ML20034D555
| ML20034D555 | |
| Person / Time | |
|---|---|
| Issue date: | 02/09/1993 |
| From: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| SECY-93-032, SECY-93-32, NUDOCS 9302120168 | |
| Download: ML20034D555 (23) | |
Text
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w POLICY ISSUE (Notation Vote) l-February 9, 1993 SECY-93-032 For:
The Commissioners l-From:
James M. Taylor 4
Executive Director for Operations Subiect:
10 CFR PART 51 RULEMAKING ON ENVIRONMENTAL REVIEW FOR RENEWAL OF NUCLEAR POWER PLANT OPERATING LICENSES
Purpose:
To request Commission approval regarding the resolution of comments about the procedural aspects of
^j the subject proposed rule raised by the Council on Environmental-Quality and the Environmental Protection-
-)
Agency, and to inform the Commission of additional 1
l-policy issues ~ associated with comments-on NRC's-j treatment of need for generating capacity, alternative i
energy sources, economic costs, and cost-benefit balancing, and the overall status and schedule of the:
1.
rulemaking.
Backaround:
In SECY-92-198, dated May 29, 1992,-the staff informed the Commission of plans to' address major concerns received.from the Council on Environmental Quality (CEQ), the Environmental Protection Agency (EPA),
various states, and others about the subject proposed l
rule. A summary of CEQ and EPA concerns about the l
adequacy of procedural provisions of the proposed rule was provided. The staff. identified three basic options for proceeding with the final rule. : These -
options were: 1) retain the approach in the proposed.
rule, 2) modify-the rule to address' policy concerns:
but maintain essential exclusion features, and 3) abandon the proposed rule and use the Generic Environmental Impact Statement (GEIS) as a " tiering"
.(reference) document..The staff informed the
Contact:
NOTE:
TO BE MADE. PUBLICLY:AVAILABLE Donald P. Cleary, RES
..WHEN THE FINAL SRM IS^MADE (301)l492-3936 AVAILABLE ggg g'/"
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The Commissioners 2
Commission of-its intent to discuss the_ major-i provisions of option 2 with CEQ and EPA. These discussions have been concluded.. Letters setting forth the proposed provisions of the rule and responding letters from CEQ and EPA are enclosed (Enclosures 1, 2, 3 and 4). -The staff is working toward resolution of the remainder of the EPA comments within the next several months.
The Commission was also informed inat delays in the schedule would occur for publication of the final rule and the GEIS and that a final rchedule would be provided following negotiations with CEQ and EPA.
Finally, the Commission was informed that efforts to revise the-regulatory guide and environmental standard review plan would be deferred until after expiration of the final date to challenge the final rule.
Discussion:
1.
Aareement Reached with CEO and EPA on Modifications to Certain Procedural Asnects of the Proposed Rule CEQ and EPA agree that the-proposed changes to the procedural elements of the rule, described below, should accommodate their concerns about limiting public comment and about the consideration of significant. new information in-individual license renewal environmental reviews.
Both agencies reserve' final judgement until their review of' the final rule and final GEIS, to determine whether the NRC proposals have been satisfactorily implement'd.
e As a consequencelof these agreements, the staff l
proposes to make _the following changes to the-proposed rule:
5 1.
A supplemental site-specific environmental. impact statement (EIS), rather than an environmental-assessment, will be required in each license renewal proceeding. The EIS will be supplemental to the GEIS.
2.
The final rule and GEIS will not include conditional cost-benefit conclusions.
Conclusions on the overall cumulative impacts will be made in each. site-specific supplemental EIS.
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The Commissioners 3
3.
To accommodate EPA's concern that d
relevant information be ' easily i
available to the public, the supplemental EIS will summarize' the discussion in.the GEIS and reference the specific sections.of the GEIS.
being relied upon.
4.
-The supplemental:EIS will' be published in draft form for public comment, consistent with 10 CFR-
.i 6 51.73.
5.
All comments will be reviewed by the staff regardless of whether_the comment is directed to impacts:in category 1, 2, or 3.
The result of the staff, review will be reported in the final supplemental EIS, in accordance with 10 CFR 6 51.91(a)(1).
6.
Comments on unbounded category 2 issues and category 3 issues and factual challenges as to whether.a category 2 issue is bounded or.
unbounded for, the-particular site t
will be addressed in the final supplemental ' EIS.
l.-;
7.
Comments on category 1-issues.and bounded category 2 issues, the '.
assessments of whichiare' codified in the rule, will;be handled in the-following manner:
a.
The staff may~ determine that the information furnished is-not new and significant and therefore the analysis.
codified in the rule stands.
A commenter dissatisfied with such a response may file a-petition for rulemakingfunder 10 CFR 5.2.802 or seek a:
waiver under 10 CFR 6 2.758 in-order to pursue the matterfin.
a hearing.'
b.
If the staff determines that:
the information furnished is t
new'and significant, and i
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r The Commissioners 4
relevant-both to the plant and to other' plants, the staff:will seek-Commission approval to:either.
suspend the application of the" rule with. respect to that analysis or to delay ~ granting theLrenewal application'(and possibly other renewal applications). until1the rule can be amended.
c.
If the: staff determines that-the.information furnished is-new and.significant, but.
- relevant only to'the specific plant, the staff will seek Commission approval.to waive the appropriate. section of the rule in that renewal proceeding.
8.
Litigation of environmental. issues in a hearing will' be limited to unbounded" category 2 and category 3 issuesLunless the. rule is suspended or. waived.
9.
The GEIS and~ rule will be reviewed bycthe NRC on a schedule that: allows revisions.
every 10 years, if necessary.
The-review will be accomplished in accordance with existing procedures.for'rulemakings and the specific procedures applicable for:
preparation of EIS's in 1-0 CFR Part 51..
Also as always allowed. a petition 'for rule:..
q making under the existing 10LCFR s.2.802 may be' t
submitted by a member 1of-the public at.any. time,.
requesting that the. Commission modify the GEISL
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and 10 CFR Part 51 on the basis of significant new information.
II.
Additional Policy Issues Arisina from Public Comments on the Proposed Rule and Draft GEIS l
Over one-hundred-and-twenty-five comment' documents on the proposed rule.have beeni
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received.and reviewed. The two contractors supporting the GEIS have drafted responses to.
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. the purely technical comments. The' staff-is-reviewing.these draft. responses..The staff is I
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_The Commissioners.
5 developing proposed' responses to-comments that involve NRC policy and practice-for environmental reviews. Ultimately Commission review and approval. of these responses will be necessary.
However, at the present time _it is our desire to inform the_ Commission only of-the?
F comments involving policy issues.
These.are-discussed below.
Public comments have raised 'significant issues of NRC policy and practice relative;to-the need for generating capacity, alternative _ energy sources, utility costs, and cost-benefit balancing. A number of states commented that the_ proposed rule and the draft GEIS would-preempt or at least adversely affect state regulatory authority over the need for-generating capacity, alternative energy. sources,-
and utility costs.
Some states and federal agencies and.other commenters also' expressed specific concerns with how these subjects and the cost-benefit balancing were analyzed in the GEIS. The staff is: identifying options-for addressing these concerns, and will1 report to the Commission when this effort is completed.
The staff intends to consult with EPALand CEQ in" the process of developing the options.
In addition, the staff is considering discussing the options with.the states that expressed the concerns. Although these discussions.are not-required, they would-provide greater assurance.
3 that the options' presented to the Commis'sion are based on a full-understandinglof state concerns.
For example, it-is. clear from a legal standpoint-.
that no NRC discussion in the GEIS of need-for generating capacity or relative economics of
' license renewal could preempt any' state decision' on these issues, but further discussion with state officials could emphasize this. point and avoid state perceptions to.the contrary.
Discussions would take: place prior to reporting to the Commission and woul.d add _about 3 months to'the schedule provided below..The staff i
desires Commission guidance on whether to h'old discussions with the states at this time.
In the meantime the Commission should be aware-of the potential that resolution.of these comments could require a revision to the' provisions of the existing 10 CFR Part.51 regarding the: role of ~the need for generating.
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The Commissioners, 6
capacity, alternative sources of energy, utility costs, and cost-benefit balancing in NRC environmental reviews.
A. summary of the public comments concerned with NRC policy and practice in these' areas follows:
1.
Need for Gen.eratino Capacity State commenters expressed concerns i
about the treatment of need for-generating capacity in the proposed rule and the draft GEIS. 'These concerns include:~1) the states and not the NRC have the authority to determine whether there is a need for generating capacity, 2) the NRC forecasts of the need for generating capacity included in the GEIS and in 10 CFR Part-51 would preempt or interfere with a state's right.and responsibility to determine need, 3) accurate forecasts can not be made so many years in advance, 4) to provide for meaningful state and public participation, _ need for generating capacity should be made_a category 3 issue rather than category 1,-and 5) if the NRC does address need for~ generating capacity it should defer to the states-determination of need.
2.
Alternative'Enerav Sources Concerns were expressed by state and federal commenters about the treatment of alternative energy sources in the proposed-
' rule and the draft GEIS. These concerns include: 1) the determination of energy mix is a state' responsibility,~2) the comparison of alternatives should emphasize environmental consequences rather than economic costs, 3) an economic threshold test to trigger a further -
consideration of alternatives is inappropriate in a NEPA analysis, and 4) if a cost-benefit analysis is to be performed it is'more appropriately used to compare and select among alternatives rather than just to demonstrate a favorable balance for license renewal.
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The' Commissioners.
7 3.
Economic Costs Concerns were expressed by itate, federal, and utility commenters about the use of-economic costs in the proposed _ rule' and _
^
the draft GEIS. ~These concerns' include:
'1) the regulatory _ authority over utility economics which resides in the' states, and to some extent in the Federal. Energy.
Regulatory Commission, is preempted by~.
NRC's heavy emphasisLon economic. analysis and use of economic' decision criteria, and
- 2) for a NEPA review process, it appears that undue emphasis is given.to' economic-costs.
4.
Cost-Benefit Balancino-State, federal, and utility. commenters expressed concerns'with the use of cost-benefit balancing in the proposed rule and-the draft GEIS. These concerns include:
- 1) the analysis is incomplete in its coverage.of both. environmental impacts and -
economic costs, 2)-a. cost-benefit analysis should be.used to compare alternatives rather than just to demonstrate a.
favorable balance for.. license renewal, 3) there.is double. counting in the. items -.
included in direct costs and avoided costs, and'4) a cost-benefit balancing.
goes beyond the requirementsiof NEPA_and-of CEQ regulations, 40 CFR Part 1500.
NEPA, as interpreted by CEQ regulations,.
requires only an' assessment'of the.
cumulative ' effects of a-proposed federal action on the natural. and man-made environment.
III.
Status of Rulemakina and Schedule' Work on responding to comments on the proposed rule and accompanying documents is progressing on a broad front. However, the. staff has given
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the highest priority to resolving those concerns-that could affect-the basic structure of the rule and that involve significant policy. issues.
With the discussions with CEQ and'EPAcand exchange of correspondence regarding the basic ~'
structure of the rule now completed, theLstaff is'giving; priority to completing' responses to; all EPA comments--technical ~as well as' policy.
'The Commissioners 8
l EPA has agreed to provide an assessment of the-
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extent to which their comments are resolved within'a month of receiving the proposed.
i responses from NRC. ?The_ staff is working to' complete these responses by early March 1993.
Discussions with. EPA and CEQ about the issues related to NRC policy and practice that are-covered-in Section II above will.have the highest priority.
Because EPA and CEQ will take a final position ~
on the extent to which their concerns-have.been.
addressed only after reviewing the final rule
-package, the staff intends to send them the draft final rule package to review prior'to
'i submittal to the Commission.
This' review adds-3 months to the schedule.
In SECY-92-198, the staff informed the-Commission that any effort on revising the regulatory guide-and the' environmental-standard review plar, would be deferred until after-publication of the final rule and GEIS and expiration of the. date.-to chall_enge _ the rule.
This is still~the staff's. intention.
The staff has developed the fol_ lowing schedule.
for the remainder of this rulemaking:
o Brief Commission on status' M
of rulemaking
- 02/19/93-o Provide EPA with staff-responses to its comments-03/05/93 o
Receive EPA assessment of satisfaction with responses.
.04/05/93 l
o Commission paper on proposed resolution of policy concerns 05/14/93 o
Final rule package ready for Office review 09/24/93_
o Send final rule package to CRGR 11/10/93 o
Brief EDO 12/09/93 l
o Send final rule package to EPA and CEQ for review-12/13/93 t
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The Commissioners 9
o EPA and CEQ review letters received by 03/11/94 l
o Submit final rule package to EDO 03/28/94 o
Submit final. rule package to Commission 04/08/94' o
final rule published by 06/10/94.-
I Recommendation:
That the Commission:
(1)
Anorove the modifications.to.the proposed' rule negotiated with_CEQ and EPA _ described in this.
paper and the enclosed letters.
(2)
Instruct the staff as to whether it.should discuss the options for addressing concerns i t about preemption of-state regulatory au_ hority t
relative to need for. generating. capacity, alternative sources.of energy, and. utility. costs with those. states that expressed these concerns.
This will add about 3 months'to-the schedule presented in this paper.
- l (3)
Note:
(a)
Resolution of co'ncerns raised -in public' comments about premption of state; regulatory authority could require a.-
revision to the existing provisions of 10 CFR Part.51 regarding the. role of the need for generating capacity, alternative sources of energy, utility costs,' and -
cost-benefit analysis _in'NRC environmental reviews.-
l (b)
The staff. intends to consult with'CEQ and i
t EPA while developing the options to resolve the issues noted in '(a)
(c)
The staff will seek Commission approval onL l
resolution of. items of a policy nature.
(d)
The schedule change will. lead'to-i publication of the final rule.in June' i
1994.
(e)
The staff _ intends to complete :the' revisions,of the regulatory guide and the environmental standard review plan 'after b
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B The Commissioners 10 publication of. the final rule and the GEIS, and expiration of the date to challenge the rule.
Coordination:
The office of the General Counsel has reviewed this paper and has no legal objection.
esM.Tdlor.
xecutive Director for Operations-
Enclosures:
1.
Letter to Lucida low Swartz dated November 3, 1992 from Martin G. Malsch.
2.
Letter to Martin G. Malsch dated November 5,1992 from Lucinda low Swartz.
3.
Letter to Anne Norton Miller dated December 30, 1992 from Martin G. Malsch.
4.
Letter to. Martin G. Malsch dated December 31, 1992 from Anne Norton Miller.
_1 Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Thursday, February 25, 1993.
Commission Staff Office comments, if any, should'be submitted.
to the Commissioners NLT Thursday, February.18, 1993, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional review and comment, the Commissioners and the Secretariat should-be' apprised of when comments may be expected.
DISTRIBUTION:
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WASHINGTON. D.C. 20855 o
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NOV 0 31992 a'
Lucinda Low Swartz Deputy General Counsel Executive ~ Office of the President Council on Environmental Quality Washington, D.C.
20503 i
Dear Ms. Swartz:
Thank you for meeting with us on April 22, 1992 and ' again on July 1, 1992 to discuss the Council on Environmental Quality (CEQ)
March 16, 1992 comments.on the NRC's' Draft Generic Environmental.
Impact Statement (GEIS)-.for License Renewal (NUREG-1437).and the_
proposed 10 CFR Part 51 environmental protection rulemaking for j
nuclear power plant license-renewal (56 FR-
- 47016, September 17, 1991).
After consideration of CEQ's^ comments, the NRC proposes-to accommodate these concerns in the final GEISLand Part 51 rule as follows:
1.
The final rule and GEIS will.not include any conditional' cost-benefit conclusions. The final rule and, GEIS retain j
the concept of Category 1 and Category ' 2. issues, by codifying.the' analyses of the impacts of each' individual Category 1 and bounded Category 2' issue.
Conclusions on~.
t the overall cumulative impacts for each license renewal-application would be made in the site-specific supplemental EIS. The individual analyses of the impacts contained in the GEIS and which are codified in the rule for category 1 and bounded Category 2 issues will-be used in this cumulative impact assessment, along with the site-specific impacts for unbounded Category 2-and-i Category 3_ issues.
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2.
The proposed rule's option of preparing an EA will not be-adopted in the final.Part 51 rule.
Instead,_the final rule will require the preparation of a supplemental site-specific EIS for each license renewal proceeding.
The analyses and impacts _ for unbounded Category. 2 and 3 issues will be discussed' individually in the applicant's environmental report and-the supplemental EIS.
The analyses and impacts _
for Category 1
and bounded-Category 2 issues will not be discussed individually ~in.
the applicant's-environmental.
report ~
in the-
. or-supplemental EIS, although the' analyses'and'the impacts for each ' issue, as codified in the - rule, ~would - be referenced. 'The supplemental'EIS'would.be a supplement to the'GEIS, and would be published in draft form for public_ comment.
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3.
The final rule will be modified to make it clear that when a draft supplemental EIS is issued for a particular plant, the public may file comments on the supplemental EIS and on whether the analyses of impacts codified in the rule are applicable to the plant in question.
Such comments will be considered by the NRC in the following manner:
a.
All comments submitted with -respect to the applicability of the analyses of impacts codified in the rule and the analysis contained in the draft supplemental EIS will be addressed by NRC in the final supplemental EIS in accordance with 40 CFR 1503.4.
NRC's response to a comment regarding the applicability of the analysis of an impact codified in the rule to the plant in question may be a statement and explanation of its view that the analysis is adequate including, if applicable, consideration of the significance of the new 'information.
A commentator dissatisfied with such a response may file a i
petition for rulemaking under 10 CFR 2.802_or waiver under 10 CFR 2.758, seeking to have the' rule suspended, amended or waived based upon significant new information.
If the commentator is successful in persuading the Commission that the new information - does indicate that the analysis of an impact codified in the rule is incorrect in significant respects (either in ' general or with respect to the particular plant), then a rulemaking proceeding will be initiated or,'in the case of waiver under Section 2.758, the merits of the new information will be considered in the renewal review and, if properly raised as an issue for adjudication, in any hearing held in accordar,ce with 10 CFR Part 2, Subpart G.
b.
If the commentator provides new information which is relevant to the plant and is also i
relevant to other plants (i.e.,
generic I
information) and that information demonstrates that the analysis of an impact codified in the final rule is incorrect, the NRC staff will seek Commission approval to either suspend the-l application of the rule on a generic basis with respect to that analysis or to delay granting the renewal application (and possibly i
j
other renewal applications) until the rule can be amended, c.
If a commentator provides new, site-specific information which demonstrates that the analysis of an impact codified in the rule is incorrect with respect to the particular plant,'then the NRC staff will seek Commission approval to waive the application of the rule with respect to that analysis in that specific renewal proceeding.
d.
The environmental issues to be litigated in any renewal hearing that is held will be limited to those addressed in the supplemental EIS (i.e., unbounded Category 2 and Category 3 impacts), absent a suspension of the rule or a ruling under Section 2.758 that the application of the rule should be waived or an exception be made for the particular proceeding.
4.
The final rule will be modified to require the_NRC to review the rule every 10 years and update it as necessary.
The NRC would initially perform a review to determine what, if
- anything, in the rule-requires updating.
A scoping notice would be published-in the Federal Register indicating the results of the NRC's review, and inviting public comments and proposals-for other areas that should be updated.
Established procedures for rulemaking would be utilized if the rule needs to be changed.
We believe that these proposals adequately address all of the substantive concerns raised by CEQ, while retaining much of regulatory and licensing efficiency benefits of the GEIS and 10 CFR Part 51 rulemaking which were envisioned by the NRC.
We look forward to CEQ's response t o our proposals.
J Martin G. Malsch Deputy General Counsel for Licensing and Rulemaking, Office of the General Counsel i
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6 EXECUTIVE OFFICE OF THE PRESIDENT u(
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COUNCIL ON ENVIRONMENTAL QUALITY -
W ASHINGTON, D C. 20503 t;
November 5, 1992 Mr. Martin G. Malsch Deputy General Counsel for Licensing and Rulemaking Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Dear Mr. Malsch:
1992 in which Thank you for your letter dated November 3, you describe the efforts of the Nuclear Regulatory Commission (NRC) to address the concerns raised by the Council on Environmental Quality (CEQ) regarding NRC's Generic Environmental Impact Statement for License Renewal (GEIS).
On behalf of CEQ, I sincerely appreciate the way in which the NRC staff has tried to understand and to accommodate our concerns.
As outlined in your letter, NRC is proposing to issue a final rule which codifies factual summaries of the analyses of environmental impacts presented in the GEIS.
Further, NRC is now proposing to eliminate the conditional cost-benefit analysis, to require the preparation of a site-specific environmental impact statement (EIS) (supplementing the GEIS) for each license renewal proceeding, and to address all comments submitted with respect to the generic and site-specific analyses.
In my view, the proposal as modified is in keeping with the goals and requirements of the National Environmental Policy Act (NEPA) and the CEQ regulations implementing the procedural provisions of that statute.
CEQ raised three issues in its March 16, 1992, comments on the GEIS.
First, I questioned whether the purpose of the GEIS was to provide support for NRC's proposed rule on relicensing or to provide support for a future decision on a specific license e
i It is now clear that_the analysis found in renewal application.
along with site-specific analysis to be contained in a the GEIS, supplemental EIS prepared for a particular license renewal application, will be considered by the Commission in its decision on whether to grant or deny that application.
In this way, all the potential environmental impacts of a relicensing decision will be considered by the agency.
Second, I noted that the GEIS should not be used to reach
" conclusions" regarding the acceptability of environmental As noted impacts before a site-specific analysis was completed.
i Recycled Paper
Letter to Martin G.
Malsch November 5, 1992 Page Two above, NRC has now decided to eliminate the conditional cost-benefit analysis and will consider the generic environmental impacts analyzed in the GEIS and the site-specific impacts analyzed in the site-specific supplemental EIS in its f
decisionmaking process.
i Finally, I fcund fault with NRC's proposal to codify.
l
" conclusions" regarding the acceptability of many generic i
environmental impacts and to limit public comment on the.
applicab311ty of the generic conclusions to a specific. site.
NRC is now proposing to codify a summary of the analyses contained in the GEIS on the Category 1 and bounded Category 2 environmental impacts, but will not be drawing conclusions as to the acceptability of those impacts until completion of the supplemental EIS.
In addition, NRC will accept and address comments on the site-specific EIS, as well as on whether the analyses co.,tained in the GEIS and codified in the final rule are l
applicable to the site at issue.
In sum, I believe that the procedural changes which NRC now proposes to adopt satisfy the concerns CEQ raised in its comments on the GEIS.
This belief, however, is based upon the information l
you provided in your letter and I would reserve final judgment until a final GEIS and final rule are available for review.
I Again, I thank you for your courtesy and cooperation.
j Sincerely,
/
TCLCL/1ftT,% Zu p,.-M]' '
e Lucinda Low Swartz Deputy General Counsel l
Neveled Paper
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W A$HING TON, D. C. 20555 4,**
December 30, 1992 Ms. Anne Norton Miller, Director Federal Agency Liaison Division i
Office of Federal Activities U.S.
Environmental Protection Agency 401 M Street SW
' Washington DC 20460
Dear Ms. Miller:
Thank you for meeting with us on December L, 1992 to discuss.the.
U.S. Environms7tal Protection Agency (EPA) March 16, 1992 comments on the NRC's Draft Generic Environmental Impact Statement.(GEIS) for License Renewal (NUREG-1437) and the proposed 10 CFR Part 51 environmental protection rulemaking for nuclear power plant license-renewal ( 56 FR 47016, September 17, 1991).
The first two EPA concerns on public participation and future reviews (pp. 2-3.of March 16, 1992 EPA letter) appear. to be. coincident - with the concerns of the. Council on Environmental Quality (CEQ).
The NRC'-
has made an informal proposal to CEQ to address CEQ's ' concerns (Enclosure A), which CEQ has tentatively' accepted (Enclosure'B).
The NRC believes that.this proposal, as supplemented in response.to specific EPA concerns raised at the December 3,1992 meeting and in subsequent telephone conversations between EPA and NRC, ~ responds to.
the first two EPA concerns on public participation' and future 2
review of the GEIS and Part 51 rulemaking.
NRC's proposal consists of the following elements:
1.
The final rule will require the preparation of a
supplemental site-specific EIS for each license' renewal' proceeding; the option in the proposed rule.of preparing an EA would not be adopted.
The supplemental EIS would' be a supplement to the GEIS, and would be. published'in draft form for. public comment.
Under existing requirements (10. CFR 55 51.73, 51.92 (d) (1)), a' minimum of 45 days would be rovided for public comment on the' draf t -
supplemental EIS The third concern, with respect to NRC utilization of local f
1 public notice procedures recommended by CEQ in 40 CFR 1506.6(b) (3)',
will be addressed separately by the Staff in its responses to EPA's technical comments on the GEIS.
2It is the NRC's intention that the notice of. availability of the draft supplementary EIS which is published. in the Federal Register will also refer to the public availability of: the GEIS then in effect.
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2.
The: final rule will be modified to make it clear that the -
public may file comments on the draft supplemental EIS regarding whether the GEIS' analyses of impacts which are 5
codified in the ' rule are applicable to the~ plant in question, regardlessLof whether..the. comment'is directed to impacts in. Categories 1, 2 or 3.
3.
All comments on the applicability of the analyses..of_ impacts codified in the rule and the analysis contained in.the: draft supplemental EIS will be addressed by NRC, in the ~ final supplemental EIS in accordance with 40' CFRc 5 -1503.4, regardless of whether the comme-t 4.s directed to impacts in' Categories.1, 2 or 3.
Such comments will be addressed by the NRC in the following
'l manner:
i a.
NRC's response to a - comment regarding the applicability of the analysis of.an impact-codified in the rule to the plant'in question-may be a statement and explanation.of.its view-that the analysis is adequate including,_ if
.j applicable, consideration of.the significance a
of the new information.
A commentator dissatisfied with such a response may file a-l 8
petition for rulemaking under 10 CFR'S 2.802.
If the commentator is successful in persuading the Commission that the new information does indicate that the analysis of an:. impact-codified in the rule is incorrect in significant respects (either in general or i
with respect to the particular plant), then a rulemaking proceeding' will be. initiated (as.
discussed below).
b.
If the commentator provides new information 3
which is relevant to the plant land -isi also relevant to other plants
.(i.e.,
- generic-
- l information) and that' information demonstrates 1
that the arialysis of an impact codified in the final rulei is. incorrect, the NRC staff-will seek Commission : approval to either suspend the -
l application of the rule on' a n generic _ basis -
a f
with respect to that analysis or' to _ delay-granting'the renewal application (and possibly other renewal applications) until.the rule can be amended.
The updated GEIS would reflect the corrected-analysis _and'. any _ additional ~
i consideration of' alternatives-~as appropriate.
-l
- The-NRC's procedures in 10 CFR Part 2, Subpart H with respect ~
l to petitions for'.rulemaking will be set forth in an appendix to the
.j GEIS.
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3 c.
If a commentator provides new, site-specific information which demonstrates that the analysis of an impact codified in the rule is incorrect with respect to the particular plant, then the NRC staf f will seek Commission approval to valve the application of the rule with respect to that analysis in that specific renewal proceeding.
The supplemental EIS would reflect the corrected analysis and any additional consideration of alternatives as appropriate.
4.
The analyses and impacts for unbounded Category 2 and 3 issues will be discussed in the supplemental EIS.
Although the GEIS's analyses and impacts for Category 1 and ' bounded Category 2 issues will not be discussed in detail in the supplemental EIS, summaries of the GEIS's analyses and impacts together with cross-references to the specific sections of the GEIS will be provided in the supplemental EIS.
5.
The final rule and GEIS will not include any conditional cost-benefit conclusions.
Conclusions on the overall cumulative impacts for each license renewal application would be made in the site-specific supplemental EIS. The conclusions on overall cumulative impacts in the supplemental EIS would be based upon the GEIS's generic analyses for Category 1 and bounded Category 2 issues, as l
well as the site-specific analyses of unbounded Category 2 and Category 3 issues in the supplemental EI S'.
i 6.
The final rule will be modified to require the NRC to
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review the rule and update it as necessary every 10 years (i.e., the review will be initiated in advance of the 10 year period, such that any final rule necessary to update
'NRC agrees that in assessing the significance of an impact, c_.J.
40 CFR 15 08. 2 7 (b) (7 ),
the cumulative impact will be considered, as that term is defined in 40 CFR 1508.7, y_il. :
" Cumulative impact" is the impact on the environment which results from the incremental impact of the action when added to other
- past, present and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative inpacts can result from individually minor but collectively significant actions taking place over a period of time (emphasis added).
4 the GEIS will be effective 10 years from the last update)S.
The NRC would initially perform a review to determine
- what, if
- anything, in the rule requires-updating due to significant new _ circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, consistent with 40 CFR 1502.9.
A scoping notice would be published in the Federal Register indicating the results of the i
NRC's review, and inviting public comments and proposals for other areas that should be updated.
7.
The statement of considerations (SOC) will make clear that a petition for rulemaking under 10 CFR 2.802 may be submitted by a member of the public at any time between the 10 year-updates, if there is significant new generic or site-specific information suggesting that the analyses or conclusions in the GEIS and the Part 51 rule are substantially incorrect (i.e.,
more than d_e minimis errors).
We believe that these proposals adequately address EPA's concerns-on public participation and future review of the analyses in the.
GEIS, while retaining much of regulatory and licensing efficiency benefits of the GEIS and 10 CFR Part 51 rulemaking which were envisioned by the NRC.
We look forward to EPA's response to our proposals.
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Martin G. Malsch Deputy General Counsel.
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1 SThe statement of considerations for the final Part 51 rule will provide the rationale for revising and updating the rule every j
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UNITED STATES ENVIRONMENTAL PROT'ECTION AGENCY g
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ornet or rNFOnCEMENT Mr. Martin G. Malsch Deputy General Counsel for Licensing and Rulemaking office of General-Counsel Nuclear Regulatory. Commission Washington, D.C.
20555
Dear Hr. Malsch:
Thank you for your letter dated December.30, 1992, which-provides a Nuclear Regulatory Commission (NRC) response to tha Environmental Protection Agency's (EPA) initial concerns o'n public participation'and future reviews contained in its comment letter dated March 16, 1992 (pp-2-3) on the Draft Generic
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Environmental Impact Statement (GEIS) for License Renewalfof Nuclear Plants and proposed rulemaking.
The EPA commends the NRC on its development of additional public participation procedures which will allow the public to comment on both-the generic and' site specific concerns in: future, tiered, National Environmental Policy.Act (NEPA) documentation.
Your response letter focused on the first two items listed under our general' comments, public participation and future-reviews section (pp. 2-3), addressing NEPA tiering and the NRC petitioning process.
EPA recommended that subsequent NEPA documents be tiered to the GEIS and that the Category.1 and bounded Category 2 issues in the GEIS be summarized,and incorporated by reference Into-the tiered, site-specific documents.
Your letter. indicates that you will-incorporate these recommendations'into the NEPA. process for license renewal of nuclear plants.
We endorse the NRC's Ldecision to prepare supplemental, site-specific environmental impact statements (EISs) for all' sites as the process will.
provide more public participation than typically occurs'when environmental-assessments are prepared.-
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We also recommended a public commenting period of 60 days because of the need for the public to reference the GEIS during site-specific NEPA reviews.
In the paragraph one of your proposal, it provides for a minimum of 45 days for public connent on the draft EIS.
EPA concurs with the 45 day period since the NRC will summarize and incorporate by reference the GEIS findings, and the 45 day period is in accordance with the Council on Environmental Quality's (CEQ's) regulations for implementing the procedural provisions of the NEPA (40 CFR Section 1506.10(c)).
Your letter states that the NRC will refer to the public availability of the GEIS during the notice of availability for the supplemental, site-specific EISs.
The NRC's commitment to making the GEIS readily available to the public is important because of the substantial and technical nature of the material that will be incorporated by reference in the supplemental EISs.
In our draft GEIS comments, we requested that the NRC describe the petitioning process that the public would use if individuals were to comment on a site-specific relicensing action and your letter reflects that the NRC's rulemaking petitioning process will be included ? ) en appendix for public accessibility and reference.
We understand that the public may comment on both the GEIS and site-specific issues during the NEPA review for the individual renewal applications and that the NRC will meet the response to comments requirements under 40 CFR Section 1503.4.
As indicated in paragraphs 3.b.
and 3.c.
of your letter, this may include evaluating alternativos not previously considered and modifying the analysis, where the NRC agrees that it is appropriato (40 CFR Sections 1502.9 and 1503.4).
Paragraph 4 in your proposal indicates that the cumulative impact analysis will be consistent with 40 CFR 1508.7, to include the incremontal impacts of relicensing when added to other past, present, and reasonably foreseeable future actions rogardless of what agency (federal or non-fodoral) or person undertakes such other actions.
Wo support your decision to include in the statement of considerations accompanying the Part 51 rule the rationale for choosing to update the,GEIS every la years instead of every five years, as recommended in the CEQ Forty Most Asked Questions Concerning CEQ's NEPA Regulations.
Furthermore, we support your decision to acknowledge your responsibility to supplement the analysis in the GEIS, if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts (40 CFR Section 1502.9).
We understand this includes Category 1 and 2 issues.
In conclusion, the additional procedures described in the NRC proposal further expand and define the NRC policy for public participation which EPA endorses.
The NRC proposal addressed part of one section of the EPA general comments.
We look forward 2
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.to.the NRC response to the other general comments, the i
recommended. issue; category changes,~and technical comments provided-in'our draft.CEIS~ comment letter._ We will reserve j
judgement'on the GEIS-and proposed rulemaking until we review the~
final-. documents.
In the. interim, we look forward to continuing:
cur. dialog and interactions with you on the GEIS revisions.
If
-j you have any questions-on_.our. comments,-please. contact me-.on j
(202) 260-5071 or-have your staff contact Susan Offerdal on.(202) 260-5059.
Sincerely, h
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CY Anne Norton Miller, Director
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Federal Agency Liaison. Division Office of Federal Activities i
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