ML24212A017

Comment (147) E-mail Regarding Palisades Restart Scoping

ML24212A017
Person / Time
Site:	Palisades
Issue date:	07/29/2024
From:	Public Commenter Public Commenter
To:	NRC/NMSS/DREFS
NRC/NMSS/DREFS
References
89FR53659
Download: ML24212A017 (10)

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From: Rebecca Lowy <rlowy@elpc.org>

Sent: Monday, July 29, 2024 2:29 PM To: PalisadesRestartEnvironmental Resource Cc: David Scott

Subject:

[External_Sender] Comments on the Scoping Process Attachments: FINAL 7.29.24 ELPC Comments Palisades NOI EA Scoping.pdf

Hello,

Attached please find comments from the Environmental Law and Policy Center in response to the request for comments, Docket NRC-2024-0076. These comments have been submitted electronically, and are also being submitted via email to confirm receipt.

Thank you, Rebecca Lowy

Rebecca Lowy (she/her)

Associate Attorney Environmental Law & Policy Center

Visit us at www.elpc.org Blog l Facebook l Twitter l LinkedIn

Federal Register Notice: 89FR53659 Comment Number: 147

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[External_Sender] Comments on the Scoping Process Sent Date: 7/29/2024 2:28:40 PM Received Date: 7/29/2024 2:28:59 PM From: Rebecca Lowy

Created By: rlowy@elpc.org

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"David Scott" <dscott@elpc.org>

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July 29, 2024 Office of Administration, Mail Stop: TWFN-7-A60M, U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTN: Program Management, Announcements and Editing Staff.

Docket ID NRC-2024-0076 Submitted electronically at: https://www.regulations.gov/commenton/NRC-2024-0076-0001 Also submitted via email to: PalisadesRestartEnvironmental@nrc.gov

Comments to the Nuclear Regulatory Commission and Department of Energy:

Thank you for the opportunity to submit written comments on the proper scope of what you have proposed as an environmental assessment (EA) for the proposed restart of the Palisades Nuclear Plant (Palisades). These comments respond to the Notice of Intent (NOI) that the Nuclear Regulatory Commission (NRC) published in the Federal Register on June 27, 2024, 89 Fed. Reg. 53659-53662 (June 27, 2024). The comments apply to the actions proposed by both the NRC as the lead agency, and the Department of Energy (DOE) as a cooperating agency, in connection the proposed restart of Palisades.

These comments are submitted on behalf of the Environmental Law & Policy Center (ELPC), which advocates, innovates, and litigates to protect the Great Lakes and the environment in Michigan and other States in the Midwest.

Our principal comments and recommendations with respect to scoping are as follows:

1. NRC and DOE should conduct a full Environmental Impact Statement (EIS) in place of the proposed EA.

Restarting a nuclear power plant has significant environmental impacts as a matter of applicable National Environmental Policy Act (NEPA) regulations, involving context and intensity.1 In the NOI, the NRC states that the determination for preparing an EA rather than an EIS was because the NRC does not yet know the significance of potential impacts from the

1 40 C.F.R. 1501.3.

proposed action. Although NEPA allows an agency to prepare an EA for a proposed action when the significance of the effects is unknown, the proposed action also must be not likely to have significant effects.2 In our view, restarting an aging nuclear plant that has already entered the decommissioning phase with an inexperienced operator is more than likely to have significant effects, and thus mandates preparation of an EIS. NRC itself describes this proposed action a First of a Kind Effort to Restart a Shuttered Plant.3 As NRC noted, Palisades permanently ceased operations on May 20, 2022, after more than 40 years of commercial operation.4 And while Holtec may be a leader in decommissioning of nuclear reactors in the United States, to our knowledge it does not have experience operating a nuclear plant apart from through a decommissioning process. Indeed, Holtec originally acquired rights to Palisades in order to tear it down, not to rebuild and operate it. Holtec only changed course when the possibility of substantial DOE funding became available. Given these highly unusual - in fact, first of a kind - circumstances, NRC and DOE should conduct a full EIS.

Even if NRC believes that specific effects are not yet known, that does not exempt NRC from conducting a thorough EIS. The purpose of an EIS is to identify what those effects may be, and whether there are any alternatives that would mitigate such impacts. Furthermore, representatives from the NRC stated multiple times during a public meeting on July 11th that they expect to make a finding of no significant impact (FONSI), and this was further emphasized on slides shared during the meeting.5 However, agencies may not assume that there will be a FONSI ahead of the analysis, and courts have held that agencies cannot avoid preparing an EIS by such conclusory assertions.6 Additionally, a FONSI will be evaluated against the current scheme of NEPA requirements (discussed in further detail below), including cumulative impacts and controversy.7 This makes it likely that the proposed EA and FONSI would be inadequate and require production of an EIS.

NEPA requires a full EIS when actions are likely to have significant effects.8 When determining the appropriate level of NEPA review, a significance determination requires examining both context and intensity.9 The context analysis should include both geographic

2 40 C.F.R. 1502.5(a).

3 NRC, Palisades Nuclear Plant - Potential Restart, https://www.nrc.gov/info-finder/reactors/pali.html (last visited July 28, 2024).

4 Id.

5 NRC, NRC Presentation on Palisades Nuclear Plant Potential Reauthorization Scoping Meeting, Accession No. ML24193A025, Slide 12 (July 11, 2024).

6 Ocean Advocates v. U.S. Army Corps of Engrs, 402 F.3d 846, 864 (9th Cir. 2005) (The Corps cannot avoid preparing an EIS by making conclusory assertions that an activity will have only an insignificant impact on the environment.).

7 Grand Canyon Trust v. F.A.A., 290 F.3d 339, 347 (D.C. Cir. 2002) (holding that an EA and FONSI were insufficient because the agency failed to consider individually insignificant but cumulatively significant impacts and requiring an EIS because the project was highly controversial).

8 40 C.F.R. § 1501.3(c)(3).

9 40 C.F.R. 1501.3(d).

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scope and duration of impacts.10 The intensity analysis should consider eight factors, including whether the action may adversely affect the public health and safety, adverse effects on unique characteristics such as wetlands, parks, or ecologically critical areas; the degree to which the potential effects on the human environment are highly uncertain, and the degree to which the action may adversely affect communities with environmental justice concerns.11 Furthermore, courts have held that even just one factor may be sufficient to require preparation of an EIS in appropriate circumstances.12 Courts have held that where there is controversy over the degree to which there may be effects on the human environment, production of an EIS may be required.13

In this situation, restarting a plant that has already entered the decommissioning phase is likely to significantly impact the environment. Just because the plant was previously licensed to run through 2031 does not mean that an EA is sufficient. Circumstances changed, by definition, as shown by the decision to shut down the plant nearly a decade early. There are now numerous differences from when the license renewal was issued: the operator has changed; the relevant NEPA requirements have changed; the science and economics on efficiency and availability of alternatives has evolved; the state of the plant itself has dramatically worsened, exposing it to a greater possibility of radioactive contamination to the environment. Entergy, the prior owner and operator, entered decommissioning in part because the plant was no longer financially feasible to run - due to its disrepair and the upgrades required to operate it safely. Although that decision has been characterized as an economic decision, that characterization is misleading to the extent it overlooks the role that disrepair, required upgrades, and safety issues played in creating the financial challenges that led to the decision to shut down. There is significant controversy over the degree to which this may impact the human environment. Additionally, the plant is located directly on the coast of Lake Michigan, which supplies drinking water to over 10 million people, and is sited near fragile dune ecosystems, making it a unique geographic location. All of these factors and changed circumstances support a finding that the proposed restart is likely to have a significant impact and requires an EIS under the intensity and context analysis.

NRCs own regulations support producing an EIS. In order to require an EIS, a licensing action must be a major Federal action significantly affecting the quality of the human environment.14 The NRC regulations further require an EIS - or at least a supplemental EIS -

for [i]ssuance or renewal of a full power or design capacity license to operate a nuclear power reactor, testing facility, or fuel reprocessing plant under part 50 of this chapter, or a combined

10 Id.

11 Id.

12 Ocean Advocates, 402 F.3d at 865; see also National Parks & Conservation Assn v. Babbitt, 241 F.3d 722, 731 (9th Cir. 2001); Nat'l Parks Conservation Ass'n v. Semonite, 916 F.3d 1075, 1082 (D.C. Cir.), amended on reh'g in part, 925 F.3d 500 (D.C. Cir. 2019) (Implicating any one of the factors may be sufficient to require development of an EIS).

13 Nat'l Parks Conservation Ass'n v. Semonite, 916 F.3d 1075 at 1083.

14 10 C.F.R. § 51.20(a)(1).

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license under part 52 of this chapter.15 NRC staff compared this restart to the license renewal process during both the April 17th and July 11th public meetings. NRCs regulations require an EIS process for license renewals; indeed, the prior license renewal process in 2006 required an EIS, so it would be reasonable to conduct an EIS analysis for the proposed restart if it is otherwise being compared to a renewal process.

Finally, NRC regulations allow the NRC to prepare an EIS for any other action it determines is a major Commission action significantly affecting the quality of the human environment.16 This restart would be unprecedented in U.S. history, and will significantly affect the quality of the human environment. NRC has the authority to, and should, evaluate this action at the strongest level of environmental review.

2. NRC and DOE cannot and should not rely on the prior EIS published for Palisades in 2006 nor the Generic EIS from 2013, both of which are stale.

NRC and DOE both represented during the July 11 public meeting that they would be relying on the prior EIS statements for license renewals for the proposed restart at Palisades.

However, the last time an EIS was prepared specifically for Palisades was in 2006,17 and the Generic EIS for License Renewal of Nuclear Plants was in 2013.18 NEPA allows agencies to rely on existing programmatic environmental documents for five years - and only if there are no substantial new circumstances or information.19 Agencies may rely on the earlier documents after five years so long as the agency reevaluates the analysis in the programmatic environmental document and any underlying assumption to ensure reliance on the analysis remains valid.20

Both of the prior EISs are well over 5 years old, and neither addresses a restart of a plant that had already begun the decommissioning process. They only address license renewals. There were certainly no underlying assumptions that the plant would enter the shutdown phase prior to restarting when conducting the earlier EIS analyses, nor that the operator would be a company without prior operating experience. The plant has aged without appropriate upgrades, and the analyses in the earlier EIS documents are significantly outdated, both as to environmental impacts and when it comes to feasibility and financing of alternatives. The analyses in the earlier

15 10 C.F.R. § 51.20(b)(2).

16 10 C.F.R. § 51.20(b)(14).

17 NRC, Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Palisades Nuclear Plant - Final Report (NUREG-1437, Supp. 27) (Oct. 2006), https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement27/index.html.

18 NRC, Generic Environmental Impact Statement for License Renewal of Nuclear Plants - Final Report (NUREG-1437, Rev. 1) (May 2013), https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/r1/index.html.

19 42 U.S.C. § 4336b.

20 Id.; see also 40 C.F.R. § 1502.11(C)(2).

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programmatic environmental documents are no longer valid. Therefore, NRC and DOE should not, and cannot, rely on the analysis in those stale documents.

Furthermore, many other NEPA requirements have changed since the older EIS documents were issued. For instance, NEPA now requires agencies to consider communities with environmental justice concerns and indirect cumulative impacts in their assessments.21 NRC and DOE cannot avoid these requirements by relying on the fact that the plant had previously been approved for renewal. The prior renewal predates by nearly two decades the current scoping process, and did not address these newer requirements. To rely on these older documents and approach the NEPA process as though nothing has changed flies in the face of the entire purpose of NEPA, to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.22 Requirements and knowledge of what efforts would protect the environment and protect human health have changed significantly since the earlier documents publication. Relying on these documents will put NRC, DOE, and the public in a guessing game as to what the true ramifications of a restart are in the current day, and leave everyone without adequate information to make informed decisions. Instead, NRC and DOE should conduct a thorough EIS that adequately analyzes the implications of a restart in modern conditions and provides sufficient knowledge to make informed choices about whether a restart is an environmentally sound decision.

Finally, put simply, there is a fundamental inconsistency between undertaking an unprecedented, first of a kind action and purporting to do so based on decades old environmental analysis. This action requires thorough new analysis and a full EIS.

3. NRC and DOE must consider a robust combination of renewables and energy efficiency alternatives both in terms of costs and environmental impacts.

NRC and DOE must evaluate reasonable alternatives to restarting Palisades. These alternatives should include other energy alternatives, such as renewables, and in particular consider renewables in combination with each other. The 2006 EIS assessed renewable alternatives such as solar, wind, and hydropower in isolation. However, the landscape for renewables has changed dramatically since 2006. Advanced technology, current economics, ongoing energy transition, and other factors now support combination of renewable energy resources as critical to a reliable grid and better than an isolated source approach. Therefore, a

21 See generally 40 C.F.R. § 1508.1(f), (m) (defining communities with environmental justice concerns and environmental justice); § 1508.1(i) (defining effects or impacts to include direct, indirect, and cumulative effects).

22 42 U.S.C. § 4321.

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combination of renewables is well within the reasonable range of alternatives that an agency should consider in its alternatives analysis.23

NRCs regulations for draft EISs require analysis that includes consideration of the economic, technical, and other benefits and costs of the proposed action and alternatives.24 NEPA also allows agencies to include reasonable alternatives not within the jurisdiction of the lead agency.25 Because DOE is planning to provide a federal loan of $1.5 billion, and NRC is the lead agency, both agencies should be considering whether such funds would be better invested in building renewable generation or energy efficiency infrastructure - not just at the site of the Palisades plant, but throughout Michigan and the area where energy that would be generated by Palisades would be utilized. Such analysis should, for example, compare the cost of the restart, long term benefits, and risk of radioactive waste entering Lake Michigan, with the cost, long term benefits, and environmental risks of a mixed-renewables design.

Additionally, though NEPA and NRC regulations allow for evaluation of alternatives in a later stage analysis when there is a two-phase process, there does not appear to be any such second-stage planning for the proposed restart of Palisades.26 This is the only opportunity to evaluate alternatives. The alternatives analysis is the heart of a full EIS,27 which we believe NRC and DOE must conduct. NRC cannot bypass this requirement by using an environmental assessment approach or reliance on outdated EIS documents, particularly in an unprecedented action to restart a shuttered plant. Even if NRC were to only conduct an EA, such analysis still must include a thorough alternatives analysis per NEPA regulations.28

Conclusion

A draft environmental assessment that relies heavily on outdated EIS documents 11-18 years old, with an assumption that the EA would result in a finding of no significant impact, would not meet the NRC or DOEs obligations under NEPA or NRCs own regulatory requirements. This also would not give either agency, or the public, the information and analysis needed to make truly informed decisions about the environmental impacts of restarting an aged nuclear plant that has already begun decommissioning. NRC and DOE should prepare an EIS that fully analyzes the safety concerns and impacts of such restart that complies with all the latest

23 40 C.F.R. § 1502.14(a).

24 10 C.F.R. § 51.71(d).

25 Id., see also See 89 Fed. Reg. 35442, National Environmental Policy Act Implementing Regulations Revisions Phase 2 (May 1, 2024).

26 See Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997); c.f. Environmental Law & Policy Center v. U.S. Nuclear Regulatory Commission (ELPC), 470 F.3d 676 (7th Cir. 2006) (holding that alternatives could be evaluated in the second stage of the licensing process).

27 40 C.F.R. § 1502.14.

28 40 C.F.R. § 1501.5(c)(ii); see also 42 U.S.C. § 4332(H).

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NEPA requirements. NRC and DOE should not rely on outdated documents. They should consider whether the applicant is able to operate the Palisades Nuclear Power Plant safely in accordance with NEPA rules and regulations. And the agencies should include a robust assessment of alternatives, including renewable energy in combination.

ELPC looks forward to reviewing and commenting on a properly scoped draft EIS.

/s/ David Scott David Scott Rebecca Lowy Environmental Law & Policy Center 35 East Wacker Drive, Suite 1600 Chicago, IL 60601 (312) 673-6500 dscott@elpc.org rlowy@elpc.org

Attorneys for the Environmental Law and Policy Center

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