SECY-24-0046, Enclosure 2 - Procedure for Determination of Level of Review
| ML24078A048 | |
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| Issue date: | 05/30/2024 |
| From: | NRC/SECY |
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| SECY-24-0046 | |
| Download: ML24078A048 (9) | |
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Enclosure 2 : Procedure for Determination of Level of Review Existing Regulatory Framework and Practice The National Environmental Policy Act of 1969 (NEPA) mandates that every Federal agency prepare a detailed statement of the effects of major Federal actions significantly affecting the quality of the human environment. Therefore, for certain U.S. Nuclear Regulatory Commission (NRC) licensing and regulatory actions subject to NEPA, the staff will conduct an environmental review that may result in preparation of an environmental document. Commensurate with the potential for significant environmental effects, an environmental review may result in an environmental assessment (EA) or an environmental impact statement (EIS), unless it is eligible for a categorical exclusion.
The level of documentation is determined in accordance with the NRC regulations in Title 10 of the Code of Federal Regulations (10 CFR) Part 51, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions. Criteria for and identification of licensing and regulatory actions requiring an EIS or an EA are codified in 10 CFR 51.20, Criteria for and identification of licensing and regulatory actions requiring environmental impact statements, and 10 CFR 51.21, Criteria for and identification of licensing and regulatory actions requiring environmental assessments, respectively. For example, the current regulations in 10 CFR 51.20(b) require an EIS or a supplement to an EIS for certain licensing actions (e.g., constructing a nuclear power reactor, renewing an operating license for a power reactor, constructing, or operating an enrichment plant). Some other agencies include in their regulations a list of actions that normally1 require an EIS, but 51.20(b) does not afford that flexibility.
The NRC has categorically determined that certain agency actions do not have significant impacts on the environment. Such actions are categorically excluded from an environmental review and do not require preparation of an EIS or EA. The criterion for categorical exclusion and identification of licensing and regulatory actions eligible for categorical exclusion, or otherwise not requiring environmental review, are provided in 10 CFR 51.22, Criterion for categorical exclusion; identification of licensing and regulatory actions eligible for categorical exclusion or otherwise not requiring environmental review. The staff documents the use of a categorical exclusion (10 CFR 51.22) with a brief explanation of how the action would not have any significant environmental effects and a statement of how 10 CFR 51.22(c) applies to the action. Categorical exclusions must be based on sufficient knowledge (i.e., experience or expertise) to demonstrate that the category of actions does not individually or cumulatively have a significant effect on the human environment.2 The use of categorical exclusions ensures environmental reviews are focused on those actions with potential significant environmental impacts.
NRC actions subject to NEPA that do not specifically require an EIS, as described within 10 CFR 51.20, and that are not categorically excluded, as defined in 10 CFR 51.22, instead require an EA, as described in 10 CFR 51.21. If, after the development of the EA, the staff determines that the licensing or regulatory action will have no significant effect on the human environment, the staff prepares a finding of no significant impact (FONSI). Otherwise, the staff begins the preparation of an EIS. In some cases, the staff assesses early that an EA is not likely to 1 The Federal Energy Regulatory Commissions regulation in 18 CFR 380.6(a) states in part, an environmental impact statement will normally be prepared for the following projects.
2 The Council on Environmental Quality (CEQ) views categorical exclusions to be important tools to promote efficiency in the NEPA process and an area in which agencies have long exercised their expertise to identify and substantiate categories of actions that normally do not have a significant effect on the human environment (89 FR 35442; May 1, 2024).
result in a FONSI, and therefore proceeds directly to preparing an EIS for actions that are not listed in 10 CFR 51.20(b). Figure 1 depicts the staff decision process for determining the level of an NRC NEPA environmental review.
Figure 1. Flowchart for determining the level of an NRC NEPA review NEPA Amendments The most relevant NEPA amendments related to the issue discussed in this enclosure are reproduced below:
SECTION 102 [42 U.S.C. §4332].
The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall (A) utilize a systematic, interdisciplinary approach which will insure ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on mans environment; (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) consistent with the provisions of this Act and except where compliance would be inconsistent with other statutory requirements, include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on (i) the reasonably foreseeable environmental impacts effects of the proposed agency action; (ii) any reasonably foreseeable adverse environmental effects which cannot be avoided should the proposal be implemented; (iii) a reasonable range of alternatives to the proposed agency action, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are technically and economically feasible, and meet the purpose and need of the proposal; (iv) the relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of Federal resources which would be involved in the proposed agency action should it be implemented.
SECTION 106. PROCEDURE FOR DETERMINATION OF LEVEL OF REVIEW.
(a) THRESHOLD DETERMINATIONS.An agency is not required to prepare an environmental document with respect to a proposed agency action if (1) the proposed agency action is not a final agency action within the meaning of such term in chapter 5 of title 5, United States Code; (2) the proposed agency action is excluded pursuant to one of the agencys categorical exclusions, another agencys categorical exclusions consistent with section 109 of this Act, or another provision of law; (3) the preparation of such document would clearly and fundamentally conflict with the requirements of another provision of law; or (4) the proposed agency action is a nondiscretionary action with respect to which such agency does not have authority to take environmental factors into consideration in determining whether to take the proposed action.
(b) LEVELS OF REVIEW.
(1) ENVIRONMENTAL IMPACT STATEMENT.An agency shall issue an environmental impact statement with respect to a proposed agency action requiring an environmental document that has a reasonably foreseeable significant effect on the quality of the human environment.
(2) ENVIRONMENTAL ASSESSMENT.An agency shall prepare an environmental assessment with respect to a proposed agency action that does not have a reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown, unless the agency finds that the proposed agency action is excluded pursuant to one of the agencys categorical exclusions, another agencys categorical exclusions consistent with section 109 of this Act, or another provision of law. Such environmental assessment shall be a concise public document prepared by a Federal agency to set forth the basis of such agencys finding of no significant impact or determination that an environmental impact statement is necessary.
(3) SOURCES OF INFORMATION.In making a determination under this subsection, an agency (A) may make use of any reliable data source; and (B) is not required to undertake new scientific or technical research unless the new scientific or technical research is essential to a reasoned choice among alternatives, and the overall costs and time frame of obtaining it are not unreasonable.
SECTION 109. ADOPTION OF CATEGORICAL EXCLUSIONS.
An agency may adopt a categorical exclusion listed in another agencys NEPA procedures for a category of proposed agency actions for which the categorical exclusion was established consistent with this paragraph. The agency shall (1) identify the categorical exclusion listed in another agencys NEPA procedures that covers a category of proposed actions or related actions; (2) consult with the agency that established the categorical exclusion to ensure that the proposed adoption of the categorical exclusion to a category of actions is appropriate; (3) identify to the public the categorical exclusion that the agency plans to use for its proposed actions; and (4) document adoption of the categorical exclusion.
SECTION 111. DEFINITIONS.
In this title:
(1) CATEGORICAL EXCLUSION.The term categorical exclusion means a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment within the meaning of section 102(2)(C).
Summary The Fiscal Responsibility Act of 2023 (FRA) adds a new section 106, Procedure for Determination of Level of Review. Section 106(a) establishes threshold determinations for when an agency is not required to prepare an environmental document for proposed agency actions.3 Section 106(b) establishes levels of review for when an EA or EIS is required to determine the reasonably foreseeable effect of the proposed agency action on the quality of the human environment. It also identifies the sources of information an agency may need to support such a determination.
The FRA also adds a new definition of the term categorical exclusion in section111(1). Under this definition, the term means a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment (i.e., that does not require an EIS in accordance with NEPA section 102(2)(C) or an EA). The FRA definition is very similar to that previously established by the Council on Environmental Quality (CEQ) in 2020.4 3 The Office of the General Counsel is preparing a separate paper to address additional, legal considerations related to the new section 106.
4 The CEQs Phase 2 final rule (89 FR 352442, 35574-35575) defines categorical exclusion as a category of actions that an agency has determined, in its agency NEPA procedures (§ 1507.3 of this subchapter) or pursuant to
§1501.4(c) of this subchapter, normally does not have a significant effect on the human environment. The CEQs 2020 final rule (85 FR 43304, 43374; July 16, 2020) defined categorical exclusion as a category of actions that the agency has determined, in its agency NEPA procedures (§ 1507.3 of this chapter), normally do not have a significant effect on the human environment. The CEQs definition before the 2020 rule change defined the term as follows:
a category of actions which do not individually or cumulatively have a significant effect on the human environment, and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in its procedures or otherwise, to prepare environmental assessments for the Changes for the NRC Before the FRA, NEPA did not contain requirements for when to prepare an EA. The statute only included in section 102(2)(c) the requirement to prepare a detailed statement (known as an EIS) for major Federal actions significantly affecting the quality of the human environment, and EAs were an administratively developed procedure to determine whether an EIS was required for a particular proposed action. The new NEPA section 106(b)(2) states that an agency shall prepare an [EA] with respect to a proposed agency action that does not have a reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown, unless the agency finds that the proposed agency action is excluded pursuant to one of the agencys categorical exclusions, another agencys categorical exclusions consistent with section 109 of this Act, or another provision of law.
Thus, for actions that do not have a reasonably foreseeable significant effect, the agency would perform an EA first and that environmental review would inform whether an EIS would need to be prepared. Given that the NRC has codified in 10 CFR 51.20(b) licensing and regulatory actions automatically requiring an EIS, these determinations should be revisited to consider whether each action has a reasonably foreseeable significant effect, consistent with NEPA section 106. To do this, the staff has identified two options, outlined below.
Preparing an EA instead of an EIS for any action listed in 10 CFR 51.20(b) requires an exemption from current NRC regulations. Thus, in the interim, while these options are being considered, the staff would consider exemptions from 10 CFR 51.20(b). For example, the NRC staff would consider an exemption from 10 CFR 51.20(b), requiring preparation of an EIS, if a proposed action listed in 51.20(b) does not have a reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown. In such a case, the staff would begin by preparing an EA to determine whether a FONSI could be supported. An example is the recent approach taken in the Kairos II licensing proceeding (SECY-23-0080, Environmental Review Approach for the Kairos Power, LLC, Hermes 2 Construction Permit Application, dated September 13, 2023).
In accordance with NEPA section 106(a)(2), the NRC is not required to prepare an environmental document if the proposed action is excluded pursuant to one of the agencys categorical exclusions, another agencys categorical exclusions consistent with NEPA section 109, or another provision of law. While this is not entirely new to the NEPA process, the NRCs regulations do not specifically address the possibility of adopting another agencys categorical exclusion.5 reasons stated in § 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect. (43 FR 55990; November 29, 1978).
5 Note that in the rulemaking plan (enclosure 7), as part of the administrative changes, updates, and edits, the staff recommends revising the regulations to incorporate the four requirements in NEPA section 109 when considering adopting another agencys categorical exclusion. While the staff views this as appropriate to ensure the NRCs NEPA implementing regulations include this procedure, the NRC can use this NEPA procedure without adopting specific implementing regulations.
The NRC definition of the term categorical exclusion in 10 CFR 51.14(a)6 largely reflects the CEQs regulation definition dating back to 1978. The NEPA definition of categorical exclusion uses similar terms to the NRCs definition but adds the term normally to the phrase do[es] not havea significant effect on the human environment.
Staff Actions for Compliance The staff is proceeding with site-specific reviews under existing NRC regulations implementing NEPA and existing guidance. The staff will continue to implement the requirements of 51.20, including preparation of EISs for the actions listed in 51.20(b). Exemptions from 51.20(b) will be considered on a case-by-case basis with appropriate communication to the Commission. An example is the recent approach taken in the Kairos Hermes 2 licensing proceeding (SECY-23-0080, Environmental Review Approach for the Kairos Power, LLC, Hermes 2 Construction Permit Application, dated September 13, 2023), where the staff began the environmental review for additional reactors at the same site with an EA, rather than an EIS, because an EIS had been prepared for that site within the previous six months.
Implementation Options for Improved Alignment and Efficiency The staff offers the options described below to more clearly and effectively address the amendments to NEPA on procedures for determination of the level of review.
Option 2.a: Substantiate NEPA Levels of Review Under this option, the NRC would initiate a rulemaking to maintain the list of actions that require an EIS in 10 CFR 51.20(b) to the extent that the actions may be generically substantiated as having a reasonably foreseeable significant effect on the quality of the human environment, or where an EIS is required by statute (e.g., section 193 of the Atomic Energy Act of 1954, as amended7). The staff would conduct an analysis to examine whether the actions listed in 51.20(b) meet the requirement in NEPA section 106(b)(1) (i.e., whether the action has a reasonably foreseeable significant effect on the quality of the human environment). This analysis would likely result in proposed revisions to 10 CFR 51.20(b). Additionally, the staff would consider revising 10 CFR Part 51 to reflect other provisions related to level of review in NEPA. For example, the staff may revise 10 CFR 51.21 to address the concept of a reasonably foreseeable significant effect that is presented in NEPA section 106.
Under this option, the staff may still need to consider exemptions in cases where an EIS may be required by regulation but there is not a reasonably foreseeable significant effect on the quality of the human environment. However, after substantiating the list in 10 CFR 51.20(b), such exemptions are expected to be rare because once the list is substantiated through rulemaking, staff has demonstrated that the actions remaining in 51.20(b) are expected to have a reasonably foreseeable significant effect.
6 The term is defined in 10 CFR 51.14(a) as follows:
a category of actions which do not individually or cumulatively have a significant effect on the human environment and which the Commission has found to have no such effect in accordance with procedures set out in § 51.22, and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.
7 Section 193 of the Atomic Energy Act states that the issuance of a license for the construction and operation of any uranium enrichment facility shall be considered a major Federal action significantly affecting the quality of the human environment for the purposes of NEPA.
Also, under this option, the staff would revise the definition of categorical exclusion in 10 CFR 51.14(a) to align with the definition in NEPA section 111(1). The staff would also explore whether that change should indicate whether any additional actions are eligible for categorical exclusions.
Pros:
Provides increased process certainty for specific types of licensing actions in comparison to Option 2.b.
Requires less exemptions than not taking any action.
Cons:
May result in more exemptions than Option 2.b, although these are expected to be rare.
Provides the staff with less flexibility than Option 2.b.
May require more resources to conduct an environmental review than Option 2.b.
Option 2.b: Rulemaking to Revise 10 CFR 51.20(b) (Recommended)
Under this option, the NRC would initiate a rulemaking to amend 10 CFR Part 51 regulations. The rulemaking would explore eliminating 10 CFR 51.20(b), which requires the NRC to prepare an EIS for specific actions, and instead revising 10 CFR 51.20 to reflect NEPA section 106(b), except where an EIS is required by statute. Additionally, the rulemaking would consider revising 10 CFR Part 51 to reflect other provisions in NEPA section 106. For example, the staff may revise 10 CFR 51.21 to address the concept of reasonably foreseeable significant effect that is presented in section 106.
Removing the list of actions in 10 CFR 51.20(b) that automatically require an EIS, except where an EIS is required by statute, would provide greater flexibility to consider and implement streamlined environmental review approaches, where appropriate, without the need for an exemption.
As in Option 2.a, the staff would revise the definition of categorical exclusion in 10 CFR 51.14(a) to align with the definition in NEPA section 111(1). The staff would also explore whether that change should indicate whether any additional actions are eligible for categorical exclusions.
Pros:
Allows greater flexibility to consider and implement streamlined environmental review approaches.
Would usually require fewer resources during the NEPA review, but staff may need to develop an EIS if staff cannot reach a FONSI. Changing from an EA to an EIS may require more applicant and NRC resources than if the NRC and applicant had started with the intention to develop an EIS.
Would eliminate the need for exemptions to prepare an EA instead of an EIS for specific license actions.
Cons:
A different level of NEPA review (EA versus EIS) may be warranted for different applications of the same category of licensing action, which decreases regulatory predictability and reliability.
NEPA does not require as much public involvement for EAs as for EISs, which may result in a perception of reduced transparency and credibility.
Recommendation The staff recommends that the Commission approve Option 2.b to revise the NRC regulations in 10 CFR Part 51 to explore eliminating 10 CFR 51.20(b), except where an EIS is otherwise required by statute. Enclosure 7 contains the rulemaking plan, and enclosure 8 provides resource information.