ML12334A571

Official Exhibit - NYS000130-00-BD01 - 68 Fed. Reg. 55,905, Denial of Petition for Rulemaking(Sept. 29, 2003) (68 Fed. Reg. 55,905)

ML12334A571
Person / Time
Site:	Indian Point
Issue date:	09/29/2003
From:	Annette Vietti-Cook NRC/SECY
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21538, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12334A571 (7)

Text

United States Nuclear Regulatory Commission Official Hearing Exhibit Entergy Nuclear Operations, Inc.

In the Matter of:

(Indian Point Nuclear Generating Units 2 and 3) c.\.t.pr.R REGU{.q"" ASLBP #: 07-858-03-LR-BD01 l~~'

Docket #: 05000247 l 05000286

< Exhibit #: NYS000130-00-BD01 Identified: 10/15/2012

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'"" Admitted: 10/15/2012 Withdrawn: NYS000130

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Federal Register/Vol. 68, No. 188/ Monday, September 29, 2003/ Proposed Rules 55905 Authority: 7 U,S,c, 138f; 7 U,S,c, 450; 21 toughened flesh. Sex designation is the NRC evaluate, alternative energy U,S,c, 451-470; 7 CFR 2,18, 2,53, optional. sources and the need for power with

2. Section 381.170 would be amended (3) Ducks-(i) Duckling. A "duckling" respect to the siting, construction, and by revising paragraph (a) to read as is a young duck (less than 8 weeks of operation of nuclear power plants. The follows: age), of either sex, that is tender-meated NRC is denying the petition because the and has a soft bill and soft windpipe. NRC must continue to consider

§ 381.170 Standards for kinds and classes, (ii) Roaster duck. A "roaster duck" is alternative energy sources and the need and for cuts of raw poultry. a young duck (less than 16 weeks of for power to fulfill its responsibilities (a) The following standards specify age), of either sex, that is tender-meated under the National Environmental the various classes of the specified and has a bill that is not completely Policy Act of 1969, as amended (NEPA).

kinds of poultry, and the requirements hardened and a windpipe that is easily ADDRESSES: Copies of the petition for for each class: dented. rulemaking, the public comments (1) Chickens-(i) Rock Cornish game (iii) Mature duck or old duck. A received, and the NRC's letter of denial hen or Cornish game hen. A "Rock "mature duck" or an "old duck" is an to the petitioner may be viewed Cornish game hen" or "Cornish game adult duck (more than 6 months of age), electronically on public computers hen" is a young immature chicken (less of either sex, with toughened flesh, a located at the NRC's Public Document than 5 weeks of age), of either sex, with hardened bill, and a hardened Room (PDR) at One White Flint North, a ready-to-cook carcass weight of not windpipe. 11555 Rockville Pike (first floor),

more than 2 pounds. (4) Geese-(i) Young goose. A "young Rockville, Maryland. The PDR (ii) Broiler or fryer. A "broiler" or goose" is an immature goose, of either reproduction contractor will copy "fryer" is a young chicken (less than 10 sex, that is tender-meated and has a documents for a fee. These documents weeks of age), of either sex, that is windpipe that is easily dented. are also available on the NRC's tender-meated with soft, pliable, (ii) Mature goose or old goose. A rule making Web site at http://

smooth-textured skin and flexible "mature goose" or "old goose" is an ruleforum.llnl.gov.

breastbone cartilage. adult goose, of either sex, that has (iii) Roaster or roasting chicken. A FOR FURTHER INFORMATION CONTACT:

toughened flesh and a hardened "roaster" or "roasting chicken" is a Nanette V, Gilles, Office of Nuclear windpipe.

young chicken (less than 12 weeks of Reactor Regulation, U.S. Nuclear (5) Guineas-(i) Young guinea. A age), of either sex, that is tender-meated "young guinea" is an immature guinea, Regulatory Commission, Washington, with soft, pliable, smooth-textured skin DC 20555-0001, telephone (301) 415-of either sex, that is tender-meated and and breastbone cartilage that is 1180, e-mail nvg@nrc.gov.

has a flexible breastbone cartilage.

somewhat less flexible than that of a (ii) Mature guinea or old guinea. A SUPPLEMENTARY INFORMATION:

broiler or fryer. "mature guinea" or "old guinea" is an Background (iv) Capon. A "capon" is a surgically adult guinea, of either sex, that has neutered male chicken (less than 4 By letter dated July 18, 2001, NEI toughened flesh and a non-flexible months of age) that is tender-meated submitted a petition for rulemaking breastbone.

with soft, pliable, smooth-textured skin. (ADAMS accession no. ML012060198)

(v) Hen, fowl, baking chicken, or to modify Title 10, Part 52, of the Code stewing chicken. A "hen," "fowl," Done at Washington, DC, on September 24, of Federal Regulations (10 CFR Part 52),

"baking chicken," or "stewing chicken" 2003, Subpart A, "Early Site Permits." The is an adult female chicken (more than Linda Swacina, petitioner requested that the NRC 10 months of age) with meat less tender Acting Administrator. amend its regulations in 10 CFR part 52 than that of a roaster or roasting chicken [FR Doc, 03-24536 Filed 9-26-03; 8:45 am] to eliminate the requirement that an and a nonflexible breastbone tip. BILLING CODE 3410-DM-P early site permit (ESP) applicant (vi) Cock or rooster. A "cock" or include, and the NRC review, "rooster" is an adult male chicken with alternatives to the site proposed in an coarse skin, toughened and darkened NUCLEAR REGULATORY ESP application. The petitioner further meat, and a nonflexible breastbone tip. COMMISSION requested that the NRC initiate a (2) Turkeys-(i) Fryer-roaster turkey. rule making to remove requirements in A "fryer-roaster turkey" is an immature 10 CFR Part 52 10 CFR parts 2, 50, and 51 that turkey (less than 12 weeks of age), of applicants and licensees analyze, and

[Docket No. PRM 52-2] the NRC evaluate, alternative sites, either sex, that is tender-meated with soft, pliable, smooth-textured skin, and alternative energy sources, and the need Nuclear Energy Institute; Denial of flexible breastbone cartilage. for power with respect to the siting, Petition for Rulemaking (ii) Young turkey. A "young turkey" is construction, and operation of nuclear a turkey (less than 6 months of age), of AGENCY: Nuclear Regulatory power plants. The NRC docketed the either sex, that is tender-meated with Commission. petition as PRM 52-2.

soft, pliable, smooth-textured skin and ACTION: Denial of petition for The regulations in 10 CFR part 52 breastbone cartilage that is less flexible rulemaking. govern the issuance of ESPs, standard than that of a fryer-roaster turkey. design certifications, and combined (iii) Yearling turkey. A "yearling

SUMMARY

The Nuclear Regulatory licenses (COLs) for new nuclear power turkey" is a turkey (less than 15 months Commission (NRC or Commission) is facilities licensed under section 103 or of age), of either sex, that is reasonably denying a petition for rulemaking (PRM) 104b of the Atomic Energy Act of 1954, tender-meated with reasonably smooth- submitted by the Nuclear Energy as amended, and the Energy textured skin. Institute (NEI or the petitioner) and Reorganization Act of 1974. The (iv) Mature or old (hen or tom) turkey. docketed as PRM 52-2. The petitioner provisions of 10 CFR part 52, subpart A, A "mature turkey" or "old turkey" is an requested that the NRC amend its apply to applicants seeking an ESP. The adult turkey (more than 15 months of regulations to remove requirements that regulations in 10 CFR part 52, subpart age), of either sex, with coarse skin and applicants and licensees analyze, and A, are designed to resolve site suitability OAGI0001375_00001

55906 Federal Register/Vol. 68, No. 188/ Monday, September 29, 2003/ Proposed Rules issues in a licensing proceeding as early the applicant has identified as The Petition as possible, before an applicant commits practicable alternatives. In the view of The petitioner requested that the significant resources. The ESP process the petitioner, NRC review of the Commission initiate a rulemaking to in subpart A allows an applicant to applicant's chosen alternative sites amend 10 CFR part 51 to remove "bank" sites and is expected to improve would be sufficient to satisfy NEPA's requirements that applicants and the effectiveness of the nuclear power "hard look" requiremenU In addition, licensees analyze, and the NRC plant licensing process. NEI asserted that where a license evaluate, alternative energy sources and The regulations in 10 CFR parts 2, 50, applicant has ownership or control of the need for power with respect to the and 51 referenced by the petitioner only one site and, because of the nature siting, construction, and operation of relate to requirements for filing and of its business, has conducted no nuclear power plants. The petitioner acceptance of licensing applications, alternative site analysis, the NRC should stated that the need for these changes is review of site suitability issues, only determine "whether the proposed a direct outgrowth of the dramatic environmental reports, and facility could be located on that site in changes that have occurred in the environmental impact statements (EISs). compliance with all pertinent laws and electric power industry, most notably A notice of receipt of the petition was NRC regulations." rd. NEI's legal the passage of the Energy Policy Act of published in the Federal Register on analysis set forth several additional 1992 and the resultant actions by the September 24, 2001 (66 FR 48828). The propositions. First, where an ESP or Federal Energy Regulatory Commission comment period closed on November 8, COL applicant's purpose is to build new (FERC) to impose open access 2001. The NRC received letters from 12 units at existing nuclear sites, NEPA transmission requirements on electricity commenters, 9 of which favored the does not require consideration of transmission providers. The petitioner petition and 3 opposed it. Of the nine locating those units at alternative sites stated that these changes have letters in favor, seven were from nuclear that the applicant does not control. See fundamentally altered both the power plant owners and/or operators, ESP-18a: Alternative Site Reviews for marketplace for electricity and the one was from a nuclear steam supply Early Site Permit Applicants Using makeup of electricity generating system vendor, and one was from the Existing Licensed Sites, dated November companies, and that the regulatory petitioner. Of the three letters in 19,2002, attached to NEI's letter of framework that the NRC uses to opposition, two were from December 18, 2002, pp. 7-8. Second, implement its responsibilities under representatives of public advocacy NEI asserted that non-nuclear sites are NEPA should be revised accordingly.

groups and the other was from a private unlikely to be obviously superior to an citizen. This notice presents a existing nuclear site that has already NEPA Requirements discussion of the comments received. gone through the NEP A process. NEI The petitioner argued that NEP A In its petition, NEI requested that the believes that the most that NEP A would requires consideration of "alternatives" NRC grant the petition as part of an require is a comparison of a generic to a proposed action but does not ongoing NRC rule making to update 10 "greenfield" site and a generic specifically require an analysis of CFR part 52. This rulemaking activity industrial site to "confirm the absence alternative energy sources or the need addresses lessons learned during of any anomalous characteristics that for power. However, the NRC's previous design certification reviews might alter the presumption that no implementing regulations in 10 CFR and discussions with stakeholders about obviously superior site exists." rd., pp. part 51 require that those matters be the ESP, design certification, and COL 8-9. addressed. General guidance on the review processes. As discussed below, The Commission has decided to treat environmental reviews that are to be the NRC decided to deny this petition. NEI's letter of December 18,2002, as a conducted is specified in Regulatory Therefore, further consideration of the partial withdrawal of its petition with Guide 4.2, "Preparation of petition during the 10 CFR part 52 respect to the matter of alternative sites. Environmental Reports for Nuclear rule making is not necessary. Accordingly, this denial does not On December 18,2002, NEI sent the Power Plants" (July 1976) and NUREG-address either the petitioner's proposal 1555, "Environmental Standard Review NRC a letter (ADAMS Accession No. on alternative sites as described in its ML023570346) on the subject "Petition Plan" (March 2000), which call for a petition ofJuly 18, 2001, or the review of alternative energy sources and for Rulemaking PRM 52-2, petitioner's specific propositions on Supplemental Comments." In the letter, the need for power. The petitioner alternative sites as set forth in the believes that the NRC's regulations and NEI stated that a number of submission of December 18, 2002.

developments had caused it to implementing guidance reflect the However, the remainder of this notice structure ofthe 1970s electric utility recommend a different approach for more fully discusses some of the legal addressing alternative sites than that industry. However, because the electric decisions cited in NEI's submission of presented in its petition of July 18, power industry has experienced December 18, 2002.2 2001, where it had urged the NRC to dramatic changes since that time, the eliminate consideration of alternative petitioner believes that the NRC needs 1 NEPA requires any Federal agency considering sites from the NRC nuclear power plant a major action likely to significantly affect the to reconsider its implementation of its siting and licensing processes. NEI quality of the human environment to take a " hard responsibilities under NEP A. The look" at the environmental impacts of the proposed petitioner also believes that the NRC has further indicated that, based upon a action and all reasonable alternatives to it.

legal analysis attached to the letter, "the the statutory authority to revise its 2 Independent of NEI"s petition for rulemaking.

modifications to 10 CFR part 52, subpart the NRC is considering a rulemaking to address the regulations to eliminate NRC review of A, that were proposed in [its petition] range of issues associated with the NRCs .

consideration of alternative sites in early site permIt ML030570019). At this meeting, NEI presented its should not be adopted." Supplemental (ESP). construction permit (CP). and combined views which were consistent with the positions Comments, p. 2. The letter stated that license (COL) proceedings. See 67 FR 79165 expressed in its December 18, 2002 submission. See alternative sites should continue to be (December 27, 2002). On January 28, 2003, the NRC Meeting Transcript. pp. 60-63, 72-74, 78-80.

evaluated, but the NRC should limit its held a public meeting to discuss these issues and Accordingly, the Commission will consider NEI"s to solicit stakeholder views on potential options alternative siting proposal as described in its analysis of alternatives to those that are that the NRC could pursue. See Transcript oj December 18, 2002 submission in considering pertinent in the context of the license Meeting: Criteria Jor Review oj Alternative Sites whether to proceed with rulemaking addressing application before it, i.e., to sites that ("Meeting Transcript:' ADAMS Accession No. alternative sites.

OAGI0001375_00002

Federal Register/Vol. 68, No. 188/ Monday, September 29, 2003/ Proposed Rules 55907 alternative energy sources and the need Chapters 8 and 9) and the associated to the agency's NEPA evaluation of an for power. In addition, the petitioner proposed amendments to 10 CFR part application to build new nuclear power believes that the NRC can, and should, 51 (56 FR 47016; September 17, 1991). plants. The petitioner did not mention conclude that its implementation of The States were concerned that an NRC that the NRC does, in fact, continue to NEP A no longer requires these reviews finding on those matters would infringe consider alternative energy sources in because of the fundamental changes that on State jurisdiction over economic its license renewal reviews. In addition, have occurred in the electric utility regulation of utilities, including the the petitioner did not mention that industry. Moreover, the petitioner generation, sale, and transmission of license renewal is a post-construction believes that doing so is important to electric power produced by nuclear licensing activity.

ensure the efficiency and the safety power plants. To address the States' Application of NEPA to the focus of NRC reviews of new licensing concerns and the questions raised by the Construction and Operation of Nuclear applications. U.S. Environmental Protection Agency Power Plants and the Council on Environmental Role of State and Local Governments Quality (CEQ), the NRC issued a According to the petitioner, NEP A The petitioner appeared to argue that supplement to its proposed License requires consideration of "alternatives,"

the NRC's licensing process does not Renewal Rule (59 FR 37724; July 25, but does not require the NRC to evaluate change the division of authority 1994) to address whether, under NEPA, the need for power or alternative energy between the Federal Government and the agency could and should eliminate sources. The petitioner argued that, the States over the construction and consideration of issues over which although NEP A has never required these operation of electric power generating States have primary jurisdiction. analyses, the electric utility structure in facilities. According to the petitioner, an The petitioner argued that, in that the 1970s was such that a typical NRC license or permit constitutes supplement, the NRC thoroughly and environmental review for constructing approval of a site or plant only under thoughtfully evaluated its responsibility and operating a nuclear power plant the Federal statutes and regulations under NEP A in the context of the States' included an evaluation of the need for administered by the NRC, and not under expressed concerns. First, the NRC power and alternative energy sources.

other applicable laws. For example, clearly recognized the primacy of State As a result, many licensing decisions individual State laws may require a regulatory decisions regarding future and judicial determinations have been State determination of the need for energy options. Second, the agency based on the NRC's interpretation of its power and an evaluation of alternative recognized that the electricity- responsibilities under NEP A and the energy sources, or may require the generating company will also make the corresponding NRC regulations and issuance of a certificate of public choice of energy options. Third, the practices that the agency adopted convenience and necessity, and various NRC characterized its process as one accordingly. However, the petitioner environmental permits. that preserves the option of continuing believes that what may have been The petitioner argued that the NRC's to operate nuclear plants. pertinent 30 years ago is no longer evaluation of the environmental impacts The petitioner stated that, in the pertinent. The petitioner did not of the proposed plant neither supplants license renewal context, the NRC acknowledge that the "utility" nor interferes with the traditional revised the definition of the purpose of regulatory structure that has been in the Federal action to reflect the place over the past 30 years remains in responsibilities of States in evaluating the need for power and the suitability of applicant's goals in seeking NRC effect in a number of States and will approval of the licensing action. remain in effect for the foreseeable alternative energy sources with respect According to the petitioner, the NRC's future.

to the potential use of that site. The NRC The petitioner pointed out that, in the explicitly recognized the extent of its definition of the purpose of the Federal action in the license renewal context 1970s, the typical applicant for a authority in the evaluations of nuclear power plant was an electric was "to preserve the option of alternatives in 10 CFR 51.71(e), utility that was regulated by a State continued operation of the nuclear Preliminary recommendation, Footnote public utility commission. Additionally, power plant for State regulators and

4. 3 utility officials in their future energy as a regulated electric utility, the Nonetheless, the petitioner noted that applicant had the legal authority to planning decisions" (59 FR 37725; July in the context of the license renewal exercise the power of eminent domain 25,1994).

rule (61 FR 28467; June 5, 1996) many The petitioner stated that the NRC to build generating facilities and any States expressed concern that the NRC's revised the definition of the proposed necessary supporting infrastructure. The findings, although not legally Federal action to more accurately reflect petitioner believes that any new nuclear dispositive, would establish an official what is really to be accomplished: power plant today is likely to be Federal position that the States believed establishing a stable and predictable constructed and operated by an would be difficult to rebut in State regulatory approach to determine unregulated merchant generator, which proceedings. Specifically, the States whether the option of nuclear power as will operate in a competitive expressed concern regarding the NRC's a source of generating capacity at that marketplace. The petitioner argued that consideration of the need for power and site could be considered in future State a merchant generator will not build and alternative energy sources in the generic energy planning decisions. The operate a plant unless it believes there environmental impact statement for petitioner argued that the proposed is a need for power or that the facility license renewal (NUREG-1437, definition allows only two basic will generate electricity at a lower cost alternatives: renewing the license to than the competing facilities.

3 "The consideration of reasonable alternatives to a proposed action involving nuclear power reactors preserve the nuclear option or not Additionally, the petitioner believes (e.g.. alternative energy sources) is intended to renewing the license (59 FR 37725; July that a merchant generator will not build assist the NRC in meeting its NEPA obligations and 25,1994). and operate a nuclear power plant if a does not preclude any State authority from making The petitioner believes that the superior alternative source of energy is separate determinations with respect to these alternatives and in no way preempts. displaces. or license renewal example demonstrates available. In States where utilities are affects the authority of States or other Federal that the NRC has the authority to still subject to regulation, the petitioner agencies to address these issues ..

• determine which matters are pertinent argued that the situation described OAGI0001375_00003

55908 Federal Register/Vol. 68, No. 188/ Monday, September 29, 2003/ Proposed Rules relative to license renewal is directly the ESP applicant's goal is to determine petitioner. Of the three letters opposed applicable. For these reasons, the whether the proposed site satisfies to the petition, two were from petitioner concluded that it is not statutory and NRC regulatory representatives of public advocacy reasonable to believe that a nuclear requirements as a suitable location for a groups and the other was from a private power plant will be built in today's nuclear power plant. Similarly, the citizen.

environment absent a need for power or petitioner stated that the goal of a COL Comments: The commenters in favor some other benefit. applicant is to determine whether the of the petition summarized the Furthermore, the petitioner stated that proposed plant satisfies applicable arguments in the petition and stated it is not reasonable to assume that the safety and environmental requirements, their support for the petitioner's NRC will be able to identify an including the criteria established in any position. The commenters also alternative energy source that is both referenced ESP. expressed interest in including the feasible and preferable to the choices The petitioner further stated that each petition in the ongoing 10 CFR part 52 made by a merchant generator. Because Federal agency must determine which rule making activity.

the consideration of alternatives under alternatives are reasonable and should Response: The comments received in NEPA is subject to a rule of reason, the be considered under NEPA. Morever, favor of the petition provided no petitioner believes that NEP A does not the NRC must consider the no-action additional bases for the petition.

compel the NRC to consider these alternative and actions that could Therefore, these comments are factors in today's environment. Even if mitigate the environmental impact of addressed by the NRC's reasons for other sources are available-perhaps the proposed action. According to the denying the petition, as discussed even preferable in some respects to the petitioner, in addition to the no-action below.

applicant's proposal-the petitioner alternative, the NRC must consider only Comment: A private citizen stated stated that the NRC lacks the authority those alternatives that serve the purpose that, instead of further degrading the to compel the applicant to use the for which an applicant is seeking defense of the United States of America alternative source. Therefore, the approval-and there are no alternatives. by the actions proposed in the petition, petitioner concluded that, because NRC The petitioner believes that defining the the NRC should additionally require consideration of alternative energy proposed action in this manner reflects applicants to evaluate the impact of sources and the need for power is not reality. Specifically, the NRC is not "deep undergrounding" of nuclear required under NEP A, denial of a permit considering a proposal that would power plants.

or license for reasons related to these determine how or where electricity Response: The NRC believes that the matters is inappropriate. should be generated in the future. addition of requirements for applicants The petitioner argued that, in the Rather, in either the ESP or COL to evaluate the impact of "deep context of an ESP, the proposed major proceeding, the NRC is considering only undergrounding" of nuclear power Federal action is to grant a permit for a whether a specific application meets plants is outside of the scope of the site for one or more nuclear power NRC regulations, not whether one or petition. "Deep undergrounding" is a plants. To actually build and operate more nuclear facilities should, or will, design matter rather than a siting matter.

one or more nuclear plants, an applicant be built. Comments: A commenter representing must also obtain a COL. In a COL The petitioner argued that, given the Public Citizen, a public advocacy group, proceeding, the proposed major Federal specific goals of ESP and COL stated that NEI is asking the NRC to action is the approval to build and applicants, the NRC should consider, in consider less information and fewer subsequently operate a particular addition to the no-action alternative, factors before approving a site for a nuclear plant at a specified site. If the only actions that serve the applicant's nuclear power plant at a time when the COL references an ESP, the site specific goal to determine whether the public is seeking assurances that approval is already established, and the application meets all applicable potential threats to public safety are site suitability issue is restricted to requirements. Thus, the petitioner being analyzed with more thoroughness, whether the proposed nuclear power argued, it is unnecessary and not less. The commenter further stated plant(s) fit(s) within the ESP's siting inappropriate for the NRC to require that the effect of the dramatic structural envelope. If the COL applicant does not applicants to analyze alternatives that and economic transformation in the reference an ESP, the major Federal would not fulfill the goal of determining electric power industry is evidence that action with respect to approving the whether the proposed site and facilities the review of alternative sites and specified site is the same as for an ESP. meet NRC requirements. Similarly, the energy sources should be of heightened, The petitioner argued that in each case petitioner argued, it is unnecessary and rather than diminished, concern to (ESP or COL, with or without a inappropriate for the NRC to use its regulators and the public. The referenced ESP), the proposed action limited resources to evaluate possible commenter argued that there is little in does not decide if there is a need for alternative energy sources or the need the story of electric utility restructuring power or which of the various possible for power. Thus, the petitioner thus far to suggest that nuclear power sources of electric power best meets the concluded that the NRC, in its NEPA would ever be subjected to the same needs of the given State or region, analysis, is not legally obligated and competitive market forces that apply in provides the most economic electricity should not attempt to reach any varying degrees to other sectors of the to ratepayers, or is environmentally the conclusions regarding alternative energy economy. The commenter stated that most benign. sources or the need for power. failure of nuclear power thus far to The petitioner stated that its proposal seriously compete in the new to eliminate the requirement for NRC Public Comments on the Petition "competitive" electricity generation consideration of alternative energy The NRC received 12 letters environment makes it more, rather than sources and the need for power is based commenting on this petition. Nine less, crucial to consider all options and on the fundamental NEPA principle that commenters favored the petition. Seven alternatives before the NRC approves an an agency need only consider of those letters were from nuclear power ESP. The commenter also stated that the alternatives that will accomplish the plant owners and/or operators, one was earlier in the process those alternatives applicant's goal. The petitioner argued from a nuclear steam supply system are introduced, the better, lest a that, in the context of 10 CFR part 52, vendor, and one was from the potential licensee expend considerable OAGI0001375_00004

Federal Register/Vol. 68, No. 188/ Monday, September 29, 2003/ Proposed Rules 55909 resources on a failed siting application As part ofthe NRC's NEPA analysis shorthand expression for the 'benefit' and subsequently attempt to retrieve its associated with nuclear power plant side of the cost-benefit balance, which investment from ratepayers. licensing,4 the agency must include a NEP A mandates for a proceeding The commenter also argued that balancing of costs and benefits. United considering the licensing of a nuclear granting the petition would preclude States Energy Research and plant." Public Service Co. of Oklahoma consideration of alternative sites, Development Administration (Clinch (Black Fox Station, Units 1 and 2),

alternative energy sources, and the need River Breeder Reactor Plant), CLI ALAB-573, 10 NRC 775, 804 (1979) for power at any other point in the 13,4 NRC 67, 76 (1976) citing Calvert (quoting Rochester Gas and Electric Federal regulatory process. The Cliffs Coordinating Committee, Inc. v. Corp. (Sterling Power Project, Nuclear commenter stated that the NRC should AEC, 449 F.2d 1109 (D.C. Cir. 1971). Unit No.1), ALAB-502, 8 NRC 383, 388 use any discretion it has under NEPA to Although NEPA does not explicitly n.11 (1978) quoting Public Service Co.

provide the most rigorous review mention cost-benefit balancing, judicial of New Hampshire (Seabrook Station, possible in service of the greater public interpretations of the statute have Units 1 and 2), ALAB-422, 6 NRC 33, interest. Finally, the commenter stated established that Federal agencies must 90 (1977); see also Kansas Gas and that the NRC can best uphold the balance environmental costs against the Electric Co. (Wolf Creek Generating public's trust by denying NEI's petition. anticipated benefits of the action in the Station, Unit 1), ALAB-462, 7 NRC 320, Another commenter representing EIS. Louisiana Energy Services, L.P. 327 (1978).

Greenpeace, a public advocacy group, (LES) (Claiborne Enrichment Center), Recently, the Commission has expressed the general view that the NRC CLI-98-3, 47 NRC 77, 88 (1998) citing recognized that there may be multiple should deny the petition because "to do Idaho By and Through Idaho Public benefits to a proposed project. In LES, otherwise will only serve to undermine Utilities Commission v. ICC, 35 F.3d the Commission held that the Licensing public confidence in the legitimacy of 585,595 (D.C. Cir. 1994); Calvert Cliffs, Board should consider multiple benefits the NRC and any future reactor 449 F.2d 1109. of the proposed uranium enrichment licensing process," but did not address The petitioner asserted that its facility-incl uding enhanced any of the specific matters raised in the proposal to eliminate NRC competition from another market petition. consideration of the need for power is participant, furtherance of national Response: Although the NRC does not based on the fundamental NEP A policy goals, and the creation of an entirely agree with all of these principle that an agency need only alternative, more energy-efficient commenters' arguments for denying the consider alternatives that will technology-when performing the petition, the NRC agrees with their basic accomplish the applicant's goal (i.e., the ultimate cost-benefit balancing under premise that the agency should deny the purpose ofthe proposed project). The NEPA. LES, 47 NRC at 89-96. Similarly, Commission agrees with the petitioner's the Commission acknowledges that the petition and continue to review the general premise that the NRC may construction and operation of a nuclear need for power and alternative energy "accord substantial weight to the power plant could have multiple sources in order to fulfill its obligations preferences of the applicant and/or benefits such as reducing greenhouse under NEPA. As discussed previously, sponsor in the siting and design of the gases and other air pollutants and the petitioner has withdrawn the project." Hydro Resources, Inc., CLI-Ol- increasing energy efficiency by retiring proposal in its petition with respect to 4,53 NRC 31, 55 (2001), citing Citizens older, less efficient sources of power.

alternative sites; therefore, this Notice Against Burlington v. Busey, 938 F.2d See also Niagara Mohawk, 1 NRC at 353 does not address the alternative site 190, 197 (D.C. Cir.), cert. denied, 502 (noting that "a Licensing Board may proposal from that petition. U.S. 994 (1991). However, "an agency also take cognizance of the effect which Reasons for Denial will not be permitted to narrow the a shortage of fossil fuel, or a need to objective of its action artificially and divert that fuel to other uses, might have The petitioner has not demonstrated thereby circumvent the requirement that upon demand for non-fossil fueled that applicable law or practice in other relevant alternatives be considered." generating sources"). Therefore, in Federal agencies has changed in a City of New York v. Department of preparing an EIS for any future nuclear manner that would lead the Transportation, 715 F.2d 732, 743 power plant licensing proceeding, the Commission to conclude that the NRC (1983); see also, Citizens Against Commission will consider all should no longer consider the need for Burlington, 938 F.2d at 196. In addition, reasonably foreseeable benefits of the power and alternative energy sources as the Commission recognizes that a proposed plant.

a part of its nuclear power plant proposed project may have more than Consistent with the petitioner's claim, licensing proceedings in order to fulfill one purpose. The Commission will in considering the need for power as the agency's obligations under NEPA. ordinarily give substantial weight to a part of the NEP A process, the NRC does Need for Power properly-supported statement of not supplant the States, which have purpose and need by an applicant and/ traditionally been responsible for Section 102(2)(C) of NEPA requires assessing the need for power generating or sponsor of a proposed project in that any recommendation for a major determining the scope of alternatives to facilities, their economic feasibility and Federal action significantly affecting the for regulating rates and services. As the be considered by the NRC.

quality of the human environment The cost-benefit discussion also plays petitioner noted, the NRC has include a detailed statement addressing, an important role in determining the acknowledged the primacy of State among other things: appropriate scope ofthe NEPA analysis. regulatory decisions regarding future (i) The environmental impact of the In the past, the NRC equated the need energy options. However, this proposed action, for power with the benefits of the acknowledgment does not relieve the (ii) Any adverse environmental effects proposed action. " 'Need for power' is a NRC from the need to perform a which cannot be avoided should the reasonable assessment of the need for proposal be implemented, 4 The act of granting a permit or license for a power. Moreover, in the non-regulated (iii) Alternatives to the proposed nuclear power plant qualifies as a major Federal environment foreseen by the petitioner, action significantly affecting the quality of the action. * *

• human environment; therefore. NEPA applies to the NRC consideration of the need for 42 U.S.c. 4332(2)(C). NRC when it engages in such licensing activity. power may become "more, not less, OAGI0001375_00005

55910 Federal Register/Vol. 68, No. 188/ Monday, September 29, 2003/ Proposed Rules crucial" (in the words of a commenter) need for the proposed facility. Further, Federal action are understood, the because a State decisionmaker may no even if this assertion is true, the agency is expected to follow a rule of longer conduct need for power Commission does not believe that the reason in deciding which alternatives assessments. The Commission petitioner's prediction provides a are "reasonable" or "feasible." See e.g.,

emphasizes, however, that while a judicially recognized basis for avoiding City of Angoon v. Hodel, 803 F.2d 1016, discussion of need for power is an agency-prepared determination of the 1022 (9th Cir. 1986) (per curiam); Druid required, the Commission is not looking benefits of a proposed action. The Hills Civic Ass'n v. Federal Highway for burdensome attempts by the petitioner failed to cite any recent Admin., 772 F.2d 700, 713 (l1th Cir.

applicant to precisely identify future judicial decisions which interpret NEP A 1985). Moreover, "[tlhe goals of an market conditions and energy demand, which hold (or otherwise suggest) that action delimit the universe of the or to develop detailed analyses of a Federal agency, acting on a project action's reasonable alternatives."

system generating assets, costs of proposal presented by a private sponsor Citizens Against Burlington, 938 F.2d at production, capital replacement ratios, or applicant, need not conduct an 195.

and the like in order to establish with independent review of the need for the Similar to the proposal to eliminate certainty that the construction and project, but may simply accept the NRC consideration of the need for operation of a nuclear power plant is the applicant's assertion with respect to power, the petitioner's proposal to most economical alternative for need. In any event, there is no reason to eliminate NRC consideration of generation of power. See LES, 47 NRC believe that the traditional utility model alternative energy sources is based on at 88,94. will disappear. Thus, at most, the the proposition that, under NEP A, a With regard to the petitioner's petitioner's argument would call for a Federal agency need only consider discussion of the relevance of the NRC's supplement to the requirements of 10 alternatives that will accomplish the actions under NEP A in nuclear power CFR part 51 to address nuclear power applicant's goal. The Commission agrees plant license renewal, the Commission plants built by unregulated, non-electric with the petitioner's general proposition notes that the significant environmental utility entities, rather than the that a Federal agency, acting not as a impacts associated with the siting and wholesale elimination of NRC proprietor but to approve a project construction of a nuclear power plant requirements to consider the need for sponsored by a private entity, should have already occurred by the time a power. ordinarily "accord substantial weight to licensee is seeking a renewed license. The petitioner has also not shown that the preferences of the applicant and/or The Commission has determined that it other Federal licensing agencies, acting is not necessary to consider the need for sponsor in the siting and design of the on power generation projects sponsored project." Hydro Resources, Inc., CLI-Ol-power during post-construction by private entities, have changed their 4,53 NRC 31, 55 (2001), citing Citizens licensing (issuing and renewing practices with respect to considering the operating licenses). Also, in 10 CFR Against Burlington, 938 F.2d at 197.

need for power in preparing EISs Thus, the Commission need only 51.95(c)(4), the Commission narrowed supporting their approval decisions.

the NRC's determination for license consider alternatives that will bring The NRC is also not aware of any such about the ends of the proposed action, renewal to "whether or not the adverse change in agencies' practices.

environmental impacts of license id., accord, City of Grapevine v. DOT, 17 In conclusion, the petitioner has not F.3d 1502, 1506 (D.C. Cir.), cert. denied, renewal are so great that preserving the demonstrated that consideration of the 513 U.S. 1043 (1994)), and need not option of license renewal for energy need for power is no longer a necessary planning decisionmakers would be consider alternatives that do not achieve part ofthe Commission's NEPA the purpose and need of the applicant.

unreasonable." By contrast, in the case obligations for reactor licensing See City of Angoon, 803 F.2d at 1021 of construction of a new nuclear power decisions. s The need for power must be ("When the purpose is to accomplish plant, the NRC must assess the need for addressed in connection with new one thing, it makes no sense to consider power to accurately characterize the power plant construction so that the the alternative ways by which another cost (i.e., environmental impact) and NRC may weigh the likely benefits (e.g., thing might be achieved."), cert. denied, benefits associated with the proposed electrical power) against the 484 U.S. 870 (1987). However, the action. For these reasons, the license environmental impacts of constructing petitioner failed to explain how the renewal example is not relevant to and operating a nuclear power reactor. Commission could generically consideration of need for power issues The Commission emphasizes, however, determine the purpose and need of all in new reactor licensing processes.

The petitioner contended that at the that such an assessment should not future applicants for CPs and COLs such time the original licensing decisions and involve burdensome attempts to that consideration of alternative energy judicial interpretations of NEP A were precisely identify future conditions. sources would be unnecessary for all being made and the NRC was Rather, it should be sufficient to future applicants. In the absence of a developing a position on its reasonably characterize the costs and basis for such rulemaking, the responsibilities under NEP A, the typical benefits associated with proposed Commission concludes that it will applicant for a nuclear power plant was licensing actions. continue the NRC's practice of an electric utility regulated by a State Alternative Energy Sources determining the purpose and need on a public utility commission. By contrast, case-specific basis. The Commission the petitioner argued that future nuclear It is well established that once the cautions that when describing the power plants will, in all likelihood, be purpose of and need for a proposed purpose of and need for its proposal, the constructed and operated by an applicant should not set forth an 5 The Commission notes that an applicant for an unregulated "merchant generator," that ESP need not include in its application " an unreasonably narrow objective of its will not build and operate a plant unless assessment of the benefits (for example. need for project, thereby artificially narrowing it believes that there is a need for power power) of the proposed action .. ' 10 CFR 52.17(a)(2). the scope of alternatives to be or that the facility will generate Instead, the assessment of benefits of constructing considered by the NRC. A Federal and operating a nuclear power reactor on the ESP electricity at a lower cost than the site may be deferred to the time (if ever) that the agency, acting as a sponsoring agency, competing facilities. Thus, it would not ESP is referenced in an application for a part 52 would not be permitted to artificially appear to be burdensome to state the COL or a part 50 CPo narrow the objective of its action and OAGI0001375_00006

Federal Register/Vol. 68, No. 188/ Monday, September 29, 2003/ Proposed Rules 55911 thereby circumvent the requirement to not aware of, any judicial decision Conclusion consider relevant alternatives. See concluding that it is unnecessary for a The petitioner has not shown any Citizens Against Burlington, 938 F.2d at Federal agency to consider alternative change in other Federal agencies' 196, City of New York v. Department of energy sources in licensing a new power practices, judicial consideration of the Transportation, 715 F.2d 732, 743 generation project. NEP A obligations of Federal regulatory (1983). The Commission believes that The petitioner argued, as it did with agencies responsible for licensing this principle should also apply where respect to the need for power, that privately proposed actions, or other a sponsoring entity or applicant seeks future "merchant generators" will not factors underlying the Commission's the NRC's approval. There may well be build and operate a nuclear power plant current policies for considering the need circumstances where an entity seeking a if there is a superior source of energy. for power or alternative energy sources CP or COL may be able to establish, However, the petitioner failed to cite that would lead the Commission to consistent with NEP A and current any recent judicial decisions conclude that consideration of these judicial precedents, a narrow statement interpreting NEP A which hold that a issues is no longer a necessary part of of purpose and need for the project Federal agency, acting on a project the Commission's NEPA obligations for sufficient to justify excluding from the proposal presented by a private sponsor reactor licensing decisions. For EIS a consideration of non-nuclear or applicant, need not conduct an applications that could result in the alternative energy sources. independent review of alternatives but commencement of construction (i.e., CP The NRC's current policy is to may limit its discussion to alternatives and COL applications), the NRC consider alternative energy sources at that the sponsor or applicant deems continues to believe that the agency the CP stage because alternatives to the reasonable. should address alternative energy construction of a nuclear power plant The petitioner stated that it is not sources in the related EIS (unless, the must be considered before the reasonable to assume that the NRC will CP or COL application references an environmental impacts of construction be able to identify an alternative energy ESP that considered alternative energy are realized. The Commission's practice source that is both feasible and sources). The NRC also continues to was acknowledged in the statement of preferable to the choices made by the believe that, for such construction consideration for the final rule applicant, but provides no apparent approval applications, the agency amending 10 CFR part 51 to bar the basis for this assertion. The Commission should address the benefits assessment consideration of alternative energy does not agree with the petitioner's (e.g., need for power) in the related EIS.

source issues in operating license assertion. The NRC has extensive For the reasons cited in this proceedings for nuclear power plants experience in identifying and evaluating document, the NRC denies the petition.

(47 FR 12940; March 26, 1982). The the feasibility of alternative energy Commission stated that "in accordance Dated at Rockville, Maryland, this 23rd day sources in a manner that is sufficient to of September, 2003.

with the Commission's NEPA meet the requirements of NEP A. Indeed, responsibilities, the need for power and For the Nuclear Regulatory Commission.

the NRC currently performs such alternative energy sources are resolved analyses in connection with renewals of Annette 1. Vietti-Cook, in the construction permit proceeding." nuclear power plant operating licenses Secretary of the Commission.

The Commission added that (including renewals for plants operated [FR Doc. 03-24474 Filed 9-26-03; 8:45 am]

"[allternative energy source issues by non-utility entities). BILLING CODE 7590-01-P receive and will continue to receive Finally, the petitioner argued that the extensive consideration at the CP stage" NRC need not consider alternative (emphasis added). Thus, the energy sources because "the NRC lacks DEPARTMENT OF TRANSPORTATION Commission has committed itself to the authority to compel the applicant to consider alternative energy sources and use the alternative * * * [energy] Federal Aviation Administration continues to believe that it should do so source." Petition, at 7. The Commission to fulfill its NEP A responsibilities. agrees with the petitioner that the NRC 14 CFR Part 71 Under 10 CFR part 52, alternative does not have the authority to require [Docket No. FAA-2003-15876; Airspace energy sources may be considered at the the applicant to use an alternative Docket No. 03-AGL-14]

ESP stage or deferred until the COL energy source even if there is an stage. alternative with potentially fewer Proposed Modification of Class E The Commission's position on environmental impacts than those Airspace; Zanesville, OH consideration of alternative energy associated with operation of the sources is consistent with other Federal AGENCY: Federal Aviation proposed nuclear power plant. Administration (FAA), DOT.

agencies' practices, which have However, if the alternative energy consistently included alternative energy source is a reasonable alternative, it allows the ESP applicant the flexibility to choose sources when preparing an EIS for a should be identified and evaluated. See to defer consideration of benefits (for example, need new power generation project. In Dubois v. U.S. Dept. of Agriculture, 102 for power) of the proposed facility to the time (if addition, the NRC's position is F.3d 1273, 1286-87 (1st Cir. 1996), ever) that the ESP is referenced by a COL or CP consistent with case law. There are application. In this same context, the ESP applicant citing Roosevelt Campobello Int'l Park need not include an assessment or discussion of many cases involving the adequacy of Committee v. United States EPA, 684 alternative energy sources in its environmental an agency's alternative energy source F.2d. 1041 (1st Cir. 1982). report supporting an ESP application. Rather, the review. See, e.g., Association of Public In summary, the petitioner has not applicant may choose to defer consideration of Agency Customers v. Bonneville Power alternative energy sources to the COL or CP shown that it is no longer a necessary application. The Commission's proposed revision to Administration, 126 F.3d 1158, 1187 part ofthe Commission's NEPA 10 CFR part 52 includes a provision to amend (9th Cir. 1997); Swinomish Tribal obligations for the NRC to consider § 52.17(a)(2) to clarify that an ESP applicant has the Communityv. FERC, 627 F.2d 499,514- alternative energy sources in rendering flexibility of either addressing the matter of 16 (D.C. Cir. 1980); Hawaii County alternative energy sources in the environmental decisions regarding reactor licensing. 6 report supporting its ESP application or deferring Green Party v. Clinton, 980 F. Supp. the consideration of alternative energy sources to 1160,1167 (D. Haw. 1997). The 6 As previously discussed in footnote [4]. it is the the time that the ESP is referenced in a licensing petitioner did not cite, and the NRC is Commission's view that § 52.17(a)(2) currently proceeding (68 FR 40028, July 3,2003).

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