There were about 35 commissioners of the AEC over time, people we still remember today, James Schlesinger and Dixy Lee Ray, who went on to become governor of Washington State. But my favorite among the group was William O. Doub, who was a commissioner for the years that I was at the AEC, and he later became my law firm partner. It's one of those serendipitous occasions. I didn't plan for these things. They just happened. Bill kind of took me under his wing and helped me get over to the NRC, aided by Anders, who went to become the chairman of the NRC. So I had a good start at the NRC. I had great cases; I could mention some. You know, I think I'd save that and see if there's time, because I can weave some of these in. I don't just want to tell war stories.

Anton van Saase [00:10:04] No, no, I'm actually kind of interested more in, or we are more interested in the more philosophical on where you think the NRC at the time were supposed to head and ultimately where they ended up and where we are right now. Because there's of course, an enormous drought of, what, 45 years or so, where the NRC pretty much did not license anything other than a renewal of an existing license, and what caused that. And of course, now there is from Congress a request to come up with some new regulations related to SMRs, which is what we are in the business of. And the NRC seems to have some trouble in coming up with new regulations, which, and I have to be a little careful I guess how I state that, but less prescriptive and a little bit more risk based and it seems to be very difficult for the NRC to get themselves to that point.

Jim Glasgow [00:11:06] Well, yes, risk-informed performance-based. There's another acronym; it's definitely the watchword. But that's been true for a long time. And I have to compliment my former colleagues. I thought that the level of performance of the AEC and NRC people that I met and worked with was top flight and excellent commissioners served during that term. I didn't know them all. Some were lawyers, some were not, but all were, I think, devoted to the mission at that time. But there was a big impediment in those early days of the NRC, and that was, frankly, the government was suffering an onslaught of litigation. And because some of the plaintiffs and petitioners for review were successful, that vastly slowed down the NRC licensing process, slowed it down at the construction permit stage, certainly the operating license stage. Later, of course, the NRC tried to implement these new ideas about risk-informed performance-based licensing and to that end promulgated a new Part 52. And I think that's what you were alluding to, because the NRC did a number of things to try to make that process work and to make it work in a more rapid manner than the old Part 50, which was the two step. First, you get a construction permit, later an operating license. There were not too many opportunities, though, for the NRC to use the new Part 52. There were a number of applications for Early Site Permits, ESPs. And that was good, a number were granted. But this was also a time when the bloom was off the rose of the renaissance. I had hoped for that myself, greatly, as we all did.

Anton van Saase [00:13:01] I was in the middle of that one. I know all about it.

Jim Glasgow [00:13:03] But the dearth of cases soon came and there weren't many opportunities for the NRC to apply 52. One was, however, with respect to the Vogtle plant in Georgia. And that, to my understanding, is the first and only to date large nuclear plant that has been through the entire Part 52 process and got a combined license. Indeed, this all happened back in August of 2022. The commission had put out a notice saying that the company had successfully demonstrated compliance with the so-called ITAC process, Inspections, Test and Acceptance Criteria, which is part of the Part 52 rule, and authorized the company, Southern Nuclear Operating Company, to load fuel. So I think perhaps it's done that. I'm not up to the moment on that. I'm not representing anybody on this particular matter, but I keep very close track with these things. It's part of my business to keep current. I'd be remiss if I did not.

Jim Glasgow [00:14:16] Now, you alluded to the fact that while the NRC has been under pressure, yes. Congress laid down a command, enacted into law on January 14, 2019, NEMA, Nuclear Energy Innovation and Modernization Act. It has a lot of things. My favorite is Section 103, which commands the NRC to develop a new rule to try to fix what's wrong with Part 52, to enable a faster, better, more predictable process for licensing advanced reactors, both Generation III+ reactors but including, of course, small modular reactors of all fuel types. And the NRC is embarked on the process. Some would say too slowly. It's on a seven year total timeframe. In Section 103, Congress commanded, "Get it done within seven years." Does that sound like a reasonable pace? Some would say too long. How much has the NRC gotten done to date? Well, a few things. In 2020, it did put out a notice inviting public comment on the so-called framework or basis, the regulatory basis for this rule. The NRC didn't want to jump to the rule text itself, the proposed rule; it needed an intermediate step. And it's that intermediate step on which comments are being received. And there have been many hours of public meetings. Industry groups, including the nuclear industry institute, the NEI, has commented. I've read the comments. I've spent too much time reading the comments. I'm to a part of my career where I'm no longer writing the comments as I once would have done, but I'm very closely tuned into all of this.

Jim Glasgow [00:16:14] And I think that the consensus so far has been one of disappointment among the industry. I can't speak for everybody and there are some anti-nuclear groups that are probably going to weigh in against the rule. And I predict, looking down the road, that when the rule is promulgated it's almost certain that there will be people who will petition to review it. And they will have participated, so they will have exhausted their administrative remedies. Some of them will show sufficient standing to be in a court of appeals, probably the D.C. Circuit, and they will have their arguments. So instead of getting a rule that's effective in seven years, it might be strung out for another few years beyond that. It might be a decade. Now, that's highly discouraging. So I would hope the NRC could get its work done sooner. But the pace suggests maybe not.

Jim Glasgow [00:17:06] At least one good thing happened recently, and that is in 2020, the NRC said, "We're going to prepare a Generic Environmental Impact Statement, a GEIS, to analyze the environmental impacts of the rule. That's a good idea. One of my former colleagues, Jeff Merrifield, had a big role in suggesting that, but others did as well. The NRC does have a history of such statements in other matters on which I was involved, and I can testify that it is a good thing because it's possible in that manner to clear away a lot of the legal objections. If you let them rise and keep alive until licensing proceedings, then they're interjected into those proceedings. You don't want that. So I agree with those who supported the idea of a GEIS. It's not out yet, but when it is, of course, it'll be circulated interagency, public can comment, but clear away those objections right up front. So I say NEMA was the right thing in this respect. Whether or not it really expedites the process, we don't know yet. And I think a lot of it will depend on how creative the NRC can be in addressing the concerns that industry has raised thus far.

Anton van Saase [00:18:29] Do you believe that there should be a different process for small reactors versus gigawatt reactors? And the reason I'm asking that is the United States Navy has been using small nuclear reactors in their vessels and submarines for 50, 60 years, something like that, a long, long time. And basically people are, especially in a submarine, living pretty much next to the reactor. Nobody seems to be blinking an eye about it. So if it is relatively safe to do in a submarine, why couldn't the process be replicated on land as well?

Jim Glasgow [00:19:12] You make a good point. And I think that perhaps some of the lessons learned with submarine reactors could be applied by the NRC. I would be surprised if they haven't to some extent taken this into account.

Anton van Saase [00:19:28] It's a different process with the DoD.

Jim Glasgow [00:19:29] You don't go to the NRC to get your submarine corrective license. With respect to emergency exclusion zones, see, there's one area where, at least for small modular reactors, there's an absolutely powerful argument for a different approach entirely. Inherent passive safety features should, and I think will, enable a different approach to how much in the way of emergency measures you need to show and how you demonstrate it. Milestones is a word that's bandied about in the NRC's regulatory basis framework, and that's a nice term. Yes, that would be an important thing. Establish performance-based goals for the licensing process. One of the things that's hard to move in all of this is the fact that the Atomic Energy Act, from the beginning, at least in 1954, has prescribed rights for people to intervene. The idea is citizens should have a right to speak up. It's built into our democratic system, but it's one of those problems that inherently has the potential for us folk.

Anton van Saase [00:20:44] Yeah, lock it down, absolutely.

Jim Glasgow [00:20:45] Lock it down. But we will learn, I think, even over the next year through more hearings, more public meetings that is. If the NRC can go from the general to the specific, if it can internally tee up the industry concerns, find a creative way to respond with some specificity. In other words, it's not enough just to say, "Well, gosh, that's a nice point. We'll throw in a few more process related words. We'll come up with some more synonyms for milestones, goals, objectives." The proof is going to be in how effective the NRC can be with responding to the industry comments. And actually, the Part 52, you could say, was not all that successful. Part of it's no one's fault, there simply weren't applications filed. But even today, I'm aware that some small modular reactor developers don't want to use Part 52. It's still on the books. Why not apply there? Isn't it better? It came after Part 50. But indeed, many are thinking already, "We'll have to go with the older Part 50."

Anton van Saase [00:22:01] Well, part of the problem which is seen, especially for an SMR, is the cost benefit analysis. You can get to the point where the amount of time and the amount of money it takes to get through a licensing process with the NRC, for a relatively small plant which will not have the revenue base which a giga plant would have, it makes it pretty much, from a cost point of view, prohibitive almost to go through the process unless there's significant government support. And that is a whole other issue you have to deal with at that point.

Jim Glasgow [00:22:37] I'd like to find some good news here somewhere. You know, at the beginning of the year, I always manage to refresh my memory on things that are not billable to clients. I just like to read the cases; it's part of my job. Read the regs, go on the NRC and DOE websites. I must do that. Strangely, I enjoy it. But one area of good news might relate to the so-called Waste Confidence rule. It goes back to 1997. It's not called Waste Confidence anymore. It's a Continued Storage rule. But that, even as early as 1977 was emerging as an element that interventionists would put forward in saying, "The NRC has not really adequately looked at the consequences, environmentally at least, of the fact that spent fuel is going to be on the site long after the reactor's operational license life." So, the NRC started to play with ideas to get around that. The famous S3 rule came about, which was inserted into the NRC's Part 51, which is their environmental review portion of their regulations. And that rule was like a shuttlecock. It bounced between the D.C. Circuit and the Supreme Court a number of times, and the arguments were impassive or impassioned. The Supreme Court mostly rejected what the D.C. Circuit had done. Judge Bazelon spoke learned words; his colleague Judge Wilkie responded in dissent. The Supreme Court looked at it and mostly took Wilkie's approach. Both of those fine gentlemen have been long dead, but the jurisprudence stays alive. There is not a geologic repository, as far as I'm aware, for all judicial opinions so that nothing can leak out to hurt you. Oh no. They stay part of our jurisprudence. Some are superseded by time and the passage of congressional acts that undo what the court said. But it is totally amazing the extent to which these early decisions are still fully applicable, particularly with respect to NEPA. And maybe it's only because I argued some of those cases that I have an affection for them. I keep track of them. Many, like Citizens for Safe Power involving the Maine Yankee Plant operating license are still alive. And I marvel still at the ingenious arguments that some of those petitioners made.

Jim Glasgow [00:25:18] In that case, Professor Harold Green came up with a very scholarly argument. He said, "It's fine that the AEC has gone and looked hard and concluded that all of its regulatory requirements are met under the Atomic Energy Act." "But," he said, "the commission failed to assess the residual risk." That is to say the risk that remained after the more specific requirements were specifically addressed by the Commission in its final Safety Analysis Report, for example. The Commission, and I wrote these arguments, said, "Well, not so fast, because the Commissionar has already looked at these issues under the auspices of the NEPA, National Environmental Policy Act." And that's what carried the day, eventually. And the court, the D.C. Circuit, was unwilling to draw a formulistic, as they say, distinction between analyzing things under the Atomic Energy Act and analyzing things underneath it. The Commission, to the extent it didn't specifically look at residual risk under the Atomic Energy Act, did under NEPA. That was enough for the court. So I kind of dined out and wrote my briefs on the strengths of precedents like that.

Jim Glasgow [00:26:40] But I shifted later to international work when I went over to the old Energy Research and Development Administration. I guess I had a wanderlust. I'd heard they had great parties at the IAEA in Vienna, Austria, and the U.S. mission, and frankly, my colleague Peter Brush had made me an offer that I couldn't refuse, and I soon started to travel, which I liked greatly. I went to Japan many times, the Middle East. The Middle East hadn't come on... Oh, yes, it did. I went to Egypt, as a matter of fact, to help negotiate the U.S.-Egypt 123 agreement. I went to Brussels to help negotiate a huge revision to the U.S.-European Atomic Energy Community, EURATOM agreement for cooperation. All critical endeavors. I got to do many other things.

Jim Glasgow [00:27:33] One was to work on legislation for the Department of Energy, because at that time nonproliferation was the watchword. Several members of Congress were drafting bills to greatly strengthen nonproliferation requirements for these 123 agreements. I would work on helping the DOE send in a response, working hand in glove with the State Department. Out of it came the NNPA, Nuclear Nonproliferation Proliferation Act of 1978. NNPA, as everyone calls it. And there again was serendipity in operation. I had no way of knowing this, but my work on that act put me in the driver's seat on helping interpret the law once it had been passed. And it was infinitely complicated and participants were outraged. Many, such as EURATOM, even delayed the negotiations. So bad they thought the law was and so onerous it was in asking from them more than they should have to give, they thought.

Jim Glasgow [00:28:44] And that really was a game changer because it caused me to enter private practice. I had opportunities to do that. I linked up with Commissioner Bill Doub. No longer a commissioner, he was in private practice. I became a member of Doub, Muntzing, and the word Glasgow was later added. I was thrilled with that. It was a boutique firm and I went hither and yon to work with utility clients and others on helping them understand these requirements, sometimes accompany them to Vienna to help them talk to the IAEA about safeguards agreements and many other things. But by those days, I was still working on domestic licensing. That never went away. You couldn't do just one thing if you wanted to make a living. Absolutely not. You had to be able to do contracts. I worked with a lot of utilities on uranium enrichment contracts. And in those days, the provider was, well, the Department of Energy and AEC before that. Those contracts were complicated. Foreign companies also had those contracts.

Jim Glasgow [00:29:55] So by and by though, the age of large law firms was more and more upon us. It was rather necessary to be a part of a larger firm to handle huge industrial opportunities. So Bill Doub, Manning Munzting and I merged our firm into a firm called Newman & Holtzinger. Credit still goes to Jack Newman for being my mentor of sorts over at the firm. I benefited from the people I worked with. There aren't textbooks where you can learn everything. You can if you've studied the law a lot, as I did with the NNPA. I could maybe emerge at times as the leading expert on these things, but I knew I wasn't an island. My friend Chuck Peterson, who had been chairman of Nuexco before I twisted his arm and he joined Morgan Lewis where I was after a time, I was able to see that business people who happen to be lawyers have a different perspective. I incorporated that into what I tried to do. When negotiating contracts, when working with clients, I felt it was critical to know the business. I give great credit to the Nuclear Energy Institute, its predecessor USCEA, World Nuclear Association and its predecessor, Uranium Institute. I went to other conferences all around the world. They gave me opportunities to speak, and I sat for hours hearing speeches about how the industry worked, licensing, mining, conversion, fabrication, all of that. And if I hadn't learned that, I don't think I would have been credible in talking to clients. They don't want to give their lawyer a tutorial. You need to know those things.

Anton van Saase [00:31:48] You need to understand the business. You need to understand because otherwise you cannot provide the proper advice either. Because advice which does not support the business is ultimately not relevant to them. That's usually the way it works, right?

Jim Glasgow [00:32:02] Well, with lawyers, it's very much a people business. Sounds a little strange, but it's definitely not "go to one firm and 30 years later, get your gold watch." Not so. It's such a specialized business, in my experience, that things happen. Your friends, who maybe even attracted you to come to a firm in the first place leave. They go to another firm for all kinds of reasons, including conflicts of interest. So I migrated from time to time. People left me; sometimes I rejoined them. I went to the Pillsbury firm. Enjoyed my decades at Morgan Lewis and Pillsbury. Met great people, great friends. But some of those great friends went on, such as Chuck Peterson left Pillsbury as did George Borovas. So having worked for George in two firms, I was maybe not totally surprised, but I certainly was gratified when he asked me to join Hunton, Andrews & Kurth, which had a large nuclear practice and once again does. George heads up the Tokyo office and also the nuclear office. But anyway, I'm still working. I failed retirement. I have to admit it.

Anton van Saase [00:33:21] That's got to impact your R&D, right?

Jim Glasgow [00:33:24] But I would like to say, if you'll permit it, a little bit about some key international things that have just happened because I think your audience needs to know about them. They're of a blockbuster status. I wouldn't have picked them up unless I did my own continuing legal education, but I did so. The most recent one is in a Federal Register Notice on January 12 of this year, and it significantly amends the DOE technology transfer rules. They are codified 10 CFR Part 810, and that's been on the books since 1957 when the statute on which it's based was enacted. That's Section 57 of the Act. Very broadly worded; it was a product of the Cold War, a product of the concern that our technology might leak overseas, and even the power reactor technology might have non-peaceful implications. This technology is kind of one of these... The rule is an eye glazing-over moment. It's forbidden for U.S. persons to engage overseas in the production of sources of special nuclear material without an authorization to do so. And the authorization process is laid out in the statute. You either get a license, a permit from the Secretary of Energy, personally. Now, that sounds odd. How can the Secretary be running around doing that? But it says so in Section 161N. The secretary personally has to do that. I can't tell you how many times that's significantly delayed the process. But this latest change amps up the penalties provisions that are laid out in 115, in .15 of Part 810. And it establishes once again, I think, that the DOE has civil penalty and additional power in addition to criminal. The new penalty, get this, is $112,000 a day.

Jim Glasgow [00:35:53] Now, the violation can be continuing, maybe in some instances it's only a day. But if you're an engineer and you've gone over to help a foreign nuclear power plant with technical matters, most likely you're within the scope of Part 810, if you're there without the requisite permit and you're not within the scope of a general authorization... You should be looking at the books, shaking in your boots and thinking, "Am I going to have to pay $110,000, roughly a day?" And that is adjusted for inflation later. So what do you do if you get a notice of violation as provided for in the new rule? Well, you have an opportunity to respond within 30 days. You can explain. But if the NRC sends you a notice, a formal notice of violation, now you can request a hearing. You can even bring your lawyer. And the NRC has its lawyers and there's cross-examination provided for and other formal processes. At the end of the day, what if the DOE does send you a notice and assesses the penalty? And they have to tell you why and how and what factors they applied. Unfortunately, the DOE certainly has the ability to chase after your money and find a way to make you pay it. So this is a real blockbuster. I think that many companies will probably want to look at their compliance programs and make some adjustments.

Anton van Saase [00:37:26] Correct. We are actually doing this right now as well because we have, basically, existing technology. We don't have an advanced nuclear reactor, so we're not using molten salt or lead or any of those other more esoteric type things. We're in that respect a little bit more in the public domain, I guess, with a lot of the stuff that we're doing. But still, it's one of those areas where you've got to keep an eye on and say, "Okay, what are we doing and who's going abroad and who are they talking to, etc.." So, yes.

Jim Glasgow [00:37:56] That's been one of my frequent assignments of private practice, to meet with clients to talk about exactly that. And sometimes it's not so clear what is totally in the public domain and what represents an embellishment. In other words, proprietary knowledge that builds on something in the public domain but adds more. And that's why, frankly, the company is getting paid. They're not just providing public information. Sometimes it's hands on work; it's the reactor operator. So even back in the 1990s, a number of reactor operators thought it'd be cool to leave their jobs at the TVA and go to South Africa, work for Eskom where they were going to get paid a lot more, but the FBI came to visit them and said, "Do you realize that you're here without a specific authorization? We know you don't have one." South Africa was not a generally authorized country at that time. Threatened them with prosecution; they mostly came home. All right, that's all. But that kind of scenario is still possible to be repeated.

Jim Glasgow [00:39:03] Sometimes this is a burden placed on foreign new build programs. The foreign new build program almost has to be in the possession of educating some, not all, but some of their American contractors about American law. It's a better idea not to do that. And the DOE did get a little bit more hopeful in 2015 when they just had a massive overhaul of the Part 810 rule. But it didn't answer all the questions. And having struggled with the DOE, a nice booklet about what they did identify, I appreciate that, but there's still a lot of unanswered questions. One modern one has to do with those advanced fuel cycles that you mentioned because there is the concept of Special Nuclear Technology. It was defined in the NNPA; the definition is repeated in the DOE rules. And people look at their technology and they think, "God forbid, is this possibly Sensitive Nuclear Technology, SNT?" Because if it is, full stop. It's not going to be possible to transfer that overseas. And all these big penalties would kick in if you do.

Anton van Saase [00:40:15] And part of the problem there is... Because obviously that is on our radar as well. The law is never a bright black and white line, right? There's always a gray area. And when you're talking to engineers and tell them about, "Well, this is potentially, depending on etc.," they're like, "Wait a second, is it or isn't it?" Then it's like, "Well, it's not that simple to answer." And then sometimes an interesting discussion you can have. I'm originally an engineer myself, so I'm very much aware of that black and white thinking of one plus one is two, end of discussion versus like, well, what's your argument, right? The law in that respect is a little different than pure engineering. And sometimes it would be nice if regulations and laws would be more specific and let people exactly know what they are, but that's just not always the way it works.

Jim Glasgow [00:41:12] The DOE did get more specific in 2015. They did, but not specific enough so that it answered all the questions. We can easily understand that what they control in the way of nuclear power technology is that which is essentially in the nuclear aisle and not balance of plant. You know, things that are attached to the... The fuel, the core, the fuel handling, discharging, etc.. But it's not always possible to identify every last thing. But that's mostly pretty much settled. But what is Sensitive Nuclear Technology isn't. And when you get to new fuel cycles, the meaning of the word reprocessing sometimes is front and center.

Jim Glasgow [00:41:55] Now, it might not seem that such a plant would reprocess, but they do have online fueling in some cases, ways of extracting contaminants from like liquid fuel. Is that reprocessing? Well, I'm not here today to give legal advice, but in the past I've represented some of these startup and later stage companies that have innovative reactors. We usually prepare very well, go over to the DOE, talk to the right people, try to get the right answers, try to get it in writing. The DOE only modestly makes use of its authority to give advisory opinions. Over the years, I've been greatly blessed with the indulgences of John Rooney and Katie Strangis and others and head up that function as a regular job.

Anton van Saase [00:42:45] Yeah, I've had my interactions with Katie in a number of activities with getting approvals, getting notifications. It's part of what you need to do.

Jim Glasgow [00:42:59] Well, the general counsel of DOE has almost never, over the years, used his or her authority to issue an opinion. And that's the only opinion that is actually binding on DOE. It says that right in the Part 810 regs. Now, that's disconcerting. I think that more certainty could be achieved in that matter. I think the DOE has taken some modest steps toward making their actual decisions more readily available. It used to be necessary to go to the DOE and stand there and work the Xerox machine and put quarters into it. I eventually compiled a set of every publicly available 810 determination they made. That was my case law. That allowed me to show clients, "Here's what DOE did in this case," and that was invaluable. I still do that. But they could do better; they could have all that online, please..

Anton van Saase [00:43:51] Nowadays, you go on the NRC website, DOE website, they actually have a lot of information there, schematics and designs, etc... So that is giving you quite some guidance on, "Well, this is clearly public because the NRC has it on their own website. So we are okay; we have something similar." It's still, you need to evaluate it, but it is what it is, so.

Jim Glasgow [00:44:16] It's better than it was. I'm not criticizing my former colleagues. Some of my previous friends and colleagues at law firms are now at DOE's Office of General Counsel. I told just one too many good war stories about how much I like DOE, so my colleagues at private law firms went there. I wasn't too smart in that regard. I lost people I needed.

Anton van Saase [00:44:39] Well, the DOE is not the enemy, right?

Jim Glasgow [00:44:43] Oh, no, no, they weren't. I got to my current law practice largely by the good opportunities I had with the federal government. I'm deeply grateful for that and I'm still trying to stay right on the cusp, even at 52 years of law practice. If you'll allow me, I'd like to say something about another blockbuster development having to deal with 123 agreements. The agreements for coorporation are changing. Several have expired over the years. Egypt expired at the end of 2021 and the South Africa agreement expired on December 4, even though a replacement agreement has been sent up to Capitol Hill on September 1 by President Biden. The 90 days of continuous session review are apparently not finished. But in the remainder of the decade, several agreements are coming due for renewal, and there's good news and bad. The ones that are expiring in 2029 are the bad news because they don't have renewal provisions other than just go negotiate...

Anton van Saase [00:45:52] A new one.

Jim Glasgow [00:45:52] ...a new one. And that takes a long time. And they are Brazil... Let's see if I can remember. Ukraine, and Kazakhstan. But if we go to the one that's expiring soon it's June of 2023 and it's Turkey. The good news is it has a five year renewal, a rolling renewal. So if the countries don't send out a notice that they don't want to renew, it just rolls to another five years and another five years. Same is true of EURATOM. Hugely important because under its rubric are 27 countries. Immensely important. Its term expires in 2026 except it has that five year rolling renewal. So if nobody does anything to say we want to stop, it just rolls. It's a little uncertainty because it means that every five years there's a question.

Anton van Saase [00:46:45] So probably you're going to get the Westinghouse guys somewhat nervous or somewhat wondering like, "Okay, do we need to get involved in this?"

Jim Glasgow [00:46:52] At least we're not back to the dramatic times in which I participated in the years... The 2010s were pretty dramatic. A lot of agreements were coming to be renewed and they didn't have renewal provisions. I worked hard on several of those and they were controversial, as were some in the '80s and '90s. I worked a lot on the Japan agreement. So enough of that. But if I could just say something, if there's still time. It has to do with court cases because it's woven into the fabric of nuclear law from the beginning. We're looking at some critical cases being handed down probably within days. I checked this morning and the decision in the lawsuit by the state of Texas against the applicants for a combined, a long term interim storage facility, consolidated interim storage facility, CISF, have a lot at stake. The one in west Texas has a license that was issued a few months ago... Well, actually back in September of 2021. But the state of Texas challenged that license within 10 days. They challenged it in the U.S. Court of Appeals under the Hobbs Act. Oral argument on the case was held in August of 2022. There should be a decision pretty soon. It's huge consequences. I mean, I think, personally, that the grounds for the license are very strong, but what the Fifth Circuit says is going to be hugely important. The court's heard the oral argument; there's a similar case in the D.C. Circuit that was argued on November 11 of last year. So there too, there should be a decision pretty soon, but the fate of these licenses will hang in the balance.

Jim Glasgow [00:48:46] Both parties are strongly relying on that West Virginia case I mentioned. State of West Virginia vs. EPA. It's a case that basically says if it's a major question, the Congress has got to speak with great clarity, if the matter has large, overarching political and economic consequences. These plaintiffs, these petitioners say that's true. So please keep in mind the 330 Court of Appeals cases that are on the books still. There's a dozen Supreme Court cases. There are maybe about 100 District Court cases. And I promise you that I won't bother you with another one of those, but they're going to be important. That was my bread and butter for years. I sent my daughters through college on such things.

Jim Glasgow [00:49:36] Great pleasure to be here today. Thanks for helping me prepare, do my annual continuing legal education review and my exercise program. I listen to the podcast while I walk around the neighborhood. Thank you so much. Great to be here.

Anton van Saase [00:49:51] Thank you for coming and thank you for your wisdom. Nice to meet you.

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