ML23123A407

Comment (0018) from Jennifer Uhle on Behalf of the Nuclear Energy Institute on PR-51 - Renewing Nuclear Power Plant Operating Licenses - Environmental Review

ML23123A407
Person / Time
Site:	Nuclear Energy Institute
Issue date:	05/02/2023
From:	Uhle J Nuclear Energy Institute
To:
References
88FR13329, PR-51, NRC-2018-0296
Download: ML23123A407 (1)

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Jennifer L. Uhle, Ph.D. 202.739.8139 Vice President, Technical and Regulatory Services jlu@nei.org 1201 F Street NW, Suite 1100 nei.org Washington, DC 20004 May 2, 2023 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTN: Rulemakings and Adjudications Staff Submitted electronically via Regulations.gov

Subject:

Nuclear Energy Institute Comments on NRC Proposed Rule - Renewing Nuclear Power Plant Operating Licenses - Environmental Review (NRC-2018-0296)

The Nuclear Energy Institute (NEI) 1 appreciates this opportunity to provide comments on the U.S. Nuclear Regulatory Commissions (NRC) proposed revisions to its Part 51 license renewal (LR) regulations, 2 draft Revision 2 to NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (revised LR GEIS), and related draft guidance. NEI supports the NRCs efforts to provide a stable, predictable, and efficient environmental review process for initial and subsequent license renewal (SLR) applications for the nations nuclear power reactors.

We commend the NRC staff for their focused and diligent efforts in developing the proposed rulemaking package on an expedited basis. We believe the staff has produced a robust GEIS that, consistent with the National Environmental Policy Acts (NEPA) hard look standard, 3 thoroughly addresses the potential generic environmental impacts of continued plant operation and related refurbishment activities during any 20-year renewal term.

Our comments on specific aspects of the proposed rule and draft revised LR GEIS that we believe warrant clarification or modification to ensure consistently timely and efficient environmental reviews are included in Attachment 1. Our comments concern: (1) the scope and applicability of the proposed rule and LR GEIS, (2) the effective and compliance dates for the final rule, (3) issues related to greenhouse gas emissions and climate change analysis, and (4) NRCs reclassification of postulated severe accidents as a Category 1 issue. Also, in Attachment 2, we provide some additional comments on specific portions of the draft documents issued by the NRC staff, including (1) the proposed rule, (2) the revised LR GEIS, (3) draft regulatory guide DG-4027, (4) draft NUREG-1555, Supplement 1, Revision 2, and (5) the draft regulatory analysis. To the extent a comment on a particular document may be applicable to other documents, we respectfully request that the NRC consider the comment across all documentation, as appropriate.

1 The Nuclear Energy Institute (NEI) is the organization responsible for establishing unified industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include entities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel cycle facilities, nuclear materials licensees, and other organizations and entities involved in the nuclear energy industry.

2 Renewing Nuclear Power Plant Operating Licenses - Environmental Review; Proposed Rule, 88 Fed. Reg. 13,329, 13,346 (Mar. 3, 2023).

3 Balt. Gas & Elec. Co. v. Natural Res. Defense Council, 462 U.S. 87, 97 (1983) (internal citation omitted) (NEPA does not require agencies to elevate environmental concerns over other appropriate considerations. Rather it require[s] only that the agency take a hard look at the environmental consequences before taking a major action.).

Secretary of the Commission May 2, 2023 Thank you in advance for your consideration of NEIs comments. Please contact Brett Titus, Director, Licensing (bat@nei.org) or Martin ONeill, Associate General Counsel (mjo@nei.org) with any questions regarding this submittal.

Sincerely, Jennifer Uhle : NEI Comments on Specific Aspects of the Proposed Rule and Draft Revised LR GEIS : NEI Comments on NRC Proposed License Renewal Rulemaking Documents (May 2023) c: Patricia Holahan - SLED, NMSS Sherri Miotla - SLED, NMSS Kevin Folk - SLED, NMSS Jennifer Davis - SLED, NMSS Nuclear Energy Institute 2

Secretary of the Commission May 2, 2023 I. Clarifications Concerning the Scope/Applicability of the Proposed Rule and LR GEIS The proposed rule and revised LR GEIS contain two important clarifications regarding the scope and applicability of those documents. We suggest some changes to the NRCs proposed language below to ensure clarity on the rules applicability and optimal coverage of the light-water reactor (LWR) fleet.

A. Applicability of the LR GEIS and Table B-1 to Subsequent License Renewals Consistent with the Commissions directive in SRM-SECY-21-0066, the NRC staff proposes to revise the introductory paragraph of 10 CFR 51.53(c)(3) to replace the words an initial renewed license with the words a license renewal covered by Table B-1. 4 This change is intended to reflect that the regulation governing postconstruction environmental reports for license renewal applies to applicants seeking either an initial or subsequent renewed license following this update to the LR GEIS. 5 Relatedly, and as further directed by the Commission in SRM-SECY-22-0109, the proposed rule would amend the introductory paragraph in Appendix B of Part 51 to indicate that the NRCs assessment of environmental impacts associated with license renewal (as documented in the LR GEIS) applies to applications for initial or a first (i.e., one term) subsequent license renewal. 6 NEI supports these proposed changes insofar as they remove any ambiguity regarding the applicability of section 51.53(c)(3) and Table B-1 to initial SLR applications. However, we agree with the NRC staffs recommendation in SECY-22-0109 that the LR GEIS, as updated, should apply to any license renewal term (i.e., initial, first SLR, or a term beyond the first SLR). 7 Attachment 1 contains suggested revisions to the proposed rule consistent with this position. Conforming changes would also need to be made to the revised LR GEIS and other draft documents made available for comment. As the revised LR GEIS notes, [t]here are no specific limitations in the Atomic Energy Act [AEA] or the NRCs regulations restricting the number of times a license may be renewed. 8 As discussed below, limiting the LR GEIS to one SLR term in effect imposes such a limitation for reasons that are not clear.

The U.S. commercial LWR fleet has accrued several thousand years of cumulative operating experience. The environmental impacts of large LWR operation are thus well understood. In developing the 1996 LR GEIS, the NRC performed an extensive, systematic study of the environmental impacts of operating nuclear plants for an additional 20 years. That evaluation found minimal (and, in some instances, beneficial) environmental impacts for those resource areas analyzed generically across the LWR fleet. The NRCs subsequent updates to the LR GEIS - in 2013 and now again in 2023 - reaffirm these findings.

4 Proposed Rule, 88 Fed. Reg. at 13,346, 13,351.

5 Id. at 13,346.

6 Id. at 13,351.

7 SECY-22-0109, Proposed Rule: Renewing Nuclear Power Plant Operating Licenses - Environmental Review, at 6 (Dec. 6, 2022) (ML22165A003) (emphasis added).

8 See AEA Section 103.c, 42 USC 2133 (Each such license shall be issued for a specified period, as determined by the Commission, and may be renewed upon the expiration of such period.); see also 10 CFR 54.1.

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Secretary of the Commission May 2, 2023 We believe that the LR GEIS provides a reasonable analysis of the environmental impacts of 20 years of reactor operation, irrespective of the prior number of years of reactor operation. Every license renewal review, regardless of term, requires a site-specific supplement to the LR GEIS (i.e., SEIS), in which the NRC evaluates any issues not resolved generically by the GEIS. The NRC also evaluates any new and significant information. In addition, the NRC updates the GEIS roughly every 10 years to incorporate material new information and lessons learned. This review cycle is reasonable given that changes in the environment around nuclear plants are gradual and predictable. 9 Therefore, limiting the applicability of the proposed rule and GEIS to one SLR term is not necessary as a technical or legal matter, overlooks decades of fleet-wide operating experience and established regulatory practice, and contravenes the NRCs Principles of Good Regulation.

Furthermore, applying the proposed rule and LR GEIS to more than one SLR term does not create an inconsistency between the LR GEIS and the Continued Storage GEIS. 10 The latter documents the NRCs generic determinations regarding the technical feasibility and environmental impacts of safely storing spent fuel on or off the site beyond a plants licensed life for operations and before its disposal in a permanent repository. 11 Thus, for purposes of its analysis, the NRC defined licensed life for reactor operations as the original licensed life of 40 years and up to two 20-year license extensions for each reactor. 12 In finding that the onsite storage of spent fuel during the license renewal term is a Category 1 issue with an impact of SMALL in the 2013 LR GEIS (and again in the draft revised LR GEIS), the NRC incorporated this same assumption. i.e., up to two 20-year extensions. 13 This assumption does not preclude expansion of the LR GEIS analysis to include additional SLR terms.

In fact, the draft revised LR GEIS notes that the current and potential environmental impacts of spent fuel storage at the current reactor sites have been studied extensively, are well understood, and the environmental impacts were found to be SMALL, and that the NRCs review of information from SEISs completed since development of the 2013 LR GEIS has identified no new information or situations that would result in different impacts for this issue for either an initial LR or SLR term. 14 In our view, there is sufficient information and analysis available now for the NRC staff to extend its Category 1 impact finding for onsite storage of spent nuclear fuel to additional SLR terms.

B. Applicability of the LR GEIS and Table B-1 for Plants That Were Issued Construction Permits or Operating Licenses as of June 30, 1995 The proposed rule contains an additional revision to 10 CFR 51.53(c)(3). Namely, it would revise the phrase and holding an operating license, construction permit, or combined license as of June 30, 1995 to read for a nuclear power plant for which an operating license, construction permit, or 9

Proposed Rule, 88 Fed. Reg. at 13,332; Revised LR GEIS, Vol. 1 at 1-2.

10 NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel - Final Report, Vols. 1 & 2 (Sept.

2014), https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr2157/v1/index.html (Continued Storage GEIS).

11 Specifically, the NRC evaluated the potential environmental impacts of continued storage of used nuclear fuel for three timeframes -

short-term storage, long-term storage, and indefinite storage See Continued Storage GEIS, Vol. 1 at 1-12 to 1-15.

12 Id. at 1-17; Revised LR GEIS, Vol. 1 at 1-12, 4-153.

13 Revised LR GEIS, Vol. 1 at 1-12, 4-153.

14 Id. at 4-154.

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Secretary of the Commission May 2, 2023 combined license was issued as of June 30, 1995. 15 This change seeks to clarify that Watts Bar Nuclear Units 1 and 2 (for which construction permits were issued by that date but are no longer held by the licensee) are within the scope of the LR GEIS and Table B-1. 16 The revised phrasing also clarifies that holders of renewed licenses for nuclear power plants that previously held initial operating licenses within the scope of the LR GEIS remain within its scope during the license renewal term. 17 While NEI supports the proposed change because it addresses certain ambiguities, we suggest removing the reference to June 30, 1995, in 10 CFR 51.53(c)(3) altogether. Like the proposed change to 10 CFR 51.95(c) to remove the date of issuance of NUREG-1437, 18 removing the limitation in the rule to plants for which a construction permit or operating license was issued as of June 30, 1995, would provide clarity and broader future application of the rule. 19 It also would promote efficiency by eliminating the need to revise 10 CFR 51.53(c)(3) each time the NRC updates the LR GEIS.

Importantly, the scope of the LR GEIS would continue to be limited by the introductory paragraph to Table B-1 in Appendix B of the proposed rule. 20 However, for the same reasons stated above, we suggest that the first sentence of the introductory paragraph to Table B-1 be revised to remove the reference to June 30, 1995. We propose the following alternative language: The Commission has assessed the environmental impacts associated with granting a renewed operating license for a licensee holding an operating license, construction permit, or combined license based on the data contained in NUREG-1437. This approach is both logical and viable because footnote 1 of Table B-1 identifies the specific revision of NUREG-1437 on which Table B-1 is based.

If the NRC does not adopt NEIs suggested approach (i.e., eliminating the current regulations references to June 30, 1995), then it still should revise the introductory sentence to Table B-1 as follows: The Commission has assessed the environmental impacts associated with granting a renewed operating license to a licensee for a nuclear power plant for which holding an operating license, construction permit, or combined license was issued as of June 30, 1995. A similar conforming change also should be made in footnote 1 of the preamble to the proposed rule, which contains similar language (see 88 Fed. Reg. at 13,329-30 n.1). As with 10 CFR 51.53(c)(3), these 15 Proposed Rule, 88 Fed. Reg. at 13,346-47, 13,351.

16 Id.

17 Id. at 13,346. This clarification is important because 10 CFR 54.31(c) provides that a renewed license supersed[es] the operating license or combined license previously in effect.

18 See Proposed Rule, 88 Fed. Reg. at 13,346-47 (The proposed rule would revise Section 51.95(c), Operating license renewal stage, to remove the date of issuance of NUREG-1437. This change is made for clarity and to ensure that the regulation refers to the latest revision of the LR GEIS.).

19 The Staffs proposed revision to 10 CFR 51.53(c)(3), as well as the proposed conforming revisions suggested by NEI above, include a reference to a combined license under 10 CFR Part 52. While the NRC first promulgated Part 52 in 1989, it did not issue any combined licenses for proposed new reactors until 2012. For those units that have received combined licenses, only Vogtle Units 3 and 4 have been constructed. Thus, plants for which a combined license was issued as of June 30, 1995 would appear to be a null set.

20 We do not read the revised LR GEIS to include Vogtle Units 3 and 4 within its scope. During the next periodic review and update of the LR GEIS, the NRC should expand its scope to ensure that Vogtle Units 3 and 4 any other large LWR facilities licensed before that time are covered. While the environmental impacts of Vogtle Unit 3 and Unit 4 operations are expected to be consistent with those of currently operating large LWRs (as confirmed by the NRCs final and supplemental EISs for the Vogtle Units 3 and 4 early site permit and combined license applications, respectively), the new units will have accrued substantial operating experience by the time the NRC staff issues the next GEIS update.

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Secretary of the Commission May 2, 2023 changes are necessary to make clear that Watts Bar Units 1 and 2 and all nuclear power plants that have received renewed operating licenses are within the scope of the revised LR GEIS.

II. Effective and Compliance Dates for the Final Rule Under the current rulemaking schedule, the NRC plans to issue the final rule and revised LR GEIS by April 2024. We anticipate that there will be multiple LR and SLR applications under NRC review at that time, and that additional SLR applications will be filed within six months to one year of that date.

Given the long lead time associated with an applicants preparation and/or updating of a license renewal environmental report (ER), we therefore recommend that the NRC provide both an effective date and a one-year compliance date in the final rule (tied to the date of final rules publication). This approach is consistent with that followed by the NRC in its 2013 revisions to 10 CFR Part 51. 21 III. Greenhouse Gas Emissions and Climate Change A significant proposed change to the LR GEIS and Table B-1 is the NRCs addition of new Category 1 and 2 issues related to greenhouse gas (GHG) emissions and climate change. We provide specific comments on both of these issues below. However, we first underscore our agreement with the NRC that environmental reviews for license renewal are appropriately focused on the potential impacts of continued operation of the plant on the environment, and not vice versa. 22 As the revised LR GEIS makes clear, earthquakes, storms, floods, droughts, and other natural hazards, even if exacerbated by climate change, are outside the scope of the NRC staffs environmental and safety reviews for license renewal. The safety review is narrowly focused on aging management of systems, structures, and components within the scope of license renewal, as defined in 10 CFR 54.4. The potential impacts of changing environmental conditions on plant operation is a current licensing basis (CLB) matter. 23 Accordingly, if new information about changing environmental conditions (e.g., rising sea levels) becomes available, the NRC evaluates the new information as part of its ongoing regulatory oversight activities. Such evaluations are thus outside the scope of the LR GEIS and proposed rule. 24 A. Greenhouse Gas Impacts on Climate Change (Category 1 Issue)

In the draft revised LR GEIS, the NRC concludes that the impact of GHG emissions on climate change from continued plant operation during the license renewal term and any refurbishment activities would be SMALL for all nuclear plants, making this a Category 1 issue. 25 The technical basis for this 21 See Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, 78 Fed. Reg. 37,282, 37,293 (June 20, 2013) (The amendments made by the final rule shall be effective 30 days after the final rules publication in the Federal Register. License renewal applicants are not required to comply with the amended rule until 1 year after the final rules publication in the Federal Register. The Commission has decided on a 1-year compliance date given the long lead time required for preparation of license renewal applicant environmental reports.).

22 See Revised LR GEIS, Vol. 1 at 4-21.

23 See 10 CFR 54.3(a) (defining current licensing basis); Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-01-17, 54 NRC 3, 9 (2001) (The CLB represents an evolving set of requirements and commitments for a specific plant that are modified as necessary over the life of a plant to ensure continuation of an adequate level of safety, and is effectively addressed and maintained by ongoing agency oversight, review, and enforcement.) (internal quotation marks and citation omitted).

24 Turkey Point, CLI-01-17, 54 NRC at 7 (quoting Nuclear Power Plant License Renewal; Final Rule, 56 Fed. Reg. 64,943, 64,946 (Dec.13,1991)) (License renewal reviews are not intended to duplicate the Commissions ongoing review of operating reactors.).

25 See Proposed Rule, 88 Fed. Reg. at 13,345, 13,356; Revised LR GEIS, Vol. 1 at 2-14 (Table 2.1-1).

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Secretary of the Commission May 2, 2023 conclusion is presented in Sections 3.12.1, 4.12.1, and D.1 of the LR GEIS. In short, the NRC determined that the GHG emissions from nuclear power plants are very minor, because such plants do not normally combust fossil fuels to generate electricity. 26 In reaching this conclusion, the NRC considered, among other sources of information, direct and indirect GHG emissions from operations at nuclear power plants presented in initial LR and SLR SEISs. 27 Notably, the revised LR GEIS also acknowledges the role that nuclear plants play in avoiding additional GHG emissions. 28 NEI agrees that the impact of GHG emissions on climate change from continued plant operation during any license renewal term and any refurbishment activities would be SMALL for all nuclear power plants. However, we believe nuclear energys vital role in avoiding GHG emissions and other positive environmental attributes warrant greater emphasis in the revised LR GEIS. Nuclear energy already provides approximately half of the carbon-free electricity in the United States. In doing so, it avoids over 500 million metric tons of carbon dioxide, 265 thousand short tons of sulfur dioxide, and 238 thousand short tons of nitrogen oxide emissions every year. 29 Nuclear power has the highest average capacity factor and one of the lowest overall life-cycle impacts of any electric generation source. 30 Additionally, due to its high energy density, nuclear power has a much smaller geographic footprint than other clean energy generation sources. 31 As a result, nuclear power also minimizes land use and ecological impacts. Consistent with NEPAs public disclosure goal, we believe these environmentally beneficial aspects of nuclear power should be fully disclosed in the LR GEIS.

B. Climate Change Impacts on Environmental Resources (Category 2 Issue)

The NRC also has identified a new Category 2 issue related to climate change titled Climate change impacts on environmental resources. The NRCs specific finding, as reflected in the draft revised LR GEIS and revised Table B-1, is as follows:

Climate change can have additive effects on environmental resource conditions that may also be directly impacted by continued operations and refurbishment during the license renewal term. The effects of climate change can vary regionally and climate change information at the regional and local scale is necessary to assess trends and the impacts on the human environment for a specific location. The impacts of climate change on 26 Revised LR GEIS, Vol. 1 at 2-14, 3-148, 4-162.

27 See id. at 3-145 to 3-150, 4-162 to 4-163.

28 See id. at 4-162 (noting that in the Peach Bottom SLR SEIS and Surry SLR SEIS, the NRC concluded that continued operation would result in at least between 4 and 5 million tons/year of CO2eq emission avoidance when compared to replacement energy alternatives).

29 NEI, Annual Greenhouse Gas Emissions Avoided by the U.S. Nuclear Power Plants.

https://www.nei.org/resources/statistics/old/emissions-avoided-by-us-nuclear-industry (updated Aug. 2022).

30 See, e.g., IAEA. Nuclear Power and Sustainable Development, at 5, 38, 50-51 (2016), http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1754web-26894285.pdf (Life cycle emissions from the nuclear power chain are comparable with the best renewable energy chains and several orders of magnitude lower than fossil fuel chains.); Nakagawa, N.; Kosai, S.;

Yamasue, E. Life cycle resource use of nuclear power generation considering total material requirement. J. CLEAN. PROD. 2022, 363:132530, https://www.sciencedirect.com/science/article/pii/S095965262202131X (The [total material requirement] of nuclear power generation is significantly lower than that of thermal power generation and is similar to that of renewables. On the basis of the low greenhouse gas emissions associated with nuclear power generation, like renewables, it can be considered favorable not only from the global warming perspective but also from a resource use perspective.).

31 Nuclear power has the smallest overall environmental footprint of any energy source, using roughly 50 to 500 times less space for energy production than wind and solar. See LucidCatalyst, Beautiful Nuclear, at 54 (June 2022),

https://www.lucidcatalyst.com/beautifulnucleardrivingdeepdecarbonisation.

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Secretary of the Commission May 2, 2023 environmental resources during the license renewal term are location-specific and cannot be evaluated generically. 32 The NRC also proposes to amend 10 CFR 51.53(c)(3)(ii) to add new paragraph (Q), which states:

Applicants shall include an assessment of the effects of any observed and projected changes in climate on environmental resource areas that are affected by license renewal, as well as any mitigation measures implemented at the applicants plant to address climate change impacts. 33 As explained below, NEI has concerns with adding climate change as a distinct Category 2 issue. We also have concerns regarding the mitigation-related provision in proposed 10 CFR 51.53(c)(3)(ii)(Q),

which, contrary to controlling judicial and NRC precedent discussed below, could be wrongly construed to mean that NEPA and Part 51 require applicants to implement identified mitigation measures. Therefore, we recommend that the NRC not treat the additive effects of climate change on environmental resource conditions as a separate Category 2 issue in lieu of its current approach of analyzing such effects as cumulative impacts, and that it delete proposed section 51.53(c)(3)(ii)(Q) in its entirety.

1. Climate Change is Not a Direct or Indirect Effect Caused by License Renewal NEI does not support the designation of climate change impacts on environmental resources as a distinct Category 2 issue for several reasons. First, climate change is not a direct or indirect environmental effect caused by license renewal. 34 GHG emissions are of primary concern for climate change. 35 As the draft LR GEIS concludes (generically for all plants), GHG emissions from continued nuclear plant operation are very minor because such plants do not combust fossil fuel to generate electricity. 36 Consequently, renewing a nuclear plants operating license does not contribute in any significant manner to climate change. Indeed, as discussed above, nuclear power plants contribute significantly to reducing air pollution - including GHG emissions - by avoiding the need for more greenhouse-gas intensive generation sources. Notably, in CLI-09-21, the Commission stated that

[w]e expect the Staff to include consideration of carbon dioxide and other greenhouse gas emissions in its environmental reviews for major licensing actions under the [NEPA]. 37 It further noted that

[t]he Staffs analysis for reactor applications should encompass emissions from the uranium fuel cycle as well as from construction and operation of the facility to be licensed. 38 Thus, as relevant to 32 Revised LR GEIS, Vol. 1 at 2-14; Proposed Rule, 88 Fed. Reg. at 13,356.

33 Proposed Rule, 88 Fed. Reg. at 13,346, 13,351.

34 As defined in Council on Environmental Quality (CEQ) regulations, effects or impacts are changes to the human environment from the proposed action or alternatives that are reasonably foreseeable. Direct effects are caused by the action and occur at the same time and place. Indirect effects are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. 40 CFR 1508.1(g)(1)-(2) (emphasis added). The term reasonably foreseeable means sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision. 40 CFR 1508.1(aa). The NRC uses these same definitions. See 10 CFR 51.14(b).

35 Revised LR GEIS, Vol. 1 at 3-146.

36 Id. at 2-14, 4-162.

37 Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2), CLI-09-21, 70 NRC 927, 931 (2009).

38 Id.

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Secretary of the Commission May 2, 2023 license renewal, the Commissions focus was on GHG emissions associated with continued plant operation, not on postulated additive effects of license renewal and climate change.

Under controlling case law, the NRC does not appear to have a legal duty to consider the impacts of climate change on environmental resources as a direct or indirect effect of license renewal. The U.S.

Supreme Court has clearly stated the test for whether a postulated effect triggers review under NEPA. In Metropolitan Edison Company v. People Against Nuclear Energy, 39 and again in Department of Transportation v. Public Citizen, 40 the Court held that a particular environmental effect requires evaluation under NEPA only if there exists a reasonably close causal relationship between the environmental effect and the alleged cause thereof - i.e., the agency action under consideration. 41 The Court held that where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant cause of the effect. In applying the Public Citizen test, the D.C. Circuit has held that [a]n agency has no obligation to gather or consider environmental information if it has no statutory authority to act on that information. 42 The NRCs statutory duties and authorities flow from the AEA, in which Congress granted [the NRC]

authority merely to regulate radiological and related environmental concerns. 43 As a procedural statute, NEPA does not expand the NRCs statutory mandate or authorities. 44 Instead, it requires the NRC to analyze those potential impacts that have a reasonably close causal connection to changes to the physical environment resulting from its proposed licensing actions. The changes in climate parameters and trends discussed in the revised LR GEIS - e.g., changes in air and water temperature, precipitation amounts, flood and storm frequencies, sea level - are not changes to the physical environment caused by license renewal.

Rather than representing a direct or indirect effect of license renewal, climate change represents a potential (albeit uncertain) change to the affected environment that occurs irrespective of license renewal. 45 As such, climate change should not be treated as a separate Category 2 issue. As discussed below, it is more logically considered as a cumulative impact, or simply as part of the discussion of the affected environment used in evaluating the impacts of license renewal, insofar as climate change effects on the environmental baseline 46 conditions described in Chapter 3 of an applicants ER and the NRCs SEIS may be reasonably discerned based on reliable data. 47 39 460 U.S. 766 (1983).

40 541 U.S. 752 (2004) 41 Pub. Citizen, 541 U.S. at 767 (quoting Metro. Edison, 460 U.S. at 774).

42 Sierra Club v. FERC, 867 F.3d 1357, 1372 (D.C. Cir. 2017).

43 Hydro Res., Inc. (Albuquerque, NM), CLI-98-16, 48 NRC 119, 121 (1998) (emphasis added).

44 See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). ([I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.).

45 Revised LR GEIS, Vol. 1 at 4-164.

46 The environmental baseline is the site environmental conditions as they exist or are estimated to exist in the absence of the proposed action and against which potential environmental impacts of license renewal are evaluated. Revised LR GEIS, Vol. 1 at 3-1, 8-3.

47 See, e.g., Revised LR GEIS, Vol. 1 at 3-153 (noting that plant-specific environmental reviews of initial LR and SLR applications considered localized observed changes in sea level rise).

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Secretary of the Commission May 2, 2023

2. Consistent with NRC Practice, Climate Change Impacts on Environmental Resources Are More Appropriately Considered as a Cumulative Effect Under NEPA There also is no need to create a new Category 2 issue and finding concerning climate change impacts on environmental resources. NEPA, as construed by the CEQ and the federal courts, 48 as well as the NRCs current regulations and guidance, already provide a framework for analyzing the cumulative effects of a proposed action - including climate change impacts on environmental resource areas that may be incrementally affected by license renewal. With regard to license renewal, 10 CFR 51.53(c)(3)(ii)(O) requires applicants to provide information about other past, present, and reasonably foreseeable future actions occurring in the vicinity of the nuclear plant that may result in a cumulative effect. 49 Table B-1 identifies Cumulative impacts as a Category 2 issue, and provides the following description:

Cumulative impacts of continued operations and refurbishment associated with license renewal must be considered on a plant-specific basis. Impacts would depend on regional resource characteristics, the resource-specific impacts of license renewal, and the cumulative significance of other factors affecting the resource.

(Emphasis added)

When this description is juxtaposed with the NRCs description of the proposed new Category 2 issue, Climate change impacts on environmental resources, the similarities are readily apparent:

Climate change can have additive effects on environmental resource conditions that may also be directly impacted by continued operations and refurbishment during the license renewal term. The effects of climate change can vary regionally and climate change information at the regional and local scale is necessary to assess trends and the impacts on the human environment for a specific location. The impacts of climate change on environmental resources during the license renewal term are location-specific and cannot be evaluated generically. 50 The revised LR GEIS further underscores these similar (and duplicative) requirements in noting that

[i]n order for there to be a cumulative effect, the proposed action (license renewal) must have an incremental new, additive, or increased physical effect or impact on the resource or environmental condition beyond what is already occurring. 51 Additionally, citing 1997 CEQ guidance, the revised LR 48 See, e.g., NRDC v. Hodel, 865 F.2d 288, 297-98 (D.C. Cir. 1988) (stating that NEPA, as interpreted by the courts, and CEQ regulations both require agencies to consider the cumulative impacts of proposed actions); Hanly v. Kleindienst, 471 F.2d 823, 830-831 (2d Cir.

1972), cert. denied, 412 U.S. 908 (1973) (interpreting the term significantly in Section 102(2)(A) of NEPA to include adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area).

49 Although Part 51 does not define cumulative effects, the NRC has adopted the CEQ definition thereof in the revised LR GEIS and other agency guidance documents - i.e., effects on the environment that result from the incremental effects of the action when added to the effects of other past, present, and reasonably foreseeable actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions, and which can result from individually minor but collectively significant actions taking place over a period of time. Revised LR GEIS, Vol. 1 at 4-167.

50 Proposed Rule, 88 Fed. Reg. at 13,356 (emphasis added).

51 Revised LR GEIS, Vol. 1 at 4-176. In fact, on page 4-165, the revised LR GEIS simply substitutes climate change impact for cumulative effect in the following sentence: In order for there to be a climate change impact on an environmental resource, the Nuclear Energy Institute 10

Secretary of the Commission May 2, 2023 GEIS states that [t]he incremental effects of the proposed action (license renewal) when added to the effects from past, present, and reasonably foreseeable future actions and other actions (including trends such as global climate change) result in the overall cumulative effect. 52 In a similar vein, current NRC regulations require ERs to analyze alternatives available for reducing or avoiding adverse environmental effects (i.e., mitigation measures). 53 The specific regulation applicable to license renewal applications is 10 CFR 51.53(c)(3)(iii), which requires the ER to contain a consideration of alternatives for reducing adverse impacts, as required by § 51.45(c), for all Category 2 license renewal issues in appendix B to subpart A of [Part 51]. Thus, there is no need for a duplicative requirement in proposed 10 CFR 51.53(c)(3)(ii)(Q) to consider mitigation measures for climate change impacts. Moreover, current NRC guidance for the preparation of ERs already directs applicants to consider potential mitigation measures for issues such as drought, consumptive surface water use, and groundwater withdrawals, among others that may be affected by climate change. 54 In summary, under its current Part 51 regulations, the NRC already has a framework for considering additive climate change impacts on environmental resources that may be affected by license renewal on a site-specific basis. Indeed, as the proposed rule explicitly notes: In site-specific initial LR and SLR SEISs prepared since development of the 2013 LR GEIS, the NRC considered climate change impacts for those resources that could be incrementally affected by license renewal as part of the cumulative impact analysis. 55 Thus, there is no need for the proposed new Category 2 issue or section 51.53(c)(3)(ii)(Q) to adequately consider the additive or incremental effects of climate change or mitigation measures for purposes of the NRCs license renewal NEPA evaluation.

3. Treating Climate Change Impacts on Environmental Resources as a Separate Category 2 Issue May Result in Conflicts with Other NRC Part 51 Regulations The proposed provisions in question also could create conflicts with (1) the limitation in 10 CFR 51.53(c)(3)(ii)(B) on evaluating impacts of entrainment, impingement, and thermal discharges on fish and shellfish, and (2) the NRCs generic resolution of certain Category 1 issues in the LR GEIS and Table B-1. Pursuant to 10 CFR 51.53(c)(3)(ii)(B), which applies to plants with once through cooling or cooling ponds, no assessment of the impact of thermal discharges is required if an applicant provides a Clean Water Act Section 316(a) variance. Similarly, no assessment of entrainment or impingement is required if the applicant provides a Section 316(b) determination. This limitation implements Section 511(c)(2) of the Clean Water Act, which provides that:

Nothing in [NEPA] shall be deemed to(A) authorize any Federal agency authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant into the navigable waters to review any effluent limitation or other proposed action (license renewal) must have an incremental new, additive, or increased physical effect or impact on the resource or environmental condition beyond what is already occurring.

52 Revised LR GEIS, Vol. 1 at 4-167 (emphasis added).

53 10 CFR 51.45(c).

54 See Regulatory Guide 4.2, Supplement 1, Revision 1 at 27-28.

55 Proposed Rule, 88 Fed. Reg. at 13,345 (emphasis added).

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Secretary of the Commission May 2, 2023 requirement established pursuant to this Act . . . or (B) authorize any such agency to impose, as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to this Act. 56 This statutory provision bars the NRC from second-guessing a National Pollutant Discharge Elimination System (NPDES) permitting agencys analysis or approval of the impacts associated with once-through cooling or requiring any analysis of cooling towers or other mitigating alternatives. As the Commission has clearly held, the [NPDES] permitting agency determines what cooling system a nuclear power facility may use and NRC factors the impacts resulting from use of that system into the NEPA cost-benefit analysis. 57 [T]he NRC has no statutory authority to review limitations or other requirements established by the [NPDES permitting agency] under the Clean Water Act and must accept at face value its determination that . . . once-through cooling system . . . is sufficiently protective of the environment. 58 Under this statutory scheme, the NRCs decision whether to renew

. . . licenses does not require an environmental analysis of cooling towers as an alternative. 59 Requiring an assessment of climate change as a separate Category 2 issue, as well as mitigation measures implemented at the applicants plant to address climate change impacts, might incorrectly suggest that thermal impacts from once through cooling must be analyzed, regardless of an NPDES agencys 316(a) determination. The Commission should avoid any such suggestion, as it would violate Section 511(c)(2) of the Clean Water Act.

In the same vein, requiring climate change and related mitigation measures to be analyzed as a separate Category 2 issue could create a conflict with Category 1 findings on impacts that might hypothetically be affected by climate change. For example, while the draft revised LR GEIS concludes that surface water use conflicts would be SMALL for all plants with once through cooling systems (a Category 1 finding), 60 treating climate change as a Category 2 issue might be construed as requiring further analysis of the consumptive water use of a plant using once through cooling. This would undercut the Category 1 finding, eliminating the benefit of the GEISs generic analysis, and would be particularly inappropriate because the generic analysis considers climate change. 61 In addition, for all Category 1 issues, NRC has determined that additional plant-specific mitigation measures are not likely to be sufficiently beneficial to warrant implementation. 62 To eliminate the potential conflict and preserve the efficacy of Category 1 findings, any consideration of climate change impacts on Category 1 issues should be limited to the existing processes for identifying new and significant information.

Absent new and significant information, Category 1 issues do not require additional analysis in a 56 33 U.S.C. § 1371(c)(2) (emphasis added).

57 NextEra Energy Point Beach LLC (Point Beach Nuclear Plant, Units 1 and 2), CLI-22-05, 95 NRC __ (Mar. 23, 2022) (slip op. at 9) (citing Entergy Nuclear Vt. Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 389 (2007) (quoting Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 26-27 (1978))).

58 Id. (citing Vt. Yankee, CLI-07-16, 65 NRC at 376-77, 385-89).

59 Id.

60 Revised LR GEIS, Vol. 1 at 4-30.

61 See id. at 4-29 to 4-30.

62 Proposed Rule, 88 Fed. Reg. at 13,357 (footnote 2 of Table B-1).

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Secretary of the Commission May 2, 2023 plant-specific environmental review, and are not subject to challenge in individual licensing adjudications without a waiver. 63

4. Any Analysis of Climate Change Impacts on Environmental Resources Must Be Informed and Bounded by the NEPA Rule of Reason Whether the NRC requires consideration of climate change impacts on environmental resources and related mitigation measures as a separate Category 2 issue or as a cumulative effect, it should make clear in the statement of considerations for the final rule and in its implementing guidance that such analysis is informed and bounded by NEPAs rule of reason. 64 We summarize the key principles below. These principles are especially relevant here given the substantial complexities and uncertainties inherent in assessing climate change effects, especially on a regional or local scale, and the evolving state of the art in climate change science and modeling.

a. NEPA Requires Consideration of Only Reasonably Foreseeable Effects NEPA requirements are tempered by a practical rule of reason. 65 In this regard, NEPA only requires that the EIS address those environmental impacts that are reasonably foreseeable. 66 An agency need not address all theoretical possibilities, but rather only those that have some reasonable possibility of occurring. 67 Nor does it need to analyze events that would be considered worst case scenarios or remote and highly speculative. 68 NEPA, moreover, does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts. 69 Under this standard, an EIS is required to furnish only such information as appears to be reasonably necessary under the circumstances for evaluation of the project rather than to be so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible. 70 Thus, if the potential effects of climate change on an environmental resource cannot be reasonably estimated with any degree of confidence, the NRC need not consider them in a license renewal SEIS.

63 See Entergy Nuclear Vt. Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 19-21 (2007); Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008) (noting that generic Category 1 issues cannot be litigated in individual licensing adjudications without a waiver).

64 See New York v. Kleppe, 429 U.S. 1307, 1311 (1976); see also Pub. Citizen, 541 U.S. at 767-69 (2004) (rule of reason is inherent in NEPA and its implementing regulations); NextEra Energy Point Beach LLC (Point Beach Nuclear Plant, Units 1 and 2), LBP-21-__, 91 NRC 1, __ (2021).

65 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-16-7, 83 NRC 293, 326 (2016) (quoting Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208 (2010)); see also Potomac Alliance v. NRC, 682 F.2d 1030, 1035 (D.C.

Cir. 1982).

66 Potomac Alliance, 682 F.2d at 1035; Paina Hawaii, LLC (Materials License Application), CLI-10-18, 72 NRC 56, 89 (2010).

67 Crow Butte Res., Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (2019) (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit ), ALAB-156, 6 AEC 831, 836 (1973)).

68 Holtec Intl (HI-STORE Consol. Interim Storage Facility), LBP-19-4, 89 NRC 353, 375 (2019) (quoting Private Fuel Storage, L.L.C. (Indep.

Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 352 (2002); Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754-55 (3d Cir. 1989)).

69 La. Energy Servs. (Natl Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005).

70 New York v. Kleppe, 429 U.S. 1307, 1311 (1976) (quoting NRDC v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975)).

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Secretary of the Commission May 2, 2023

b. NEPA Requires Consideration of the Best Information Reasonably Available Agencies have broad discretion to keep their NEPA inquiries within appropriate and manageable bounds. 71 NEPA requires an agency to conduct its environmental review with the best information available today. 72 It does not require an agency to wait until inchoate information matures into something that later might affect [it] review, 73 or to undertake studies to obtain information that is not already available. 74 NEPA also allows agencies to select their own methodology as long as that methodology is reasonable. 75 Agencies are not required to use technologies and methodologies that are still emerging and under development, or to study phenomena for which there are not yet standard methods of measurement or analysis. 76 The Commission has thus emphasized that an EIS is not a research document, reflecting the frontiers of scientific methodology, studies and data. 77 Instead, it should be analytic, concise, and no longer than necessary to comply with NEPA. 78 In recent LR and SLR SEISs, the NRC has adhered to these guiding principles and should continue to do so in future SEISs prepared under the final rule and revised LR GEIS. For example, in the SEIS for Surry Units 1 and 2 SLR, the NRC staff considered the best available climate change studies performed by the [U.S. Global Change Research Program] and partner agencies as part of the staffs assessment of potential changes in climate indicators during the Surry subsequent license renewal terms. 79 The staff summarized relevant information and data from these studies and acknowledged the uncertainties and limitations associated with those studies. In Section 4.16 (Cumulative Impacts) of the SEIS for Surry SLR, the staff provided concise assessments of climate change impacts for those resource areas that could be incrementally impacted by the proposed action.

c. NEPA Does Not Require an Agency to Resolve All Scientific Uncertainties NEPA does not require an agency to resolve all uncertainties or disagreements among scientists as to methodology, or even to use the best scientific methodology. 80 An agencys analysis made in the face of unavailable information is grounded in the rule of reason. 81 In cases involving such 71 Metro. Edison, 460 U.S. at 776.

72 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-12-7, 75 NRC 379, 391-92 (2012) (citations omitted).

73 Id. (citations omitted).

74 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-16-18, 84 NRC 167, 173 (2016).

75 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (2010) 76 Id. at 315 (quoting Twn. of Winthrop v. FAA, 535 F.3d 1, 11-13 (1st Cir. 2008)).

77 Id.

78 40 CFR 1502.2(c); see also Private Fuel Storage, CLI-02-25, 56 NRC at 348 n.25.

79 NUREG-1437, Supplement 6, Second Renewal, Final Report at 4-130.

80 See Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 377 (D.C. Cir. 1981); The Lands Council v. McNair, 537 F.3d 981, 1003 (9th Cir. 2008) (an EIS need not be based on the best scientific methodology available).

81 51 Fed. Reg. 15,618, 15,621 (April 25, 1986); see also Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d. 1275, 1280 (9th Cir. 1973)

(If we were to impose a requirement that an impact statement can never be prepared until all relevant environmental effects were known, it is doubtful that any project could ever be initiated.; Village of False Pass v. Watt, 565 F. Supp. 1123, 1149 (D. Alaska 1983)

([T]he unavailability of information should not be permitted to halt all government action.).

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Secretary of the Commission May 2, 2023 uncertainties, an agency satisfies NEPA when it considers and discloses the uncertainties and, as discussed above, evaluates the impact based on the best information available. 82 These principles are especially germane here given the NRCs express recognition in the revised LR GEIS that GHG emission scenarios, their supporting assumptions, and the projections of possible climate change effects entail substantial uncertainty. 83 This NRC staff observation is consistent with those of the scientific and academic communities. As one recent technical paper explains:

Uncertainty over climate-change-related impacts - and this includes land management and use - refers to limited knowledge about the intensity of a precise local impact within a global dynamic. Undoubtedly, our understanding of climate change and the underlying dynamic continues to increase. Even so, some uncertainties remain regarding the links between cause and impact within a specific geographic setting. This uncertainty in turn generates serious challenges when identifying the appropriate adaptation strategies for risk and impact reduction within a specific geographic setting, even when climate-change-related impacts pose a global risk for communities and societies. 84 In another paper discussing judicial treatment of scientific uncertainty within the context of climate change litigation, the authors summarized the issue as follows:

Among the environmental problems characterized by significant and persistent uncertainty is climate change. Certain aspects of climate change science are beyond dispute among the vast majority of reputable climate scientists. These include the existence of a warming planet and the acknowledgment that human activity - [GHG] emissions and deforestation in particular - is a contributing factor. Nevertheless, considerable uncertainty surrounds other aspects of climate change. Scientists are unable to predict the magnitude of the physical effects of climate change or exactly how those effects will differ by location with any assurance. Partly, these uncertainties are due to the yet-to-be-determined nature of the human response to warnings about climate risks - will GHG emissions continue unabated, for example, or be curtailed? In addition, scientists engaged in assessing the future of climate change and its effects rely on global climate models that generate simulations of future climate scenarios. 85 82 See Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 88,98-100, 101-02 (1983) (finding that the NRC complied with NEPAs requirements of consideration and disclosure where it summarized major uncertainties and found the evidence tentative but favorable).

Cf. Mayo Found. v. Surface Transp. Bd., 472 F.3d 545, 555-56 (8th Cir. 2006) (finding final EIS adequate where the agency had modeled potential national air pollution impacts but could not estimate local impacts with any degree of confidence).

83 Revised LR GEIS, Vol. 1 at 4-165.

84 Filho, W. et al., Assessing Uncertainties in Climate Change Adaptation and Land Management. Land 2022, 11, 2226.

https://doi.org/10.3390/land11122226 (emphasis added).

85 Kim, D., Glicksman, R., & Groth-Tuft, K. Judicial Review of Scientific Uncertainty in Climate Change Lawsuits: Deferential and Nondeferential Evaluation of Agency Factual and Policy Determinations. 6 HARV. ENV'T L. REV. 367 (2022). https://harvardelr.com/wp-content/uploads/sites/12/2022/07/HELR-Vol.-46.2-Judicial-Review-of-Scientific-Uncertainty.pdf (emphasis added); see also Shepherd, T.

et al. Storylines: An Alternative Approach to Representing Uncertainty in Physical Aspects of Climate Change, 151 CLIMATIC CHANGE 555, 557 (2018) (noting that it is not known how to correct model biases in simulating climate changes (as opposed to simulations of the present climate state) and that [e]stimates of uncertainties at the regional scale can quickly accumulate to a point where this knowledge hinders rather than supports scenario-led climate adaptation decision-making).

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Secretary of the Commission May 2, 2023 These and other studies make clear that there are multiple sources of uncertainty in the climate models used to predict future climate change that warrant disclosure in a NEPA analysis. 86

d. While NEPA Requires Reasonable Consideration of Potential Mitigation Measures, It Does Not Require the Implementation of Such Measures Although NEPA includes an implicit duty to discuss mitigation measures, that duty also is subject to NEPAs rule of reason. 87 Thus, mitigation measures only need to be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated. 88 In the NRC licensing context, this means an applicant need only provide sufficient detail . . . on mitigation measures to show a fair [applicant] evaluation of mitigation and environmental consequences, and that [it] has not ignored or minimized pertinent environmental effects. 89 There is no requirement to determine the best mitigation measures for a potential environmental harm. 90 The U.S. Supreme Court has held that NEPA does not require that a complete mitigation plan be actually formulated and adopted before the agency makes its decision, 91 or that any identified mitigation measures be implemented. 92 With regard to NRC license renewal, this means that NEPA neither requires nor authorizes the NRC to order implementation of mitigation measures analyzed in an environmental analysis. 93 Indeed, such measures are likely to fall within the jurisdiction of other federal and state agencies. 94 For example, the revised LR GEIS states that [t]he NRC will not make a decision or any recommendations on the basis of information presented in this LR GEIS regarding changes to nuclear power plant cooling systems, other than those involving safety-related issues, to mitigate adverse impacts under the jurisdiction of State or other Federal agencies. 95 Similarly, other 86 See, e.g., Morrison, F., Manson, C. & Wickersham, M. Climate Change Science and the Daubert Standard, 44 WM. & MARY ENVT L. &

POLY REV. 391, 410 (2020) (identifying the three main sources of uncertainty in the climate models used to predict future climate change as: (1) natural internal variability which is intrinsic to the climate system; (2) uncertainty concerning past, present and future forcing on the climate system by anthropogenic forcing agents; and (3) uncertainty related to the response of the climate system to the specified forcing agents).

87 Pilgrim, CLI-10-22, 72 at 208.

88 Methow Valley, 490 U.S. at 352; see also id. at 353 ([I]t would be inconsistent with NEPA's reliance on procedural mechanisms - as opposed to substantive, result-based standards - to demand the presence [in an EIS] of a fully developed plan that will mitigate environmental harm before an agency can act.).

89 Powertech USA, Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), LBP-15-16, 81 NRC 618, 688 (2015) (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 431-32 (2003)).

90 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-16-18, 84 NRC 167, 173 (2016).

91 Methow Valley, 490 U.S. at 352.

92 Id. at 353 (We thus conclude that the Court of Appeals erred first in assuming that NEPA requires that action be taken to mitigate the adverse effects of major federal actions.). See also 40 CFR 1508.1(s) (While NEPA requires consideration of mitigation, it does not mandate the form or adoption of any mitigation.).

93 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 485-86 (2012) (citing Methow Valley, 490 U.S.

at 353).

94 Like other types of alternatives analyzed under NEPA, the NRC may discuss in an EIS mitigation alternatives that are outside of the NRCs regulatory jurisdiction. See 10 CFR Part 51, Subpart A, Appendix A, § 5 (An otherwise reasonable alternative will not be excluded from discussion solely on the ground that it is not within the jurisdiction of the NRC.). However, as Methow Valley and Commission case law make clear, the NRC does not have the authority to require implementation of such mitigation measures. This is also reflected in the current LR GEIS. See, e.g., LR GEIS, Revision 1 (2013), Vol. 2, App. A at A-313 (The NRC can only require a licensee to mitigate impacts of those actions that are within NRCs jurisdictional authority, i.e., safety-related actions. Other mitigation requirements may be imposed by those Federal and State agencies that have jurisdiction over affected resources.).

95 Revised LR GEIS, Vol. 1 at 1-9.

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Secretary of the Commission May 2, 2023 federal agencies (e.g., the U.S. Fish and Wildlife Service, National Marine Fisheries Service, and National Oceanic and Atmospheric Administration) with which NRC consults during the NEPA review process have jurisdiction over federally protected species and ecological resources.

5. Summary and Recommendations NEI agrees that the GHG-related impacts of continued nuclear plant operation on climate change can be analyzed generically, are small in magnitude, and are appropriately treated as a Category 1 issue.

However, we do not believe climate change impacts on environmental resources should be treated as a separate Category 2 issue. Rather than representing a direct or indirect effect of license renewal, climate change represents a potential (and often uncertain) change to the affected environment that occurs irrespective of license renewal. As such, it is more logically considered as a cumulative impact or simply as part of the discussion of the affected environment used in evaluating the impacts of license renewal, as the NRC has done in SLR SEISs issued to date.

Regardless, any NRC analysis of the additive or incremental effects of climate change and license renewal should adhere to NEPAs rule of reason and the principles described above. This will help ensure that the NRCs NEPA analysis focuses on those consequences of greatest concern to the public and of greatest relevance to the agencys decision, 96 rather than temporally or geographically remote effects that defy meaningful analysis due to a lack of reliable scientific data. As noted above, estimating or projecting how climate change will affect environmental resources on a regional or local scale many years from now involves major uncertainties. The NRC should explicitly acknowledge these uncertainties in the revised LR GEIS and in its implementing guidance.

NRC guidance must clearly identify the scope of this issue and appropriate methods for conducting and documenting climate change evaluations to enable applicants to predictably meet NRC staff needs and for the NRC staff to meet its obligations under NEPA. This includes identifying what specific sources of information the NRC views as the best currently available for analyzing climate change impacts, and how applicants should use and present that information (including, for example, level of detail, disclosure of uncertainties, and use of qualitative analysis). The NRC also should clarify that applicants are not expected to perform new studies or climate modeling exercises, and that any potentially relevant mitigation measures - which are not compelled by NEPA - are likely to fall within the jurisdiction of other agencies. In short, clear guidance and acceptance criteria are needed to avoid analysis of worst-case scenarios or highly speculative effects, as well as potential conflicts with the requirements and determinations of other federal and state agencies that have jurisdiction over the environmental resources in question.

IV. Reclassification of Severe Accidents as a Category 1 Issue The proposed rule would reclassify the Category 2 Severe accidents issue as a Category 1 issue. 97 In the 2013 LR GEIS, the NRC classified the issue of severe accidents as a Category 2 issue only insofar as alternatives to mitigate severe accidents needed to be considered for all nuclear power 96 Methow Valley, 490 U.S. at 356.

97 Proposed Rule, 88 Fed. Reg. at 13,344, 13,355.

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Secretary of the Commission May 2, 2023 plants for which the licensee had not previously performed a severe accident mitigation alternatives (SAMA) analysis. The NRC now views this issue as suitable for generic resolution due to the prior completion of SAMA analyses by anticipated license renewal applicants and the low likelihood of finding cost-effective significant plant improvements. 98 NEI supports the reclassification of severe accidents as a Category 1 issue. Historically, the conduct and review of SAMA analyses by license renewal applicants and the NRC staff, respectively, have required substantial resources. Those analyses have confirmed the Commissions expectation - as noted in the 1996 rulemaking codifying the SAMA analysis requirement - that SAMA analyses are unlikely to identify major plant design changes or modifications that will prove to be cost-beneficial. 99 In fact, none of the SAMA analyses performed by license renewal applicants to date has identified plant-specific major cost-beneficial SAMAs that significantly reduce the risk of a severe accident. 100 In contrast, improvements in plant safety have been achieved due to initiatives such as Fukushima Near-Term Task Force (NTTF) and post-September 11 mitigation strategies.

We agree that the performance and safety record of U.S. nuclear operating fleet has continually improved. 101 As discussed in Appendix E of the revised LR GEIS, this is confirmed by analysis that, in many cases, shows improved plant performance and design features have resulted in reductions in initiating event frequency, core damage frequency (CDF), and containment failure frequency. Based on that analysis, the NRC has correctly concluded that the reduction in environmental impacts from the use of new information substantially outweighs any increases resulting from this same information for initial LR or SLR, such that the probability-weighted consequences of severe accidents during the initial LR and SLR terms remains SMALL for all operating plants. Furthermore, the NRC has appropriately concluded that further mitigation analysis would not contribute sufficiently to reducing the environmental impacts of severe accident risk to warrant further SAMA analysis, because the likelihood of finding cost-effective significant plant improvements is small.

An applicant still must address any new and significant information as it relates to the probability-weighted consequences of a severe accident and to the SAMA analysis. The revised LR GEIS indicates that guidance for the analysis of new and significant SAMA-related information is provided in NEI 17-04, Revision 1, Model SLR New and Significant Assessment Approach or SAMA (Aug. 2019)

(ML19318D216). 102 NEI appreciates the NRCs formal endorsement of NEI 17-04, Revision 1, as now reflected in the draft revised LR GEIS, as well as in DG-4027 and Draft NUREG-1555, Supplement 1, Revision 2. NEI notes that the industry is evaluating the need for any conforming changes to NEI 17-04, Revision 1 associated with various regulatory and regulatory guidance document references throughout that document that may be impacted by this rulemaking activity.

98 Id.

99 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, 61 Fed. Reg. 28,467, 28,481 (June 5, 1996)

(noting that any additional plant enhancements identified by license renewal SAMA analyses as cost-beneficial generally would be procedural and programmatic fixes, with any hardware changes being only minor in nature and few in number).

100 Revised LR GEIS, Vol. 2 at E-83.

101 Id. at E-4, E-88 102 By letter dated December 11, 2019, the Staff had found NEI 17-04, Revision 1 acceptable for interim use by applicants. Letter from Anna Bradford, NRC to Chris Earls, NEI (Dec. 11, 2019) (ML19323E740).

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Secretary of the Commission May 2, 2023 Proposed Rule Cmt Section/Page Comment/Recommendation

1. 88FR13329 NEI supports the change in 10 CFR 51.53 paragraph (c)(3) introductory text, removing an initial and adding in its place a so that this applies 13351 not just to initial license renewal.

2. 88FR13329 NEI suggests additional changes to 10 CFR 51.53(c)(3) and the 10 CFR 51 Appendix B introductory paragraph to remove references to issuance dates 13351 for construction permits, operating licenses, or combined licenses in order to create a more inclusive regulatory framework for potential future license renewal actions.

The specific change proposed for 51.53(c)(3) is: "for a nuclear power plant for which an operating license, construction permit, or combined license has been issued.

The specific change proposed for the Appendix B introductory paragraph is: The Commission has assessed the environmental impacts associated with granting a renewed operating license for a licensee holding an operating license, construction permit, or combined license based on the data contained in NUREG-1437.

3. 88FR13329 NEI suggests removing the restriction of this rule only extending to "one term of subsequent license renewal" and offer the following changes to 13351 the proposed rule language in Appendix B to Subpart A of 10 CFR Part 51Environmental Effect of Renewing the Operating License of a Nuclear Power Plant.

The specific change proposed for the Appendix B introductory paragraph is: "This assessment applies to applications for initial or a first (i.e., one term) subsequent license renewal (i.e., any number of renewal terms)."

Additionally, the title of Table B-1 should be replaced with: "

SUMMARY

OF FINDINGS ON ENVIRONMENTAL ISSUES FOR INITIAL AND ONE TERM OF SUBSEQUENT LICENSE RENEWAL OF NUCLEAR POWER PLANTS."

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Secretary of the Commission May 2, 2023

4. 88FR13329 The effective date of the rule should address applicability to SLR applications currently under review at the time the rule is published, as well as applications anticipated to be submitted following the publication of the rule. NEI requests NRC consider an effective date of 30 days from publication of the rule, with a future compliance date of no later than one year from the effective date of the rule. (Reference one year compliance date from 2013 GEIS update rulemaking:

https://www.govinfo.gov/content/pkg/FR-2013-06-20/pdf/2013-14310.pdf)

5. 88FR13329 As elaborated in the cover letter preceding this table, NEI recommends eliminating climate change as a separate Category 2 issue, and instead 13351 addressing the issue of climate change as part of the cumulative effects analysis. NEI recommends deleting proposed section 51.53(c)(3)(ii)(Q) in its entirety as well as the Table B-1 issue "Climate change impacts on environmental resources" and its corresponding category and finding. To the extent NRC draft guidance on this issue could be helpful for applicants to understand expectations for addressing climate change as part of the cumulative effects analysis, that information still considered relevant could be relocated to the cumulative effects sections within the respective guidance documents accordingly.

Generic Environmental Impact Statement Cmt Section/Page Comment/Recommendation

1. 3.9.2.2 The proposed addition in lines 25-27 to consider discharges to waters of the United States infers reference to the Clean Water Act, which has 3-127 potential to expand the scope of this issue, if changes to the definition of waters of the US ever occur in the future. Recommend limiting the scope to waters receiving discharges that are accessible to the public for recreational use.

2. 2.3.2 Sections 2.3.2 and 2.3.2.1 characterize the AP1000 design as an "Advanced Light Water Reactor." Given this terminology is used within 2-21 other discussion on future GEIS activities associated with advanced nuclear reactors, to avoid confusion as to which GEIS any AP1000 or other large light water reactors should be addressed in the future, consider recharacterizing the ALWR as a "Large Light Water Reactor." The next update to NUREG-1437 should include the necessary operating experience and data to include Vogtle Units 3 & 4 for coverage in potential future initial and subsequent license renewal activities.

Nuclear Energy Institute 20

Secretary of the Commission May 2, 2023 Draft Regulatory Guide Cmt Section/Page Comment/Recommendation

1. 3.2 Air Quality NEI supports the change to the applicant providing 5 years of meteorological data versus the prior 30 year requirement. This is a good 21 example of regulatory efficiency.

2. 3.2 Air Quality New information request was added: Estimate fugitive dust emissions generated during ground-disturbing activities. This information is not 21 required for some state permitting agencies, therefore this request appears to go above and beyond state Clean Air Act regulatory requirements.

3. 3.3 Noise Provide clarification on the following statement, "indicate their distance to the nearest site boundary and noise-sensitive receptors." Clarify whether 22 the noise-sensitive receptors are only the "nearest" noise-sensitive receptors or whether the requirement is for "all noise-sensitive receptors in the vicinity."

4. 3.3 Noise The following statement appears to have been added: "The applicant should also identify and discuss primary offsite generating sources in the 22 vicinity of the power plant site." What is the sound threshold to determine a "primary" noise generating source that is offsite?

5. 3.5 Surface Water The following statement appears to have been added: This discussion Resources should address the design and construction of critical plant infrastructure to resist flooding. As noted by the NRC, the ER should focus on impacts 23 of the plant on the environment. The assessment of impacts to the site from the environment is a safety function. Therefore, either remove this statement or clarify the purpose and basis for this information to be addressed in the Environmental Report.

6. 3.6 Federally Listed The discussion on ESA action area is broad and acceptance criteria for Species and Critical determining the action area is ambiguous in NUREG-1555. "The action Habitat area is not limited to the footprint of the action nor is it limited by the Federal action agencys authority; rather, it is a biological determination of 28 the reach of the proposed action on the listed species." Additional guidance for objectively determining the ESA action area would be helpful; otherwise this appears to be a fairly subjective determination.

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Secretary of the Commission May 2, 2023

7. 3.7 Historic and An addition has been made that a legal description will be required for the Cultural Resources Area of Potential Effect. If there is any information that is needed above and beyond that covered through existing property records, then that 31 should be specified. There is an industry recognized definition of the APE for HCR that we have used for a long time. Request clarification of what is meant by legal description and how that varies from past practice.

8. 3.12 Climate Description of regional changes from climate assessment reports lists two Change in this section but does not bound the review to just these two reports.

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9. 4.6.1.3 Ecological The relationship between plant operation and ecological resource Resources attributes to be examined is described as follows, "Risk hypotheses may be very simple, predicting the potential effect of one stressor on one 44 receptor, or extremely complex." No acceptance criteria or bounds to this review are provided. This comment also applies to NUREG-1555 (p4-35).

10. 4.6.1.4 Ecological The discussion on assessing and characterizing potential impacts is broad Resources and acceptance criteria in NUREG-1555 repeats the exact wording provided herein. The statement "examine several lines of evidence" does 45 not provide bounds for this issue.

11. 4.7 Historic and The analysis content within 4.7 states that the applicant should engage Cultural Resources with the SHPO, THPO, Indian Tribes and interested parties to develop and formalize protective measures and cultural resources management plans.

62-63 However, this is likely not feasible as stated in Section 3.7 Footnote 12, "A federally recognized Indian Tribe is not obligated to consult with an applicant or share information about properties of religious and cultural significance with an applicant." Therefore, the analysis content may not be complete in spite of applicant actions.

12. 5 Assessment of To minimize the need for future administrative revisions of the Regulatory New and Guide when revisions associated with this rulemaking are made to NEI Significant guidance documents, NEI recommends the addition of the following Information language:

71 If a SAMA review has previously been completed, an applicant must provide an assessment of new and significant information with respect to a prior SAMA analysis. Guidance is provided in NEI 17-04, Revision 1, Model SLR New and Significant Assessment Approach for SAMA, dated August 2019 (Ref. 68) or subsequently endorsed guidance . NEI 17-04 is endorsed in this RG for plant-specific environmental reviews.

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Secretary of the Commission May 2, 2023

13. 7.1 Alternative NEI supports the removal of purchase power from the alternatives Energy Sources review.

74 Standard Review Plan - SLR Cmt Section/Page Comment/Recommendation

1. 4.12.3 The statement: "Studies and monitoring programs: Briefly summarize any studies or monitoring programs that provide site-specific data and can 4-71 assist with understanding GHG emission sources and climate change impacts, including trends in key climate impacts, " is very broad. Clarity regarding the scale or regional area of interest should be provided.

Additionally, clarify the examples that follow are to be treated on an "as applicable" basis, as some data may not be collected routinely and/or is not relevant to every plant.

2. 4.12.8 The statement: Changes in climate parameters should be quantified including changes in, but not limited to, ambient temperature, 4-72 precipitation, surface water temperature and levels, length of growing season, and flooding, as appropriate. This listing needs to be bounded to changes that are materially relevant to the project/action - i.e., license renewal. For example, the growing season is not relevant to the project.

3. 4.12.8 For the statements: "Describes and quantifies climate change projections.

When discussing changes in climate parameters, identify the future GHG 4-73 emission projections and scenarios selected." In addition to the projections and scenarios selected, identifying the model(s) selected - single model, set of models, ensemble of models - is just as important. Also, if data are downscaled, the downscaling technique applied should be specified.

Regulatory Analysis Cmt Section/Page Comment/Recommendation

1. General The regulatory analysis cost-benefit could be further strengthened if the Comment NRC would use this opportunity to change the proposed applicability from "INITIAL AND ONE TERM OF SUBSEQUENT LICENSE RENEWAL" to "Initial and Subsequent License Renewals."

Each time rulemaking is undertaken, there is a significant expenditure of resources. The NRC could leverage this rulemaking opportunity to eliminate the need for another future rulemaking that will be otherwise Nuclear Energy Institute 23

Secretary of the Commission May 2, 2023 required if the proposed changes are finalized. Limiting the rule language to one term of subsequent license renewal is unnecessary since the Atomic Energy Act does not restrict the number of times a license may be renewed. The current requirement in the introductory paragraph of 10 CFR 51 Appendix B to review the material in the appendix on a 10-year cycle and update, if necessary, will ensure that the technical bases of the GEIS remain valid for any additional terms of subsequent license renewal in the future.

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