ML051050031
| ML051050031 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute |
| Issue date: | 07/06/2005 |
| From: | Beckner W NRC/NRR/DRIP/RNRP |
| To: | Heymer A Nuclear Energy Institute |
| Colaccino,Joseph,NRR/DRIP/RNRP,415-2753 | |
| References | |
| Download: ML051050031 (8) | |
Text
July 6, 2005 Mr. Adrian Heymer Nuclear Energy Institute Suite 400 1776 I Street, NW Washington, D.C. 20006-3708
SUBJECT:
RESPONSE TO NEI LETTER DATED FEBRUARY 10, 2005, CONCERNING INDUSTRY FEEDBACK AND POSITION ON THE EXTENT OF NRC ENVIRONMENTAL REVIEWS AT THE COMBINED LICENSE STAGE WHEN AN APPLICANT REFERENCES AN EARLY SITE PERMIT
Dear Mr. Heymer:
The staff is responding to your letter of February 10, 2005, which provided the industry feedback and position on the extent of the NRCs environmental inquiry at the combined license (COL) stage assuming that an applicant references an early site permit (ESP). While this letter focuses on the relationship between the ESP and COL environmental reviews, the staffs views on these matters apply equally to a construction permit (CP) or operating license (OL) application referencing an ESP.
The staff considered the information provided in the white paper, ?Environmental Review at the COL Stage of Nuclear Plant Licensing, attached to your February 10, 2005, letter outlining the basis for the industrys position that there should be no re-review in a COL proceeding of environmental issues that were evaluated in issuing an ESP referenced in the COL application.
We believe that a portion of the underlying bases for industrys view is not consistent with the NRCs regulations and the applicable case law interpreting the National Environment Policy Act of 1969, as amended (NEPA). In particular, inasmuch as an ESP and a COL are major federal actions, an environmental assessment (EA) is not a sufficient environmental inquiry on which to base an action on an ESP or COL application. Accordingly, pursuant to 10 CFR 51.20, both actions require the preparation of an environmental impact statement (EIS).
The NEI white paper, however, does state positions that are consistent with the practice that the NRC staff envisions for its environmental inquiry on a COL application. First, 10 CFR Part 52 does provide finality for previously resolved issues. Under NEPA, the COL environmental review is informed by the EIS prepared at the ESP stage and the NRC staff intends to use tiering and incorporation-by-reference whenever it is appropriate to do so. The staff agrees that a COL applicant must address any other significant environmental issue not considered in any previous proceeding, such as those issues deferred from the ESP stage to the COL stage (e.g., the benefits assessment).
A. Heymer For an early site permit, the NRC prepares an EIS that resolves numerous issues within certain bounding conditions. These issues are candidates for issue preclusion at the COL, CP or OL stage. If the issue could be deferred and the ESP applicant elected to do so, e.g., the benefits assessment, then the COL applicant would be required to address the issue in its COL, CP, or OL application. A COL, CP, or OL application must also demonstrate that the design of the facility falls within the parameters specified in the ESP. In addition, the application should indicate whether the site is in compliance with the terms of the ESP. The information supporting a conclusion that the site is in compliance with the ESP should be maintained in an auditable form by the applicant. While the NRC is ultimately responsible for completing any required NEPA review, for example, to ensure that the conclusions for a resolved ESP environmental issue remain valid for a COL action, the COL applicant must identify whether there is new and significant information on such an issue. A COL applicant should have a reasonable process to ensure it becomes aware of new and significant information that may have a bearing on the earlier NRC conclusion, and should document the results of this process in an auditable form for issues for which the COL applicant does not identify any new and significant information.
Pursuant to 10 CFR 51.70(b), the NRC is required to independently evaluate and be responsible for the reliability of all information used in the EIS, including an EIS prepared for a COL. In carrying out its responsibilities under 10 CFR 51.70(b), the staff may (1) inquire into the continued validity of information disclosed in an EIS for an ESP that is referenced in a COL application and (2) look for any new information that may affect the assumptions, analysis, or conclusions reached in the ESP EIS.
The initial burden to assess newly identified information and those issues that were deferred to the COL, CP or OL application falls to the applicant. The applicant is required to provide information sufficient to resolve any other significant environmental issue not considered in the ESP proceeding, either for the site or design, and the information contained in the application should be sufficient to aid the Commission in its development of an independent analysis (see 10 CFR 51.45). Therefore, the environmental report must contain new and significant information on the site or design to the extent that it differs from, or is in addition to, that discussed in the ESP EIS.
NEI disagreed with NRC staff statements in the January 18, 2005, meeting that environmental topics resolved in an ESP are subject to ?re-review if a COL application referencing an ESP is submitted and new and significant information exists. The staff, in the context of a COL application that references an ESP, defines new in the phrase new and significant information as any information that was not contained or referenced in the ESP application or the ESP EIS. This new information may include (but is not limited to) specific design information that was not contained in the application, especially where the design interacts with the environment, or information that was in the ESP application, but has changed by the time of the COL application. Such new information may or may not be significant.
A. Heymer Over the last year, the staff has attempted to explain the relationship between the environmental review of an ESP application to that of a COL application referencing the ESP by analogy to the license renewal environmental review process. The staff believes the analogy especially useful because the license renewal process is well-established and clearly understood. Since there appears to be some confusion regarding this analogy, we believe a brief explanation of the similarities of the two processes is warranted.
For license renewal, the NRC prepared a generic EIS (GEIS) that resolved more than 60 issues for all plants based on certain bounding assumptions; these were termed Category 1 issues. If a license renewal applicant identifies new and significant information with respect to a Category 1 issue, it documents its assessment of that information in its application. If the applicant determines that such new information is not significant, or that there is no such new information, the applicant documents the bases for these determinations in an auditable form and makes the documentation available for staff inspection. If there is new and significant information on a Category 1 issue, the staff limits its inquiry to determine whether such information changes the Commissions earlier conclusion set forth in the GEIS. In any event, the staff may inquire into whether the applicant has a reasonable process for identifying new and significant information on Category 1 issues.
Similarly, in the NRC environmental review process for a COL application, the COL EIS brings forward the Commissions earlier conclusions from the ESP EIS and articulates the activities undertaken by the NRC staff to ensure that an issue that was resolved can remain resolved. If there is new and significant information on a previously resolved issue, then the staff will limit its inquiry to determine whether such information changes the Commissions earlier conclusion.
Environmental matters subject to litigation in a COL proceeding mainly include (1) those issues that were not considered in the previous proceeding on the site or the design, (2) those issues for which there is new and significant information, and (3) those issues subject to the change or waiver process in 10 CFR Part 52.
Notwithstanding that, in the context of renewal, the GEIS resolves Category 1 issues through rulemaking and an ESP resolves environmental issues through an individual licensing proceeding, the staff believes that the license renewal practice is similar to the Part 52 process in which a COL application references an ESP.
In conclusion, the NRC staff has determined that a COL is a major Federal action and, in accordance with 10 CFR 51.20, the NRC must prepare an EIS on that action. If there is no new and significant information on an issue resolved at the ESP stage, then the staff will tier off from the ESP EIS and disclose the NRC conclusion. We appreciate the effort that was made to articulate the industrys position and draw attention to this element of the COL licensing
A. Heymer process. We believe that our environmental review practice has engendered the publics confidence in the license renewal arena and that it serves as a model to achieve the same end with respect to any future COL applications.
Please contact Joseph Colaccino at 301-415-2753 or jxc1@nrc.gov if you have any questions.
Sincerely,
/RA/
William D. Beckner, Program Director New, Research and Test Reactors Program Division of Regulatory Improvement Programs Office of Nuclear Reactor Regulation Project No. 689 cc: See next page
ML051050031 *See previous concurrence OFFICE PM:RNRP SC:RLEP* OGC SC:RNRP PD:RNRP NAME JColaccino AKugler RWeisman LDudes WBeckner DATE 06/29/05 06/22/05 06/29/05 07/01/05 07/6/05 Distribution for Letter to A. Heymer Dated July 6, 2005 LCampbell Hard Copy MItzkowitz, OGC RNRP R/F RWeisman, OGC JColaccino GMizuno, OGC LDudes AKugler TKenyon E-Mail PQualls PUBLIC DNelson, OE JDyer (RidsNrrOd)
RBorchardt External e-mail BSheron (RidsNrrAdpt) bhupinder.singh@hq.doe.gov FEltawila tom.miller@hq.doe.gov NRR/ADPT Secretary [RidsNrrAdpt] Vanessa.Quinn@dhs.gov NEI 04-01 Reviewers Kenneth.Wierman@dhs.gov RNRP Group James.Purvis@dhs.gov DMatthews BBoger CCarpenter SRichards DCoe TQuay JHannon SWeerakkody JWermiel FAkstulewicz WBateman ESullivan MMitchell TChan JCalvo RJenkins TJKim, EDO MJohnson CCasto MStutzke DRoberts STingen PSekerak DJohnson RMcIntyre SAlexander TMensah (NRR Communication Coord)
ACRS (RidsAcrsMailCenter)
OPA MEl-Zeftway JBlake RGardner CPaulk
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