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| {{Adams
| | #REDIRECT [[SECY-24-0046, SRM-SECY-24-0046: Implementation of the Fiscal Responsibility Act of 2023 National Environmental Policy Act Amendments]] |
| | number = ML25090A255
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| | issue date = 03/07/2025
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| | title = VR-SECY-24-0046: Implementation of the Fiscal Responsibility Act of 2023 National Environmental Policy Act Amendments (Crowell)
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| | author name = Crowell B
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| | author affiliation = NRC/OCM
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| | addressee name = Safford C
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| | addressee affiliation = NRC/SECY
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| | docket =
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| | license number =
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| | contact person =
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| | case reference number = SECY-24-0046
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| | document report number = VR-SECY-24-0046
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| | package number = ML24351A147
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| | document type = Commission Voting Record (CVR)
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| | page count = 6
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| }}
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| =Text=
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| {{#Wiki_filter:POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO:
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| Carrie M. Safford, Secretary FROM:
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| Commissioner Crowell
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| ==SUBJECT:==
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| SECY-24-0046: Implementation of the Fiscal Responsibility Act of 2023 National Environmental Policy Act Amendments Approved X Disapproved Abstain Not Participating COMMENTS: | |
| Below Attached X
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| None Signature Date Entered in STAR Yes X
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| No BRADLEY CROWELL Digitally signed by BRADLEY CROWELL Date: 2025.03.07 16:02:48 -05'00'
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| 1 Commissioner Crowells comments on SECY-24-0046, Implementation of the Fiscal Responsibility Act of 2023 National Environmental Policy Act Amendments In this paper, the NRC staff presents a significant, detailed review of recent amendments to the National Environmental Policy Act of 1969 (NEPA) as enacted in the Fiscal Responsibility Act of 2023 (FRA). As the paper notes, the NRC staff has already taken certain actions and has planned interim actions to ensure the agency is in compliance with key sections of the FRA that were immediately effective upon passage. The staff further identifies actions stemming from the FRA to enhance clarity, reliability, efficiency, and transparency in the NRCs NEPA process to strategically streamline environmental reviews. Notably, I believe these actions are warranted and can be successfully implemented while maintaining the integrity of the review process to protect the public and the environment as well as preserving meaningful opportunities for public engagement and feedback. Given the significant statutory and regulatory changes in this arena, as well as the anticipated increase in reactor license applications coming into the agency for review, this holistic look at the NRCs NEPA practices is timely and the staffs recommendations to initiate a rulemaking and to propose other related changes are warranted.
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| As part of the proposed rulemaking, the staff should properly account for more recent developments related to NEPA, including ongoing litigation, related Executive Orders, regulatory changes, and associated guidance from the new Administration. I appreciate staff continuing to stay apprised of these developments and to make timely recommendations to the Commission in the future as appropriate.
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| In evaluating the six policy topics presented for Commission consideration, I paid close attention to the effect each could have on public participation, transparency, and stakeholder confidence.
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| The staff recommends addressing the first three topics through rulemaking, starting with a regulatory basis document that would be issued for public comment prior to the proposed rule. I approve this approach and the value that a regulatory basis would bring to this activity given the significance of the proposed changes and the resulting high level of interest from NRC stakeholders. Overall, I generally support the proposed options and approaches from the staff for each policy topic, but with modifications in certain places. I address each topic in turn, below.
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| Topic 1: Proposed Agency Action and Reasonable Range of Alternatives The FRA inserts "agency" in the phrase "proposed agency action" throughout NEPA. Proposed action is tied to the purpose and need driving such action. Considering these statutory changes and the variety of possible interpretations that the staff describes in its paper, I support the staffs proposal to use the rulemaking process to evaluate the NRCs current approach for defining the purpose and need.
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| Relatedly, in response to the NEPA amendments in FRA section 102(2)(C)(iii) limiting the alternatives analyses to a "reasonable range of alternatives, the staff recommends narrowing the NRCs use of alternatives analyses accordingly. With this change, the NRC would limit the alternatives analyses section of its NEPA reviews to solely the no action alternative. The rationale is that the only alternative reasonably available to the NRC is simply not approving the requested licensing or other regulatory action. For example, the NRC may license a reactor, or not (or license with conditions), but it cannot select energy generation alternatives, system
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| 2 design alternatives, or alternative sites as part of its licensing action. Thus, the NRC would no longer analyze the environmental effects of such alternatives. In my view, this is perhaps the most significant and substantive potential change raised in the paper. Therefore, I support the NRC staffs recommended option (1.b).
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| Also in this topic, the staff addresses other minor regulatory revisions necessary to comply with the FRA. I support the staffs plan to address these issues via rulemaking and guidance, as appropriate.
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| Topic 2: Procedure for Determination of Level of Review As the NRC staff explains, prior to the enactment of the FRA, NEPA did not specify when an agency should prepare an environmental impact statement (EIS) versus an environmental assessment (EA). Rather, EAs were an administratively developed tool to determine whether an EIS was necessary. For regulatory certainty, the NRCs current NEPA regulations specify the type of environmental review required for different NRC actions. For example, an EIS is currently required for constructing, renewing, or operating a power reactor.1 However, the FRA established a new threshold under NEPA section 106(b) for when an EIS is required based on whether there is a reasonably foreseeable significant effect on the environment. Given this change to section 106(b), the staff recommends updating NRCs existing NEPA regulations to capture it. Until NRC revises its regulation, the staff will begin considering exemptions, on a case-by-case basis, and the appropriateness of using an EA in lieu of an EIS when a given action does not have a reasonably foreseeable significant effect on the environment. This practice would be consistent with the approach taken for the Hermes Kairos 2 construction permit, where an exemption allowed the staff to use an EA rather than an EIS.
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| I approve the recommended option (2.b) to initiate a rulemaking to consider eliminating the requirement to prepare an EIS in specified circumstances and to instead reflect the new NEPA requirement except where otherwise required by statute (e.g., AEA § 193 requires an EIS for uranium enrichment facilities). This approach would allow NRC staff to make data-informed decisions as to when an EA versus an EIS is warranted for a given project review.
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| However, while I support these commonsense updates, I am also aware that EAs can be more limited with regard to opportunities for public comment and stakeholder engagement. For example, unlike a draft EIS, which is traditionally issued for public comment, the NRC offers a public comment period on a draft EA only if the appropriate NRC staff director so chooses under 10 CFR 51.33(a), or in limited circumstances under 10 CFR 51.31. While I strongly support the broader use of EAs as appropriate, I do not believe doing so needs to come at the expense of stakeholder engagement in the NRCs NEPA process. Therefore, I encourage staff to explore ways to preserve meaningful public engagement and to provide an information paper to the Commission detailing how best to maintain transparency and public involvement in the NRCs environmental review process - be it within the context of NEPA or at other meaningful stages of a given application review (i.e. pre-application engagement, ad hoc public briefings, listening sessions, etc.).
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| 1 10 C.F.R. § 51.20(b).
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| 3 Likewise, the staff paper recommends revising the NRCs regulations to align with the FRAs new definition of categorial exclusions in NEPA section 111(1) and to incorporate the provisions in section 109 that allow for adopting a categorial exclusion from other agencies. Understanding the NRC may use this procedure without adopting specific implementing regulation, I nonetheless agree with the staffs view that these changes are appropriately considered via rulemaking to ensure consistency and transparency in NRCs NEPA practice.
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| Topic 3: Project Sponsor Preparation of Environmental Documents The FRA changes to NEPA section 107(f) require agencies to prescribe procedures to allow a project sponsor to prepare (e.g., an applicant or contractor) an EA or EIS under the supervision of the agency. This would create a new, voluntary pathway for applicants to prepare environmental reviews in a manner that the agency has not previously allowed. NRC regulations currently require the applicant to submit an environmental report and, in turn, require the NRC staff to prepare the EA or EIS for licensing actions.
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| To respond to the FRA on this point, the staff recommends rulemaking to authorize a project sponsor to prepare the EA or EIS under the supervision of the agency. In doing so, the staff would issue associated guidance addressing the role of the applicant versus that of the NRC staff during the various stages of the NEPA process, such as the public comment opportunity during EIS scoping. To implement this statutory change without rulemaking would necessitate exemptions. Therefore, I approve the approach recommended by the staff in option (3.b). To address transparency concerns, the staff proposes to implement strategies to communicate the NRCs responsibility for all EAs and EISs. I agree with this approach.
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| Topic 4: Lead, Participating, and Cooperating Agencies (Federal, State, Tribal, and Local)
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| The FRA added provisions to NEPA sections 107 and 111 addressing the meaning and roles of a lead agency, joint lead agencies, participating Federal agency, and cooperating agency involved in NEPA reviews. As the paper notes, NRC regulations currently define cooperating agency with some slight variation from the new NEPA definition, and do not define the other listed terms.2 For consistency with the NEPA amendments, I support the staffs recommendation to update via rulemaking the NRCs definition of cooperating agency and to add definitions for lead agency and participating Federal agency to align with the NEPA definitions.3 The staff should also consider whether and how to address the term joint lead agency, as introduced in NEPA section 107(a)(1)(B). This latter term is of particular significance as it relates to State, Tribal, and local agency involvement.
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| Separate from these definitional changes, the staff also recommends the Commission issue a new policy statement outlining expectations around lead, cooperating, and participating agencies, concurrent with rulemaking. While I agree with the staff that all the issues identified need to be addressed, I join Commissioner Hanson and Chairman Wright in disapproving this recommendation. As Commissioner Hanson notes, coordinating with other agencies has been 2 See SECY-24-0046, at 4 (comparing definitions of cooperating agency in NRC regulation versus NEPA amendments).
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| 3 Id., enclosure 4, at 4 (as part of the administrative and editorial changes in the rulemaking pan, the staff recommends updating the NRCs definition of cooperating agency and including the definitions of lead agency and participating agency in 10 CFR 51.14(a)).
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| 4 successfully accomplished at the staff level. I believe the staff has sufficient flexibility to update and develop guidance within the confines of established policy. The staff routinely issues guidance for public comment, which enhances transparency and public engagement. I expect the same in this instance. To this end, in developing the guidance, I agree with Commissioner Hanson that the staff should include significant engagement with the public, with special emphasis on receiving feedback from organizations with whom we expect to most frequently work during NEPA reviews (e.g., Department of Energy, Department of Defense, U.S. Army Corps of Engineers, Tribes, state agencies).
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| Finally, the staff recommends that the Commission consider, under any of the options provided for this topic, developing policies and protocols for NRCs participation as a cooperating agency where another agency is the lead agency.4 Since the NRC is typically the lead agency when performing NEPA reviews, I appreciate the staff raising this point and agree the staff should address this issue in guidance to clarify expectations and procedures.
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| Topic 5: Programmatic Environmental Documents The FRA added to NEPA section 111 a definition of programmatic environmental document (PED) and requires in section 108 that an agency, when relying on a PED more than five years after its issuance, to reevaluate the PED and its underlying assumptions to ensure its analyses remain valid. As the staff paper notes, NRC regulations already require a similar type of reevaluation for certain generic environmental impact statements (GEIS). For example, the regulations for the license renewal GEIS require a new and significant information evaluation for each supplemental EIS that relies on the GEIS.5 The staff proposes to rely on the NRCs existing new and significant information reevaluation when relying on a codified GEIS to meet this new PED requirement. I support this planned approach.
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| Similarly, the recommended option (5.a) also states the staff would consider developing new guidance or updating existing guidance to ensure a consistent process to reevaluate GEISs and other environmental information and to ensure that the analysis remains valid.6 To ensure the predictability and transparency of the NRCs implementation of this new PED reevaluation requirement, and for maximum public engagement as these new processes are developed, I approve this proposal. Additionally, I agree with Commissioner Hanson that the staff should update existing guidance or develop new guidance to outline a process to reevaluate these and other environmental documents to ensure the analyses contained in those statements remain valid.
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| Topic 6: Additional Recommendations to Streamline and Enhance Efficiency The staff presents several additional recommendations to address measures to streamline the NRCs NEPA practices, including measures required by the NEPA amendments under the FRA (e.g., page limits and deadlines for EAs and EISs) as well as other possible efficiencies for consideration (e.g., the connection between applicant prepared EIS or EAs, bifurcated 4 Id., enclosure 4, at 5.
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| 5 10 C.F.R. 51, Appendix B to Subpart A.
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| 6 SECY-24-0046, enclosure 5, at 4.
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| 5 applications,7 preapplication interactions, and acceptance criteria for environmental information). As the staff notes, many of these issues are interconnected with the other fives topics discussed above.
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| The staff recommends a holistic review of these issues and thus proposes to consider them in the regulatory basis phase of the recommended rulemaking to explore how best to address these measures. Given the variety of issues and complexities therein, I approve the staffs recommendation. In doing so, I strongly encourage the staff to strive for the maximum level of clarity and consistency, as allowable, across all areas of the NRCs jurisdiction where NEPA compliance is required.
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| 7 Bifurcated applications refers to allowing applicants to submit portions of their applications at different times (i.e., the safety portion separately from the environmental portion).}}
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