ML24250A193
| ML24250A193 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute, 99902028 |
| Issue date: | 09/06/2024 |
| From: | Mauer A Nuclear Energy Institute |
| To: | Mark King NRC/EDO, Document Control Desk, Office of Nuclear Reactor Regulation |
| References | |
| Download: ML24250A193 (1) | |
Text
Andrew Mauer Sr. Director, Regulatory Affairs Phone: 202.739.8018 Email: anm@nei.org September 6, 2024 Mr. Mike King Special Assistant for ADVANCE Act Implementation Office of the Executive Director for Operations U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
Subject:
NEI Input on Efforts to Modernize and Optimize NRC Environmental Reviews Project Number: 689
Dear Mr. King:
As the demand for nuclear energy continues to grow, the U.S. nuclear industry will play a crucial role in meeting the nations energy security, grid reliability, economic development, and environmental goals via the long-term operation of the current power reactor fleet and the deployment of new, advanced reactor technologies. An efficient NRC environmental review process is critical to timely and predictable licensing proceedings for both current plants (e.g., license renewals) and new reactors and fuel cycle facilities. Optimizing the environmental review process has been a priority for both the NRC and industry over the last five to six years. Indeed, as discussed below, NRC and industry actions already are enabling more efficient NRC environmental reviews under the National Environmental Policy Act (NEPA) and 10 CFR Part 51.
As you are aware, on July 9, 2024, President Biden signed into law the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act (ADVANCE Act). The new law, which comes on the heels of Congress 2023 amendments to NEPA in Section 321 of the Fiscal Responsibility Act of 2023 (FRA), seeks [t]o advance the benefits of nuclear energy by enabling efficient, timely, and predictable licensing, regulation, and deployment of nuclear energy technologies. Section 506 (Modernization of nuclear reactor environmental reviews) directs the NRC to submit to Congress within 180 days a report describing the NRCs efforts to improve and expedite the agencys environmental review process, as well as a schedule for any necessary rulemaking activities.
This submittal seeks to inform and support the NRCs development of its report to Congress. To that end, discusses key opportunities for enhancements to the agencys NEPA review process vis--vis the ADVANCE Act and FRA amendments to NEPA, with a focus on those areas that the industry views as the highest priorities. Those areas include:
- 1. Finalizing, and permitting possible interim use of, the NRCs Advanced Nuclear Reactor (ANR) Generic Environmental Impact Statement (GEIS), associated Part 51 revisions, and updated guidance;
Mr. Mike King September 6, 2024 Page 2 Nuclear Energy Institute
including mitigated FONSIs, in lieu of environmental impact statements (EISs);
- 3. Expanding use of categorical exclusions, including mitigated categorical exclusions;
- 5. Optimizing the NRCs interagency consultation and coordination processes;
- 6. Streamlining alternatives analyses in the NRCs NEPA review documents; and
- 7. Simplifying and expediting contested hearings by using informal procedures.
Our discussion of these topics is framed largely by provisions in the ADVANCE Act, and most of the NEPA review process enhancements discussed in Attachment 1 can be applied across business lines, including advanced reactors, existing plants and new or modified fuel cycle facilities. Moreover, there are considerable synergies between actions that the NRC staff is taking, or has proposed to take, in response to the FRA amendments to NEPA (which apply to all proposed agency actions), and the actions that it may take in response to section 506 of the ADVANCE Act. Thus, we discuss certain proposals made by the NRC staff in SECY-24-0046, Implementation of the Fiscal Responsibility Act of 2023 National Environmental Policy Act Amendments (May 30, 2024), on which the staff is awaiting Commission direction.
NEI appreciates the NRCs consideration of the industrys input, and the agencys efforts to improve the timeliness and efficiency of its environmental reviews while allowing for ample public engagement in the NEPA process. We hope this submittal assists the NRC in meeting the requirements of section 506 of the ADVANCE Act. We also encourage the staff to implement interim processes to achieve near-term efficiencies while pursuing long-term actions like rulemaking.
Please contact Martin ONeill, Associate General Counsel (mjo@nei.org) or Tony Brown, Technical Advisor (mab@nei.org) with any questions regarding this submittal.
Sincerely, Andrew Mauer Sr. Director, Regulatory Affairs NEI Input on Efforts to Optimize NRC Environmental Reviews in Response to the ADVANCE Act of 2024 and the Fiscal Responsibility Act of 2023 c:
Andrea D. Veil - Director, Office of Nuclear Reactor Regulation John Lubinski - Director, Office of Nuclear Material Safety and Safeguards
NEI Input on Efforts to Optimize NRC Environmental Reviews in Response to the ADVANCE Act of 2024 and the Fiscal Responsibility Act of 2023 A.
Background:
NRC Efforts to Optimize the Agencys Environmental Review Process In recent years, the NRC has undertaken multiple initiatives to further streamline and enhance the agencys environmental review process by implementing process-related improvements in the context of individual licensing actions. Such process improvements include early and more effective use of the pre-application process; an enhanced environmental audit process that includes more timely delivery of NRC questions/audit needs and results in comprehensive audit summary reports; earlier and better-defined site tours; increased use of requests for confirmation of information in lieu of formal requests for additional information; use of customized electronic document reading rooms; and the creation of streamlined templates for EISs and EAs.
NEI appreciates the foregoing NRC actions, which we believe reflect consideration of industry recommendations.1 These actions are laying the groundwork for increasingly more efficient environmental reviews. Nonetheless, we believe the NRC should implement additional streamlining measures in the near term given the anticipated influx of applications for new reactors, subsequent license renewals (SLR), power uprates, and new or modified fuel cycle facilities needed to support the current and future U.S. reactor fleets.2 Indeed, as discussed in NEIs July 31, 2024, submittal, Regulation of Rapid High-Volume Deployable Reactors in Remote Applications (RHDRA) and Other Advanced Reactors (RHDRA Proposal Paper) (ML24213A337), some micro-reactor developers and customers have created business models that require very rapid (six months or less) licensing and deployment timelines for Nth-of-a-kind reactor applications. The NRC is evaluating novel licensing and regulatory approaches (including for environmental reviews) for such reactors that may prove useful in all NRC licensing and environmental reviews and enhance the NRC staffs ability to efficiently review a potentially large volume of license applications.3 NEI believes the following topics are priorities warranting additional NRC actions, some of which the NRC staff already is taking, or has proposed to take, in response to the 2023 NEPA amendments. We recognize that in SECY-24-0046 the staff has recommended rulemaking to address most of these topics. However, we encourage the NRC to consider appropriate procedural vehicles for implementing these actions on an expedited basis (e.g., exemptions, case-specific hearing orders, interim guidance) to realize their potential benefits prior to completion of any Part 51 revisions.
B.
Finalization and Possible Interim Use of the ANR GEIS, Rule, and Related Guidance 1 See, e.g., NEI, Recommendations for Streamlining Environmental Reviews for Advanced Reactors (Mar. 2020) (ML20065N155); Letter from Marcus Nichol, NEI, to NRC, NEI Comments on Scoping of an Advanced Nuclear Reactor Generic Environmental Impact Statement (June 30, 2020) (ML20183A009); Letter from Jennifer Uhle, NEI, to NRC, Nuclear Energy Institute Comments on NRC Proposed Rule -
Renewing Nuclear Power Plant Operating Licenses - Environmental Review (May 2, 2023) (ML23123A407); Letter from Marcus Nichol, NEI, to Robert Taylor, NRC, NEI Input on Regulatory Priorities for New and Advanced Reactors (Feb. 14, 2024) (ML24043A249).
2 See, e.g., NEI, Summary of Recommendations: NEI White Paper: Assessment of the NRC Environmental Requirements for Siting (Jan.
2024) (ML24016A232).
3 See, e.g., SECY-24-0008, Micro-Reactor Licensing and Deployment Considerations: Fuel Loading and Operational Testing at a Factory (ML23207A252); SECY-20-0093, Policy and Licensing Considerations Related to Micro-Reactors (ML20254A363); NRC, Licensing and Deployment Considerations for Nth-of-a-Kind Micro-Reactors, Advanced Reactor Stakeholders Meeting (July 24, 2024) (ML24205A022).
NEI Input on Efforts to Optimize NRC Environmental Reviews September 6, 2024 Page 2 It is imperative that the NRC complete the rulemaking process and publish the final ANR GEIS (since retitled the New Reactor GEIS) and associated revisions to Part 51 as soon as possible.
NEI recognizes that the generic findings in the draft ANR GEIS and proposed rule are not legally binding until the NRC completes the rulemaking process. Nonetheless, we encourage the staff to leverage the bounding plant and site parameters and supporting technical analysis presented in the draft ANR GEIS to the extent practicable for site-specific license applications filed before the final GEIS is available. NEPA and NRC regulations do not preclude the use of draft environmental review documents (GEIS, EIS, EA) or other technical and regulatory documents (e.g., draft cultural or ecological resource studies or state-issued regulatory permits) in this manner, as long as the NRC staff independently evaluate[s] and [is] responsible for the reliability of any information which it uses in reviewing an application.4 Notably, in its March 2024 draft EIS related to HALEU production activities, DOE included significant discussion of relevant portions of the NRCs draft ANR GEIS, confirming the value of this document even in its draft form.5 C.
Expanded Use of EAs/FONSIs and Mitigated FONSIs Current NRC regulations direct the NRC staff to prepare an EIS for most licensing actions involving a nuclear power reactor or a testing facility, including the issuance of early site permits, limited work authorizations, construction permits, and initial and renewed operating licenses.6 In our view, this results in far more EISs - and associated industry and agency resource expenditures - than are necessary. It also substantially reduces, if not forecloses, the option of using an EA for licensing actions that are unlikely to have significant environmental effects.
In SECY-24-0046, the NRC staff has recommended initiating a rulemaking to revise 10 CFR 51.20 and 51.21 to reflect the new language in NEPA section 106.7 As noted in SECY 0046, this would allow for greater flexibility and would eliminate the need for exemptions to allow the preparation of EAs where an EIS is currently required by NRC regulations. NEI supports the staffs recommended approach, which also aligns with section 506 of the ADVANCE Act. We also support the staffs proposal to consider, in the interim, exemptions from 10 CFR 51.20(b) where a proposed action listed in 51.20(b) does not have a reasonably foreseeable significant effect on the quality of the human environment.8 The staff took this approach in the pending proceeding on Kairos Power, LLCs Hermes 2 construction permit application, for which the staff recently issued its final EA and FONSI and related exemptions from 10 CFR 51.20(b)(1), 51.25, and 51.75(a) (which require preparation of an EIS when 4 10 CFR 51.41. Cf. 40 CFR 1506.3 (An agency may adopt another agencys draft or final environmental impact statement, or portion thereof, provided that the adopting agency conducts an independent review of the statement and concludes that it meets the standards for an adequate statement, pursuant to the regulations in this subchapter and the adopting agencys NEPA procedures.) (emphasis added).
5 See DOE, Draft Environmental Impact Statement for Department of Energy Activities in Support of Commercial Production of High-Assay Low-Enriched Uranium (HALEU), (DOE/EIS-0559) (Mar. 2024), available at https://www.energy.gov/nepa/articles/doeeis-0559-draft-environmental-impact-statement.
7 SECY-24-0046 at 5-6; Enclosures 2 and 9.
8 SECY-24-0046 at 6; Enclosure 2.
NEI Input on Efforts to Optimize NRC Environmental Reviews September 6, 2024 Page 3 issuing construction permits).9 As NRC staff management noted during a November 2, 2023, public meeting with the Commission, the Kairos Hermes 2 application review has provided the staff with a unique opportunity to implement a risk-informed approach for environmental review that is commensurate with the risk posed by advanced reactor technology on a well-evaluated site.10 We believe that this approach also could be used in other NRC licensing proceedings, including SLR proceedings, and would result in additional efficiency beyond the recent Commission direction to the staff to complete such proceedings using no more than 14,000 staff hours and within 18 months.11 Finally, we further recommend that the NRC revise its regulations to expressly permit the use of mitigated FONSIs in appropriate circumstances to reduce the impact of a proposed action to a level that is not significant. Such a provision would be consistent with section 506 of the ADVANCE Act, NEPA, Council on Environmental Quality (CEQ) regulations, and current NRC guidance and practice.
NRC guidance states that if an EA identifies potentially significant impacts that can be reduced to less-than-significant levels by specific and tangible mitigation measures, the agency may issue a mitigated FONSI.12 As the CEQ recently noted: Mitigated FONSIs are an important efficiency tool for NEPA compliance because they expand the circumstances in which an agency may prepare an EA and reach a FONSI, rather than preparing an EIS, consistent with the requirements of NEPA.13 D.
Expanded Use of Categorical Exclusions Consistent with the ADVANCE Act, NEPA, and CEQ regulations, the NRC should broaden its use of categorical exclusions. Section 506 of the ADVANCE Act refers to the potential expanded use of categorical exclusions, and directs the NRC to consider using both current and new categorical exclusions to streamline environmental reviews of new reactor license applications. It also directs the NRC to consider using, through adoption, incorporation by reference, or other appropriate means, categorical exclusions prepared by other Federal agencies for that same purpose. New NEPA section 109 establishes requirements allowing agencies to adopt a categorical exclusion prepared by another agency and CEQs Phase 2 rule expands the ability of agencies to use categorical exclusions.
9 SECY-23-0080, Environmental Review Approach for the Kairos Power, LLC Hermes 2 Construction Permit Application (Sept. 13, 2023)
(ML23214A165); Environmental Assessment and Finding of No Significant Impact for the Construction Permits and Environmental Review Exemptions for the Kairos Hermes 2 Test Reactors (Aug. 2024) (ML24240A034).
10 NRC Public Meeting on the Strategic Programmatic Overview of the Operating Reactors and New Reactors Business Lines (Nov. 2, 2023),
Tr. at 62 (ML23328A048).
11 SRM-COMCTH-24-0003, License Renewal and Subsequent License Renewal Review Expectations (Aug. 8, 2024) (ML24221A319).
12 NRR Office Instruction LIC-203, Revision 4, Procedural Guidance for Categorical Exclusions, Environmental Assessments, and Considering Environmental Issues at 7 & App. C at C-4 (July 2020) (ML20016A379). As LIC-203 further explains: EAs should incorporate mitigation measures in the proposed action and alternatives, when appropriate. These mitigation measures may assist in a FONSI if the mitigation measure can be enforced by the NRC or another Federal, State, Tribal, or local governmental agency. The analysis should address the anticipated effectiveness of these mitigation measures in reducing impacts or enhancing beneficial impacts. Impacts need not be significant for mitigation measures to be considered. Any mitigation measures used to justify FONSIs should be tangible and specific....
Measures should include such things as design alternatives that would reduce emissions, construction impacts, land disturbances, aesthetic intrusion, etc. All relevant, reasonable mitigation measures that could improve the project should be identified, even if they are outside the jurisdiction of the NRC. Id., App. C at C-4 (July 2020) (ML20016A379).
13 CEQ Phase 2 Rule, 89 Fed. Reg. at 35,478.
NEI Input on Efforts to Optimize NRC Environmental Reviews September 6, 2024 Page 4 We recognize that the NRC recently published a proposed rule that would amend the NRCs categorical exclusion regulations in Part 51.14 The proposed rule is intended to clarify the scope of existing categories, improve the consistency of their application, and add new categories of actions that have no significant impact on the human environment. However, it does not propose any changes in response to FRA amendments to NEPA, CEQs Phase 2 Rule, or the ADVANCE Act. While such changes may be beyond the current rulemakings scope, the NRC staff has proposed rulemaking in response to the FRA amendments to NEPA, including explor[ing] whether any additional actions are eligible for categorical exclusions.15 Moreover, section 506 of the ADVANCE Act envisions future NRC rulemaking that could include new categorical exclusions that may be applied to new reactor license applications. Such future rulemaking(s) should provide an appropriate vehicle for the NRC to consider and implement possible changes to its categorical exclusion regulations that are consistent with the recent legislation and CEQ rule changes discussed above.
We note that Appendix 1 to NEIs RHDRA Proposal Paper discusses the potential use of categorical exclusions for micro-reactors and other smaller advanced reactors that may be rapidly deployed in high volumes. Information and analysis in the ANR GEIS, as well as recent, pending, and future NEPA reviews of advanced nuclear license applications by the NRC, DOE, and Department of Defense, could provide the NRC with adequate technical bases to identify classes of advanced reactor licensing actions (e.g., authorization of demonstration projects) that can be specifically listed as categorical exclusions in 10 CFR 51.22 via future rulemakings.
We also suggest the NRC consider amending Part 51 and related guidance to allow use of mitigated categorical exclusions in appropriate circumstances, consistent with CEQ regulations and the practice of some other federal agencies.16 Current NRC regulations do not permit the use of mitigated categorical exclusions. Specifically, 10 CFR 51.22(b) provides that the NRC may apply a categorical exclusion listed in 10 CFR 51.22(c) [e]xcept in special circumstances. As discussed above, the NRC already allows the use of mitigated FONSIs, a concept akin to the mitigated categorical exclusion.
E.
Procedures to Allow Applicant Preparation of a Draft EIS or EA New section 107(f) of NEPA requires agencies to prescribe procedures to allow project sponsors to prepare EAs and EISs under the agencies supervision and to independently evaluate and take responsibility for such documents.17 The CEQ has implemented this new requirement in 40 CFR 1506.5 (Agency responsibility for environmental documents). As discussed in SECY-24-0046, current NRC regulations do not provide an option for an applicant, or a contractor paid by the applicant, to prepare an EA or EIS under the supervision of the NRC. Therefore, the staff has recommended rulemaking to develop new regulations in Part 51 to allow for applicant preparation of a draft EA/EIS that will serve, under appropriate NRC supervision, as the required NEPA analysis. The rulemaking 14 NRC, Categorical Exclusions from Environmental Review; Proposed Rule, 89 Fed. Reg. 54,727 (July 2, 2024).
15 SECY-24-0046, Encl. 2 at 8 & Encl. 7 at 3.
16 See 40 CFR 1501.4(b)(1); CEQ Phase 2 Rule, 89 Fed. Reg. at 35,471.
17 This provision is also reflected in Section 506(b)(2)(J) of the ADVANCE Act.
NEI Input on Efforts to Optimize NRC Environmental Reviews September 6, 2024 Page 5 would include consideration of how and when NRC supervision of the applicants environmental document preparation occurs (e.g., during the preapplication stage and after application submittal).18 The NRCs development and adoption of such procedures - as now required by NEPA - should help achieve greater efficiency in the environmental review process. NRC license applicants expend considerable time and resources preparing detailed environmental reports, as required by NRC regulations. NRCs EIS preparations duplicate the applicants efforts to some degree, thereby extending the NEPA review process and incurring costs that are ultimately charged back to the applicant. The new procedures, if developed and implemented properly, should serve to reduce review timelines and regulatory costs. Importantly, the NRC would continue to be responsible for providing guidance on the contents of the draft EIS or EA (including appropriate templates), considering public input, conducting its analysis of the proposed action, independently evaluating the information submitted by the applicant, and publishing the final environmental review document.
F.
Optimizing Interagency Consultation and Coordination Processes Section 506(b)(2)(F) of the ADVANCE Act directs the NRC to explore opportunities to streamline formal and informal consultations and coordination with other Federal, State, and local governmental permitting agencies during environmental reviews of applications. This is important insofar as the NRC consults with various federal and state agencies and with Tribes to comply with other environmental statutes and to verify that required certifications (e.g., consistency certifications under the Coastal Zone Management Act) are obtained.19 While these requirements are not subject to the deadlines established by the FRA amendments to NEPA, they are typically completed by the NRC as part of the NEPA review process and, as such, may delay issuance of the NRCs final NEPA document and/or the requested NRC license or permit.20 As noted in SECY-24-0046, NRC staff has developed procedures, and is considering other potential approaches, to help ensure the timely completion of consultations and interagency coordination when they are conducted in parallel with the staffs NEPA reviews. In a related vein, new NEPA section 107 (42 USC 4336a) directs each federal lead agency to develop a schedule, in consultation with each cooperating agency, the applicant, and other relevant entities, for completing any environmental review, permit, or authorization required to carry out the proposed agency action, and to ensure that any schedule deviations are appropriately addressed. NEI is encouraged by the actions that the NRC is taking, or has proposed to take, in response to this mandate.
18 SECY-24-0046 at 6-7; Encl. 3 & Encl. 7 at 3-4.
19 The NRC staff conducts consultation and compliance activities associated with statutes such as the Coastal Zone Management Act of 1972, as amended (CZMA); the Endangered Species Act of 1973, as amended (ESA); the Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended; the National Historic Preservation Act of 1966, as amended (NHPA); the Clean Air Act of 1963, as amended; the Clean Water Act of 1972, as amended; the Safe Drinking Water Act of 1974, as amended; and the Fish and Wildlife Coordination Act enacted March 10, 1934.
20 As explained in SECY-24-0046, the NRC staff typically initiates these consultations after an applicants submittal of an environmental report, effectively incorporating the consultation processes under the NEPA process and integrating the necessary documentation to comply with those statutes into the NEPA environmental document. While such consultations are not required to be incorporated into the NEPA process, combining NEPA with other federal requirements and consultations allows the NRC to fulfill certain public involvement requirements (e.g.,
section 106 of the NHPA requires public involvement) and streamline information gathering through a single process.
NEI Input on Efforts to Optimize NRC Environmental Reviews September 6, 2024 Page 6 The NRC has made extensive and effective use of interagency MOUs to date, a practice that NEI encourages the Commission to continue. The NRCs and DOEs advanced reactor MOU and NEPA-related addenda thereto provide recent noteworthy examples. NEI encourages the NRC and DOE to jointly consider ways to optimize NEPA reviews of the impacts of preconstruction activities associated with DOE-funded, NRC-licensed projects to avoid project delays and duplicative reviews. Companies seeking to build advanced reactors and new fuel cycle facilities need the ability to perform preconstruction work (including site characterization) and procure necessary equipment expeditiously.
Notably, NRC regulations afford applicants the flexibility to conduct preconstruction activities before license issuance by implementing NEPA based on the totality of the licensing action.21 That is, the NRC considers the impacts of site preparation and other preconstruction activities in accordance with its Part 51 regulations as part of the agencys cumulative impacts analysis.
We therefore urge the NRC and DOE to identify and implement measures to minimize NEPA-related delays to applicants preconstruction activities and duplicative agency reviews of such activities. Such measures could include, for example, the application of current and new categorical exclusions for specific preconstruction activities, as codified in DOE, NRC, or other federal agencies regulations. New categorical exclusions could be developed using any of the methods described in the CEQs November 2010 guidance on the use of categorical exclusions. These methods include, for example, assessing the environmental effects of previously-implemented or ongoing actions (including prior NRC and DOE assessments of preconstruction activities), benchmarking other agencies (e.g., TVA, Army Corps of Engineers) experience with comparable categorical exclusions and activities, and relying on the expertise, experience, and judgment of agency professional staff and outside experts. In this regard, the NRC and DOE should consider leveraging the NRCs ANR GEIS and its supporting technical information and analyses. The plant parameter envelope/site parameter envelope (PPE/SPE) values and assumptions developed by the NRC for specific Category 1 issues in the ANR GEIS might be used to demonstrate that certain preconstruction activities do not pose the potential for significant environmental impacts. In other words, some of the NRCs Category 1 findings might serve as the functional equivalent of a categorical exclusion for DOEs purposes if the relevant values and assumptions in the PPE and SPE are met.
Another possibility is to develop a categorical exclusion(s) that would cover commercial-scale activities and operations that are compatible with and similar in scope to the current functional uses of previously-licensed sites or facilities and consistent with current regulatory requirements. This could be useful in the context of DOE-funded projects that seek to expand domestic nuclear fuel supply capacity by modifying or allowing new activities at existing fuel cycle facilities that have been licensed by the NRC and subject to NRC NEPA reviews (many of which DOE has identified and considered in its March 2024 Draft Environmental Impact Statement (DEIS) for Department of Energy Activities in Support of Commercial Production of High-Assay Low-Enriched Uranium (HALEU) (DOE/EIS-0559).
21 See Limited Work Authorizations for Nuclear Power Plants; Final Rule, 72 Fed. Reg. 57,416 (Oct. 9, 2007); Licenses, Certifications, and Approvals for Materials Licensees; Final Rule, 76 Fed. Reg. 56,951 (Sept. 15, 2011); 10 CFR 30.4, 36.2, 40.4, 50.10, 51.4, 70.4.
NEI Input on Efforts to Optimize NRC Environmental Reviews September 6, 2024 Page 7 Additionally, consistent with section 506 of the ADVANCE Act and prior NEI recommendations,22 the NRC should adopt or incorporate by reference existing environmental analyses (including those prepared by NRC and other federal, state, and local agencies) in a projects EA or EIS to the maximum extent permitted by NEPA and 10 CFR Part 51. This practice already has allowed the NRC to prepare an EIS and an EA, respectively, for Kairos Powers Hermes 1 and Hermes 2 construction permit applications in a manner that complies with the new deadlines and page limits in section 107 of NEPA.
G.
Streamlining Alternatives Analyses Section 506(b)(2)(G) of the ADVANCE Act explicitly directs the NRC to consider opportunities to streamline the Commissions analyses of alternatives, including the Commissions analysis of alternative sites. This provision, while specific to the NRC, coincides with the 2023 FRA amendments to NEPA clarifying and narrowing the required scope of an agencys alternatives analysis.
The NRC staffs recommended approach for addressing the FRA amendments to NEPA also would facilitate the agencys compliance with section 506 of the ADVANCE Act. As detailed in SECY-24-0046, the staff has recommended, in Option 1.b, to generally limit the proposed agency action to the regulatory or licensing decision (e.g., whether to issue an operating license). If adopted, this approach would improve the efficiency of NRCs NEPA reviews by narrowing the scope of those reviews to be consistent with the current text of NEPA and CEQ regulations.
We believe the staffs preferred approach, which is consistent with well-established NEPA principles and with NEI recommendations spanning more than two decades, would substantially streamline the NRCs NEPA review documents. The length of a NEPA review generally increases as the scope of the agencys alternatives analysis expands. The NRCs EISs for the numerous COL applications reviewed in the early to mid-2000s, for example, contained lengthy discussions of alternative energy sources and alternative sites, notwithstanding each applicants clear intention to build and operate a new nuclear reactor(s) at a specific site, and the NRCs lack of regulatory authority over the alternative energy sources and sites. In short, analyzing alternatives that would not be economically and technically feasible or realistically implemented by the applicant or NRC unnecessarily diverts applicant and agency resources and increases regulatory burden and costs.23 We encourage the staff to consider ways in which this more narrowly tailored approach to alternatives analysis might be implemented pending any proposed revisions to Part 51. We believe the statutory directives in NEPA section 102(1)(c) and ADVANCE Act section 506, coupled with the potentially large efficiency gains, warrant such action.
H.
Use of Informal Hearing Procedures 22 See, e.g., NEI, Recommendations for Streamlining Environmental Reviews for Advanced Reactors at 13-14 (Mar. 2020) (ML20065N155).
23 See NEI, Recommendations for Streamlining Environmental Reviews for Advanced Reactors at 18-21 & Table 1 (Mar. 2020)
(ML20065N155) (discussing the regulatory burden associated with alternative site analyses and providing COL-related data).
NEI Input on Efforts to Optimize NRC Environmental Reviews September 6, 2024 Page 8 Section 506 of the ADVANCE Act does not mention hearings.24 However, petitioners seeking to intervene in an NRC licensing proceeding may file contentions on environmental issues. Under current NRC regulations, evidentiary hearings on any admitted environmental contentions may not be held until the NRC staff issues its final EIS.25 These contested hearings, which are typically conducted using the procedures in 10 CFR Part 2, Subpart L, are still formal or trial-like in nature, requiring the preparation of extensive written filings (e.g., statements of position and pre-filed written testimony), evidentiary exhibits, related procedural motions, proposed cross-examination questions, oral hearings before an Atomic Safety and Licensing Board, and post-hearing proposed findings of fact and conclusions of law.
The entire process can take many months to complete, depending on the number and nature of the admitted issues, and thus can drive the critical path for license issuance.
While the Commission recently approved simplified hearing procedures for mandatory uncontested hearings on construction permit, combined license, early site permit, and limited work authorization applications (see SRM-SECY-24-0032), the NRC has not taken similar action for contested hearings.
The AEA does not mandate the use of formal, on-the-record hearings within the meaning of the Administrative Procedure Act for reactor licensing proceedings. NEPA, moreover, does not require adjudicatory hearings, much less specific hearing procedures. The NRC thus has broad discretion to structure its hearing procedures as it deems necessary to carry out its responsibilities, including in the interests of speed and efficiency.
Accordingly, we encourage the NRC to consider potential means by which the contested hearing process may be simplified and expedited. Among other things, the NRC could develop an informal adjudicatory hearing process that is based exclusively on streamlined written submissions (e.g., an expedited notice-and-comment-type hearing process), simplify or narrow the mandatory disclosure process, provide Licensing Boards and parties with the ability to proceed with hearings based on a draft EA/EIS, and establish a specific milestone schedule that includes a strict overall completion deadline for the hearing process.
24 The proposed Efficient Nuclear Licensing Hearings Act, which has been circulated in both the House (H.R. 6464) and the Senate (S.B.
4288), would amend AEA section 189.a(1) to require the Commission to use informal adjudicatory procedures for any hearing held under that section. It also would amend AEA sections 189.a and 185.b to eliminate the mandatory hearing requirement.
25 See 10 CFR 2.332(d); 10 CFR 51.104(a)(1).