ML22055A496
| ML22055A496 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 02/24/2022 |
| From: | Annette Vietti-Cook NRC/SECY |
| To: | Jeff Baran, Christopher Hanson, David Wright NRC/OCM |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 56346 | |
| Download: ML22055A496 (20) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Christopher T. Hanson, Chairman Jeff Baran David A. Wright In the Matter of FLORIDA POWER & LIGHT CO.
(Turkey Point Nuclear Generating Units and )
Docket Nos. --SLR
--SLR CLI--
MEMORANDUM AND ORDER In considering the appeals of Natural Resources Defense Council, Friends of the Earth, and Miami Waterkeeper (collectively, the Intervenors), we have the opportunity to reconsider the Commissions decision in CLI--. Today we reverse CLI--, which addressed the referred ruling from the Atomic Safety and Licensing Board (Board) and held that C.F.R. §.(c)()
applied to a subsequent license renewal applicants preparation of an environmental report.1 In CLI--, the Commission held that, when considering the environmental impacts of a subsequent license renewal, the NRC staff (Staff) may rely on the Generic Environmental Impact Statement for License Renewal of Nuclear Plants2 and C.F.R. Part, Subpart A, 1 CLI--, NRC ().
2 Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Final Report), NUREG-, rev., vols. - (June ), (ADAMS accession nos. MLA, MLA, MLA) ( GEIS).
Appendix B, Table B- (Table B-) to evaluate environmental impacts of Category issues. For the reasons described below, we reverse that decision and hold that section.(c)() only applies to an initial license renewal applicants preparation of an environmental report and that the GEIS did not address subsequent license renewal. As a result, the environmental review of the subsequent license renewal application at issue in this case is incomplete.
BACKGROUND Our regulations provide that we will prepare an EIS to comply with the National Environmental Policy Act (NEPA) when renewing a nuclear power plant operating license.3 The environmental impact statement (EIS) includes the Staffs analysis that considers and weighs the environmental impacts of the proposed action. To support the preparation of EISs for license renewal, the Staff issued the Generic Environmental Impact Statement for License Renewal of Nuclear Plants in.4 The NRC also codified in Table B-the findings of the GEIS.5 The NRC issued a revision to the GEIS and updated the corresponding regulations in.6 The GEIS classified environmental impacts into two categoriesCategory issues, where impacts apply to all plants (or plants that share a specific characteristic), a single significance level has been assigned to the impacts, and additional plant-specific mitigation measures are not warranted; and Category issues, where all of the Category criteria could 3 See, e.g., C.F.R. §.(b)().
4 Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Final Report), NUREG-, vols. - (May ) (ML, ML) ( GEIS).
5 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, Fed. Reg., (June, ) ( Final Rule).
6 See Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, Fed. Reg., (June, ) ( Final Rule).
not be met.7 The Staff prepares plant-specific supplements to the license renewal GEIS to address Category issues.8 In this case, FPL applied for licenses to operate Turkey Point Units and for an additional twenty years beyond their initial renewal terms, which were otherwise scheduled to expire in and, respectively.9 Initially, the Intervenors challenged the environmental report (ER) that FPL submitted with its application. The Board ruled on multiple petitions to intervene and requests for hearing in LBP-- and granted the Intervenors petition to intervene.10 The Intervenors submitted five contentions challenging the ER, and the Board admitted two in part as contentions of omission.11 The Board also referred its ruling on the scope of C.F.R. §.(c)() to the Commission under C.F.R. §.(f)().12 In CLI--,
the Commission accepted the referral and held that the Staff may rely on the GEIS and Table B-when evaluating the environmental impacts of Category issues, absent new and significant information that would change conclusions in the GEIS.13 Therefore, the 7 See GEIS at S-, S-to S-. The single significance criterion does not apply to collective offsite radiological impacts from the fuel cycle. See C.F.R. pt., subpt. A, app. B, tbl.B-.
8 GEIS at S-, S-.
9 See Letter from William D. Maher, FPL, to NRC Document Control Desk (Apr., )
(MLA (package) and MLA (supplemental ER information) (transmitting a revised subsequent license renewal application)).
10 LBP--, NRC ().
11 Id. at -. The Board also admitted similar contentions filed by Southern Alliance for Clean Energy (SACE), but SACE withdrew from the proceeding. Id. at & n.; Southern Alliance for Clean Energys Notice of Withdrawal (Apr., ). We therefore only address the contentions submitted by the Intervenors in this decision.
12 LBP--, NRC at n.. Judge Abreu filed a separate opinion, in which she outlined her bases for disagreeing with the majoritys conclusion that section.(c)() applies to subsequent license renewal.
13 CLI--, NRC at.
Commission held, any challenge to Category issues in a subsequent license renewal proceeding would need to be accompanied by a rule waiver petition.14 In CLI--, the Commission affirmed the Boards determination that the regulatory language is ambiguous because it does not direct or prohibit the application of section
.(c)() to subsequent license renewal applicants.15 The decision in CLI-- also rested, in part, on a concern that the application of section.(c)() to only initial license renewal applicants would render that provision incompatible with the other license renewal provisions.16 Further, the Commission decided that the regulatory history supported the conclusion that subsequent license renewal applicants can rely on the GEIS and Table B-when analyzing Category issues. The Commission relied on the fact that the glossary in the GEIS defines license renewal term as [t]hat period of time past the original or current license term for which the renewed license is in force to find that the GEIS covers environmental impacts during any license renewal termeither initial or subsequent.17 The Commission also cited to the regulatory analysis that accompanied the GEIS and the associated Part revisions and opined that the cost-justification recommendation in the regulatory analysis was based on an understanding that the GEIS covered both initial and subsequent license renewal applications.18 In addition, the Commission reasoned that [b]ecause the regulations at 14 Id.
15 Id. at.
16 Id.; see also id. at - (discussing section., which applies to postconstruction EISs, and section., which applies to draft EISs).
17 Id. at (citing GEIS at -) (emphasis added).
18 Id. at -. The Commission also noted that Regulatory Guide. does not distinguish between initial and subsequent license renewal applicants, and the Staff sought public comments on this guidance as part of the revisions to Part in. Id. at - (citing Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, Regulatory Guide., supp., rev. (June ), at (MLA) (Regulatory Guide.)).
issue codify the GEIS, the prior regulatory history [related to the proposed rule and final rule] is a less reliable guide than that accompanying the rulemaking, which is the latest expression of the rulemakers intent.19 After the Board admitted the two environmental contentions, the Staff issued the Draft Supplemental Environmental Impact Statement (Draft SEIS) for Turkey Point Units and.
Pursuant to the migration tenet, the Intervenors admitted contentions became challenges to the Draft SEIS.20 In LBP--, the Board granted FPLs motion to dismiss the admitted contentions as moot based on new information in the Draft SEIS.21 The Intervenors next sought a rule waiver and admission of six newly proffered environmental contentions, two amended and four new contentions, based on the Draft SEIS.22 In LBP--, the Board rejected the Intervenors requests and terminated the proceeding at the Board level. The Intervenors appealed all three of the Board decisions dismissing or finding inadmissible their contentions.23 19 Id. at - (citation omitted).
20 LBP--, NRC, ().
21 Id. at -,.
22 Natural Resources Defense Councils, Friends of the Earths, and Miami Waterkeepers Amended Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs Supplemental Draft Environmental Impact Statement (revised June, ), at - & n.
(Motion to Migrate and Admit Amended and New Contentions). The Board found that its decision in LBP-- rendered moot that portion of the motion that sought to migrate Contentions -E and -E as originally admitted. LBP--, NRC, n. ().
23 Friends of the Earths, Natural Resources Defense Councils, and Miami Waterkeepers Petition for Review of the Atomic Safety and Licensing Boards Rulings in LBP-- and LBP-- (Aug., ); Friends of the Earths, Natural Resources Defense Councils, and Miami Waterkeepers Petition for Review of the Atomic Safety and Licensing Boards Ruling in LBP-- (Nov., ).
DISCUSSION A. Reconsideration of CLI--
As we considered the Intervenors appeals, we also had occasion to reconsider the Commissions decision in CLI--. The authority to reconsider our actions is inherent in our authority to make them in the first instance.24 Because the proceeding is still open, we can modify, suspend, or revoke FPLs license, as appropriate.25 Agencies may change positions and interpretations, so long as they explain their reasoning for doing so.26 Commissioner Baran dissented in CLI--, and Commissioner Baran and Commissioner Hanson also dissented in part in the Peach Bottom proceeding, where the majority adhered to the decision in CLI-- on the interpretation of section.(c)().27 Based on the legal analysis described in these dissents and summarized below, we reverse the Commissions holding in CLI--. We hold that the GEIS does not cover the subsequent license renewal period and that section.(c)() does not apply to subsequent license renewal applicants. Therefore, the Staff may not exclusively rely on the GEIS and Table B-for the evaluation of environmental impacts of Category issues. As we noted when 24 See Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI--, NRC, () (reconsideration of direction to the Staff provided in a staff requirements memorandum).
25 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI--, NRC,
() (A license renewal may be set aside (or appropriately conditioned) even after it has been issued, upon subsequent administrative or judicial review.).
26 See e.g., South Shore Hosp., Inc. v. Thompson, F.d, (st Cir. ); cf. Pepper v.
United States, U.S., - () (citing Arizona v. California, U.S.,
(); Agostini v. Felton, U.S., ()) (holding that a court need not apply the law of the case doctrine if it is convinced that [its prior decision] is clearly erroneous and would work a manifest injustice.).
27 CLI--, NRC at - (Baran, C., dissenting); Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units and ), CLI--, NRC, - () (Baran, C.
and Hanson, C., dissenting in part). Judge Abreu dissented from the majority position in LBP-- that section.(c)() applies to subsequent license renewal. LBP--, NRC at - (Abreu, J., concurring in part and dissenting in part).
we accepted the referred ruling from the Board, this issue is significant and affects other proceedings.
Upon further consideration of the issue, we find that reversal of CLI-- aligns our interpretation with the plain language of the regulation and with the requirements of the Administrative Procedure Act (APA) and NEPA. Because the rule language is clear on its face, it is unnecessary to resort to other sources to discern its meaning.28 Further, we find that CLI-- relied too heavily on individual statements in the updates to Part and the GEIS and other agency documents from that timeframe and read them out of context with the remainder of the rules history.29 The updates built on the rule and GEIS and must be interpreted in that context.30 Section. was promulgated through notice-and-28 See Perez v. Mortg. Bankers Assn, U.S., - () (quoting Christensen v. Harris Cty., U.S., ()).
29 For example, CLI-- references Commission Paper SECY--, in which the Staff advised us that it believes the license renewal process and regulations are sound and can support subsequent license renewal; however, the staff has identified several areas that should be modified in the existing rule to allow for a more predictable review process. Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal, Commission Paper SECY-- (Jan., ), at (MLA). But none of the Staffs proposed rule modifications related to the environmental review. The Staff did not recommend updates to Part because environmental issues can be adequately addressed by the existing GEIS and through future GEIS revisions. Id. at. The Commission did not approve the Staffs recommendation to initiate rulemaking for power reactor subsequent license renewal on non-environmental issues and did not offer any comment on the adequacy of environmental regulations. Staff RequirementsSECY--Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Aug.,
) (MLA).
30 CLI-- examined how different Part provisions interacted with one another. CLI--,
NRC at -. Section.(d) directs the Staff, when preparing any draft SEIS under section.(c), to rely on conclusions as amplified by the supporting information in the GEIS or issues designated as Category in appendix B to subpart A of this part. C.F.R. §.(d).
And section.(c)() directs the Staff, adjudicatory officers, and the Commission to integrate the conclusions in the generic environmental impact statement for issues designated as Category with information developed for those Category issues applicable to the plant under
§.(c)()(ii) and any new and significant information. C.F.R. §.(c)(). These references to the GEIS in sections. and., along with section.(c), were added when Part was revised in. As such, and contrary to the analysis in CLI--, they must be read in that context and are applicable to an initial license renewal period. See
comment rulemaking and any amendments to that rule must also occur through notice-and-comment rulemaking.31 B. Basis for Our Interpretation of Section. and the GEIS Section.(c)() applies to [e]ach applicant for renewal of a license to operate a nuclear power plant under part, and section.(c)() includes requirements for the ER that must be submitted by any such applicant.32 Under section.(a), this ER may incorporate by reference information contained in an NRC staff-prepared final GEIS. By contrast, section.(c)() narrows the scope of license renewal applicants to which it applies and speaks only to those applicants seeking an initial renewed license and holding an operating license, construction permit, or combined license as of June,.33 Contrary to the Boards assertion (and the Commissions previous determination in CLI--), the regulation is not silent as to whether subsequent license renewal applicants can take advantage of the provisions of section.(c)().34 The structure and language of the rule indicate that the provisions of.(c)() and (c)() apply to all license renewal applicants, including those for subsequent license renewal, but section.(c)() only applies to initial license renewal applicants. The fact that the Commission deliberately confined the applicability of section
.(c)() to initial license renewal applicants (and subsequently declined to change this language, even when editing other parts of the provision through notice-and-comment rulemaking) reflects an intenton which the public certainly would have been justified in Proposed Rule, Fed. Reg. at, ([T]he part amendments apply to one renewal of the initial license.).
31 Christensen, U.S. at.
32 C.F.R. §.(c)()-().
33 Id. §.(c)() (emphasis added).
34 See LBP--, NRC at.
relyingnot to relieve subsequent license renewal applicants, and ultimately the NRC Staff, of the obligation to consider Category issues on a plant-specific basis.
We acknowledge that there is language in the regulatory analysis accompanying the revisions to Part based on the GEIS suggesting a contrary view of the meaning of section..35 In the regulatory analysis, the Staff included prospective subsequent license renewal applicants as affected licensees.36 But the regulatory analysis is not the regulation and cannot be used to change the plain meaning of the regulation.37 Moreover, we cannot interpret our regulations in a manner that conflicts with our NEPA responsibility. NEPA requires the NRC to discuss the environmental impacts of the proposed action, which is the operation of Turkey Point for an additional twenty years beyond the expiration of its renewed licenses. NRC rules codified the findings of the GEIS and designated certain topics as Category issues that the Staff had considered and evaluated when drafting the GEIS. We cannot retroactively decide that the GEIS covered impacts of subsequent license renewal. As discussed below, the GEIS indicated that its scope was limited to one period of license renewal. Although there are some ambiguous statements in the text of the GEIS, these isolated cases of ambiguous text are clearly outweighed by the numerous definitive 35 See Final Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Commission Paper SECY-- (Apr., ) (ML (package)), Encl. at (ML) (Regulatory Analysis); Applicants Surreply to New Arguments Raised in Reply Pleadings (Sept., ), at - (FPL Surreply); NRC Staffs Response to the Applicants Surreply and the Petitioners Response, Regarding the Applicability of C.F.R. §.(c)() to Subsequent License Renewal Applications (Nov., ), at -, -
. The Board also notes that some NRC guidance documents discuss license renewal broadly and do not distinguish between initial and subsequent license renewal. See LBP--, NRC at & n. (discussing Regulatory Guide. and Standard Review Plans for Environmental Reviews for Nuclear Power Plants (Final Report), NUREG-, Supplement : Operating License Renewal, rev. (June ) (MLA)).
36 Regulatory Analysis at.
37 The regulatory analysis is also not the agencys NEPA analysis, and the reference to subsequent license renewal applicants as affected licensees in the regulatory analysis does not fulfill NEPAs mandate to disclose the environmental impacts of subsequent license renewal.
other statements in the GEIS that the document only examined the environmental impacts of a single, twenty-year license renewal and the lack of statements indicating that the scope of the GEIS was expanded from the original version. Even if the Staff had intended to address subsequent license renewal in the GEIS, the occasional ambiguous phrasing did not put the public on notice of such an intention, particularly given the language in section.(c)()
confining its applicability to initial license renewal applicants.38 To provide a meaningful opportunity for public comment, the agency must adequately describe its intentions to the public.39
. Part In the statements of consideration (SOC) to the proposed rule for the Part revisions, the Commission explicitly described the rule as applying only to initial renewals and not subsequent license renewals, in contrast with Part.40 The final rule made no change to this representation.41 The SOC for the final rule stated that the final rule is 38 NEPA obligates an agency to consider every significant aspect of the environmental impact of a proposed action, and to inform the public that it has indeed considered environmental concerns in its decisionmaking process. Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., U.S., ().
39 See C.F.R. §. ([The EIS] shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of reasonable alternatives that would avoid or minimize adverse impacts or enhance the quality of the human environment.).
40 Environmental Review for Renewal of Operating Licenses; Proposed Rule, Fed. Reg.
,,, (Sept., ) (The part rule could be applied to multiple renewals of an operating license for various increments. However, the part amendments apply to one renewal of the initial license for up to years beyond the expiration of the initial license.) (
Proposed Rule); see also id. at, (The GEIS will characterize the nature and magnitude of impacts and other issues that will result from the refurbishments necessary for license renewal and the potential environmental impacts of operating plants for years beyond their current
-year licensing limit.).
41 See Final Rule, Fed. Reg. at,- (summarizing changes to the rule).
consistent with the generic approach and scope of the proposed rule.42 Most importantly, the final rule retained the restriction that only applicants seeking an initial renewal license need not consider alternatives for reducing adverse environmental impacts for Category issues in Table B-.43 This restriction remains in the current regulation.
In, the NRC published its proposed rule amending Part, including updating Table B-and other related provisions in Part (e.g., §.(c)()).44 The NRC proposed revisions to section.(c)(), but it did not seek to change the phrase for those applicants seeking an initial renewed license.45 Neither the proposed rule nor the final rule indicated an expansion in the temporal scope of the GEIS to account for subsequent license renewal.
In fact, subsequent license renewal is not mentioned at all.
FPL argued to the Board that the NRCs intent to review and update the GEIS and Table B-on a ten-year cycle does not make sense if their applicability was limited to initial license renewals.46 We disagree. Many reactors could have submitted applications for initial license renewal ten years or more after the Part revisions were finalized in. In fact, plants at 42 Id. at,.
43 Id. at, (emphasis added). When section. was modified in to clarify its applicability to combined license applications, there was also a slight phrasal change from those applicants seeking an initial renewal license to those applicants seeking an initial renewed license. Compare id. with Licenses, Certifications, and Approvals for Nuclear Power Plants; Final Rule, Fed. Reg.,,, (Aug., ) (emphasis added). The amendments further support the plain language interpretation of the ruleif initial was not intended to be a restriction, the NRC had an opportunity to remove it while it was already revising the same phrase in.(c)().
44 Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Proposed Rule, Fed. Reg.,,, (July, ).
45 See id. at,,,. In addition, the section-by-section analysis in the final rule used the phrase applicants seeking an initial license renewal, similar to the phrase used in the rule itselfapplicants seeking an initial renewed license. Final Rule, Fed. Reg.
at,.
46 FPL Surreply at.
thirty-three sites applied for initial license renewals in or later, with the most recent submission of a license renewal application in for River Bend Station, Unit.47 Therefore, updating the GEIS and Table B-on a ten-year cycle is consistent with the regulatory language and has ensured that the agency relies on current information when preparing supplemental EISs (SEISs) for initial license renewal applications submitted in and beyond.
. The License Renewal GEISs Neither the original GEIS nor the revised GEIS analyzed the environmental impacts of subsequent license renewal periods. The GEIS stated it examines how [the currently operating commercial nuclear power] plants and their interactions with the environment would change if such plants were allowed to operate (under the proposed license renewal regulation CFR Part ) for a maximum of years past the term of the original plant license of years.48 The GEIS also contained a prototypic license renewal schedule, which contemplated an initial license and a single, renewed license: The new license would go into effect at that point, covering the balance of the original -year term, as well as the additional
-year term.49 There was no mention of a potential subsequent license renewal term.
The GEIS contained language indicating its scope was limited to an initial period of license renewal. For example, Appendix E on postulated accidents stated the following:
Since the NRCs understanding of severe accident risk has evolved since issuance of the 1996 GEIS, this appendix assesses more recent information on severe accidents that might alter the conclusions in Chapter 5 of the 1996 GEIS. This revision considers how these developments would affect the conclusions in the 1996 GEIS and provides comparative data where appropriate. This revision does not attempt to provide new 47 NRC, Status of Initial License Renewal Applications and Industry Initiatives, https://www.nrc.gov/reactors/operating/licensing/renewal/applications.html (last visited Feb.,
).
48 GEIS at -.
49 Id. at -. This sixty-year schedule is supported by additional information in Appendix B to the GEIS, where the Staff also assumed a total plant life of sixty years. Id. at B-.
quantitative estimates of severe accident impacts. In addition, the revision only covers one initial license renewal period for each plant (as did the 1996 GEIS). Thus, the population projections, meteorology, and exposure indices used in the 1996 GEIS are assumed to remain unchanged for purposes of this analysis.50 This statement limits the scope of the analysis for this topic in both the GEIS and the GEIS. Moreover, there is no technical basis in the GEIS or the GEIS upon which to conclude that operational years sixty through eighty would have the same environmental impacts as operational years forty through sixty.
If the Staff intended to change the scope of the GEIS to include subsequent license renewal, when previous versions of the GEIS did not include this timeframe (and the limiting language set forth in section.(c)() remained unchanged), then in order to comply with NEPA and the APA this should have been clearly communicated to the public at the beginning of the updating process. The NRC cannot require members of the public to parse language in a regulatory analysis or glossary to discern that the agency is making a major shift in the scope of an EIS and rulemaking; this change must be clearly communicated to allow for proper public participation.
C. Effect of Our Decision Administrative litigation before our agency has been pending in the Turkey Point proceeding since the application for subsequent license renewal was filed.51 Consequently, FPL was aware its licenses were subject to modification, suspension, or revocation as a result of the adjudicatory process.
The interpretation we apply today is consistent with the intent and text of NEPA and the APA, as well as judicial interpretations of those laws. This decision aligns the agency interpretation of section. with the plain language of the regulation.
50 Id. at E- (emphasis added).
51 We are also issuing a decision today in Peach Bottom to provide direction to those parties.
We conclude that the Staff did not conduct an adequate NEPA analysis before issuing FPL licenses for the subsequent license renewal period.52 While FPLs subsequently renewed licenses became immediately effective upon issuance,53 the environmental analysis associated with the previous licenses analyzed the impacts of operation until and for Units and
, respectively. We conclude that it is appropriate for FPL to maintain its current subsequently renewed licenses, but with shortened terms to match the end dates of the previous licenses (i.e., July,, and April,, for Units and, respectively) until completion of the NEPA analysis. Accordingly, we direct the Staff to amend the licenses to this effect. Given the timeframe involved, we fully expect that the Staff will be able to evaluate the environmental impacts prior to FPL entering the subsequent license renewal period. While we recognize that FPL and other subsequent license renewal applicants have relied on CLI-- and prior agency statements, our holding today will ultimately promote the agencys goals of clear communication with the public and transparency in our actions.
Consistent with this order, we will separately direct the Staff to update the GEIS to cure the NEPA deficiency by addressing the subsequent license renewal period.54 We will also issue an order on the dockets of all pending subsequent license renewal proceedings to address the pending adjudicatory matters.
52 The Staff issued the licenses, consistent with NRC regulations, after completing its review of FPLs application, which included the issuance of a draft plant-specific SEIS for public comment, a final plant-specific SEIS, and a record of decision.
53 See C.F.R. §.(c).
54 We provide our direction for addressing the NEPA deficiency discussed in this order in Staff Requirements---SECY--"Rulemaking Plan for Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN -AK; NRC--) (Feb.,
) (MLA). Because we have determined that the GEIS did not cover the subsequent license renewal period, the Staff cannot exclusively rely on the GEIS for Category issues until environmental impacts from the subsequent license renewal term are evaluated.
However, the Staff may still use the current GEIS as necessary, through tiering and incorporation by reference, in its development of subsequent license renewal NEPA documents.
In the instant matter, we direct FPL, the Staff, and the Intervenors to provide their views on any practical effects of the current licenses remaining in place with the modified end dates as well as any practical effects if the previous licenses were reinstated. After considering briefing on the issue, we will issue a subsequent order to provide additional direction, if any, to the parties regarding the status of the licenses.
CONCLUSION For the reasons described above, we reverse CLI--. We leave the licenses in place and direct the Staff to modify the expiration dates for Units and to and,
respectively. We further direct the parties to submit their views on the practical effects of () the subsequent renewed licenses continuing in place and () the previous licenses being reinstated by March,. The parties responses are due by March,.
For the Commission Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this th day of February.
Annette L.
Vietti-Cook Digitally signed by Annette L.
Vietti-Cook Date: 2022.02.24 10:08:50 -05'00'
Commissioner Wright, dissenting in part I disagree with my colleagues rationale and holding reversing our previous decision in CLI--. I have serious concerns about the message this action sends to the public, applicants, licensees, and other stakeholders. Therefore, I dissent from the decision, with the narrow exception of the status of the licenses and the path forward to resolve the purported NEPA deficiency.
I continue to agree with our previous interpretation in CLI--. In my view, based on regulatory ambiguity, it is appropriate to read the language of Part, the regulatory history, regulatory analysis, and agency guidance holistically.1 This holistic analysis supports the view that C.F.R. §.(c)() applies to both initial and subsequent license renewal applications.
I view the majoritys decision to reverse direction now as arbitrary and inconsistent with the NRCs Principles of Good Regulation. The majoritys decision is arbitrary because my colleagues do not base the reversal on any new information or arguments beyond what we previously considered and rejected in issuing CLI--. The reversal is also contrary to the NRCs Principles of Good Regulation, particularly the principles of Openness, Clarity, and Reliability. For the NRC to function as an effective and credible regulator, our stakeholders must be able to rely on our statements and positions. Such reliance is impossible when we may change our position at any time, based on nothing other than the information and arguments previously considered and rejected.
Moreover, changing course in this proceeding under these circumstances short-circuits our agencys well-established and predictable adjudicatory process, set forth in the Atomic Energy Act of, as amended and detailed in our regulations.2 The Atomic Safety and Licensing Board considered the specific issues of this case and held that the Generic 1 CLI--, NRC,, -,, -, - ().
2 See U.S.C. § ; C.F.R. Part.
Environmental Impact Statement for License Renewal of Nuclear Power Plants (GEIS) and regulation applied to subsequent license renewal.3 We upheld that decision after considering all arguments and positions.4 In fact, there was a previous challenge to CLI-- in federal court,5 and the agency would comply with any direction, remand, or adverse decision resulting from such a challenge.6 Here, however, the majority is simply changing position arbitrarily.
The majority also asserts that their reversal of CLI-- promotes clear communication and transparent decision-making.7 I disagree and find that the reversal directly contravenes those goals. We previously clearly communicated our position on this matter in CLI--. My colleagues note that [a]gencies may change positions and interpretations, so long as they explain their reasoning for doing so.8 While I agree in principle, the majority has not explained its reasoning here; rather, the majority is reversing CLI-- based on information previously considered and rejected. In my view, that does not provide a sufficient basis for reversal.
While I strongly disagree with the substantive decision and the majoritys rationale for reaching that decision, I join with the majority on the limited issue of the path forward. Given the majoritys reversal, I agree that an equitable and efficient solution is to leave in place the subsequently renewed licenses while the Staff works to update its environmental analysis to comply with the majoritys new holding. This approach imposes the least impact possible on 3 LBP--, NRC, - ().
4 CLI--, NRC at.
5 See Petition for Review, Friends of the Earth, Natural Resources Defense Council, Inc., and Miami Waterkeeper v. U.S. Nuclear Regulatory Commission and United States of America, No. - (D.C. Cir. Jan., ).
6 Similarly, if we were to consider new information indicating that a change in direction was necessary, we could certainly take appropriate action after considering and accounting for that new information.
7 CLI--, NRC __, __ (Feb., ) (slip op. at ).
8 Id. at __ (slip op. at ).
stakeholders that understandably relied on our previous statements and CLI-- and appropriately places the burden of curing the purported NEPA deficiency on the agency.
Leaving the licenses in place also avoids jeopardizing any safety or environmental improvements that FPL may have put in place to comply with subsequently renewed licenses.
Consistent with our separate direction, I expect that the Staff will work to update the GEIS as expeditiously as possible.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
FLORIDA POWER & LIGHT COMPANY
)
Docket Nos. 50-250-SLR
)
50-251-SLR (Turkey Point Nuclear Generating
)
Units 3 & 4)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Commission Memorandum and Order (CLI-22-02) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E. Roy Hawkens, Chairman Sue Abrue, Administrative Judge Michael Kennedy, Administrative Judge E-mail: Roy.Hawkens@nrc.gov Sue.Abrue@nrc.gov Michael.Kennedy@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Anita G. Naber, Esq.
Brian Harris, Esq.
Esther R. Houseman David E. Roth, Esq.
Sherwin E. Turk, Esq.
Jeremy L. Wachutka, Esq.
Mitzi A. Young, Esq.
Mary F. Woods, Esq.
Susan Vrahoretis, Esq.
E-mail: Anita.Ghoshnaber@nrc.gov Brian.Harris@nrc.gov Esther.Houseman@nrc.gov David.Roth@nrc.gov Sherwin.Turk@nrc.gov Jeremy.Wachutka@nrc.gov Mitzi.Young@nrc.gov Mary.Woods@nrc.gov Susan.Vrahoretis@nrc.gov Florida Power & Light Company 801 Pennsylvania Ave. NW Suite 220 Washington, DC 20004 Steven C. Hamrick, Esq.
E-mail: steven.hamrick@fpl.com
Turkey Point, Units 3 & 4, Docket Nos. 50-250 and 50-251-SLR Commission Memorandum and Order (CLI-22-02) 2 Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.
Washington, DC 20004 Paul M. Bessette, Esq.
Ryan K. Lighty, Esq.
E-mail: Paul.Bessette@morganlewis.com Ryan.Lighty@morganlewis.com Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 Geoffrey H. Fettus Caroline Reiser E-mail: gfettus@nrdc.org creiser@nrdc.org Counsel for Miami Waterkeeper, Inc.
The Super Law Group 180 Maiden Lane, Suite 601 New York, NY 10038 Edan Rotenberg, Esq.
Email: edan@superlawgroup.com Monroe County, Florida Derek Howard, Esq.*
Assistant Monroe County Attorney 1111 12th Street, Suite 408 Key West, FL 33040 E-mail: howard-derek@monroecounty-fl.gov
- Served via e-mail Office of the Secretary of the Commission Dated at Rockville, Maryland, this 24th day of February 2022.
Clara I. Sola Digitally signed by Clara I. Sola Date: 2022.02.24 10:24:40 -05'00'