ML14255A432
| ML14255A432 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 09/05/2014 |
| From: | Fagg B, Fewell J, O'Neill M, Polonsky A Exelon Generation Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit |
| Adler, J | |
| References | |
| 13-1311 | |
| Download: ML14255A432 (86) | |
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USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 1 of 86 ORAL ARGUMENT SCHEDULED FOR NOVEMBER 21, 2014 No. 13-1311 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATURAL RESOURCES DEFENSE COUNCIL, INC.
Petitioner, v.
NUCLEAR REGULATORY COMMISSION and THE UNITED STATES OF AMERICA, Respondents, and EXELON GENERATION COMPANY, LLC, Intervenor.
ON PETITION FOR REVIEW OF AN ORDER BY THE UNITED STATES NUCLEAR REGULATORY COMMISSION CORRECTED INITIAL BRIEF OF INTERVENOR EXELON GENERATION COMPANY, LLC J. Bradley Fewell Brad Fagg Vice President and Deputy Alex Polonsky General Counsel Martin ONeill Exelon Generation Company, LLC Morgan, Lewis & Bockius LLP 200 Exelon Way 1111 Pennsylvania Avenue, N.W.
Kennett Square, PA 19348 Washington, D.C. 20004 (630) 657-3769 (202) 739-5191 September 5, 2014 Counsel for Exelon Generation Company, LLC
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 2 of 86 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES, AND RULE 26.1 DISCLOSURE Pursuant to D.C. Circuit Rules 26.1 and 28(a)(1), counsel for Intervenor certifies as follows:
- 1. Parties, Intervenors, and Amici The parties and intervenor in this proceeding are listed in the initial briefs of the Petitioner and Federal Respondents. There are no amici.
RULE 26.1 DISCLOSURE STATEMENT Intervenor Exelon Generation Company, LLC states that it is a Pennsylvania limited liability company and a wholly-owned subsidiary of Exelon Ventures Company, LLC, which in turn is a wholly-owned subsidiary of Exelon Corporation. No other publicly-held company has a 10% or greater ownership interest in the Exelon Generation Company, LLC, Exelon Ventures Company, LLC or Exelon Corporation.
- 2. Ruling Under Review Petitioner NRDC seeks review of the NRCs October 31, 2013 Memorandum and Order in Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199 (Oct. 2013).
- 3. Related Cases Intervenor is unaware of any related cases.
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 3 of 86 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .................................................................................. iii GLOSSARY.............................................................................................................ix JURISDICTIONAL STATEMENT .........................................................................1 STATEMENT OF THE ISSUES..............................................................................1 STATEMENT OF THE CASE.................................................................................2 STATEMENT OF FACTS .......................................................................................5 I. STATUTORY AND REGULATORY BACKGROUND .............................5 A. The Atomic Energy Act .......................................................................5 B. The National Environmental Policy Act ..............................................5 C. The NRCs License Renewal Regulations...........................................6 D. The SAMA Analysis Requirement ......................................................9 E. The SAMA Analysis Exception Applicable To This Case................11 F. The NRC Hearing Process .................................................................13 II. THE PROCEEDINGS BELOW...................................................................14
SUMMARY
OF ARGUMENT ..............................................................................18 ARGUMENT ..........................................................................................................21 I. THE NRC DID NOT ACT ARBITRARILY OR CAPRICIOUSLY IN FINDING THAT NRDCS PROPOSED SAMA CONTENTION, IN THE ABSENCE OF A WAIVER, WAS AN IMPERMISSIBLE COLLATERAL ATTACK ON AN NRC REGULATION .........................22 A. Section 51.53(c)(3)(ii)(L) Unquestionably Exempts Exelon from Submitting Another SAMA Analysis........................................23 B. The Regulatory History of Section 51.53(c)(3)(ii)(L) Confirms the Rules Sound Technical Basis and Intended Effect .....................24 C. The Commissions Decision Is Consistent With NEPA....................24 D. The Commissions Decision Is Consistent With NRC and Judicial Precedent...............................................................................26 i
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 4 of 86 II. THE COMMISSION DID NOT ACT ARBITRARILY AND CAPRICIOUSLY IN DENYING NRDCS WAIVER PETITION FOR FAILURE TO MEET THE REQUIREMENTS OF SECTION 2.335(b).........................................................................................................30 A. NRCs Waiver Standard Has Sound Legal and Policy Bases............30 B. The NRCs Application of Its Waiver Standard Was Well-Reasoned and Rational .......................................................................31 III. NRDC HAS NO AUTOMATIC RIGHT TO A HEARING ON AN ISSUE MATERIAL TO THE NRCs LICENSE RENEWAL DECISION....................................................................................................34 CONCLUSION.......................................................................................................38 CERTIFICATION OF COMPLIANCE CERTIFICATE OF SERVICE ii
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 5 of 86 TABLE OF AUTHORITIES Page(s)
FEDERAL CASES Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998)............................................................................................26 Am. Trucking Assns, Inc. v. United States, 627 F.2d 1313 (D.C. Cir. 1980)..........................................................................37 Assn of Pub. Agency Customers, Inc. v. Bonneville Power Admin.,
126 F.3d 1158 (9th Cir. 1997) ............................................................................25 Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983)....................................................................................6, 20, 28 Beyond Nuclear v. NRC, 704 F.3d 12 (1st Cir. 2013) .............................................36 Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 195 ...............................................................................................22
- BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974)..........................................................21, 34, 35, 37 Brodsky v. NRC, 704 F.3d 113 (2d Cir. 2013) ...............................................................................36 Citizens Awareness Network, Inc. v. United States, 391 F.3d 338 (1st Cir. 2004)...............................................................................37 City of Idaho Falls, Idaho v. FERC, 629 F.3d 222, 228 (D.C. Cir. 2011)....................................................................22 County of Rockland v. FAA, 335 F. Appx 52 (D.C. Cir. 2009).........................................................................6 County of Rockland v. NRC, 709 F.2d 766 (2d Cir. 1983) .................................................................................5
- Cases principally relied upon.
iii
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 6 of 86 Del. Dept. of Natural Res. and Envtl. Control v. U.S. Army Corps of Engrs, 685 F.3d 259 (3d Cir. 2012) ...............................................................................36 FCC v. Pottsville Broadcasting Co.,
309 U.S. 134, 143-144 (1940) ............................................................................37 Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (4th Cir. 1999) ..............................................................................26 Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995) ..............................................................................36 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989) .................................................................................9 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989)......................................................................................24, 26
- Massachusetts v. NRC, 708 F.3d. 63 (1st Cir. 2013)..........................................................................26, 31
- Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008).........................................................................28, 29 Natl Comm. for the New River, Inc. v. FERC, 373 F.3d 1323 (D.C. Cir. 2004)..........................................................................24 Natl Envtl. Dev. Assn Clean Air Project v. EPA, 752 F.3d 999 (D.C. Cir. 2014)............................................................................23 Natl Indian Youth Council v. Andrus, 501 F. Supp. 649 (D.N.M. 1980)........................................................................25 NRDC v. EPA, 822 F.2d 104 (D.C. Cir. 1987)............................................................................26 Nuclear Info. Research Serv. v. NRC, 969 F.2d 1169 (D.C. Cir. 1992)..........................................................................35 Pfizer Inc. v. Heckler, 735 F.2d 1502 (D.C. Cir. 1984)..........................................................................23
- Cases principally relied upon.
iv
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 7 of 86 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)........................................................................................6, 10 San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109 (9th Cir. 2011) ............................................................................36 Siegel v. AEC, 400 F.2d 778 (D.C. Cir. 1968)..............................................................................5 Sierra Club v. U.S. Dept of Transp.,
753 F.2d 120 (D.C. Cir. 1985)........................................................................6, 25 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)....................................................................................23 Tribune Co. v. FCC, 133 F.3d 61 (D.C. Cir. 1998)..............................................................................20 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984) (UCS I).......................................21, 34, 35, 36
- Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990) (UCS II) .........................................21, 35, 36, 37 Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978)..............................................................................................5 FEDERAL STATUTES AND REGULATIONS Administrative Procedure Act, 5 U.S.C. §§ 701 to 706 ..................21, 26, 34, 36, 37 Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C. §§ 2011 to 2297h-13 ......................................... 1, 5, 10, 21, 34, 36, 37 AEA § 189(a), 42 U.S.C. § 2239(a)(1)(A) ............................................13, 22, 34, 35 National Environmental Policy Act, 42 U.S.C. §§ 4321 to 4370h .................... 1, 5, 6, 7, 21, 22, 24, 25, 26, 34, 36, 37 42 U.S.C. § 4332(2)(C) .............................................................................................5 10 C.F.R. Part 51..................................................................................................7, 11
- Cases principally relied upon.
v
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 8 of 86 10 C.F.R. Part 51, Subpart A, App. B....................................................................7, 8 10 C.F.R. Part 52......................................................................................................32 10 C.F.R. Part 54........................................................................................................6 10 C.F.R. §2.309(b) .................................................................................................13 10 C.F.R. §2.309(d) .................................................................................................13 10 C.F.R. §2.309(f)(1) .............................................................................................13 10 C.F.R. § 2.335 .....................................................................................................13 10 C.F.R. §2.335(a)..................................................................................................29 10 C.F.R. § 2.335(b) ........................................................................................1, 3, 19 10 C.F.R. § 2.802 .....................................................................................................29 10 C.F.R. § 2.802(a).................................................................................................30 10 C.F.R. § 51.20(b)(2)..............................................................................................6 10 C.F.R. § 51.53 .......................................................................................................6 10 C.F.R. § 51.53(c)(3) ........................................................................................... 27 10 C.F.R. § 51.53(c)(3)(i) ............................................................................19, 27, 28 10 C.F.R. § 51.53(c)(3)(ii) .........................................................................................7 10 C.F.R. § 51.53(c)(3)(ii)(L) .......... 1, 2, 4, 9, 11, 18, 19, 22, 24, 29, 30, 32, 33, 37 10 C.F.R. § 51.53(c)(3)(iv) ..................................................................................8, 14 10 C.F.R. § 51.73 .....................................................................................................30 10 C.F.R. § 51.74 .....................................................................................................30 10 C.F.R. § 51.95 .......................................................................................................6 10 C.F.R. § 51.95(c)...............................................................................................6, 8 10 C.F.R. § 54.21(a)(1)(i) ..........................................................................................7 vi
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 9 of 86 10 C.F.R. § 54.31 .......................................................................................................6 37 Fed. Reg. 15,127 (July 28, 1972)........................................................................30 60 Fed. Reg. 22,461, 22,477 (May 8, 1995) ..............................................................7 61 Fed. Reg. 28,467 (June 5, 1996) ............................................9, 11, 12, 13, 18, 32 NUCLEAR REGULATORY COMMISSION ADJUDICATORY DECISIONS Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2&3), CLI-05-24, 62 NRC 551 (2005) .....................................................14 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419 (2003) .....................10 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),
CLI-10-11, 71 NRC 287 (2010) ...........................................................................8 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),
CLI-12-1, 75 NRC 39 (2010) .......................................................................10, 25 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),
CLI-12-15, 75 NRC 704 (2012) ...................................................................10, 11 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station),
CLI-07-3, 65 NRC 13 (2007) .................................................................27, 28, 29 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377 (2012) ................. 18, 19, 22, 26, 29, 30 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),CLI-13-7, 78 NRC 199 (2013)............................. 2, 3, 4, 14, 19, 20, 22, 24, 25, 26, 27, 30, 31, 32, 33, 35 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),
CLI-12-15, 75 NRC 301 (2012) ...........................................................................9 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-88-10, 28 NRC 573 (1988).............................................................................................31 vii
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 10 of 86 MISCELLANEOUS Full-Scope Site Level 3 Probabilistic Risk Assessment Project, available at http://pbadupws.nrc.gov/docs/ML1328/ML13280A606.pdf .............................33 Generic Environmental Impact Statement for License Renewal of Nuclear Plants - Main Report (Final Report), NUREG-1437, Vol. 1 (May 1996) available at http://pbadupws.nrc.gov/docs/ML0406/ML040690705.html ..........7 Perspectives Gained from the Individual Examination of External Events (IPEEE) Program, Final Report, Vol. 1 (April 2002), available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1742 ................12 State-of-the Art Reactor Consequence Analyses (SOARCA), available at http://www.nrc.gov/about-nrc/regulatory/research/soar.html ............................33 viii
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 11 of 86 GLOSSARY AEA Atomic Energy Act AEC Atomic Energy Commission APA Administrative Procedure Act EIS Environmental Impact Statement Limerick Limerick Generating Station, Units 1 and 2 NEPA National Environmental Policy Act NRC U.S. Nuclear Regulatory Commission NRDC Natural Resources Defense Council SAMA Severe Accident Mitigation Alternative SAMDA Severe Accident Mitigation Design Alternative UCS Union of Concerned Scientists (case name) ix
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 12 of 86 JURISDICTIONAL STATEMENT We do not here address the ripeness and jurisdictional issues discussed by Natural Resources Defense Council (NRDC) at pages 27-30 of its initial brief and by the U.S. Nuclear Regulatory Commission (NRC or Commission) at pages 27-37 of its initial brief, but, for these purposes, assume jurisdiction and respond to the other arguments and issues raised by NRDC.
STATEMENT OF THE ISSUES
- 1. Whether the NRC acted arbitrarily and capriciously in requiring NRDC to seek a waiver of its rule at 10 C.F.R. § 51.53(c)(3)(ii)(L), which provides that if the NRC staff has previously considered a severe accident mitigation alternatives (SAMA) analysis for a particular site - as it has for Limerick Generating Station, Units 1 and 2 (Limerick) - then an applicant for a renewed operating license for that site need not perform another SAMA analysis to satisfy the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 to 4370(h).
- 2. Whether the NRC acted arbitrarily and capriciously in holding that NRDC failed to meet the Commissions strict standards for waiver of a regulation in 10 C.F.R. § 2.335(b), which for decades have been applied to require, among other things, circumstances unique to the facility, in order to overcome the heavy presumption against adjudicating matters resolved by the agency through rulemaking.
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 13 of 86 STATEMENT OF THE CASE This case involves NRDCs petition for review of an NRC order, Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199 (2013) (JA___) (CLI-13-7). That NRC order denied NRDCs petition for a waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) and, thus, NRDCs request to litigate its SAMA-related contention in the license renewal adjudicatory proceeding for Exelons Limerick nuclear power station in Pennsylvania. By its terms, section 51.53(c)(3)(ii)(L) exempts Exelon from including a site-specific SAMA analysis in the Limerick Environmental Report, because the NRC previously considered severe accident mitigation design alternatives (SAMDAs)1 in the 1989 Final Environmental Statement supporting the NRCs issuance of the initial Limerick operating licenses.2 In CLI-13-7, the Commission explained that for Limerick and certain other plants, the SAMA issue has been resolved by rule, which means that the issue has 1
The NRC uses the terms SAMDA and SAMA to refer to severe accident mitigation measures considered at the initial plant design/licensing and license renewal phases, respectively.
2 See generally Applicants Environmental Report - Operating License Renewal Stage, Limerick Generating Station, Units 1 and 2 (June 22, 2011)
(Environmental Report), available at http://pbadupws.nrc.gov/docs/
ML1117/ML11179A104.pdf; Final Environmental Statement Related to the Operation of Limerick Generating Station, Units 1 and 2, NUREG-0974 Supplement (Aug. 1989), available at http://pbadupws.nrc.gov/docs/ML1122/
ML11221A204.pdf.
2
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 14 of 86 been carved out from adjudication.3 Therefore, the Commission held, to litigate a SAMA-related contention in this and other adjudicatory proceedings for similarly-situated plants, a petitioner must obtain a waiver of the applicable rule by meeting the stringent requirements in 10 C.F.R. § 2.335(b),4 which was a substantial burden, but not an impossible one. 5 The Commission concluded that NRDC, despite being given the opportunity to do so, failed to overcome that hurdle. The Commission found that, pursuant to standards that have remained virtually unchanged since 1972, NRDC had failed to demonstrate that its claims were unique to Limerick.6 Rather, NRDCs claims all involved some manifestation of the passage of time, which would apply equally to any other plant that, like Limerick, had a pre-existing SAMA analysis.7 Accordingly, the Commission found that NRDCs requested waiver would swallow the rule and affirmed the Licensing Boards denial of NRDCs waiver petition.8 The Commission nevertheless referred NRDCs waiver petition to the 3
Limerick, CLI-13-7, 78 NRC at 211-12 (JA__) (internal quotation marks and citation omitted).
4 Id. at 207 (JA__).
5 Id. at 208 (JA__) (internal citation omitted).
6 Id. at 216 (JA__).
7 Id. at 214 (JA___).
8 Id. at 215, 217 (JA___).
3
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 15 of 86 NRC staff as additional comments on the Limerick draft supplemental EIS for the staffs consideration and response.9 NRDC here challenges the Commissions denial of its waiver petition, primarily upon the basis of its argument that no waiver was required, and upon the assertion that the Commission must provide a hearing to [a petitioner] raising a NEPA-related issue material to the agencys decision-making. NRDC Br. 31 (emphasis added). NRDC claims that no waiver was required because the SAMA analysis exception codified in section 51.53(c)(3)(ii)(L) is limited. NRDC Br.
- 41. Specifically, it asserts that section 51.53(c)(3)(ii)(L) requires that the applicant analyze SAMAs even where they already have been considered by the NRC, but that such analysis is limited to new and significant information bearing on the adequacy of the previous analysis. NRDC Br. 40. Further, according to NRDC, a petitioner is entitled to a hearing on the adequacy of that consideration. NRDC Br. 40. In the alternative, NRDC argues that, even if a waiver is required, the Commissions failure to find such a waiver in these circumstances was arbitrary and capricious. See NRDC Br. at 44-52.
9 Id. at 216-17 (JA___). Contrary to NRDCs claim (NRDC Br. 35, 40), the Commission did not deem the information presented in NRDCs waiver petition to be new and significant.
4
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 16 of 86 STATEMENT OF FACTS I. STATUTORY AND REGULATORY BACKGROUND A. The Atomic Energy Act.
The Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C. §§ 2011 to 2297h-13, establishes a comprehensive regulatory framework for the ongoing review of nuclear power plants located in the United States.10 The AEA does not elaborate on the standards or procedures to be applied by the NRC in issuing renewed operating licenses. The AEA, however, does give the NRC considerable discretion to determine how to achieve its statutory mandates.11 B. The National Environmental Policy Act.
Under NEPA, each federal agency must prepare an environmental impact statement (EIS) before taking a major Federal action[ ] significantly affecting the quality of the human environment.12 NEPAs mandate is essentially procedural. It is to insure a fully informed and well considered decision . . . .13 NEPA itself does not mandate particular results, but simply prescribes the 10 County of Rockland v. NRC, 709 F.2d 766, 769 (2d Cir. 1983).
11 See Siegel v. AEC, 400 F.2d 778, 783-84 (D.C. Cir. 1968).
12 42 U.S.C. § 4332(2)(C) (2012).
13 Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978) (internal citation omitted).
5
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 17 of 86 necessary process.14 NEPA requires the agency to take a hard look at the environmental consequences of a major federal action.15 The NRC must prepare an EIS for the renewal of a nuclear power plant operating license.16 Among other things, NEPA and NRC regulations require the NRC to provide a reasonably complete discussion of possible mitigation measures.17 Agencies have discretion as to how to meet this mandate.18 C. The NRCs License Renewal Regulations.
By regulation, the NRC may renew a license for a nuclear power plant for up to twenty years.19 Two sets of NRC regulatory requirements govern. First, under 10 C.F.R. Part 54, the NRC conducts a safety review focused on the detrimental 14 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).
15 Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983).
16 See 10 C.F.R. §§ 51.20(b)(2), 51.95(c) (2014) (all subsequent references to Title 10 of C.F.R. are to the 2014 edition unless otherwise noted).
17 Robertson, 490 U.S. at 351-52. See also 10 C.F.R. §§ 51.53, 51.95.
18 See Sierra Club v. U.S. Dept of Transp., 753 F.2d 120, 128 (D.C. Cir. 1985)
(citation omitted). NEPA imposes no substantive requirement that mitigation measures actually be taken. See Robertson, 490 U.S. at 352-53; see also County of Rockland v. FAA, 335 F. Appx 52, 55 (D.C. Cir. 2009) (Absent a firm commitment to [mitigation] monitoring, neither NEPA nor the agencys regulations require it.).
19 See 10 C.F.R. § 54.31.
6
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 18 of 86 effects of aging on plant structures and components that perform passive rather than active intended functions.20 Second, under 10 C.F.R. Part 51, the NRC completes a NEPA-based environmental review, focusing on the potential impacts of twenty additional years of operation. By regulation, the NRC has divided the environmental requirements for license renewal into generic and plant-specific issues. The NRC prepared its generic EIS for license renewal to assess the environmental impacts associated with the continued operation of nuclear power plants during the license renewal term.21 Environmental impacts that are essentially the same (generic) for all plants are designated Category 1 issues.22 Environmental impacts that may differ among plants and thus require a plant-specific analysis are designated Category 2 issues and must be addressed in an applicants environmental report.23 NRC regulations also require the applicants environmental report to address any new 20 See Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,477 (May 8, 1995) (explaining that a passive component is one that performs an intended function without moving parts or without a change in configuration or properties and for which age-related degradation is not readily monitored); 10 C.F.R. § 54.21(a)(1)(i).
21 Generic Environmental Impact Statement for License Renewal of Nuclear PlantsMain Report (Final Report), NUREG-1437, Vol. 1 (May 1996),
available at http://pbadupws.nrc.gov/docs/ML0406/ML040690705.html (Generic EIS).
22 10 C.F.R. Part 51, Subpart A, App. B (listing NEPA issues for license renewal and assigning them Category 1 or 2 classification).
23 Id. § 51.53(c)(3)(ii).
7
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 19 of 86 and significant information.24 The NRC prepares a plant-specific supplement to the generic EIS that adopts applicable generic impact findings (Category 1),
discusses site-specific impacts (Category 2), and evaluates any new and significant information.25 The NRCs generic EIS provides an evaluation of severe accident impacts that applies to all U.S. nuclear power plants.26 A severe accident is a beyond design-basis accident involving multiple failures of equipment or function and, therefore, whose likelihood is generally lower than design-basis accidents but where consequences may be higher.27 Based on the generic EIS evaluation, Part 51 concludes that the probability weighted consequences of severe accidents are small for all plants.28 Thus, a plant-specific analysis of severe accident impacts is not required in individual license renewal proceedings.29 24 Id. § 51.53(c)(3)(iv).
25 Id. § 51.95(c).
26 See Generic EIS, Vol. 1 at 5-12 to 5-116; Entergy Nuclear Generation Co.
(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (2010).
27 Generic EIS, Vol. 1 at 5-1.
28 10 C.F.R. Part 51, Subpart A, App. B, Table B-1 (Postulated Accidents; Severe accidents) (emphasis added).
29 See Pilgrim, CLI-10-11, 71 NRC at 316 (NRC SAMA analyses are not a substitute for, and do not represent, the NRC NEPA analysis of potential impacts of severe accidents.).
8
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 20 of 86 D. The SAMA Analysis Requirement.
Although plant-specific analysis of severe accident impacts is not required, Part 51 does require certain license renewal applicants to include in their environmental reports an evaluation of severe accident mitigation alternatives, or SAMAs.30 The need for a site-specific SAMA analysis stems from the United States Court of Appeals for the Third Circuits 1989 Limerick decision, which required a NEPA review of SAMAs at the initial licensing stage.31 A SAMA analysis seeks to identify potential changes to a nuclear power plant, or its operations, that (1) could further reduce the already very low risk of postulated severe reactor accident scenarios, and (2) are potentially cost-beneficial to implement.32 Specifically, it examines whether particular hardware or procedural changes are cost-beneficial to implement given the degree of risk 30 10 C.F.R. § 51.53(c)(3)(ii)(L); see also id. Part 51, Subpart A, App. B, Table B-1.
31 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,480 (June 5, 1996) (1996 Final Rule);
Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 736-39 (3d Cir. 1989)
(holding that the NRC could not generically dispense with the consideration of SAMDAs, under NEPA, through a policy statement issued pursuant to its AEA authority).
32 See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 322 (2012).
9
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 21 of 86 reduction (i.e., reduction in accident probability and/or consequences) that reasonably could be expected from the change.33 The NRC has emphasized that the mitigation measures assessed in a NEPA SAMA analysis are supplemental to those it already requires under its safety regulations for reasonable assurance of safe operation, and also supplemental to those that it may require under its ongoing regulatory oversight over reactor safety, pursuant to the Atomic Energy Act.34 That oversight includes, for example, the NRCs post-Fukushima comprehensive safety review, which includes a review of the requirements and guidance associated with accident mitigation measures.35 However, those ongoing safety reviews do not imply that [the Commission] now consider[s] severe accidents significantly more likely or potentially more damaging 33 See id. The SAMA analysis is based on probabilistic risk assessment methods.
It examines the probability of postulated reactor accident scenarios that span a spectrum of potential initiating events, accident sequences, and severity of consequences. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 708 (2012). It estimates mean accident consequence values (population dose and economic costs), which are averaged over many severe accident scenarios and over a 50-mile radius area around a plant. Id. 707-08.
34 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI 1, 75 NRC 39, 57 (2012). See also Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 431(2003) (quoting Robertson, 490 U.S. at 352) (Under NEPA, mitigation (and the SAMA issue is one of mitigation) need only be discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated.).
35 Pilgrim, CLI-12-1, 75 NRC at 57.
10
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 22 of 86 than suggested in the [generic] EIS, which contains the NRCs bounding severe accident impacts analysis for license renewal.36 E. The SAMA Analysis Exception Applicable To This Case.
The NRC imposed the site-specific SAMA analysis requirement as part of Part 51 rulemaking in 1996.37 However, through section 51.53(c)(3)(ii)(L), the regulation at issue here, the Commission expressly limited the SAMA analysis requirement to those plants for which the staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or related supplement.38 Accordingly, the NRC requires SAMA analyses for each plant only once, either at initial licensing or license renewal.
The regulatory history of the 1996 Part 51 rulemaking provides insight into the technical and policy bases for the NRCs decision to exempt certain plants -
and Limerick in particular - from the license renewal SAMA analysis requirement.
It reflects the NRCs reliance on previous technical analyses, including: (1) the Containment Performance Improvement program (which evaluated potential failure modes, potential plant improvements, and the cost-effectiveness of such 36 Pilgrim, CLI-12-15, 75 NRC at 728.
37 See 1996 Final Rule, 61 Fed. Reg. at 28,480-81 (explaining that the NRC could not reach a generic conclusion regarding mitigation alternatives for all plants for purposes of license renewal because not all licensees had completed the agencys ongoing regulatory program related to severe accident mitigation).
38 10 C.F.R. § 51.53(c)(3)(ii)(L) (emphasis added).
11
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 23 of 86 improvements); (2) plant-specific SAMDA analyses for the Limerick, Comanche Peak, and Watts Bar plants that were performed as part of the initial licensing of those plants; (3) individual plant examinations to look for plant vulnerabilities to internally-initiated events;39 and (4) separate individual plant examinations for externally-initiated events.40 The Commission noted that these examinations considered potential improvements to reduce the risk of severe accidents on a plant-specific basis and essentially constitute a broad search for severe accident mitigation alternatives.41 39 See 1996 Final Rule, 61 Fed. Reg. at 28,481-82. The Limerick probabilistic risk assessment model has been regularly updated to reflect as-built and as-operated plant conditions. Environmental Report at 5-6. Exelon reviewed the current model to identify any new information relative to the quantification of risk (measured in core damage events per year, or core damage frequency) in comparison to information provided in the 1989 SAMDA analysis. That review indicated that the core damage frequency has decreased by nearly an order of magnitude since 1989. This reduction is attributed to more reliable data, improvements in procedural guidance and plant capabilities, fewer reactor trips, and implementing the individual plant examinations, Accident Management, and Containment Improvement Performance programs. Id.
40 In 1995, Limerick submitted to the NRC a plant-specific examination for externally-initiated events to identify vulnerabilities to severe accidents and to report the results, along with any licensee-determined improvements. That examination resulted in five improvements at Limerick, including one design change. See NUREG-1742, Perspectives Gained from the Individual Plant Examination of External Events (IPEEE) Program, Final Report, Vol. 1 at 3-8 (Table 3.3) (Apr. 2002), available at http://www.nrc.gov/reading-rm/doc-collections/ nuregs/staff/sr1742/ (noting two operational procedures improvements, two maintenance procedures improvements, and one physical design change for Limerick).
41 1996 Final Rule, 61 Fed. Reg. at 28,481.
12
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 24 of 86 In view of these previous studies, the NRC concluded in 1996 that site-specific SAMA analyses were unlikely [to] identify major plant design changes or modifications that will prove to be cost-beneficial for reducing severe accident frequency or consequences.42 Thus, with respect to the Limerick, Comanche Peak, and Watts Bar plants in particular, the NRC explicitly determined that an additional site-specific analysis of SAMAs is not required as part of license renewal for those plants.43 F. The NRC Hearing Process.
Section 189(a) of the AEA requires the NRC to hold a hearing upon the request of any person whose interest may be affected before issuing a renewed license.44 Under NRC regulations, any person seeking to obtain a hearing on a license renewal application must file a petition to intervene, and proffer at least one admissible contention.45 Unless a party obtains a waiver from the Commission, NRC regulations and generic determinations are not subject to attack through adjudications.46 42 Id. (noting that if SAMA reviews identify any changes as being cost-beneficial, such changes generally would be procedural and programmatic fixes, with any hardware changes being only minor in nature and few in number).
43 Id.
44 42 U.S.C. § 2239(a)(1)(A) (2012).
45 See 10 C.F.R. § 2.309(b), (d), (f)(1).
46 10 C.F.R. § 2.335. The NRC has interpreted section 2.335(b) to require a waiver petitioner to meet four factors: (1) the rules strict application would 13
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 25 of 86 II. THE PROCEEDINGS BELOW The NRCs initial brief presents the relevant procedural history, see NRC Br. 4-20, which Exelon incorporates by reference. In brief, Exelon did not include in the Limerick Environmental Report a SAMA analysis to support license renewal. Exelon did evaluate, as required by section 51.53(c)(3)(iv), whether there was any new and significant information that would affect the SAMA analysis prepared to support the stations initial operating licenses.47 Exelon did not identify any new and significant information related to SAMAs.48 In support of its contentions, NRDC argued that Exelon must consider mitigation measures identified in more recent SAMA analyses for other Mark II boiling water reactors and other reactor designs. NRDC also asserted that Exelon must use Limerick-specific economic cost information rather than economic cost data derived from the Three Mile Island license renewal SAMA analysis.
not serve the purpose for which it was adopted; (2) there are special circumstances that were not considered, explicitly or implicitly, in the rulemaking proceeding; (3) those circumstances are unique to the facility and not common to a large class of facilities; and (4) a waiver is necessary to reach a significant safety problem. See Limerick, CLI-13-7, 78 NRC at 207-09 (JA___) (discussing the four Millstone factors delineated in Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551 (2005)).
47 See Environmental Report at 5-4 to 5-9 (JA___).
48 See id. at 5-9 (JA___).
14
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 26 of 86 Exelon addressed the substance of both of these NRDC claims during the proceedings below, demonstrating that NRDC had presented no new and significant information related to the consideration of severe accident mitigation alternatives for Limerick. With regard to the first issue, Exelons technical experts reviewed all of the approximately fifty SAMAs identified by NRDC (including those for Mark II plants), and confirmed that they involved only procedural and programmatic changes or minor plant modifications.49 They further determined, through a quantitative analysis, that implementing those same SAMAs at Limerick would not achieve any significant reduction in severe accident risk.50 As documented in the NRCs 2014 Final Supplemental EIS for the Limerick license renewal, the NRC staff independently concluded that there were no SAMAs identified at other plants with Mark II containments that were determined to be new and significant at Limerick.51 As for the second issue, the administrative record shows that there was a reasoned basis for the use of the Three Mile Island data. In particular, the 1989 49 See Exelons Counter Affidavit Supporting Exelons Response Opposing NRDCs Petition for Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L), at ¶¶ 13-18 &
Table A (Dec. 14, 2012) (JA___).
50 See id. at ¶¶ 20-26 (JA___).
51 See Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants Regarding Limerick Generating Station, Units 1 and 2, Final Report, NUREG-1437, Supplement 49 at 5-20 to 5-21 (Aug. 2014) (Final Supplemental EIS) (JA___).
15
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 27 of 86 SAMDA analysis calculated the benefit of each proposed SAMDA based on a reduction of the estimated offsite radiation dose risk (known as person-rem).52 However, the resulting benefit value did not account for possible reduction in land contamination from a severe accident or the associated economic cost reduction (as is now typically done in a SAMA analysis). Therefore, Exelon evaluated the potential significance of offsite economic cost risk in its Environmental Report.53 Applying engineering judgment, Exelon determined that the offsite economic cost of a severe accident at Limerick could be estimated using information from license renewal applications for other nuclear plants in Pennsylvania. In particular, Exelon looked to Three Mile Island Unit 1, another Exelon plant located in Pennsylvania for which a SAMA analysis was completed in 2008, to obtain a value of about 70 percent (i.e., the off-site economic cost risk was approximately 70 percent larger than the off-site exposure cost risk).54 Using 52 See Environmental Report at 5-4 to 5-8 (JA___).
53 See id. at 5-8.
54 See id. As noted by Exelon in the proceedings below, the various economic cost ratios cited by NRDC for other plants yielded a median economic cost ratio of 48.2 percent, and an average ratio of 60.8 percent. Thus, the data cited by NRDCs experts confirm the reasonableness of the 70 percent cost ratio used in the Limerick Environmental Report. See Exelons Brief in Support of the Appeal of LBP-12-08 at 25-26 (Apr. 16, 2012) (JA___).
16
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 28 of 86 that value, Exelon determined that accounting for off-site economic cost risk did not result in the identification of additional cost-beneficial SAMAs for Limerick.55 As further documented in its 2014 Final Supplemental EIS, the NRC staff reviewed Exelons calculation and assumptions and also performed supplemental technical analysis of the offsite economic cost risk issue.56 The staff concluded that Exelons method for accounting for offsite economic cost risk was reasonable and consistent with methods and conclusions discussed in the NRCs license renewal generic EIS.57 As the foregoing suggests, the NRCs Final Supplemental EIS, which was published after the NRC filed its initial brief, contains an extensive discussion of potential new and significant information relevant to severe accident mitigation at Limerick.58 That discussion includes consideration of the information presented in NRDCs waiver petition.59 Based on its review of NRDCs waiver petition and 55 See Environmental Report at 5-8 (JA___).
56 See Final Supplemental EIS, Vol. 1 at 5-13 to 5-15 (JA___).
57 See id. at 5-15 (JA___).
58 See generally id. at 5-3 to 5-26 (JA___).
59 See id. at 5-2, 5-10 to 5-11, 5-13 to 5-15, 5-20 to 5-23 (JA___) (addressing issues raised by NRDC in its waiver petition related to cost-effective SAMAs identified at other plants, offsite economic cost risk, and changes in SAMA analysis methodology). See also Final Supplemental EIS, Vol. 2, App. A at A-123, A-131 (JA___) (noting NRCs consideration of issues raised in NRDC waiver petition as public comments on the draft supplemental EIS per the Commissions directive in CLI-13-7).
17
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 29 of 86 other information, the NRC staff found no new and significant information concerning severe accident mitigation at Limerick.60
SUMMARY
OF ARGUMENT Section 51.53(c)(3)(ii)(L) of the NRCs regulations, by its plain terms, exempts Exelon from including in the Limerick Environmental Report for license renewal a site-specific SAMA analysis, because the NRC previously considered SAMAs in the Final Environmental Statement supporting issuance of the initial Limerick operating licenses. Indeed, the rulemaking preamble for that regulation explicitly identifies Limerick as one of the plants for which a SAMA analysis need not be performed for license renewal.61 The Commissions determination (made in CLI-12-19) that NRDC Contention 1-E was inadmissible because it impermissibly challenged the rule at section 51.53(c)(3)(ii)(L) was eminently correct, and was certainly not arbitrary and capricious.62 The NRC correctly reasoned that the exception in section 51.53(c)(3)(ii)(L) operates as the functional equivalent of a Category 1 issue, removing SAMAs from litigation in this, as well as certain other, case-by-case 60 See id., Vol. 1 at 5-24 to 5-25 (JA___).
61 1996 Final Rule, 61 Fed. Reg. at 28,481 (JA___).
62 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),
CLI-12-19, 76 NRC 377 (2012) (JA___).
18
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 30 of 86 license renewal adjudications.63 Because it is the functional equivalent of a Category 1 issue, litigation of any associated new and significant information also is precluded absent a waiver of the rule.64 Therefore, the Commission held, NRDC must obtain a waiver of section 51.53(c)(3)(ii)(L) in order to litigate any claims of alleged new and significant information related to the Limerick SAMA analysis. The regulatory history of section 51.53(c)(3)(ii)(L) as well as NRC and judicial precedent confirm the reasonableness of those conclusions.
With respect to a possible waiver under 10 C.F.R. § 2.335(b) to allow adjudication notwithstanding the rule, the Commissions conclusion that NRDC failed to justify such a waiver also was eminently correct, and, again, was certainly not arbitrary and capricious. Based on the record, the Commission reasonably found that NRDC had failed to present any issues unique to Limerick that would justify a case-specific waiver of section 51.53(c)(3)(ii)(L).65 Consequently, the 63 Id. at 386 (JA___). See also Limerick, CLI-13-7, 78 NRC at 212 n.66 (JA___)
(stating that [l]icense renewal applicants whose facilities qualify for the SAMA-analysis exception are exempt from addressing severe accident mitigation in their environmental reports, just as they would be exempt from addressing Category 1 issues, and comparing 10 C.F.R.
§ 51.53(c)(3)(i) with 10 C.F.R. § 51.53(c)(3)(ii)(L)).
64 See Limerick, CLI-13-7, 78 NRC at 211-12 (JA___) (citing Limerick, CLI 19, 76 NRC at 386).
65 Limerick, CLI-13-7, 78 NRC at 216-17 (JA___).
19
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 31 of 86 Commission acted well within its discretion when it decline[d] to set aside the rule based merely on a claim [by NRDC] of new and significant information.66 The Commissions determinations in this case are in no way inconsistent with the agencys consideration of any actual new and significant information under NEPA.67 As explained in CLI-13-7, there are multiple other, non-adjudicatory channels through which the NRC may receive and assess potentially new and significant information, including public comments on the draft supplemental EIS. NEPA requires nothing more.
The NRCs actions here comport with well-settled principles of administrative law. The NRCs authority to resolve NEPA issues generically by rule rather than through individual licensing adjudication is unquestionable.68 Also, it is hornbook administrative law that an agency need not - indeed should not - entertain a challenge to a regulation, adopted pursuant to notice and comment, in an adjudication or licensing proceeding.69 66 Id. at 216 (JA___) (emphasis added).
67 Id. at 216-17 (JA___) ([W]e recognize the NRCs continuing duty to take a hard look at new and significant information, and expect that the Staff will incorporate any new SAMA-related information that it finds to be significant in the final supplemental EIS.).
68 See Balt. Gas, 462 U.S. at 101 (generic analysis is clearly an appropriate method of conducting the hard look required by NEPA).
69 Tribune Co. v. FCC, 133 F.3d 61, 68 (D.C. Cir. 1998) (citations omitted).
20
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 32 of 86 A central thrust of NRDCs argument is that the NRC has stripped it of an alleged right to a hearing on a material issue, in violation of the AEA, NEPA, and APA. NRDC Br. at 31-32. But, no such automatic right exists, as even Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984) (UCS I),
upon which NRDC chiefly relies, confirms.70 And, numerous other decisions of this and other Courts of Appeal have specifically held that the AEA does not confer the automatic right of intervention upon anyone.71 At the end of the day, the facts that dictate the denial of NRDCs petition here are simple: the circumstances were addressed by rule, NRDC was offered the chance to seek a waiver of the applicable rule, but NRDC failed to satisfy the applicable waiver standard. The Commissions determinations to that effect were not arbitrary and capricious, and should be affirmed.
ARGUMENT As explained by the NRC at pages 24-27 of its brief, this Courts review of the decision at issue is highly deferential to the NRC. In reviewing NRCs interpretations of its own rules, the Court gives controlling weight to the 70 See UCS I, 735 F.2d at 1449 (stating that the only central requirement is the opportunity for a hearing).
71 See BPI v. AEC, 502 F.2d 424, 428 (D.C. Cir. 1974); Union of Concerned Scientists v. NRC, 920 F.2d 50, 55 (D.C. Cir. 1990) (UCS II) (quoting BPI).
21
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 33 of 86 agencys constructions unless they are plainly erroneous or inconsistent with the regulation.72 I. THE NRC DID NOT ACT ARBITRARILY OR CAPRICIOUSLY IN FINDING THAT NRDCS PROPOSED SAMA CONTENTION, IN THE ABSENCE OF A WAIVER, WAS AN IMPERMISSIBLE COLLATERAL ATTACK ON AN NRC REGULATION.
NRDC seeks review of NRC order CLI-13-7 (NRDC Br. 1), in which the Commission found that NRDC failed to justify a waiver of 10 C.F.R.
§ 51.53(c)(3)(ii)(L).73 NRDC claims that section 51.53(c)(3)(ii)(L) is not entirely pellucid (NRDC Br. 39), and that NRCs interpretation of that regulation creates irreconcilable conflicts with the AEA and NEPA. NRDC Br. 43. NRDC argues that the NRC erred when it ruled that no party may obtain a hearing on the adequacy of the Commissions consideration of new and significant information concerning SAMAs. NRDC Br. 38. As explained further below, however, NRDC mischaracterizes the controlling facts and legal principles, and has not established arbitrary and capricious action by the NRC.
72 Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 195 (D.C. Cir. 2013)
(quoting City of Idaho Falls, Idaho v. FERC, 629 F.3d 222, 228 (D.C. Cir.
2011)).
73 Although NRDC nominally seeks this Courts review of CLI-13-7, it still contests the NRCs threshold procedural determination in CLI-12-19 that NRDC needed to seek a waiver. Exelon thus addresses NRDCs substantive arguments on that issue, irrespective of whether, as the NRC asserts (NRC Br.
37-38), this Court lacks jurisdiction to review CLI-12-19.
22
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 34 of 86 A. Section 51.53(c)(3)(ii)(L) Unquestionably Exempts Exelon from Submitting Another SAMA Analysis.
The text of Section 51.53(c)(3)(ii)(L) does not present the ambiguity upon which NRDCs arguments depend. The rule plainly states that, for license renewal, a SAMA analysis is required only [i]f the staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or related supplement or in an environmental assessment.74 The meaning and intent of the regulation are clear on its face,75 and there is no plausible way to construe the regulation to require a new analysis if the staff has previously considered a SAMA analysis. To do so would be to impermissibly read the not right out of the regulation. This Courts deference to an agencys interpretation of its regulation is required unless an alternative reading is compelled by the regulations plain language or by other indications of the [agencys] intent at the time of the regulations promulgation.76 74 10 C.F.R. § 51.53(c)(3)(ii)(L).
75 See Pfizer Inc. v. Heckler, 735 F.2d 1502, 1506 (D.C. Cir. 1984) (stating that the courts construction of [an agency] regulation must begin with the words in the regulation and their plain meaning).
76 Natl Envtl. Dev. Assn Clean Air Project v. EPA, 752 F.3d 999, 1008 (D.C.
Cir. 2014) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)) (other citations omitted).
23
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 35 of 86 B. The Regulatory History of Section 51.53(c)(3)(ii)(L) Confirms the Rules Sound Technical Basis and Intended Effect.
As the Commission recognized, [e]xempting certain applicants from providing a SAMA analysis at the license renewal stage is certainly the intended effect of the rule.77 Nonetheless, the Commission decided to look further at the underlying purpose of the rule, as described in the preamble supporting the rule.78 The Commission confirmed that section 51.53(c)(3)(ii)(L) codifies the NRCs informed technical and policy determination that one SAMA analysis would uncover most cost-beneficial measures to mitigate both the risk and the effects of severe accidents, thus satisfying [its] obligations under NEPA.79 As described above (see pages 6-13), an extensive record and a host of considerations supported that conclusion.
C. The Commissions Decision Is Consistent With NEPA.
Contrary to NRDCs claims, the NRC did not eschew NEPAs mandate to consider new and significant information. See NRDC Br. 35-36, 43. Nor does that 77 Limerick, CLI-13-7, 78 NRC at 209 (JA___).
78 Id. (JA___).
79 Id. at 210 (JA___). Cf. Natl Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989)) (stating that under NEPAs rule of reason, EIS supplementation is required only when the action will affect the quality of the environment in a significant manner or to a significant extent not already considered).
24
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 36 of 86 NEPA mandate create an ambiguity or conflict with the agencys Part 51 regulations.
First, the NRC is entrusted with the responsibility of considering the various modes of scientific evaluation and theory and choosing the one appropriate for the given circumstances.80 The requisite hard look does not require adherence to a particular analytic protocol,81 and most certainly does not require a hearing. Nor does it require that the state of the art of a scientific discipline be explicitly discussed in an EIS, especially where such discussion would not enhance the agencys evaluation of environmental impacts or related mitigation measures.82 Here, the Commission found that NRDC, through reference to alternative cost data and analysis techniques, failed to demonstrate a potentially significant deficiency in the Limerick SAMA analysis; i.e., a deficiency that credibly could render the SAMA analysis unreasonable under NEPA standards.83 Second, the Commission directed the NRC staff to evaluate whether any of the information presented in NRDCs waiver petition is new and significant, as the 80 Sierra Club, 753 F.2d at 129.
81 Assn of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1188 (9th Cir. 1997).
82 Natl Indian Youth Council v. Andrus, 501 F. Supp. 649, 668 (D.N.M. 1980)
(citing 42 U.S.C. § 4332(2)(C)).
83 Limerick, CLI-13-7, 78 NRC at 215-16 (JA___) (quoting Pilgrim, CLI-12-1, 75 NRC at 57).
25
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 37 of 86 staff prepared its final supplemental EIS for Limerick.84 Thus, the NRC has considered the very information that NRDC alleges it has not.
Accordingly, there is no basis for NRDCs claim that the NRC acted in derogation of its NEPA duties - including the duty to consider new and significant information - by denying NRDCs hearing request on Contention 1-E. The NRCs decision to deny that request for the reasons stated in CLI-13-7 was not arbitrary or capricious and constituted reasoned decisionmaking under the APA.85 The record, and the process and reasoning provided by the NRC, demonstrates that NEPAs hard look requirement was plainly met.86 D. The Commissions Decision Is Consistent With NRC and Judicial Precedent.
In CLI-12-19, the Commission applied its own controlling precedent - as affirmed by the First Circuit - in concluding that generic rulemaking can remove SAMAs from litigation in certain cases, even where new and significant information is alleged.87 As the Commission explained, in the Vermont Yankee 84 See id. at 216-17.
85 Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998); NRDC
- v. EPA, 822 F.2d 104, 112 (D.C. Cir. 1987).
86 See Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999) (citing Marsh, 490 U.S. at 378-85) (listing obtaining opinions from agency and outside experts, giving scientific scrutiny, and offering responses to legitimate concerns as evidence of a sufficiently hard look);
Massachusetts v. NRC, 708 F.3d. 63, 78 (1st Cir. 2013) (same).
87 Limerick, CLI-12-19, 76 NRC at 386 (JA___).
26
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 38 of 86 and Pilgrim license renewal proceedings, it resolved a similar issue concerning the interplay between two subsections of 51.53(c)(3) and, particularly, whether purported new and significant information could be litigated in an adjudicatory proceeding absent a waiver.88 The Commissions decision there stemmed from its review of a proposed contention that challenged a Category 1 (i.e., generic) issue.89 The petitioners in both proceedings filed similar contentions to those filed here, arguing that new and significant information rendered the generic EIS analysis of the impacts of spent fuel pool storage inadequate, such that the applicants must discuss the issue in their environmental reports.90 In a consolidated decision, the Commission upheld the Vermont Yankee and Pilgrim Licensing Boards rejection of the contentions as an improper challenge to section 51.53(c)(3)(i).91 It found that the new and significant information requirement in [section] 51.53(c)(3)(iv) did not override, for the purposes of litigating the issues in an adjudicatory proceeding, the exclusion of Category 1 88 Id. at 383-84 (JA___) (citing Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 16 (2007)).
89 See id. at 384 (JA___) (citing CLI-07-3, 65 NRC at 16-17).
90 See id. (JA___) (citing CLI-07-3, 65 NRC at 18-19).
91 See id. (JA___) (citing CLI-07-3, 65 NRC at 20) (Fundamentally, any contention on a Category 1 issue amounts to a challenge to our regulation that bars challenges to generic environmental findings.).
27
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 39 of 86 issues in [section] 51.53(c)(3)(i) from site-specific review.92 Consequently, the Commission determined that a waiver was required to litigate any new and significant information relating to a Category 1 issue, and affirmed the Boards rejection of the petitioners contentions given the lack of a waiver request.93 The First Circuit denied the petitions for review of the NRCs decision, citing the courts substantial deference to the NRCs interpretation of its own rules.94 The court of appeals stated that [t]he NRCs procedural rules are clear:
generic Category 1 issues cannot be litigated in individual licensing adjudications without a waiver.95 Absent a waiver, any petitioner wishing to attack the agencys rule on such an issue must petition for a generic rulemaking.96 Importantly, the First Circuit emphasized that although NEPA does require the NRC to consider new and significant information regarding environmental impacts, NEPA does not require agencies to adopt any particular internal decisionmaking structure.97 The court also noted the availability of non-adjudicatory channels through which the NRC may receive putative new and 92 Id. (JA___) (citing CLI-07-3, 65 NRC at 21).
93 Id. (JA___) (citing CLI-07-3, 65 NRC at 19-21).
94 Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008).
95 Id. at 127 (citations omitted).
96 Id.
97 Id. (quoting Balt. Gas & Elec. Co., 462 U.S. at 100).
28
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 40 of 86 significant information, including a license renewal applicants environmental report, public comments on a draft supplemental EIS, and rulemaking petitions.98 There are no material distinctions between the circumstances of this case and the Pilgrim and Vermont Yankee circumstances addressed by the Licensing Boards, the Commission and, finally, the First Circuit in Massachusetts v. United States.99 As stated by the Commission in CLI-12-19 in this case:
[O]ur decision in Vermont Yankee/Pilgrim fundamentally was predicated on the fact that the contention amounted to a challenge to an NRC regulation, contrary to section 2.335(a). Similarly, Contention 1-E, reduced to its simplest terms, amounts to a challenge to section 51.53(c)(3)(ii)(L). The assumption underlying Contention 1-E is that Exelons 1989 SAMDA analysis is out-of-date, which Exelon then must remedy in its Environmental Report, even though this is something that section 51.53(c)(3)(ii)(L) otherwise exempts
[the licensee] from having to do.100 The Commission therefore concluded that the proper procedural avenue for NRDC to litigate alleged new and significant information was to seek a waiver of section 51.53(c)(3)(ii)(L).101 Alternatively, as the Commission noted, NRDC could have filed a petition for rulemaking under 10 C.F.R. § 2.802 to rescind the 98 Id.
99 Id.
100 Limerick, CLI-12-19, 76 NRC at 386 (JA___) (citing CLI-07-3, 65 NRC at 18 n.15, 20).
101 Id. (JA___).
29
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 41 of 86 SAMA analysis exception in section 51.53(c)(3)(ii)(L), or submit comments on the draft supplemental EIS.102 In summary, the NRC reasonably and correctly concluded that section 51.53(c)(3)(ii)(L) precludes the need for a supplemental SAMA analysis in this case, and that NRDC improperly sought to challenge that generic rule. Those conclusions are consistent with the plain language and regulatory history of section 51.53(c)(3)(ii)(L), as well as controlling administrative and persuasive judicial precedent.
II. THE COMMISSION DID NOT ACT ARBITRARILY AND CAPRICIOUSLY IN DENYING NRDCS WAIVER PETITION FOR FAILURE TO MEET THE REQUIREMENTS OF SECTION 2.335(b).
A. NRCs Waiver Standard Has Sound Legal and Policy Bases.
The NRCs denial of NRDCs waiver petition in CLI-13-7 also is manifestly correct (and certainly not arbitrary or capricious). The NRC established its waiver standard, which is stringent by design,103 over forty years ago [i]n view of the expanding opportunities for participation in Commission rulemaking proceedings and increased emphasis on rulemaking proceedings as the appropriate forum for settling basic policy issues.104 That rationale - still valid today - undergirds the 102 See id. at 387 (JA___) (citing 10 C.F.R. §§ 2.802(a), 51.73, 51.74).
103 Limerick, CLI-13-7, 78 NRC at 207 (JA___).
104 Id. at 207 n.32 (JA___) (quoting Restructuring of Facility License Application Review and Hearing Processes, 37 Fed. Reg. 15,127, 15,129 (July 28, 1972)).
30
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 42 of 86 ruling in CLI-13-7, wherein the NRC noted its unquestioned discretion to carv[e]
out issues from adjudication and to resolve them generically by rulemaking.105 That bedrock principle of administrative law explains the Commissions logical focus on the uniqueness factor of its waiver standard in CLI-13-7.
[I]n general, challenges to regulations are best evaluated through generic means. Only where a particular challenge to a regulation rests on issues that are legitimately unique to the proceeding and do not imply broader concerns about the rules general viability or appropriateness would it make sense to resolve the matter through site-specific adjudication.106 B. The NRCs Application of Its Waiver Standard Was Well-Reasoned and Rational.
Based on the record before it, the NRC appropriately concluded that NRDC failed to meet its burden to demonstrate the existence of special or legitimately unique circumstances with respect to Limerick.107 NRDC suggests that the sheer passage of time means that the 1989 SAMDA analysis is outdated, and that new and significant information exists. NRDC Br. 42.
105 Id. at 207 (JA___) (quoting Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-88-10, 28 NRC 573, 596 (1988)).
106 Id. at 208 (JA___) (emphasis added) (citations omitted). The First Circuit recently approved the NRCs application of the uniqueness criterion in affirming its denial of a waiver request. See Massachusetts, 708 F.3d at 74.
There, Massachusetts sought a waiver to challenge a Category 1 spent fuel pool issue in the Pilgrim license renewal proceeding. See id. The court held that the NRC permissibly reasoned that Massachusetts did not show that the spent fuel pool issues in its contention were unique to Pilgrim, and that those issues would be more appropriately handled through rulemaking. Id.
107 Limerick, CLI-13-7, 78 NRC at 207-08 (JA___).
31
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 43 of 86 Even viewing NRDCs waiver petition and supporting documentation in the light most favorable to NRDC, the NRC found that NRDC failed to explain how the information it provides sets Limerick apart from other plants undergoing license renewal whose previous SAMA analyses purportedly also would be in need of updating.108 The Commission aptly observed that updated information similar to that cited by NRDC could always be alleged with respect to other plants that qualify for the SAMA-analysis exception, including the Comanche Peak and Watts Bar plants cited in the 1996 Part 51 rulemaking, and new plants licensed under 10 C.F.R. Part 52.109 Upon seeking renewal of their licenses, such plants would face the same criticism: essentially, that the passage of time between original licensing and renewal has rendered their SAMA analysis out-of-date.110 Although the Commissions holding is rooted firmly in settled tenets of administrative law, the Commission did not render its decision in a legal or procedural vacuum. Rather, as noted above, it also probed the policy and technical rationales underlying section 51.53(c)(3)(ii)(L), reaffirming that the regulation 108 Id. at 215 (JA___).
109 Id. (JA___).
110 Id. at 214 (JA___).
32
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 44 of 86 reflects its previous determination that one SAMA analysis satisfies the NRCs NEPA obligation to consider severe accident mitigation measures.111 On this point, it may be useful to emphasize that SAMA analyses performed to comply with NEPA do not constitute the NRCs sole look at severe accident mitigation. As discussed in the 2014 Final Supplemental EIS for Limerick license renewal, the NRC continually evaluates severe accidents and ways to mitigate their impacts.112 The NRCs regulatory responses to the September 11, 2001 terrorist attacks and March 2011 Fukushima accident - which have resulted in licensee implementation of additional mitigation measures - are prime examples. The NRC staff also has undertaken sophisticated technical studies, such as the agencys State-of-the-Art Reactor Consequence Analyses study and full-scope site Level 3 probabilistic risk assessment project.113 111 See id. at 210 (JA___) (discussing the Commissions review of the regulatory history of section 51.53(c)(3)(ii)(L)).
112 See generally, Final Supplemental EIS, Vol. 1 at 5-3 to 5-9 (JA___). For example, the NRCs post-Fukushima actions have included the creation of a Task Force to study the accidents regulatory implications and make appropriate recommendations for bolstering the NRCs regulatory framework.
In March 2013, the NRC issued several orders to its licensees implementing certain Task Force recommendations related to containment, core cooling, and spent fuel pool cooling capabilities. See id. at 5-7 to 5-8 (JA___).
113 See State-of-the-Art Reactor Consequence Analyses (SOARCA), available at http://www.nrc.gov/about-nrc/regulatory/research/soar.html; Full-Scope Site Level 3 Probabilistic Risk Assessment Project, available at http://pbadupws.nrc.gov/docs/ML1328/ML13280A606.pdf.
33
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 45 of 86 III. NRDC HAS NO AUTOMATIC RIGHT TO A HEARING ON AN ISSUE MATERIAL TO THE NRCs LICENSE RENEWAL DECISION.
Much of NRDCs argument on appeal rests upon an incorrect premise; namely, that the NRC denied NRDC the purported right to a hearing on a material licensing issue, in contravention of the AEA, NEPA, and the APA.
NRDC Br. 31-39. No such right exists.
With respect to AEA, forty years ago, in BPI v. Atomic Energy Commn, 502 F.2d 424, this Court affirmed the legality of the NRCs intervention rules, rejecting the position now taken by NRDC; viz., that NRC must grant a hearing on all material issues.
Section 189(a) [of the AEA] does not in literal terms state that any person whose interest is affected may intervene . . . . The statute does not confer the automatic right of intervention upon anyone. Under its procedural regulations it is not unreasonable for the Commission to require that the prospective intervenor first specify the basis for his request for a hearing.114 The Court applied this holding in subsequent cases arising from contested NRC adjudications. In UCS I, 735 F.2d 1437, the Court held that the NRC had exceeded its statutory authority under AEA section 189(a) by adopting a rule that categorically excluded the results of emergency preparedness exercises - a material public safety-related factor integral to the NRCs licensing decision -
114 BPI, 502 F.2d at 428 (emphasis added).
34
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 46 of 86 from all NRC licensing hearings.115 Importantly, however, the Court clarified that the only central requirement is that there be an opportunity to dispute issues raised by the exercises under the relevant decisionmaking criteria.116 In Union of Concerned Scientists v. NRC, 920 F.2d 50, 55 (D.C. Cir. 1990)
(UCS II), the Court revisited this issue. There, the petitioner, not unlike NRDC here, alleged that the NRCs contention admissibility standards violated the AEA, APA, and NEPA.117 This Court flatly disagreed, explaining that UCS I does not establish . . . that any party raising a material issue has a right to intervene, but only that the NRC may not preclude all parties from raising a specified material issue.118 The Court further stated that we have long recognized that Section 189(a) does not confer the automatic right of intervention upon anyone.119 With respect to NEPA, as the Commission correctly observed, that statute also confers no right to a hearing.120 In UCS II, the Court stated:
115 See generally UCS I¸ 735 F.2d at 1444-47.
116 Id. at 1449 (emphasis added).
117 See UCS II, 920 F.2d at 51-52.
118 Id. at 54-55.
119 Id. at 55 (quoting BPI, 502 F.2d at 428). See also Nuclear Info. Research Serv.
- v. NRC, 969 F.2d 1169, 1174 (D.C. Cir. 1992) (UCS I did not require every hearing in the licensing process to encompass every material issue of fact.).
120 Limerick, CLI-13-7, 78 NRC at 211 (JA___) (But our rules do not guarantee a hearing; nor is a hearing necessary to satisfy our NEPA obligations.)
(citations omitted).
35
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 47 of 86 While NEPA clearly mandates that an agency fully consider environmental issues, it does not itself provide for a hearing on those issues. As a result, NEPA does not alter the procedures agencies may employ in conducting public hearings; it instead merely prevents agencies from excluding as immaterial certain environmental issues from those hearings. The NRC has not attempted to do this, and as its procedural rules do not facially violate the Atomic Energy Act or the APA, they also are consistent with NEPA.121 This courts sister circuits, not surprisingly, have reached similar conclusions.122 And, similarly, the Commissions reasonable application of its waiver standard does not contravene APA requirements. As this Court has recognized, the APA does not establish a substantive right to a hearing; instead, it specifies minimum procedures for hearings when a statute or other legal authority mandates 121 UCS II, 920 F.2d at 56-57 (emphasis added) (internal citations omitted). Also relevant here, the Court rejected the argument that UCS I requires a licensing hearing to embrace anything new identified in connection with the NRCs environmental review, id. at 55, and noted that whether an actual new issue is raised is a matter for the NRC to determine in the first instance and is reviewed deferentially. id.
122 See, e.g., Brodsky v. NRC, 704 F.3d 113, 120 (2d Cir. 2013) (no statutory requirement for hearings on NEPA issues); Beyond Nuclear v. NRC, 704 F.3d 12, 15 (1st Cir. 2013) (NEPA does not provide for hearings on environmental matters); Del. Dept. of Natural Res. and Envtl. Control v. U.S. Army Corps of Engrs, 685 F.3d 259, 270 (3d Cir. 2012) (NEPA does not prescribe particular procedures agencies should use in carrying out NEPAs required hard look);
San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109, 1115 (9th Cir.
2011) (upholding NRCs denial of request for a hearing on utilitys application for a spent fuel storage facility and concluding that NEPA contains no hearing requirement); Kelley v. Selin, 42 F.3d 1501, 1512 (6th Cir. 1995) (no hearing required on NEPA issue).
36
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 48 of 86 a hearing opportunity.123 The APA lays out only the most skeletal framework for conducting agency adjudications, leaving broad discretion to the affected agencies in formulating detailed procedural rules.124 That discretion is particularly broad with respect to operating procedures, which are uniquely within the expertise of the agency.125 So, again, the Courts holdings in BPI and UCS II control here, and compel the conclusion that the NRC acted lawfully and well within its discretion when it required NRDC to seek a waiver of section 51.53(c)(3)(ii)(L).
In sum, the precedent discussed above disposes of NRDCs argument that the NRC must provide a hearing on a NEPA-related issue material to its license renewal decision. NRDC Br. 31. There is no such absolute right to a hearing under the AEA, APA, or NEPA. Rather, the only right afforded is one to seek a hearing in accordance with the NRCs judicially-sanctioned hearing procedures.126 NRDC must meet all NRC requirements for intervention, including obtaining a 123 See Am. Trucking Assns, Inc. v. United States, 627 F.2d 1313, 1321 (D.C. Cir.
1980) (The Administrative Procedure Act prescribe[s] certain procedures that must be followed by the [agency]; beyond that, procedural regulations are generally within the discretion of the agency.).
124 Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 349 (1st Cir.
2004) (citing Am. Trucking Assns, 627 F.2d at 1321).
125 Am. Trucking Assns, 627 F.2d at 1321 (citing FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143-144 (1940)).
126 Thus, the NRC has not attempted to delimit the scope of this Courts jurisdiction. NRDC Br. 46 n.17. Rather, it has applied its own well-settled hearing procedures.
37
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 49 of 86 waiver for any regulation challenged by a proposed contention. NRDC has failed to do so here, and for that reason its petition must be denied.
CONCLUSION For all of these reasons, this Court should deny NRDCs petition for review.
Respectfully submitted, s/ Brad Fagg OF COUNSEL: Brad Fagg (DC433645)
Alex Polonsky J. Bradley Fewell Martin ONeill Vice President and Deputy General MORGAN, LEWIS & BOCKIUS LLP Counsel 1111 Pennsylvania Avenue, N.W.
Exelon Generation Company, LLC Washington, D.C. 20004 200 Exelon Way (202) 739-5191 Kennett Square, PA 19348 Phone: 630-657-3769 Attorneys for Intervenor Exelon Generation Company, LLC Dated: September 5, 2014 38
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 50 of 86 CERTIFICATION OF COMPLIANCE Pursuant to the Federal Rules of Appellate Procedure and the Local Rules of this Court, the undersigned counsel certifies:
The foregoing brief of Intervenor complies with Circuit Rule 32(a)(2)(B) because this Brief contains 8,668 words, excluding parts exempted by Fed. R. App.
P. 32(a)(7)(B)(iii) and Circuit Rule 32(a)(1), according to the Microsoft Office Word 2007 software program with which the Brief was prepared. The foregoing Brief complies with Fed. R. App. P. 32(a)(5) and Fed. R. App. P. 32(a)(6) because it was prepared in proportionally spaced typeface in 14 point Times Roman font using Microsoft Office Word 2007.
/s/ Brad Fagg Brad Fagg (DC433645)
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Tel: (202) 739-5191 Fax: (202) 739-3001 bfagg@morganlewis.com Counsel for Intervenor Exelon Generation Company, LLC Dated: September 5, 2014
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 51 of 86 CERTIFICATE OF SERVICE I hereby certify that on September 5, 2014, undersigned counsel for Exelon Generation Company, LLC filed the foregoing corrected Initial Brief for Intervenor with the U.S. Court of Appeals for the District of Columbia Circuit by filing the same with the Courts CM/ECF filing system. This corrected brief increases the font size to 14-point type for the Table of Contents, Title of the Table of Authorities, and page numbers. That method is calculated to serve:
Howard M. Crystal, Esq. Robert M. Rader, Esq.
Meyer Glitzenstein & Crystal Andrew Averbach, Esq.
1601 Connecticut Ave., N.W., U.S. Nuclear Regulatory Commission Suite 700 Office of the General Counsel Washington, D.C. 20009 Division of Legal Counsel Mailstop O-15 D21 Rockville, MD 20852 John E. Arbab, Esq.
U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7415 Washington, DC 20044
/s/ Brad Fagg Brad Fagg Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5191 bfagg@morganlewis.com Counsel for Intervenor Exelon Generation Company, LLC Dated: September 5, 2014 2
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 52 of 86 ADDENDUM DB1/ 80584579.1
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 53 of 86 STATUTES CITED Except for the following, all applicable statutes, regulations, etc., are contained in the Brief for the United States Nuclear Regulatory Commission.
42 U.S.C. §4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment; (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
DB1/ 80584579.1 2
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 54 of 86 Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.
Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, and shall accompany the proposal through the existing agency review processes; (D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:
(i) the State agency or official has statewide jurisdiction and has the responsibility for such action, (ii) the responsible Federal official furnishes guidance and participates in such preparation, (iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and (iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement.
The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under this chapter; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction.1 (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources; DB1/ 80584579.1 3
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 55 of 86 (F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment; (G) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment; (H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and (I) assist the Council on Environmental Quality established by subchapter II of this chapter.
(Pub. L.91-190, title I, §102, Jan. 1, 1970, 83 Stat. 853; Pub. L. 94-83, Aug. 9, 1975, 89 Stat. 424.)
DB1/ 80584579.1 4
USCA Case #13-1311 Document #1510969 Filed: 09/05/2014 Page 56 of 86 28467 Rules and Regulations Federal Register Vol. 61, No. 109 Wednesday, June 5, 1996 This section of the FEDERAL REGISTER reviewing plant-specific applications 3. Need for Generating Capacity and contains regulatory documents having general and better focus of review resources on Alternative Energy Sources applicability and legal effect, most of which significant case specific concerns. The C. Technical Concerns are keyed to and codified in the Code of 1. Category and Impact Magnitude results should be a more focused and Federal Regulations, which is published under Definitions therefore a more effective NEPA review 2. Surface Water Quality 50 titles pursuant to 44 U.S.C. 1510.
for each license renewal. The 3. Aquatic Ecology The Code of Federal Regulations is sold by amendment will also provide the NRC 4. Groundwater Use and Quality the Superintendent of Documents. Prices of with the flexibility to address 5. Terrestrial Ecology new books are listed in the first FEDERAL unreviewed impacts at the site-specific 6. Human Health REGISTER issue of each week. stage of review and allow full 7. Socioeconomics consideration of the environmental 8. The Uranium Fuel Cycle and Solid Waste Management impacts of license renewal.
NUCLEAR REGULATORY 9. Accidents The NRC is soliciting public comment 10. Decommissioning COMMISSION on this rule for a period of 30 days. In 11. Need for Generating Capacity developing any comment specific 12. Alternatives to License Renewal 10 CFR Part 51 attention should be given to the 13. License Renewal Scenario RIN 3150-AD63 treatment of low-level waste storage and 14. Environmental Justice disposal impacts, the cumulative IV. Discussion of Regulatory Requirements Environmental Review for Renewal of radiological effects from the uranium A. General Requirements Nuclear Power Plant Operating B. The Environmental Report fuel cycle, and the effects from the Licenses 1. Environmental Impacts of License disposal of high-level waste and spent Renewal AGENCY: Nuclear Regulatory fuel. 2. Consideration of Alternatives Commission. DATES: Absent a determination by the C. Supplemental Environmental Impact ACTION: Final rule. NRC that the rule should be modified, Statement based on comments received, the final 1. Public Scoping and Public Comments on
SUMMARY
- The Nuclear Regulatory rule shall be effective on August 5, the SEIS Commission (NRC) is amending its 2. Commissions Analysis and Preliminary 1996. The comment period expires on Recommendation regulations regarding environmental July 5, 1996. 3. Final Supplemental Environmental protection regulations for domestic ADDRESSES: Send comments to: The Impact Statement licensing and related regulatory D. NEPA Review for Activities Outside Secretary of the Commission, U.S.
functions to establish new requirements NRC License Renewal Approved Scope Nuclear Regulatory Commission, for the environmental review of V. Availability of Documents Washington, DC 20555-0001, Attention:
applications to renew the operating VI. Submittal of Comments in an Electronic Docketing and Services Branch, or hand Format licenses of nuclear power plants. The deliver comments to the Office of the VII. Finding of No Significant Environmental amendment defines those Secretary, One White Flint North, 11555 Impact Availability environmental impacts for which a Rockville Pike, Rockville, Maryland VIII. Paperwork Reduction Act Statement generic analysis has been performed between 7:30 a.m. and 4:15 p.m. on IX. Regulatory Analysis that will be adopted in plant-specific Federal workdays. Copies of comments X. Regulatory Flexibility Act Certification reviews for license renewal and those XI. Small Business Regulatory Enforcement received and all documents cited in the environmental impacts for which plant- Fairness Act supplementary information may be specific analyses are to be performed. XII. Backfit Analysis The amendment improves regulatory examined at the NRC Public Document efficiency in environmental reviews for Room, 2120 L Street NW. (Lower Level), I. Introduction license renewal by drawing on the Washington, DC between the hours of The Commission has amended its considerable experience of operating 7:45 a.m. and 4:15 p.m. on Federal environmental protection regulations in nuclear power reactors to generically workdays.
10 CFR part 51 to improve the efficiency assess many of the environmental FOR FURTHER INFORMATION CONTACT: of the process of environmental review impacts that are likely to be associated Donald P. Cleary, Office of Nuclear for applicants seeking to renew an with license renewal. The amendment Regulatory Research, U.S. Nuclear operating license for up to an additional also eliminates consideration of the Regulatory Commission, Washington, 20 years. The amendments are based on need for generating capacity and of DC 20555-0001, telephone: (301) 415- the analyses conducted for and reported utility economics from the 6263; e-mail DPC@nrc.gov. in NUREG-1437, Generic environmental reviews because these SUPPLEMENTARY INFORMATION: Environmental Impact Statement for matters are under the regulatory License Renewal of Nuclear Plants jurisdiction of the States and are not I. Introduction (May 1996). The Commissions initial necessary for the NRCs understanding II. Rulemaking History decision to undertake a generic III. Analysis of Public Comments of the environmental consequences of a A. Commenters assessment of the environmental license renewal decision. B. Procedural Concerns impacts associated with the renewal of The increased regulatory efficiency 1. Public Participation and the Periodic a nuclear power plant operating license will result in lower costs to both the Assessment of the Rule and GEIS was motivated by its beliefs that:
applicant in preparing a renewal 2. Economic Costs and Cost-Benefit (1) License renewal will involve application and to the NRC for Balancing nuclear power plants for which the
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/ Rules and Regulations environmental impacts of operation are plant-specific review. A finding of no will prepare a supplemental site-well understood as a result of data significant impact would have resulted specific environmental impact evaluated from operating experience to in a favorable cost-benefit balance for statement (SEIS), rather than an date; that plant. If a finding of no significant environmental assessment (as initially (2) Activities associated with license impact could not be made for the plant, proposed), for each license renewal renewal are expected to be within this there would have to have been a application. The SEIS will be issued for range of operating experience, thus determination as to whether the impacts public comment as part of the environmental impacts can be found in the environmental assessment individual plant review process. The reasonably predicted; and were sufficient to overturn the NRC will delay any conclusions (3) Changes in the environment conditional cost-benefit balance found regarding the acceptability of the overall around nuclear power plants are gradual in the rule. impacts of the license renewal until and predictable with respect to Although the final amendments to 10 completion of the site-specific review.
characteristics important to CFR part 51 maintain the same generic In addition, the SEIS will be prepared environmental impact analyses. approach used in the proposed rule, in accordance with existing public Although this amendment is there are several modifications.The final scoping requirements. The NRC will consistent with the generic approach amendments to 10 CFR part 51 now also review and consider any new and and scope of the proposed amendment contain 92 issues. The reduction of the significant information presented during published on September 17, 1991 (56 FR number of issues from 104 in the the review of individual license renewal 47016), several significant modifications proposed rule to 92 in the final rule is applications. In addition, any person have been made in response to the due to (1) the elimination from the may challenge the validity of the public comments received. The review of the consideration of the need conclusions codified in the rule by proposed amendment would have for electric power and associated filing a petition for rulemaking pursuant codified the findings reached in the generating capacity and of the direct to 10 CFR 2.802. Finally, the NRC will draft generic environmental impact economic benefits and costs associated review the rule and the GEIS on a statement (GEIS) as well as certain with electric power, (2) removing schedule that allows revisions, if procedural requirements. The draft GEIS alternatives as an issue from Table B-1 required, every 10 years. This review established the bounds and significance and addressing review requirements will be initiated approximately 7 years of potential environmental impacts at only in the text of the rule, (3) after the completion of the previous 118 light-water nuclear power reactors combining the five severe accident revision cycle.
that, as of 1991, were licensed to operate issues used in the proposed rule into or were expected to be licensed in the one issue, (4) eliminating several In addition to the changes involving future. regional economic issues under public participation, this final rule also All potential environmental impacts socioeconomics that are not directly contains several changes regarding the and other matters treated by the NRC in related to environmental impacts, (5) scope of analysis and conclusions in the an environmental review of nuclear making minor changes to the grouping rule and GEIS. The conditional cost-power plants were identified and of issues under aquatic ecology and benefit balance has been removed from combined into 104 discrete issues. For groundwater, (6) identifying collective the GEIS and the rule. In place of the each issue, the NRC staff established offsite radiological impacts associated cost-benefit balancing, the NRC will use generic findings encompassing as many with the fuel cycle and all impacts of a new standard that will require a nuclear power plants as possible. These high level waste and spent fuel disposal determination of whether or not the findings would have been codified by as separate issues, and (7) adding adverse environmental impacts of the proposed amendment. Of the 104 environmental justice as an issue for license renewal are so great, compared issues reviewed for the proposed rule, consideration. with the set of alternatives, that the staff determined that 80 issues could Of the 92 issues in the final rule, 68 preserving the option of license renewal be adequately addressed generically and issues were found to be adequately for future decisionmakers would be would not have been reviewed in plant- addressed in the GEIS, and therefore, unreasonable. The final amendment also specific license renewal reviews. For 22 additional assessment will not be eliminates NRCs consideration of the of the issues, it was found that the issue required in a plant-specific review. need for generating capacity and the was adequately addressed for some but Twenty-four issues were found to preparation of power demand forecasts not all plants. Therefore, a plant-specific require additional assessment for at for license renewal applications. The review would be required to determine least some plants at the time of the NRC acknowledges the primacy of State whether the plant is covered by the license renewal review. In the final rule, regulators and utility officials in generic review or whether the issue the 2 issues in the proposed rule that defining energy requirements and must be assessed for that plant. The would have required review for all determining the energy mix within their proposed amendment provided plants are now included in the set of 24 jurisdictions. Therefore, the issue of guidance on the application of these issues of the final rule. need for power and generating capacity findings at the site-specific license Public comments on the adequacy of will no longer be considered in NRCs renewal stage. For the two remaining the analysis for each issue were license renewal decisions. The final issues, it was found that the issue was considered by the NRC staff. Any GEIS has been revised to include an not generically addressed for any plant, changes to the analyses and findings explicit statement of purpose and need and thus a plant-specific review would that were determined to be warranted for license renewal consistent with this have been required for all plants. were made in the final GEIS and acknowledgment. Lastly, the final rule Other major features of the proposed incorporated in the rule. Several has eliminated the consideration of amendment included a conditional changes were made to the procedural utility economics from license renewal finding of a favorable cost-benefit features of the proposed rule in reviews under the National balance for license renewal and a response to comments by the Council on Environmental Policy Act (NEPA) provision for the use of an Environmental Quality, the except when such benefits and costs are environmental assessment that would Environmental Protection Agency, and a either essential for a determination address only those issues requiring number of State agencies. First, the NRC regarding the inclusion of an alternative
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/ Rules and Regulations 28469 in the range of alternatives considered documents that were available and Commissions consideration of need for or relevant to mitigation. These and announced a public workshop to be power and utility economics. Comments other features of the final rule are held on November 4-5, 1991. The were requested on this proposal. The explained in detail below. supporting documents for the proposed discussion below contains an analysis of The NRC is soliciting public comment rule included: these comments and other comments on this rule for a period of 30 days. In (1) NUREG-1437, Draft Generic submitted in response to the proposed developing any comment specific Environmental Impact Statement for rule.
attention should be given to the License Renewal of Nuclear Plants treatment of low-level waste storage and (August 1991); III. Analysis of Public Comments disposal impacts, the cumulative (2) NUREG-1440, Regulatory The analysis of public comments and radiological effects from the uranium Analysis of Proposed Amendments to the NRCs responses to these comments fuel cycle, and the effects from the Regulations Concerning the are documented in NUREG-1529, disposal of high-level waste and spent Environmental Review for Renewal of Public Comments on the Proposed 10 fuel. Absent a determination by the NRC Nuclear Power Plant Operating CFR part 51 Rule for Renewal of Nuclear that the rule should be modified, based Licenses: Draft Report for Comment Power Plant Operating Licenses and on comments received, the final rule (August 1991); Supporting Documents: Review of shall be effective on August 5, 1996. (3) Draft Regulatory Guide DG-4002, Concerns and NRC Staff Response Proposed Supplement 1 to Regulatory (May 1996). The extent of comments II. Rulemaking History Guide 4.2, Guidance for the received during the various stages of the In 1986, the NRC initiated a program Preparation of Supplemental rulemaking process and the principal to develop license renewal regulations Environmental Reports in Support of an concerns raised by the commenters, and associated regulatory guidance in Application To Renew a Nuclear Power along with the corresponding NRC anticipation of applications for the Station Operating License (August responses to these concerns, are renewal of nuclear power plant 1991); and (4) NUREG-1429, Environmental discussed below.
operating licenses. A solicitation for comments on the development of a Standard Review Plan for the Review of A. Commenters policy statement was published in the License Renewal Applications for Federal Register on November 6, 1986 Nuclear Power Plants: Draft Report for In response to the Federal Register (51 FR 40334). However, the Comment (August 1991). notice on the proposed rule published Commission decided to forgo the After the comment period, the NRC on September 17, 1991 (56 FR 47016),
development of a policy statement and exchanged letters with the Council on 68 organizations and 49 private citizens to proceed directly to rulemaking. An Environmental Quality (CEQ) and the submitted written comments. The 68 advance notice of proposed rulemaking Environmental Protection Agency (EPA) organizations included 5 Federal was published on August 29, 1988 (53 to address their concerns about agencies; 26 State, regional, and local FR 32919). Subsequently, the NRC procedural aspects of the proposed rule. agencies; 19 nuclear industry determined that, in addition to the The Commission also decided that the organizations and engineering firms; 3 development of license renewal staff should discuss with the States the law firms; and 15 public interest groups.
regulations focused on the protection of concerns raised in comments by a Before the close of the initial comment health and safety, an amendment to its number of States that certain features of period, the NRC conducted a 2-day environmental protection regulations in the proposed rule conflicted with State workshop on November 4-5, 1991, in 10 CFR part 51 was warranted. regulatory authority over the need for Arlington, Virginia, to discuss the On October 13, 1989 (54 FR 41980), power and utility economics. To proposed rule. Representatives from the NRC published a notice of its intent facilitate these discussions, the NRC Federal agencies, State agencies, to hold a public workshop on license staff developed an options paper utilities, engineering firms, law firms, renewal on November 13 and 14, 1989. entitled Addressing the Concerns of and public interest groups attended the One of the workshop sessions was States and Others Regarding the Role of workshop. Workshop panelists included devoted to the environmental issues Need for Generating Capacity, the NRC staff as well as representatives associated with license renewal and the Alternative Energy Sources, Utility from the Department of Energy (DOE),
possible merit of amending 10 CFR part Costs, and Cost-Benefit Analysis in NRC Department of Interior (DOI),
- 51. The workshop is summarized in Environmental Reviews for Relicensing Environmental Protection Agency NUREG/CP-0108, Proceedings of the Nuclear Power Plants: An NRC Staff (EPA), Council on Environmental Public Workshop on Nuclear Power Discussion Paper. A Federal Register Quality (CEQ), several State agencies, Plant License Renewal (April 1990). notice published on January 18, 1994 the nuclear industry, and public interest Responses to the public comments (59 FR 2542) announced the scheduling groups.
submitted after the workshop are of three regional workshops during In February 1994, the NRC conducted summarized in NUREG-1411, February 1994 and the availability of the three public meetings to solicit views on Response to Public Comments options paper. A fourth public meeting the NRC staffs options for addressing Resulting from the Public Workshop on on the State concerns was held in May the need for generating capacity, Nuclear Power Plant License Renewal 1994 in order for the NRC staff to better alternative energy sources, economic (July 1990). understand written proposals that had costs, and cost-benefit analysis in the On July 23, 1990, the NRC published been submitted by two industry proposed rule. The intent to hold public an advance notice of proposed organizations after the regional meetings and the availability of the rulemaking (55 FR 29964) and a notice workshops. After considering the options paper was noticed in the of intent to prepare a generic comments from the workshops and the Federal Register on January 12, 1994 environmental impact statement (55 FR written comments, the NRC staff issued (59 FR 2542). Written comments were 29967). The proposed rule was a proposed supplement to the proposed also solicited on the options paper. The published on September 17, 1991 (56 FR rule published on July 25, 1994 (59 FR public meetings were held in Rockville, 47016). The same Federal Register 37724), that it believed would resolve Maryland; Rosemont, Illinois; and notice described the supporting the States concerns regarding the Chicopee, Massachusetts.
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/ Rules and Regulations Representatives from several States, the they pointed out that the site-specific the applicability of the analyses of National Association of Regulatory nature of many important impacts codified in the rule and the Utility Commissioners (NARUC), the environmental issues does not justify a analysis contained in the draft nuclear industry, and public interest generic finding, particularly when the supplemental EIS will be addressed by groups actively participated. Nineteen finding would have been made 20 years NRC in the final supplemental EIS in separate written comments were also in advance of the decision to renew an accordance with 40 CFR 1503.4, submitted, primarily by the States and operating license. The commenters regardless of whether the comment is the nuclear industry. In their submittals, believe that only a site-specific EIS to directed to impacts in Category 1 or 2.
the Nuclear Energy Institute (NEI), support a license renewal decision Such comments will be addressed in the formerly known as the Nuclear would satisfy NEPA requirements. following manner:
Management and Resources Council Federal and State agencies questioned a. NRCs response to a comment (NUMARC), and Yankee Atomic Electric how new scientific information could be regarding the applicability of the Company (YAEC) each proposed an folded into the GEIS findings because analysis of an impact codified in the approach to handling the issues of need the GEIS would have been performed so rule to the plant in question may be a for generating capacity and alternative far in advance of the actual renewal of statement and explanation of its view energy sources in the rule. For the NRC an operating license. There were that the analysis is adequate including, staff to better understand these differing views on exactly how the NRC if applicable, consideration of the proposals, an additional public meeting should address this question. A group of significance of new information. A was held with NEI and YAEC on May commenters, including CEQ and EPA, commenter dissatisfied with such a 16, 1994, in Rockville, Maryland. noted that the rigidity of the proposed response may file a petition for After considering the public rule hampers the NRCs ability to rulemaking under 10 CFR 2.802. If the comments on the NRC staffs options respond to new information or to commenter is successful in persuading paper, the NRC issued a proposed different environmental issues not listed the Commission that the new supplement to the proposed rule; it was in the proposed rule. They believe that information does indicate that the published in the Federal Register on incorporation of new information can analysis of an impact codified in the July 25, 1994 (59 FR 37724). The only be achieved through the process of rule is incorrect in significant respects proposed supplement set forth the NRC amending the rules. One commenter (either in general or with respect to the staffs approach to the treatment of need recommended that, if the NRC decides particular plant), a rulemaking for generating capacity and alternative to pursue the approach of making proceeding will be initiated.
energy sources, as well as the staffs generic findings based on the GEIS, the b. If a commenter provides new revision to the purpose of and need for frequency of review and update should information which is relevant to the the proposed action (i.e., license be specifically stated in the rule. plant and is also relevant to other plants renewal), which was intended to satisfy Recommendations on the frequency of (i.e., generic information) and that the States concerns and to meet NEPA the review ranged from 2 years to 5 information demonstrates that the requirements. Twenty separate written years. analysis of an impact codified in the comments were received in response to Response. In SECY-93-032, February final rule is incorrect, the NRC staff will this solicitation from Federal and State 9, 1993, the NRC staff reported to the seek Commission approval to either agencies, the nuclear industry, a public Commission their discussions with CEQ suspend the application of the rule on interest group, and two private citizens. and EPA regarding the concerns these a generic basis with respect to the agencies raised, which were also raised analysis or delay granting the renewal B. Procedural Concerns by other commenters, about limiting application (and possibly other renewal The commenters on the proposed rule public comment and the consideration applications) until the analysis in the raised significant concerns regarding the of significant new information in GEIS is updated and the rule amended.
following procedural aspects of the rule: individual license renewal If the rule is suspended for the analysis, (1) State and public participation in environmental reviews. The focus of the each supplemental EIS would reflect the the license renewal process and the commenters concerns is the limited corrected analysis until such time as the periodic assessment of the GEIS nature of the site-specific reviews rule is amended.
findings; contemplated under the proposed rule. c. If a commenter provides new, site-(2) The use of economic costs and In response, the NRC has reviewed the specific information which cost-benefit balancing; and generic conclusions in the draft rule, demonstrates that the analysis of an (3) Consideration of the need for expanded the opportunity for site- impact codified in the rule is incorrect generating capacity and alternative specific review, and confirmed that with respect to the particular plant, the energy sources in the environmental what remains as generic is so. Also, the NRC staff will seek Commission review of license renewal applications. framework for consideration of approval to waive the application of the Each of these concerns and the NRC significant new information has been rule with respect to that analysis in that response is discussed below. revised and expanded. specific renewal proceeding. The The major changes adopted as a result supplemental EIS would reflect the
- 1. Public Participation and the Periodic of these discussions are as follows: corrected analysis as appropriate.
Assessment of the Rule and the GEIS 1. The NRC will prepare a 2. The final rule and the GEIS will not Concern. Many commenters criticized supplemental site-specific EIS, rather include conditional cost-benefit the draft GEIS finding that 80 of 104 than an environmental assessment (as conclusions or conclusions about environmental issues could be initially proposed), for each license alternatives. Conclusions relative to the generically applied to all plants and, renewal application. This SEIS will be overall environmental impacts therefore, would not be subject to plant- a supplement to the GEIS. Additionally, including cumulative impacts will be specific review at the time of license the NRC will review comments on the left entirely to each site-specific SEIS.
renewal. As a consequence, these draft SEIS and determine whether such 3. After consideration of the changes commenters believe they are being comments introduce new and from the proposed rule to the final rule denied the opportunity to participate in significant information not considered and further review of the environmental the license renewal process. Moreover, in the GEIS analysis. All comments on issues, the NRC has concluded that it is
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/ Rules and Regulations 28471 adequate to formally review the rule and consideration of utility economics in its energy sources as Category 3 (i.e.,
the GEIS on a schedule that allows NEPA review of a license renewal requiring site-specific evaluation); and revisions, if required, every 10 years. application except when such benefits (3) A requirement that all site-specific The NRC believes that 10 years is a and costs are either essential for a EISs and relicensing decisions reference suitable period considering the extent of determination regarding the inclusion of State determinations of need for the review and the limited an alternative in the range of generating capacity and alternative environmental impacts observed thus alternatives considered or relevant to energy sources, and that they defer to far, and given that the changes in the mitigation. As discussed in more detail those State determinations to the environment around nuclear power in the following section, the NRC maximum extent possible.
plants are gradual and predictable with recognizes that the determination of the Response. After consideration, the respect to characteristics important to economic viability of continuing the NRC staff did not accept all elements of environmental impact analyses. This operation of a nuclear power plant is an the States approach because the review will be initiated approximately 7 issue that should be left to appropriate approach would have continued to years after completion of the last cycle. State regulatory and utility officials. require the NRC to consider the need for The NRC will conduct this review to generating capacity and utility determine what, if anything, in the rule 3. Need for Generating Capacity and Alternative Energy Sources economics as part of its environmental requires revision. analysis. In addition, the approach Concern. As part of their comments Concern. In their comments on the would have required the NRC to on the July 1994 Federal Register proposed rule and the draft GEIS, develop guidelines for determining the notice, NEI, several utilities, and the several States expressed concern that acceptability of State economic DOE asked that the NRC reconsider its the NRCs analysis of need for analyses, which some States may have understanding with CEQ and EPA generating capacity would preempt or viewed as an intrusion on their regarding the preparation of a site- prejudice State energy planning planning process.
specific supplemental EIS for each decisions. They argued that the The NRC staff developed and license renewal action. These determination of need for generating recommended another approach, which commenters supported an approach that capacity has always been the States was published on July 25, 1994 (59 FR would allow the preparation of an responsibility. Recommendations on 37724), after consideration of environmental assessment for reviewing how to address this issue ranged from information gathered at the regional the environmental impacts of license withdrawing the proposed rule to meetings and from the written renewal. changing the categorization of the issue comments. This approach, which Response. The NRC does not agree so that a site-specific review can be borrows some elements from NEI and with this position. The NRC believes performed, thus allowing for meaningful YAEC proposals, has five major features:
that it is reasonable to expect that an State and public participation. Almost assessment of the full set of (1) Neither the rule nor the GEIS all the concerned States called on the would contain a consideration of the environmental impacts associated with NRC to modify the rule to state an additional 20 years of operation of need for generating capacity or other explicitly that NRCs analysis does not issues involving the economic costs and any plant would not result in a finding preempt a States jurisdiction over the benefits of license renewal and of the of no significant impact. Therefore, the determination of need for generating associated alternatives; review for any plant would involve an capacity. (2) The purpose and need for the environmental impact statement.
Regarding the issue of alternative proposed action (i.e., license renewal)
- 2. Economic Costs and Cost-Benefit energy sources, several commenters would be defined as preserving the Balancing contended that the site-specific nature continued operation of a nuclear power Concern. State, Federal, and utility of the alternatives to license renewal did plant as a safe option that State representatives expressed concern about not justify the generic finding in the regulators and utility officials may the use of economic costs and cost- GEIS. One significant concern about this consider in their future planning benefit balancing in the proposed rule finding is the States perception that a actions; and the draft GEIS. Commenters generic finding, in effect, preempts the (3) The only alternative to the criticized the NRCs heavy emphasis on States responsibility to decide on the proposed action would be the no-economic analysis and the use of appropriate mix of energy alternatives action alternative, and the economic decision criteria. They argued in their respective jurisdictions. environmental consequences of this that the regulatory authority over utility Three regional public meetings were alternative are the impacts of a range of economics falls within the States held during the February 1994 to energy sources that might be used if a jurisdiction and to some extent within discuss the concerns of the States. At nuclear power plant operating license the jurisdiction of the Federal Energy these meetings, and later in written were not renewed; Regulatory Commission. Commenters comments, the State of New York (4) The environmental review for also believe that the cost-benefit proposed an approach to resolve the license renewal would include a balancing used in the proposed rule and problem. The approach was endorsed by comparison of the environmental the draft GEIS went beyond NEPA several other States. This approach had impacts of license renewal with impacts requirements and CEQ regulations (40 three major conditions: of the range of energy sources that may CFR Parts 1500 to 1508). They noted (1) A statement in the rule that the be chosen in the case of no action; that CEQ regulations interpret NEPA to NRCs findings on need and alternatives and require only an assessment of the are only intended to satisfy the NEPA (5) The NRCs NEPA decision cumulative effects of a proposed Federal requirements and do not preclude the standard for license renewal would action on the natural and man-made States from making their own require the NRC to determine whether environment. determination with respect to these the environmental impacts of license Response. In response to these issues; renewal are so great that preserving the concerns, the NRC has eliminated the (2) The designation of the need for option of license renewal for future use of cost-benefit analysis and generating capacity and alternative decisionmakers would be unreasonable.
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/ Rules and Regulations The statement that the use of and the narrow definition of purpose production and use, reliability in the economic costs will be eliminated in and need. These modifications and generation and distribution of electric this approach refers to the ultimate clarifications addressed the States power, improved fuel diversity within NEPA decision regarding the concerns relative to treatment of need the State, and environmental objectives comparison of alternatives and the for generating capacity and alternatives. such as improved air quality and proposed action. This approach does Specifically, the Commission has minimized land use.
not preclude a consideration of clarified the purpose and need for The consideration of alternatives has economic costs if these costs are license renewal in the GEIS as follows: been shifted to the site-specific review.
essential to a determination regarding The purpose and need for the proposed The rule contains no information or the inclusion of an alternative in the action (renewal of an operating license) is to conclusions regarding the range of alternatives considered (i.e., an provide an option that allows for power environmental impacts of alternative alternatives exorbitant cost could generation capability beyond the term of a energy sources, it only indicates that the render it nonviable and unworthy of current nuclear power plant operating license environmental impact of alternatives further consideration) or relevant to to meet future system generating needs, as will be considered during the individual mitigation of environmental impacts. such needs may be determined by State, plant review. However, the GEIS utility, and, where authorized, Federal (other Also, the two local tax issues and the contains a discussion of the than NRC) decisionmakers.
two economic structure issues under environmental impacts of alternative socioeconomics in the table would be Using this definition of the purpose of energy sources based on currently removed from consideration when and need for the proposed action, which available information. The information applying the decision standard. stresses options for the generation of in the GEIS is available for use by the Concern. Comments received from power, the environmental review will NRC and the licensee in performing the several States on the NRC staffs July include a characterization of alternative site-specific analysis of alternatives and 1994 recommended approach ranged energy sources as being the alternatives will be updated as appropriate. For from rejection to endorsement. Some to license renewal and not merely the individual plant reviews, information States supported the three conditions consequences of the no-action codified in the rule, information proposed by the State of New York. alternative and, thus, it addresses CEQs developed in the GEIS, and any Several States were still concerned concern that the scope of the significant new information introduced about whether a meaningful analysis of alternatives analysis is unacceptably during the plant-specific review, need for generating capacity and restricted. including any information received alternative energy sources could be With respect to the States concerns from the State, will be considered in undertaken 20 years ahead of time. One regarding need for generating capacity reaching conclusions in the State asked that the proposed rule be analysis, the NRC will neither perform supplemental EIS. The NRCs site-withdrawn. Another State wanted the analyses of the need for power nor draw specific comparison of the impacts of proposed rule to be reissued for public any conclusions about the need for license renewal with impacts of comment. CEQ supported the approach generating capacity in a license renewal alternative energy sources will involve proposed by the State of New York. CEQ review. This definition of purpose and consideration of information provided believed that the NRCs recommended need reflects the Commissions by State agencies and other members of approach was in conflict with the NEPA recognition that, absent findings in the the public. This approach should satisfy process because the proposed statement safety review required by the Atomic the States concerns relative to a of purpose and need for the proposed Energy Act of 1954, as amended, or in meaningful analysis of alternative action was too narrow and did not the NEPA environmental analysis that energy sources.
provide for an appropriate range of would lead the NRC to reject a license The Commission disagrees with alternatives to the underlying need for renewal application, the NRC has no CEQs assertion that the new decision the proposed action. CEQ wanted the role in the energy planning decisions of standard is inappropriate. Under this NRC to address other energy sources as State regulators and utility officials. decision standard, the NRC must separate alternatives, rather than as From the perspective of the licensee and determine if the adverse environmental consequences of the no-action the State regulatory authority, the impacts of license renewal are so great alternative. Moreover, CEQ stated that purpose of renewing an operating that preserving the option of license the proposed decision standard places a license is to maintain the availability of renewal for energy planning weighty and improper burden of the nuclear plant to meet system energy decisionmakers would be unreasonable.
proof on consideration of the requirements beyond the term of the The Commission expects that license alternative. The EPA endorsed CEQs plants current license. The underlying renewal would be denied only if the comments. In general, the nuclear need that will be met by the continued expected environmental effects of industry was supportive of the availability of the nuclear plant is license renewal significantly exceed all recommended approach. However, NEI defined by various operational and or almost all alternatives. The and the utilities strongly expressed the investment objectives of the licensee. Commission believes that this is a opinion that, with the redefined Each of these objectives may be dictated reasonable approach to addressing the statement of purpose and need, by State regulatory requirements or issue of environmental impacts of alternative energy sources would no strongly influenced by State energy license renewal, given NRCs limited longer be alternatives to the proposed policy and programs. In cases of role in the area of energy systems action and, therefore, need not be interstate generation or other special planning. The operation of a nuclear considered. circumstances, Federal agencies such as power plant beyond its initial license Response. After consideration of the the Federal Energy Regulatory term involves separate regulatory comments received on the Commission (FERC) or the Tennessee actions, one taken by the utility and the Commissions July 1994 proposal, the Valley Authority (TVA) may be NRC, and the other taken by the utility Commission has modified and clarified involved in making these decisions. The and the State regulatory authorities. The its approach in order to address the objectives of the various entities decision standard would be used by concerns of CEQ relative to involved may include lower energy cost, NRC to determine whether, from an consideration of appropriate alternatives increased efficiency of energy environmental perspective, it is
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/ Rules and Regulations 28473 reasonable to renew the operating standard is appropriate. The decision involvement in an issue at the time of license and allow State and utility standard will not affect the scope or the plant-specific review to specific decisionmakers the option of rigor of NRCs analyses, including the concerns about the technical adequacy considering a currently operating consideration of the environmental of the analysis supporting a Category 1 nuclear power plant as an alternative for impacts relevant to the license renewal finding for an issue. Several meeting future energy needs. The test of decision and associated alternatives. commenters believed that the reasonableness focuses on an analysis of The NRC staff believes that, under the definitions create confusion, especially whether the environmental impacts circumstances, the decision standard as to whether the finding of small anticipated for continued operation does not place a weighty and improper impact and Category 1 are during the term of the renewed license burden of proof on other alternatives as interdependent. The GEIS appears to reasonably compare with the impacts CEQ claims. use Category 1 and small that are expected from the set of With respect to the industrys desire interchangeably. Concern was also alternatives considered for meeting to eliminate consideration of alternative expressed that the requirement to generating requirements. The NRC energy sources, the Commission does consider mitigative actions was would reject a license renewal not agree. The Commission does not inadequately addressed in the draft application if the analysis demonstrated support the views of NEI and others that GEIS and proposed rule.
that the adverse environmental impacts alternative energy sources need not be Response. To reduce potential of the individual license renewal were considered in the environmental review confusion over the definitions, the use so great that preserving the option of for license renewal. The Commission is of the categories, and the treatment of license renewal for energy planning not prepared to state that no nuclear mitigation within the context of the decisionmakers would be unreasonable. power plant will fall well outside the categorization scheme, the NRC has After the NRC makes its decision range of other reasonably available revised the definitions to eliminate any based on the safety and environmental alternatives far in advance of an actual ambiguity as to how they are used.
considerations, the final decision on relicensing decision. Following NEIs Further, the GEIS has been modified to whether or not to continue operating the suggestion would not lead to a clearly state the reasons behind the nuclear plant will be made by the meaningful set of alternatives with category and magnitude findings.
utility, State, and Federal (non-NRC) which to compare a proposed action. In order to facilitate understanding of decisionmakers. This final decision will The Commission has always held the the modifications to the GEIS, the be based on economics, energy view that alternative sources of energy previous approach is discussed as reliability goals, and other objectives should be compared with license follows. In the proposed rule and the over which the other entities may have renewal and continued operation of a draft GEIS, findings about the jurisdiction. The NRC has no authority nuclear power plant. environmental impact associated with or regulatory control over the ultimate Lastly, the Commission does not each issue were divided into three selection of future energy alternatives. believe it is necessary to reissue this categories of applicability to individual Likewise, the NRC has no regulatory rule for public comment as a State plant reviews. These categories were:
power to ensure that environmentally commenter requested. The Commission
- Category 1: A generic conclusion on superior energy alternatives are used in has taken many measures to involve the the impact has been reached for all the future. Given the absence of the public concerning the resolution of affected nuclear power plants.
NRCs authority in the general area of public comments on the proposed rule.
- Category 2: A generic conclusion on energy planning, the NRCs rejection of The Commission has conducted a the impact has been reached for affected a license renewal application based on number of public meetings and nuclear power plants that fall within the existence of a single superior published for public comment its defined bounds.
alternative does not guarantee that such recommended procedural revisions to
- Category 3: A generic conclusion on an alternative will be used. In fact, it is the proposed rule. The Commission the impact was not reached for any conceivable that the rejection of a believes that modifications made to the affected nuclear power plants.
license renewal application by the NRC proposed rule reflect the logical The significance of the magnitude of in favor of an individual alternative may outgrowth of the proposed rule based on the impact for each issue was expressed lead to the implementation of another the public comments received by the as one of the three following levels.
alternative that has even greater Commission.
- Small impacts are so minor that environmental impacts than the they warrant neither detailed proposed action, license renewal. C. Technical Concerns investigation nor consideration of Given the uncertainties involved and mitigative actions when such impacts the lack of control that the NRC has in 1. Category and Impact Magnitude Definitions are negative.
the choice of energy alternatives in the
- Moderate impacts are likely to be future, the Commission believes that it Concerns. Many commenters clearly evident and usually warrant is reasonable to exercise its NEPA expressed concern that the category consideration of mitigation alternatives authority to reject license renewal definitions and the impact-significance when such impacts are negative.
applications only when it has definitions were ambiguous and
- Large impacts involve either a determined that the impacts of license appeared somewhat interconnected. The severe penalty or a major benefit, and renewal sufficiently exceed the impacts EPA expressed concern that mitigation mitigation alternatives are always of all or almost all of the alternatives of adverse impacts was not addressed considered when such impacts are that preserving the option of license adequately. negative.
renewal for future decision makers Commenters expressed a number of With respect to the categories of would be unreasonable. Because the concerns about the use of the applicability, under the proposed rule objectives of the utility and State applicability categories and the applicants would have:
decisionmakers will ultimately be the magnitude-level categories. With respect (1) Not provided additional analyses determining factors in whether a to the applicability categories, concerns of Category 1 issues; nuclear power plant will continue to ranged from a general concern that (2) Not provided additional analyses operate, NRCs proposed decision Category 1 precludes or hinders public if their plant falls within the bounds
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/ Rules and Regulations defined in the rule for a Category 2 as part of the license renewal review. which probability of occurrence is a key issue; The review of a Category 2 issue may consideration (i.e., accident (3) Provided additional plant-specific focus on the particular aspect of the consequences), the probability of analyses if their plant does not fall issue that causes the Category 1 criteria occurrence has been factored into the within the bounds defined in the rule not to be met. For example, severe determination of significance. The for a Category 2 issue; and accident mitigation under the issue determination of the significance (4) Provided plant-specific analyses of severe accidents is the focus for a category was made independently of the Category 3 issues. plant-specific review because the other consideration of the potential benefit of In order to address the comments on aspects of the issue, specifically the additional mitigation.
these magnitude and category offsite consequences, have been The major concerns (organized by definitions, the GEIS has been modified adequately addressed in the GEIS. With topical areas) about the environmental to clearly state the reasons behind the the revised definitions, the two issues issues examined in the draft GEIS and category and magnitude findings. previously designated as Category 3 are the NRC staffs response to those The revised definitions are listed now designated Category 2. For an issue concerns are summarized next.
below. to be a Category 1, current mitigation
- Category 1: For the issue, the 2. Surface Water Quality practices and the nature of the impact analysis reported in the Generic were considered and a determination Concern. Several commenters Environmental Impact Statement has was made that it is unlikely that expressed concerns related to the shown: additional measures will be sufficiently National Pollutant Discharge (1) The environmental impacts beneficial. In the GEIS, in discussing the Elimination System (NPDES) permitting associated with the issue have been impacts for each issue, consideration process for surface water discharge.
determined to apply either to all plants was given to what is known about They believe that the NRC may have or, for some issues, to plants having a current mitigation practices. overlooked its legal obligation to specific type of cooling system or other The definitions of the significance comply with Section 401 of the Clean specified plant or site characteristic; level of an environmental impact have Water Act (CWA). Their (2) A single significance level (i.e., been revised to make the consideration recommendations included withholding small, moderate, or large) has been of the potential for mitigating an impact approval for license renewal until a assigned to the impacts (except for separate from the analysis leading to a facility has complied with Section 401 collective off site radiological impacts conclusion about the significance level and treating license renewal as an from the fuel cycle and from high level of the impact. Further, the significance opportunity for a new NEPA review. On waste and spent fuel disposal); and level of an impact is now more clearly the other hand, other commenters (3) Mitigation of adverse impacts tied to sustaining specific attributes of recommended decoupling the NRC associated with the issue has been the affected resource that are important relicensing process from the NPDES considered in the analysis and it has to its viability, health or usefulness. permitting process.
been determined that additional plant- General definitions of small, moderate Response. In issuing individual specific mitigation measures are likely and large significance levels are given license renewals, the Commission will not to be sufficiently beneficial to below. These definitions are adapted to comply, as has been its practice, with warrant implementation. accommodate the resource attributes of the provisions of Section 401 of the The generic analysis of the issue may importance for each of the Federal Water Pollution Control Act (see be adopted in each plant-specific environmental issues in the GEIS. The 10 CFR 51.45(d) and 51.71(c)). In review. Issues for which the impact was definition of small clarifies the addition, pursuant to Section 511(c) of found to be favorable were also defined meaning of the term as it applies to the Federal Water Pollution Control Act to be Category 1 issues. radiological impacts. The definition of of 1972, the Commission cannot
- Category 2: For the issue, the small in the proposed rule did not question or reexamine the effluent analysis reported in the GEIS has shown logically apply to such impacts. limitations or other requirements in that one or more of the criteria of The general definitions of significance permits issued by the relevant Category 1 cannot be met and, therefore, level are: permitting authorities. Nevertheless, additional plant-specific review is
- Small: For the issue, environmental compliance with the environmental required. effects are not detectable or are so minor quality standards and requirements of If, for an environmental issue, the that they will neither destabilize nor these permits does not negate the three Category 1 criteria apply to all noticeably alter any important attribute requirement for the Commission to plants, that issue is Category 1 and the of the resource. For the purposes of consider all environmental effects of the generic analysis should be used in a assessing radiological impacts, the proposed action. Accordingly, the license renewal review for all plant Commission has concluded that those Commission has not only taken existing applications. If the three Category 1 impacts that do not exceed permissible permits into account in its analysis of criteria apply to a subset of plants that levels in the Commissions regulations the water quality impacts of license are readily defined by a common plant are considered small. renewal but has also considered characteristic, notably the type of
- Moderate: For the issue, information on actual operating impacts cooling system, the population of plants environmental effects are sufficient to collected from individual plants, State is partitioned into the set of plants with alter noticeably but not to destabilize and Federal regulatory agencies, and the characteristic and the set without important attributes of the resource. published literature. As a result of this the characteristic. For the set of plants
- Large: For the issue, environmental analysis, the Commission has concluded with the characteristic, the issue is effects are clearly noticeable and are that the environmental impacts on Category 1 and the generic analysis sufficient to destabilize important surface water quality are small for those should be used in the license renewal attributes of the resource. effluents subject to existing permit or review for those plants. For the set of The discussion of each environmental certification requirements. A total plants without the characteristic, the issue in the GEIS includes an decoupling of the license renewal issue is Category 2 and a site-specific explanation of how the significance process and the NPDES permitting analysis for that issue will be performed category was determined. For issues in process is not appropriate because, for
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/ Rules and Regulations 28475 issues with incomplete Clean Water Act configuration of plant cooling water Response. Based on consideration of determinations, the NRC cannot systems, since the best available comments, the issue of groundwater use complete its weighing and balancing of technology that is economically conflicts resulting from surface water impacts without independently available may be different given the withdrawals for cooling tower makeup addressing the issues. additional 20 years of plant operating water or cooling ponds is now Category Concern. Several commenters raised life. 2 for plants withdrawing surface water concerns that various issues within the Response. The Commission has from small water bodies during low Surface Water Quality topic should be considered the impacts of license flow conditions. The GEIS has Category 2 or 3 issues. These included renewal on aquatic ecology and, in identified a potential reduction in water use conflicts as experienced in doing so, has reviewed existing NPDES aquifer recharge as a result of competing Arizona and the Midwest, thermal permits and other information. Based on water use. These conflicts are already a stratification and salinity gradients this analysis, the Commission has concern at two closed-cycle nuclear associated with once-through cooling concluded that these impacts are small power plants. The NRC does not agree systems, and the toxicity of biofouling with the exception that plants with that saltwater intrusion should be compounds. once-through cooling and cooling ponds considered a Category 2 issue. When Response. Regarding the water use may have larger effects associated with saltwater intrusion has been a problem, conflicts, the NRC has considered the entrainment of fish and shellfish in the major cause has been the large impacts of water use during the renewal early life stages, impingement, and heat consumption of groundwater by period and has concluded that these shock. Agencies responsible for existing agricultural and municipal users.
impacts are small for plants with a once- permits are not constrained from Groundwater consumption by nuclear through cooling system and that this is reexamining the permit issues if they power plants is small by comparison a Category 1 issue for those plants. have reason to believe that the basis for and does not contribute significantly to However, this issue is designated their issuance is no longer valid. The the saltwater intrusion problem. With Category 2 for plants with cooling Commission does not have authority regard to traces of tritium found in the towers and cooling ponds because, for groundwater at one nuclear power under NEPA to impose an effluent those plants, the impacts might be plant, the tritium was attributed to a limitation other than those established moderate (they could also be small). In modification in the plants inlet and in permits issued pursuant to the Clean either case, pursuant to 10 CFR 51.45(d), discharge canal that did not take into Water Act. The problem of the long-term an applicant for license renewal must consideration a unique situation in effects of heavy metal discharges from identify and indicate in its topology and groundwater flow. The plants with copper-nickel condenser environmental report the status of State releases were minor and the situation tubes has been found at only one plant.
and local approvals regarding water use has been corrected.
The affected condenser tubes have been issues. For those reactor sites where Regarding the issue of the use of replaced with tubing of a more thermal stratification or salinity gradient groundwater for cooling water makeup, was found to be the most pronounced, corrosion-resistant material.
the NRC has designated this issue as the issues were reviewed during Concern. A commenter pointed out Category 2 even though only the Grand preparation of the GEIS and found to be that the issue of riparian zones should Gulf Nuclear Station is currently using acceptable by the States within the be addressed in the GEIS because the Ranney wells to withdraw groundwater.
NPDES process. No change in the vegetation region along a water course This water intake does not conflict with categorization in the GEIS would be can be affected by water withdrawal and other groundwater uses in the area. It is required. Similarly, the NPDES permit is important in maintaining the habitat. not possible to predict whether or not for a facility establishes allowable Response. The NRC agrees with the water use conflicts will occur at the discharges, including biocides. The NRC importance of addressing the impacts of Grand Gulf facility in the future. It is has no indication that residual license renewal on the riparian habitat. also not possible to determine the environmental impacts would occur as The final GEIS provides a discussion of significance of the environmental a result of license renewal activities at the riparian habitat as an important impacts associated with Ranney well any nuclear plant site other than resource and the potential effects of use at other nuclear plants that may perhaps water use conflicts arising at consumptive water use on riparian choose to adopt this method in the plants with cooling ponds or cooling zones. future.
towers using make-up water from a 4. Groundwater Use and Quality small river with low flow. For those 5. Terrestrial Ecology plants, this issue is Category 2. Concern. Several commenters Concern. Several commenters indicated that groundwater issues recommended that the issue of bird
- 3. Aquatic Ecology should be reviewed on a site-specific mortality resulting from collisions with Concern. A number of comments basis because of groundwater use transmission lines, towers, or cooling regarding the ecological impact of conflicts (in particular, the effect on towers be characterized as a Category 2 cooling water withdrawal from aquatic aquifer recharge of using surface water issue. Such a characterization would bodies were received. Specific concerns for cooling water), opportunities for provide for a review of mitigation at included fish kills associated with the saltwater intrusion, and concerns over those plants with cooling towers that do entrainment and impingement of fish tritium found in wells at one site. On not have illumination and for power within once-through and cooling pond the other hand, a commenter requested plant transmission lines that transect cooling systems, the use of chlorine and that the issue of groundwater use for major flyways or that cross wetlands molluscicides to control mussel and cooling tower makeup water be changed used by large concentrations of birds.
clam growth, and the long-term effects from Category 2 to Category 1 because Response. The NRC does not agree of heavy metal discharges from plants the issue is based solely on data from with this recommendation. The GEIS with copper-nickel condenser tubes. Ranney wells at the Grand Gulf Nuclear cites several studies that conclude that Another commenter noted that license Station, where tests have shown that the bird mortalities resulting from collision extension affords the opportunity to elevation of the water plain around with transmission lines, towers, or review the intake and discharge Grand Gulf is not dropping. cooling towers are not significantly
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/ Rules and Regulations reducing bird populations. Mitigation change is appropriate and strengthens 10 miles of the Pilgrim Nuclear Power measures in place, such as safety lights, the criterion used to define a small Plant have a risk of contracting were found adequate and additional environmental impact for the reasons leukemia four times greater than other measures were not warranted. that follow. The Atomic Energy Act individuals.
Therefore, the issue remains a Category requires the Nuclear Regulatory Response. The NRC staff reviewed the 1 issue because refurbishment will not Commission to promulgate, inspect and MDHP study and compared it with involve construction of any additional enforce standards that provide an various other studies. The results of the transmission lines or natural draft adequate level of protection of the study have been contradicted by a cooling towers. public health and safety and the National Cancer Institute (NCI) study Concern. One commenter expressed environment. The implementation of entitled Cancer in Populations Living concern that the GEIS analysis of land these regulatory programs provides a Near Nuclear Facilities (July 1990).
use did not adequately encompass the margin of safety. A review of the The NCI study, which included the impact of onsite spent fuel storage on regulatory requirements and the Pilgrim plant in its analysis, found no land use and that the Category 1 finding performance of facilities provides the reason to suggest that nuclear facilities is questionable. A specific concern was bases to project continuation of may be linked causally with excess the potential need for the construction performance within regulatory deaths from leukemia or from other of additional spent fuel storage facilities standards. For the purposes of assessing cancers. The findings of the NCI study associated with the license renewal radiological impacts, the Commission are consistent with the findings of term, along with their associated has concluded that impacts are of small several similar epidemiological studies impacts on the terrestrial environment. significance if doses to individuals and in foreign countries and with the latest Response. The NRC does not agree releases do not exceed the permissible conclusions of expert bodies such as the that there is a need to change the levels in the Commissions regulations. National Research Councils Committee Category 1 determination for onsite land With respect to whether additional on the Biological Effects of Ionizing use. Waste management operations mitigative measures are required, it Radiation. The NRC continues to base could require the construction of should be noted that in 10 CFR parts 20 its assessment of the health effects of additional storage facilities and thus and 50 there are provisions that ionizing radiation on the overall body of adversely affect land use and terrestrial radiological impacts associated with scientific knowledge and on the ecology. However, experience has plant operation be reduced to levels as recommendations of expert groups.
shown that the land requirements low as reasonably achievable (ALARA).
would be relatively small (less than 9 Concern. Several commenters 7. Socioeconomics acres), impacts to land use and indicated that the GEIS needs a broader Concern. A commenter concerned terrestrial ecology would also be treatment of uncertainty as it relates to with historic preservation pointed out relatively small, and the land that may human health issues. that this issue must be addressed be used is already possessed by the Response. The NRC agrees that there through compliance with the National applicant; thus, its basic use would not is considerable uncertainty associated Historic Preservation Act (NHPA) and be altered. Onsite land use is Category with health effects, especially at low cannot be resolved generically.
- 1. Terrestrial ecology with disturbance occupational and public dose levels, Response. The NRC agrees with this of sensitive habitat is treated as a and particularly with respect to comment. Historical and archaeological separate issue and is Category 2. electromagnetic fields. Health effect impacts have been changed from a estimates from radiation exposures are Category 1 to a Category 2 issue (that is,
- 6. Human Health it must be evaluated site-specifically).
based on the best scientific evidence Concern. In the human health section available and are considered to be Consultation with State historical of the GEIS, the radiological impacts of conservative estimates. Several sections preservation offices and other plant refurbishment and continued of the GEIS have been expanded to more Government agencies, as required by operations during the license renewal thoroughly explain how predicted NHPA, must be undertaken to term to workers and the general public impacts could be affected by changes in determine whether protected historical were examined. Several commenters scientific information or standards. or archaeological resources are in areas indicated that it was inappropriate to Concern. One commenter indicated that might be disturbed during compare the radiation exposures that, in the GEIS and the proposed rule, refurbishment activities and operation associated with license renewal to risk coefficients should have been used during the renewal period.
natural background levels. These for chemicals and radiation to obtain Concern. Several commenters commenters believed that the upper bound risk estimates of cancer indicated that transportation issues appropriate argument should be that the incidence. associated with refurbishment activities risks associated with the additional Response. The NRC does not agree should be changed from Category 3 to exposures are so small that no with this comment. In making Category 2 because the impacts will be additional mitigative measures are comparisons of alternatives, insignificant in the majority of cases.
required. comparisons of the central or best One recommendation was to use a level Response. The NRC agrees that the estimates of impacts are consistent with of service (LOS) determination for assessment of radiation exposure should NEPA requirements because they specific plants as the bounding not be simply a comparison with provide the fairest determination. The criterion. The analysis would require background radiation. In response to GEIS is written using current, that LOS be determined for that part of comments on the draft generic Commission-approved risk estimators. the refurbishment period during which environmental impact statement and the Concern. Two commenters expressed traffic not related to the plant is proposed rule, the standard defining a concern regarding the GEIS conclusion expected to be the heaviest. Another small radiological impact has changed that the impact of radiation exposure to recommendation was to establish from a comparison with background the public is small, citing a study done bounding criteria based on past major radiation to sustained compliance with by the Massachusetts Department of routine outages.
the dose and release limits applicable to Public Health (MDPH). This study Response. The NRC agrees that use of the various stages of the fuel cycle. This concluded that adults who live within the LOS approach may prove to be
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/ Rules and Regulations 28477 acceptable. Transportation still must be storage of spent fuel should be In response to the questions about the reviewed on a plant-specific basis, that considered on a site-specific basis applicability of Table S-3 to the is, it is a Category 2 issue (based on the within a plant license renewal review. management of waste associated with revised definition). Response. The Commission license renewal and to the various Concern. There were acknowledges that there is uncertainty comments challenging the treatment of recommendations to make the housing in the schedule of availability of the several forms of waste in the draft impacts during refurbishment a disposal facilities for LLW, mixed GEIS and in the proposed rule, the Category 1 issue instead of Category 2. waste, and spent fuel. However, the discussion of Table S-3 has been moved One commenter noted that the Commission believes that there is from Section 4.8 of the draft GEIS to construction period data used in the sufficient understanding of and Chapter 6 of the final GEIS in order to analysis appears to overestimate the experience with the storage of LLW, provide a more integrated assessment of impact on housing. mixed waste, and spent fuel to conclude the environmental impacts associated Response. The NRC does not agree that the waste generated at any plant as with waste management as a that this should be a Category 1 issue. a result of license renewal can be stored consequence of license renewal. Also in Although negligible housing impacts are safely and without significant response to various comments, the anticipated for most license renewals, environmental impacts before discussion of Table S-3 and of each of significant housing impacts have permanent disposal. In addition, the the types of waste has been expanded.
occurred during a periodic plant outage Commission concluded that the Supplemental data are presented in at one of the case plants studied for the classification of storage and ultimate Chapter 6 of the final GEIS in order to analysis. This issue is now a Category 2 disposal as a Category 1 issue is extend the coverage of the issue because moderate and large appropriate because States are environmental impacts of the uranium impacts on housing are possible proceeding, albeit slowly, with the fuel cycle presented in the current Table depending on local conditions (e.g., development of new disposal facilities; S-3 and of transportation of radioactive areas with extremely slow population LLW and mixed waste have been and waste presented in the current Table S-growth or areas with growth control can be safely stored at reactor sites until 4 to radon-222, technetium-99, higher measures that limit housing fuel enrichment, and higher fuel new disposal capacity becomes development). burnup. In part, the current Table S-3 available. Analyses to support this
- 8. The Uranium Fuel Cycle and Solid conclusion are presented in Chapter 6 of and the data supplementing it cover Waste Management the final GEIS (NUREG-1437). The environmental impacts of:
(1) Onsite storage of spent fuel Concern. Wide-ranging concerns were following summary of the responses to assemblies in pools for 10 years, expressed in the comments on the comments emphasizes the main features packaging and transportation to a proposed rule and the draft GEIS about of these analyses.
Federal repository, and permanent the treatment of storage and disposal of In the draft GEIS, the environmental disposal; and low-level waste (LLW), mixed waste, data in Table S-3 were discussed with (2) Short-term storage onsite of LLW, spent fuel, nonradiological waste, and respect to applicability during the packaging and transportation to a land-the transportation of fuel and waste to license renewal period and burial facility, and permanent disposal.
and from nuclear power plants as a supplemented with an analysis of the The following conclusions have been consequence of license renewal. radiological release and dose drawn with regard to the environmental Concern was expressed about the commitment data for radon-222 and impacts associated with the uranium uncertain availability of disposal technetium-99. The proposed rule fuel cycle.
facilities for LLW, mixed waste, and would have had this discussion apply to The radiological and nonradiological spent fuel; the prospect of generation each plant at the time of its review for environmental impacts of the uranium and onsite storage of an additional 20 license renewal. fuel cycle have been reviewed. The years output of waste; and the resulting Further, in the draft GEIS, Chapter 6, review included a discussion of the pressure that would be put on the States Solid Waste Management, covered the values presented in Table S-3, an to provide LLW disposal facilities. generation of LLW, mixed waste, spent assessment of the release and impact of Various commenters expressed concern fuel, and nonradiological waste as a 222Rn and of 99Tc, and a review of the about the adequacy of the treatment of result of license renewal; the regulatory standards and experience of the cost of waste management and the transportation of the radiological waste; fuel cycle facilities. For the purpose of implications for the economic viability and the environmental impacts of waste assessing the radiological impacts of of license renewal. Numerous comments management, including storage and license renewal the Commission uses were provided on updating and disposal. The findings that were to have the standard that the impacts are of clarifying data on waste management been codified in the rule were that, for small significance if doses and releases presented in the draft GEIS. Finally, nonradiological waste, mixed waste, do not exceed permissible levels in the various questions were raised about the spent fuel, and transportation, the Commissions regulations. Given the applicability of Table S-3 (10 CFR 51.51 environmental impacts are of small available information regarding the Uranium fuel cycle environmental significance and that the analysis in the compliance of fuel cycle facilities with dataTable S-3, Table of Uranium Fuel GEIS applies to each plant (Category 1). applicable regulatory requirements, the Cycle Environmental Data) to the For LLW, the finding that would have Commission has concluded that, other management of waste generated as a been codified in the rule was that, if an than for the disposal of spent fuel and result of license renewal. applicant does not have access to a low- high-level waste, these impacts on With regard to spent fuel, several level radioactive waste disposal facility individuals from radioactive gaseous commenters expressed concern that dry through a low-level waste compact or an and liquid releases will remain at or cask storage is not a proven technology unaffiliated State, the applicant must below the Commissions regulatory and that onsite storage of spent fuel present plans for interim waste storage limits. Accordingly, the Commission from an additional 20 years of plant with an assessment of potential concludes that offsite radiological operation will present environmental ecological habitat destruction caused by impacts of the fuel cycle (individual and safety problems. Therefore, onsite construction activities (Category 2). effects from other than the disposal of
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/ Rules and Regulations spent fuel and high-level waste) are There are no current regulatory limits as more is understood about the small. ALARA efforts will continue to for off-site releases of radionuclides for performance of the proposed Yucca apply to fuel cycle activities. This is a the current candidate repository site. Mountain repository. Such estimates Category 1 issue. However if we assume that limits are would involve very great uncertainty, The radiological impacts of the developed along the lines of the 1995 especially with respect to cumulative uranium fuel cycle on human National Academy of Sciences (NAS) population doses over thousands of populations over time (collective report, and that in accordance with the years. The standard proposed by the effects) have been considered within the Commissions Waste Confidence NAS is a limit on maximum individual framework of Table S-3. The 100 year Decision, a repository can and likely dose. The relationship of potential new environmental dose commitment to the will be developed at some site which regulatory requirements, based on the U.S. population from the fuel cycle, will comply with such limits, peak NAS report, and cumulative population high level waste and spent fuel disposal doses to virtually all individuals will be impacts has not been determined, excepted, is calculated to be about 100 millirem per year or less. However, although the report articulates the view 14,800 man-rem, or 12 cancer fatalities, while the Commission has reasonable that protection of individuals will for each additional 20 year power confidence that these assumptions will adequately protect the population for a reactor operating term. Much of this, prove correct there is considerable repository at Yucca Mountain. However, especially the contribution of radon uncertainty since the limits are yet to be EPAs generic repository standards in 40 releases from mines and tailing piles, developed, no repository application CFR part 191 generally provide an consists of tiny doses summed over has been completed or reviewed, and indication of the order of magnitude of large populations. This same dose uncertainty is inherent in the models cumulative risk to population that could calculation can theoretically be used to evaluate possible pathways to result from the licensing of a Yucca extended to include many tiny doses the human environment. The National Mountain repository, assuming the over additional thousands of years as Academy report indicated that 100 ultimate standards will be within the well as doses outside the U.S. The result millirem per year should be considered range of standards now under of such a calculation would be as a starting point for limits for consideration. The standard in 40 CFR individual doses, but notes that some part 191 protects the population by thousands of cancer fatalities from the imposing containment requirements fuel cycle, but this result assumes that measure of consensus exists among that limit the cumulative amount of even tiny doses have some statistical national and international bodies that radioactive material released over adverse health effect which will not the limits should be a fraction of the 100 10,000 years. The cumulative release ever be mitigated (for example no cancer millirem per year. The lifetime limits are based on EPAs population cure in the next thousand years), and individual risk from 100 millirem per impact goal of 1,000 premature cancer that these dose projections over year dose limit is about 3x10¥3. Doses deaths world-wide for a 100,000 metric thousands of years are meaningful. to populations from disposal cannot tonne (MTHM) repository.
However these assumptions are now (or possibly ever) be estimated Nevertheless, despite all the questionable. In particular, science without very great uncertainty. uncertainty surrounding the effects of cannot rule out the possibility that there Estimating cumulative doses to the disposal of spent fuel and high-level will be no cancer fatalities from these populations over thousands of years is waste, some judgement as to the tiny doses. For perspective, the doses more problematic. The likelihood and regulatory NEPA implications of these are very small fractions of regulatory consequences of events that could matters should be made and it makes no limits, and even smaller fractions of seriously compromise the integrity of a sense to repeat the same judgement in natural background exposure to the deep geologic repository were evaluated every case. Even taking the uncertainties same populations. No standards exist by the Department of Energy in the into account, the Commission concludes that can be used to reach a conclusion Final Environmental Impact Statement: that these impacts are acceptable in that as to the significance of the magnitude Management of Commercially these impacts would not be sufficiently of the collective radiological effects. Generated Radioactive Waste, October large to require the NEPA conclusion, Nevertheless, some judgement as to the 1980. The evaluation estimated the 70- for any plant, that the option of regulatory NEPA implication of this year whole-body dose commitment to extended operation under 10 CFR part issue should be made and it makes no the maximum individual and to the 54 should be eliminated. Accordingly, sense to repeat the same judgement in regional population resulting from while the Commission has not assigned every case. The Commission concludes several modes of breaching a reference a single level of significance for the that these impacts are acceptable in that repository in the year of closure, after impacts of spent fuel and high-level these impacts would not be sufficiently 1,000 years, after 100,000 years, and waste disposal, this issue is considered large to require the NEPA conclusion, after 100,000,000 years. The release Category 1. Excepting the collective for any plant, that the option of scenarios covered a wide range of effects previously discussed, for other extended operation under 10 CFR part consequences from the limited Category 1 issues, the impacts will be 54 should be eliminated. Accordingly, consequences of humans accidentally considered at the individual renewal while the Commission has not assigned drilling into a waste package in the stage as a means of judging the total a single level of significance for the repository to the catastrophic release of impact of an individual license renewal collective effects of the fuel cycle, this the repository inventory by a direct decision. However, the Commission has issue is considered Category 1. For other meteor strike. Subsequently, the NRC already judged the impacts of high level Category 1 issues, the impacts will be and other Federal agencies have waste disposal as part of this rule.
considered at the individual renewal expended considerable effort to develop With respect to the nonradiological stage as a means of judging the total models for the design and for the impact of the uranium fuel cycle, data impact of an individual license renewal licensing of a high level waste concerning land requirements, water decision. However, the Commission has repository, especially for the candidate requirements, the use of fossil fuel, already judged the impact of collective repository at Yucca Mountain. More gaseous effluent, liquid effluent, and effects of the fuel cycle as part of this meaningful estimates of doses to tailings solutions and solids, all listed in rule. population may be possible in the future Table S-3, have been reviewed to
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/ Rules and Regulations 28479 determine the significance of the issues raised by several scientists (4) Nonradiological impacts, environmental impacts of a power independent of the project after the including land use, fugitive dust, air reactor operating an additional 20 years. license was issued. These issues were quality, erosion, sedimentation, and The nonradiological impacts recently reviewed and largely resolved disturbance of ecosystems.
attributable to the relicensing of an by an independent review group. In In addition, under 10 CFR 50.59, individual power reactor are found to be North Carolina, Texas, and Nebraska, licensees are allowed to make changes of small significance. License renewal of the license application review period to their facilities as discussed in the an individual plant is so indirectly has been longer than is required by the final safety analysis report without NRC connected to the operation of fuel cycle LLRWPA, but progress continues to be permission if the evaluation indicates facilities that it is meaningless to made. that a change in the technical address the mitigation of impacts The States LLW responsibilities specifications is not required or that an identified above. This is a Category 1 include providing disposal capacity for unreviewed safety question does not issue. mixed LLW. Mixed waste disposal exist. Licensees would have to ensure Table S-3 does not take into account facility developers face the same types that any new LLW activities would not long-term onsite storage of LLW, mixed of challenges as LLW site developers represent an unreviewed safety question waste, and storage of spent fuel plus difficulties with dual regulation for routine operations or for conditions assemblies onsite for longer than 10 and small volumes. However, in NRCs that might arise from potential years, nor does it take into account view there are no technical reasons why accidents. Both onsite and offsite impacts from mixed waste disposal. The offsite disposal capacity for all types of impacts would have to be considered. If environmental impacts of these aspects mixed waste should not become a LLW or mixed waste activity fails of onsite storage are also addressed in available when needed. NRC and EPA either of the two tests in 10 CFR 50.59, Chapter 6 of the final GEIS and the have developed guidance on the siting a license amendment is required.
findings are included in the final rule in of mixed waste disposal facilities as Subject to the two possible review Table B-1 of appendix B to 10 CFR part well as a conceptual design for a mixed requirements just noted, the
- 51. waste disposal facility. A disposal Commission finds that continued onsite Chapter 6 of the GEIS discusses the facility for certain types of mixed waste storage of both LLW and mixed waste impacts of offsite disposal of LLW and is operated by Envirocare in Utah. States resulting from license renewal will have mixed waste and concludes that impacts have begun discussions with DOE about small environmental impacts and will will be small. The conclusion that require no further review within the accepting commercial mixed waste for impacts will be small is based on the license renewal proceeding.
treatment and disposal at DOE facilities.
regulations and regulatory programs in The GEIS addresses extended onsite Although these discussions have yet to place (e.g., 10 CFR part 61 for LLW and storage of spent fuel during a renewal result in DOE accepting commercial 40 CFR parts 261, 264, and 268 for period of up to 20 years. The mixed waste at DOE facilities, it appears hazardous waste), experience with Commission has studied the safety and that progress is being made toward existing sites, and the expectation that environmental effects of the temporary DOEs eventual acceptance of some NRC, EPA, and the States will ensure storage of spent fuel after cessation of portion of commercial mixed waste at that disposal will occur in compliance reactor operation and has published a its facilities. generic determination of no significant with the applicable regulations.
The Low-Level Radioactive Waste While the NRC understands that there environmental impact (10 CFR 51.23).
Policy Act of 1980 (LLRWPA) made the have been delays and that uncertainties The environmental data on storing spent States responsible for the disposal of exist such as those just discussed, the fuel onsite in a fuel pool for 10 years commercially generated LLW. At Commission concludes that there is before shipping for offsite disposal have present, 9 compacts have been formed, reasonable assurance that sufficient been assessed and reported in NUREG-representing 42 States. The Texas LLW and mixed LLW disposal capacity 0116, The Environmental Survey of the Compact (Texas, Maine, and Vermont) will be made available when needed so Reprocessing and Waste Management is pending before the U.S. Congress. that facilities can be decommissioned Portions of the LWR Fuel Cycle New LLW disposal facilities in the consistent with NRC decommissioning (October 1976), and published in the host States of California, North Carolina, requirements. This conclusion, coupled Commissions regulations (10 CFR and Texas are forecast to be operational with the expected small impacts from 51.51). Environmental assessments (EA) between 1997 and 1998. Facilities in the both storage and disposal justify for expanding the fuel pool storage host States of Connecticut, Illinois, classification of LLW and mixed waste capacity have been conducted for Massachusetts, Nebraska, New Jersey, disposal as Category 1 issues. numerous plants. In each case, a finding Pennsylvania, and New York are The GEIS addresses the matter of of no significant environmental impact scheduled for operation between 1999 extended onsite storage of both LLW was reached.
and 2002. Envirocare, in Utah, takes and mixed waste from refurbishment Radioactive exposures, waste limited types of waste from certain and operations for a renewal period of generation, and releases were evaluated generators. up to 20 years. Summary data are and found to be small. The only There are uncertainties in the provided and radiological and nonradiological effluent from waste licensing process and in the length of nonradiological environmental impacts storage is additional heat from the plant time needed to resolve technical issues, are addressed. The analysis considers: that was found to have a negligible but in NRCs view there are no (1) The volumes of LLW and mixed effect on the environment. Accidents unsolvable technical issues that will waste that may be generated from were evaluated and were found to have inevitably preclude successful license renewal; insignificant effects on the environment.
development of new sites or other off- (2) Specific requirements under the Dry cask storage at an independent site disposal capacity for LLW by the existing regulatory framework; spent fuel storage installation (ISFSI) is time they will be needed. For example, (3) The effectiveness of the another technology used to store under in California, the proposed Ward Valley regulations in maintaining low average a general license. The environmental LLW disposal facility was unexpectedly doses to members of the public and to impacts of allowing onsite dry cask delayed by the need to resolve technical workers; and storage under a general license were
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/ Rules and Regulations assessed in an EA and found to be impacts of transportation to the indicates that the source terms used in insignificant. Further, the Commission proposed repository at Yucca Mountain the past under-predict environmental has conducted EAs for seven specific becomes available. consequences. The NRC has concluded licensed ISFSIs and has reached a that analysis of the new source term
- 9. Accidents finding of no significant environmental information developed over the past 10 impact for each site. Each EA addressed Concern. Several commenters years indicates that the expected the impacts of construction, use, and expressed concerns regarding the frequency and amounts of radioactive decommissioning. Potential impacts appropriateness of the severe accident release under severe accident conditions that were assessed include radiological determination in the GEIS and with the are less than that predicted using the impacts, land use, terrestrial resources, treatment of severe accident mitigation generic source terms. A summary of the water use, aquatic resources, noise, air design alternatives (SAMDAs) for evolution of this research is provided in quality, socioeconomics, radiological license renewal. A group of commenters NUREG-1150, Severe Accident Risks:
impacts during construction and routine identified areas of concern that they An Assessment for Five U.S. Nuclear operation, and radiological impacts of believe justify severe accidents being Power Plants (December 1990), and its off-normal events and accidents. Trends classified as a Category 3 issue. The supporting documentation. Thus, the in onsite spent fuel storage capacity and areas included seismic risks to nuclear analyses performed for the GEIS the volume of spent fuel that will be power plants and site-specific represent adequate, plant-specific generated during an additional 20 years evacuation risks. Several commenters estimates of the impacts from severe of operation are considered in the GEIS. questioned whether the analyses of the accidents that would generally over-Spent fuel storage capacity requirements environmental impacts of accidents predict, rather than under-predict, can be adequately met by ISFSIs were adequate to make a Category 1 environmental consequences. Therefore, without significant environmental determination for the issue of severe the GEIS analysis of the impacts of impacts. The environmental impacts of accidents. The contention is that a severe accidents for license renewal is onsite storage of spent fuel at all plants bounding analysis would be established retained and is considered applicable to have been adequately assessed in the only if plant-specific analyses were all plants.
GEIS for the purposes of an performed for every plant, which was Based on an evaluation of the environmental review and agency not the case. Instead, the GEIS analysis comments, the Commission has decision on renewal of an operating made use of a single generic source term reconsidered its previous conclusion in for each of the two plant types. the draft GEIS concerning site-specific license; thus, no further review within Response. The Commission believes consideration of severe accident the license renewal proceeding is that its analysis of the impacts of severe mitigation. The Commission has required. This provision is relative to accidents is appropriate. The GEIS the license renewal decision and does determined that a site-specific provides an analysis of the consideration of alternatives to mitigate not alter existing Commission licensing consequences of severe accidents for requirements specific to on-site storage severe accidents will be required at the each site in the country. The analysis time of license renewal unless a of spent fuel. adopts standard assumptions about each previous consideration of such The environmental impacts from the site for parameters such as evacuation alternatives regarding plant operation transportation of fuel and waste speeds and distances traveled, and uses has been included in a final attributable to license renewal are found site-specific estimates for parameters environmental impact statement or a to be small when they are within the such as population distribution and related supplement. Because the third range of impacts of parameters meteorological conditions. These latter criterion required to make a Category 1 identified in Table S-4. The estimated two factors were used to evaluate the designation for an issue requires a radiological effects are within regulatory exposure indices for these analyses. The generic consideration of mitigation, the standards. The nonradiological impacts methods used result in predictions of issue of severe accidents must be are those from periodic shipments of risk that are adequate to illustrate the reclassified as a Category 2 issue that fuel and waste by individual trucks or general magnitude and types of risks requires a consideration of severe rail cars and thus would result in that may occur from reactor accidents. accident mitigation alternatives, infrequent and localized minor Regarding site-evacuation risk, the provided this consideration has not contributions to traffic density. radiological risk to persons as they already been completed. The Programs designed to further reduce evacuate is taken into account within Commissions reconsideration of the risk, which are already in place, provide the individual plant risk assessments issue of severe accident mitigation for for adequate mitigation. Recent, ongoing that form the basis for the GEIS. In license renewal is based on the efforts by the Department of Energy to addition, 10 CFR Part 50 requires that Commissions NEPA regulations that study the impacts of waste licensees maintain up-to-date require a consideration of mitigation transportation in the context of the emergency plans. This requirement will alternatives in its environmental impact multi-purpose canister (see, 60 FR apply in the license renewal term as statements (EISs) and supplements to 45147, August 30, 1995) suggest that well as in the current licensing term. EISs, as well as a previous court there may be unresolved issues As was done in the GEIS analysis, the decision that required a review of severe regarding the magnitude of cumulative use of generic source terms (one set for mitigation alternatives (referred to as impacts from the use of a single rail line PWRs and another for BWRs) is SAMDAs) at the operating license stage.
or truck route in the vicinity of the consistent with the past practice that See, Limerick Ecology Action v. NRC, repository to carry all spent fuel from all has been used and accepted by the NRC 869 F.2d 719 (3d Cir. 1989).
plants. Accordingly, NRC declines to for individual plant Final Although the Commission has reach a Category 1 conclusion on this Environmental Impact Statements considered containment improvements issue at this time. Table S-4 should (FEISs). The purpose of the source term for all plants pursuant to its continue to be the basis for case-by-case discussion in the GEIS is to describe Containment Performance Improvement evaluation of transportation impacts of whether or not new information on (CPI) program, which identified fuel and waste until such time as a source terms developed after the potential containment improvements for detailed analysis of the environmental completion of the most recent FEISs site-specific consideration by licensees,
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/ Rules and Regulations 28481 and the Commission has additional five IPEEE submittals will be received, separate rulemaking, reclassifying ongoing regulatory programs whereby covering all operating plants in the severe accidents as a Category 1 issue.
licensees search for individual plant United States. These examinations The Commission does not intend to vulnerabilities to severe accidents and consider potential improvements to prescribe by rule the scope of an consider cost-beneficial improvements, reduce the frequency or consequences of acceptable consideration of severe these programs have not yet been severe accidents on a plant-specific accident mitigation alternatives for completed. Therefore, a conclusion that basis and essentially constitute a broad license renewal nor does it intend to severe accident mitigation has been search for severe accident mitigation mandate consideration of alternatives generically considered for license alternatives. The NRC staff is identical to those evaluated previously.
renewal is premature. conducting a process review of each In general, the Commission expects that The Commission believes it unlikely plant-specific IPE submittal and IPEEE significant efficiency can be gained by that any site-specific consideration of submittal. To date, all IPE submittals using site-specific IPE and IPEEE results severe accident mitigation alternatives have received a preliminary review by in the consideration of severe accident for license renewal will identify major the NRC with 46 out of 78 completed; mitigation alternatives. The IPEs and plant design changes or modifications for the IPEEE submittals, 24 of the 75 IPEEEs are essentially site-specific PRAs that will prove to be cost-beneficial for are under review. These IPEs have that identify probabilities of core reducing severe accident frequency or resulted in a number of plant procedural damage (Level 1 PRA) and include consequences. This Commission or programmatic improvements and assessments of containment expectation regarding severe accident some plant modifications that will performance under severe accident mitigation improvements is based on further reduce the risk of severe conditions that identify probabilities of the analyses performed to date that are accidents. fission product releases (Level 2 ). As discussed below. In conclusion, the GEIS analysis of discussed in Generic Letter 88-20, The Commissions CPI program Individual Plant Examination for severe accident consequences and risk examined each of the five U.S. Severe Accident Vulnerabilities is adequate, and additional plant-containment types to determine (November 23, 1988), one of the specific analysis of these impacts is not potential failure modes, potential plant important goals of the IPE and IPEEE required. However, because the ongoing improvements, and the cost- was to reduce the overall probabilities regulatory program related to severe effectivenesses of such improvements. of core damage and fission product accident mitigation (i.e., IPE and IPEEE)
As a result of this program, only a few releases as necessary by modifying has not been completed for all plants containment improvements were found hardware and procedures to help and consideration of severe accident to be potentially beneficial and were prevent or mitigate severe accidents.
mitigation alternatives has not been Although Level 3 PRAs have been either identified for further NRC research or for individual licensee included in an EIS or supplemental EIS used in SAMDA analyses to generate evaluation. related to plant operations for all plants, site-specific offsite dose estimates so In response to the Limerick decision, a site-specific consideration of severe that the cost-benefit of mitigation an NRC staff consideration of SAMDAs accident mitigation alternatives is alternatives could be determined, the was specifically included in the Final required at license renewal for those Commission does not believe that site-Environmental Impact Statement for the plants for which this consideration has specific Level 3 PRAs are required to Limerick 1 and 2 and Comanche Peak 1 not been performed. The Commission determine whether an alternative under and 2 operating license reviews, and in expects that if these reviews identify consideration will provide sufficient the Watts Bar Supplemental Final any changes as being cost beneficial, benefit to justify its cost. Licensees can Environmental Statement for an such changes generally would be use other quantitative approaches for operating license. The alternatives procedural and programmatic fixes, assigning site-specific risk significance evaluated in these analyses included the with any hardware changes being only to IPE results and judging whether a items previously evaluated as part of the minor in nature and few in number. mitigation alternative provides a CPI Program, as well as improvements NRC staff considerations of severe sufficient reduction in core damage identified through other risk studies and accident mitigation alternatives have frequency (CDF) or release frequency to analyses. No physical plant already been completed and included in warrant implementation. For example, a modifications were found to be cost- an EIS or supplemental EIS for licensee could use information provided beneficial in any of these severe Limerick, Comanche Peak, and Watts in the GEIS analysis (exposure indices, accident mitigation considerations. Bar. Therefore, severe accident wind frequencies, and demographics) to Only plant procedural changes were mitigation alternatives need not be translate the dominant contributors to identified as being cost-beneficial. reconsidered for these plants for license CDF and the large release frequencies Furthermore, the Limerick analysis was renewal. from the IPE/IPEEE results into dose for a high-population site. Because risk Based on the fact that a generic estimates so that a cost-benefit is generally proportional to the consideration of mitigation is not determination can be performed. In population around a plant, this analysis performed in the GEIS, a Category 1 some instances, a consideration of the suggests that other sites are unlikely to designation for severe accidents cannot magnitude of reduction in the site-identify significant plant modifications be made. Therefore, the Commission has specific CDF and release frequencies that are cost-beneficial. reclassified severe accidents as a alone (i.e., no conversion to a dose Additionally, each licensee is Category 2 issue, requiring only that estimate) may be sufficient to conclude performing an individual plant alternatives to mitigate severe accidents that no significant reduction in off-site examination (IPE) to look for plant be considered for those plants that have risk will be provided and, therefore, vulnerabilities to internally initiated not included such a consideration in a implementation of a mitigation events and a separate IPE for externally previous EIS or supplemental EIS. The alternative is not warranted. The initiated events (IPEEE). The licensees Commission notes that upon completion Commission will review each severe were requested to report their results to of its IPE/IPEEE program, it may review accident mitigation consideration the Commission. Seventy-eight IPE the issue of severe accident mitigation provided by a license renewal applicant submittals were received and seventy- for license renewal and consider, by on its merits and determine whether it
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/ Rules and Regulations constitutes a reasonable consideration of Guide 1.86, Termination of Operating energy requirements without making severe accident mitigation alternatives. Licenses for Nuclear Reactors (which appropriate distinctions between energy provides guidance for surface and peak capacity requirements, plant
- 10. Decommissioning contamination), dose rate limits from availability, and capacity factors.
Concern. Several commenters gamma-emitting radionuclides included Response. The NRC has determined requested further clarification of the in plant technical specifications, and that a detailed consideration of the need NRCs position regarding requirements for keeping residual for generating capacity is inappropriate decommissioning requirements, contamination as low as reasonably in the context of consideration of the especially whether the total impacts achievable (ALARA) as included in 10 environmental impacts of license address returning the site to green field CFR part 20. These criteria were used in renewal. Thus, the NRC will limit its conditions. developing NUREG-0586, the final GEIS NEPA review of license renewal Response. The decommissioning on decommissioning of nuclear applications to the consideration of the chapter of the GEIS analyzes the impact facilities, which was published in environmental impacts of license that an additional 20 years of plant August of 1988. One conclusion from renewal compared with those of other operation would have on ultimate plant the analysis conducted for NUREG- available generating sources. Hence, the decommissioning; it neither serves as 0586 was that waste volumes from concerns regarding demand projections the generic analysis of the decommissioning of reactors are not used in the draft GEIS are no longer an environmental impacts associated with highly sensitive to the radiological issue and they have been removed from decommissioning nor establishes criteria. A proposed rule dated August the GEIS.
decommissioning requirements. An 22, 1994, would codify radiological analysis of the expected impacts from 12. Alternatives to License Renewal criteria for unrestricted release of plant decommissioning was previously reactors and other nuclear facilities and Concern. In addition to the procedural provided in NUREG-0586, Final for termination of a facility license concern discussed earlier about the Generic Environmental Impact following decommissioning. NUREG- treatment of alternative energy sources Statement on Decommissioning of 1496, the draft GEIS for the proposed as a Category 1 issue, several Nuclear Facilities (August 1988). The rule on radiological criteria, included commenters expressed concerns about analysis in the GEIS for license renewal analyses of a range of radiological the comparison and analysis of examines the physical requirements and release criteria and confirmed the earlier alternative energy sources, as well as the attendant effects of decommissioning conclusions that waste volumes from economic analysis approach used in the after a 20-year license renewal decommissioning of reactors are not draft GEIS. Consistent with their compared with decommissioning at the sensitive to the residual radiological arguments against the Category 1 end of 40 years of operation and finds criteria within the range likely to be designation of alternatives, the little difference in effects. selected. This range included residual commenters questioned the approach With respect to returning a site to dose levels comparable to the adopted in the GEIS of comparing only green field condition, the Commission radiological criteria currently being single alternative energy sources to defines decommissioning as the safe used for reactor decommissioning. license renewal. They believe that the removal of a nuclear facility from Based on the insensitivity of the waste NRCs failure to consider a mix of service, the reduction of residual volume from reactor decommissioning alternatives ignores the potential for contamination to a level that permits to the radiological criteria, the other alternative sources of power that release of the property for unrestricted Commission continues to believe, as are available to different regions of the use, and termination of the license. concluded in the decommissioning nation, such as demand-side Therefore, the question of restoring the section of the GEIS, that the management, cogeneration, purchased land to a green field condition, which contribution to environmental impacts power from Canada, biomass, natural would require additional demolition of decommissioning from license gas, solar energy, and wind power. They and site restoration beyond addressing renewal are small. The Commission also indicated that this approach residual contamination and radiological further concludes that these impacts are neglects a utilitys ability to serve its effects, is outside the current scope of not expected to change significantly as customers with a portfolio of supply the decommissioning requirements. a result of the ongoing rulemaking. that is based on load characteristics, Moreover, consistent with the Therefore, the determinations in the cost, geography, and other Commissions conclusion that license GEIS remain appropriate. considerations, and fails to consider the renewal is not expected to affect future collective impact of the alternatives.
decommissioning, any requirement 11. Need for Generating Capacity Furthermore, the possible technological relative to returning a site to a green Concern. In addition to the major advances in renewable energy sources field and the attendant effects of such a procedural concern discussed earlier over the next 40 years are not addressed.
requirement would also not be affected about the treatment of need for One commenter argued that by an additional 20 years of operation. generating capacity, several commenters designating the issue of alternative Therefore, the issue of returning a site raised concerns about the power energy sources as Category 1 allows a to pre-construction conditions is beyond demand projections used in the GEIS. license renewal applicant not to the scope of license renewal review. Some commenters noted that any consider the additional requirement of Concern. Several commenters determination of need quickly becomes economic threshold analysis. Relative to expressed concern that, because a dated and, therefore, the demand for the economic analysis of the alternatives residual radioactivity rule is still not in and the source of electrical power at the to license renewal, another commenter place, the LLW estimates should be time of license renewal cannot be questioned the proposed requirement reexamined. accurately predicted at this time. for the license renewal applicant to Response. The NRC does have criteria Moreover, they believe that the NRCs demonstrate that the replacement of in place for the release of reactor analysis is not definitive enough to equivalent generating capacity by a coal-facilities to unrestricted access remain unchallenged for 40 years. fired plant has no demonstrated cost following decommissioning. These Another commenter criticized the advantage over the individual nuclear include the guidance in Regulatory analysis because it focused only on power plant license renewal.
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/ Rules and Regulations 28483 According to the commenter, this second scenario retains the original low-income populations * * *. The requirement would force the applicant objective of establishing an upper bound CEQ was assigned to provide this to perform an economic analysis of an of the impacts likely to be generated at guidance to enable agencies to better alternative to license renewal. The any particular plant. The typical comply with E.O. 12898. Until the CEQ commenter further argued that NEPA scenario is useful for estimating impacts guidance is received, the Commission does not require an economic at plants that have been well maintained intends to consider environmental consideration. and have already undertaken most justice in its evaluations of individual Response. In response to these major refurbishment activities necessary license renewal applications. Greater concerns, the final rule no longer for operation beyond the current emphasis will be placed on discussing requires a cost comparison of alternative licensing term. The conservative impacts on minority and low-income energy sources relative to license scenario estimates continue to be useful populations when preparing NEPA renewal. Furthermore, the alternative for estimating the maximum impacts documents such as EISs, supplemental energy sources discussed in the final likely to result from license renewal. EISs, and, where appropriate, EAs.
GEIS include energy conservation and The revised approach of providing Commission requirements regarding energy imports as well as the other two separate license renewal scenarios environmental justice reviews will be sources discussed by the commenters. also alleviates the concern about the use reevaluated and may be revised after An analysis of the environmental of a bounding scenario for license receipt of the CEQ guidance.
impacts of alternative energy sources is renewal activities. The NRC included in the GEIS but is not codified acknowledges that some applicants for IV. Discussion of Regulatory in 10 CFR part 51. license renewal may not be required to Requirements The NRC believes that its perform certain major refurbishment or A. General Requirements consideration of alternatives in the GEIS replacement activities and, therefore, is representative of the technologies may have fewer or shorter outages. In this final rule, the regulatory available and the associated However, the two scenarios described in requirements for performing a NEPA environmental impacts. With regard to the GEIS are neither unrealistic nor review for a license renewal application consideration of a mix of alternative overconservative in representing the are similar to the NEPA review sources, the Commission recognizes that range of activities that could be requirements for other major plant combinations of various alternatives expected for license renewal and the licensing actions. Consistent with the may be used to replace power possible schedule for performing these current NEPA practice for major plant generation from license renewal. activities. licensing actions, this amendment to 10 CFR Part 51 requires the applicant to
- 13. License Renewal Scenario 14. Environmental Justice submit an environmental report that Concern. Several commenters raised On February 11, 1994, the President analyzes the environmental impacts concerns related to the license renewal issued Executive Order (E.O.) 12898, associated with the proposed action, scenario evaluation methodology as Federal Actions To Address considers alternatives to the proposed implemented in the GEIS. The Environmental Justice in Minority action, and evaluates any alternatives fundamental issues were the degree of Populations and Low-Income for reducing adverse environmental conservatism built into the scenario and Populations (59 FR 7629, February 16, effects. Additionally, the amendment the appropriateness of an upper bound 1994). This order requires each Federal requires the NRC staff to prepare a type approach in characterizing the agency to make achieving supplemental environmental impact refurbishment activities (and associated environmental justice part of its mission statement for the proposed action, issue costs) in light of NEPA requirements to by identifying and addressing, as the statement in draft for public determine reasonable estimates of the appropriate, disproportionately high comment, and issue a final statement environmental impacts of Federal and adverse human health or after considering public comments on actions. environmental effects of its programs, the draft.
Regarding the concerns that the policies, and activities on minority and The amendment deviates from NRCs refurbishment schedules and scenarios low income populations. The current NEPA review practice in some developed for the GEIS were too Commission will endeavor to carry out areas. First, the amendment codifies conservative, several commenters the measures set forth in the executive certain environmental impacts indicated that many of the activities order by integrating environmental associated with license renewal that slated for completion during the justice into NRCs compliance with the were analyzed in NUREG-1437, extended refurbishment before license National Environmental Policy of 1969 Generic Environmental Impact renewal would actually be completed by (NEPA), as amended. E.O. 12898 was Statement for License Renewal at many facilities during the course of the issued after publication of the proposed Nuclear Plants (xxxx 1996).
current licensing term. The effect of rule and the receipt of comments on the Accordingly, absent new and significant having only one major outage instead of proposed rule. As a result, no comments information, the analyses for certain leveling work over three or four outages were received regarding environmental impacts codified by this rulemaking could lead to an over-estimate of the justice reviews for license renewal. need only be incorporated by reference refurbishment activities and costs that Therefore, a brief discussion of this in an applicants environmental report any particular plant would expect to issue relative to license renewal is for license renewal and in the see. warranted. Commissions (including NRC staff, Response. In response to this concern, As called for in Section 1-102 of E.O. adjudicatory officers, and the the NRC has revised the GEIS to include 12898, the EPA established a Federal Commission itself) draft and final SEIS two license renewal program scenarios. interagency working group to, among and other environmental documents The first scenario refers to a typical other things, * *
- provide guidance developed for the proceeding. Secondly, license renewal program and is to Federal agencies or criteria for the amendment reflects the intended to be representative of the type identifying disproportionately high and Commissions decision to limit its of programs that many plants seeking adverse human health or environmental NEPA review for license renewal to a license renewal might implement. The effects on minority populations and consideration of the environmental
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/ Rules and Regulations effects of the proposed action and subject areas of the analysis that must be upon which the Commission will base alternatives to the proposed action. addressed for the Category 2 issues. its final decision.
Finally, the amendment contains the Pursuant to 10 CFR 51.45(c), 10 CFR 3. Consideration of Mitigation decision standard that the Commission 51.53(c)(2) requires the applicant to Alternatives will use in determining the acceptability consider possible actions to mitigate the of the environmental impacts of adverse impacts associated with the Consistent with the NRCs current individual license renewals. proposed action. This consideration is NEPA practice, an applicant must The Commission and the applicant limited to designated Category 2 include a consideration of alternatives will consider severe accident mitigation matters. Pursuant to 10 CFR 51.45(d), to mitigate adverse environmental alternatives to reduce or mitigate the environmental report must include impacts in its environmental report.
environmental impacts for any plant for a discussion of the status of compliance However, for license renewal, the which severe accident mitigation with applicable Federal, State, and local Commission has generically considered alternatives have not been previously environmental standards. Also, 10 CFR mitigation for environmental issues considered in an environmental impact 51.53(c)(2) specifically excludes from associated with renewal and has statement or related supplement or in an consideration in the environmental concluded that no additional site-environmental assessment. The report the issues of need for power, the specific consideration of mitigation is Commission has concluded that, for economic costs and benefits of the necessary for many issues. The license renewal, the issues of need for proposed action, economic costs and Commissions consideration of power and utility economics should be benefits of alternatives to the proposed mitigation for each issue included reserved for State and utility officials to action, or other issues not related to identification of current activities that decide. Accordingly, the NRC will not adequately mitigate impacts and environmental effects of the proposed conduct an analysis of these issues in evaluation of other mitigation action and associated alternatives. In the context of license renewal or techniques that might or might not be addition, the requirements in 10 CFR perform traditional cost-benefit warranted, depending on such factors as 51.45 are consistent with the exclusion balancing in license renewal NEPA the size of the impact and the cost of the of economic issues in 10 CFR reviews. Finally, in a departure from the technique. The Commission has 51.53(c)(2).
approach presented in the proposed considered mitigation for all impacts rule, this final rule does not codify any 2. Consideration of Alternatives designated as Category 1 in Table B-1.
conclusions regarding the subject of Therefore, a license renewal applicant Pursuant to 10 CFR 51.45(c), 10 CFR alternatives. Consideration of and need not address mitigation for issues so 51.53(c)(2) requires the applicant to decisions regarding alternatives will designated.
consider the environmental impacts of occur at the site-specific stage. The alternatives to license renewal in the C. Supplemental Environmental Impact discussion below addresses the specific environmental report. The treatment of Statement regulatory requirements of this alternatives in the environmental report This amendment also requires that the amendment and any conforming should be limited to the environmental Commission prepare a supplemental changes to 10 CFR part 51 to implement impacts of such alternatives. environmental impact statement (SEIS),
the Commissions decision to eliminate The amended regulations do not consistent with 10 CFR 51.20(b)(2). This cost-benefit balancing from license require a discussion of the economic statement will serve as the renewal NEPA reviews. costs and benefits of these alternatives Commissions independent analysis of B. The Environmental Report in the environmental report for the the environmental impacts of license operating license renewal stage except renewal as well as a comparison of these
- 1. Environmental Impacts of License as necessary to determine whether an impacts to the environmental impacts of Renewal alternative should be included in the alternatives. This document will also Through this final rule, the NRC has range of alternatives considered or present the preliminary amended 10 CFR 51.53 to require an whether certain mitigative actions are recommendation by the NRC staff applicant for license renewal to submit appropriate. The analysis should regarding the proposed action.
an environmental report with its demonstrate consideration of a Consistent with the revisions to 10 CFR application. This environmental report reasonable set of alternatives to license 51.45 and 51.53 discussed above in must contain an analysis of the renewal. In preparing the alternatives regard to the applicants environmental environmental impacts of renewing a analysis, the applicant may consider report, this rulemaking revises portions license, the environmental impacts of information regarding alternatives in of 10 CFR 51.71 and 51.95 to reflect the alternatives, and mitigation alternatives. NUREG-1437, Generic Environmental Commissions approach to addressing In preparing the analysis of Impact Statement for License Renewal the environmental impacts of license environmental impacts contained in the of Nuclear Plants (xxxx 1996). renewal.
environmental report, the applicant The Commission has developed a new The issues of need for power, the should refer to the data provided in decision standard to be applied in economic costs and benefits of the appendix B to 10 CFR part 51, which environmental impact statements for proposed action, and economic costs has been added to NRCs regulations as license renewal as discussed in Section and benefits of alternatives to the part of this rulemaking. The applicant is IV.C.2. The amended regulations for proposed action are specifically not required to provide an analysis in license renewal do not require excluded from consideration in the the environmental report of those issues applicants to apply this decision supplemental environmental impact identified as Category 1 issues in Table standard to the information generated in statement for license renewal by 10 CFR B-1 in Appendix B. For those issues their environmental report (although the 51.95(c), except as these costs and identified as Category 2 in Table B-1, applicant is not prohibited from doing benefits are either essential for a the applicant must provide a specified so if it desires). However, the NRC staff determination regarding the inclusion of additional analysis beyond that will use the information contained in an alternative in the range of contained in Table B-1. In this final the environmental report in preparing alternatives considered or relevant to rule, 10 CFR 51.53(c)(3)(ii) specifies the the environmental impact statement mitigation. The supplemental
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/ Rules and Regulations 28485 environmental impact statement does process. The results of this integration license renewal for energy planning not need to discuss issues other than process will be utilized to arrive at a decisionmakers would be unreasonable.
environmental effects of the proposed conclusion regarding the sum of the D. NEPA Review for Activities Outside action and associated alternatives. This environmental impacts associated with NRC License Renewal Approval Scope rule amends the requirements in 10 CFR license renewal. These impacts will 51.71 (d) and (e) so that they are then be compared, quantitatively or The Commission wishes to clarify that consistent with the exclusion of qualitatively as appropriate, with the any activity that requires NRC approval economic issues in 10 CFR 51.95(c). environmental impacts of the and is not specifically required for Additionally, 10 CFR 51.95 has been considered alternatives. The analysis of NRCs action regarding management of amended to allow information from alternatives in the SEIS will be limited the effects of aging on certain passive previous NRC site-specific to the environmental impacts of these long-lived structures and components in environmental reviews, as well as NRC alternatives and will be prepared in the period of extended operation must final generic environmental impact accordance with 10 CFR 51.71 and be subject to a separate NEPA review.
statements, to be referenced in subpart A of appendix A to 10 CFR part The actions subject to NRC approval for supplemental environmental impact 51. The analysis of impacts of license renewal are limited to continued statements. alternatives provided in the GEIS may operation consistent with the plant
- 1. Public Scoping and Public Comments be referenced in the SEIS as appropriate. design and operating conditions for the on the SEIS The alternatives discussed in the GEIS current operating license and to the include a reasonable range of different performance of specific activities and Consistent with NRCs current NEPA methods for power generation. The programs necessary to manage the practice, the Commission will hold a analysis in the draft SEIS will consider effects of aging on the passive, long-public meeting in order to inform the mitigation actions for designated lived structures and components local public of the proposed action and Category 2 matters and will consider the identified in accordance with 10 CFR receive comments. In addition, the SEIS status of compliance with Federal, State, part 54. Accordingly, the GEIS does not will be issued in draft for public and local environmental requirements serve as the NEPA review for other comment in accordance with 10 CFR as required by 10 CFR 51.71(d). activities or programs outside the scope 51.91 and 51.93. In both the public Consistent with 10 CFR 51.71(e), the of NRCs part 54 license renewal review.
scoping process and the public draft supplemental environmental The separate NEPA review must be comment process, the Commission will impact statement must contain a prepared regardless of whether the accept comments on all previously action is necessary as a consequence of preliminary recommendation regarding analyzed issues and information receiving a renewed license, even if the license renewal based on consideration codified in Table B-1 of appendix B to activity were specifically addressed in of the information on the environmental 10 CFR part 51 and will determine impacts of license renewal and of the GEIS. For example, the whether these comments provide any alternatives contained in the SEIS. In environmental impacts of spent fuel information that is new and significant order to reach its recommendation, the pool expansion are addressed in the compared with that previously NRC staff must determine whether the GEIS in the context of the considered in the GEIS. If the comments adverse environmental impacts of environmental consequences of are determined to provide new and license renewal are so great that approving a renewed operating license, significant information bearing on the preserving the option of license renewal rather than in the context of a specific previous analysis in the GEIS, these for energy planning decisionmakers application to expand spent fuel pool comments will be considered and would be unreasonable. This decision capacity, which would require a appropriately factored into the Commissions analysis in the SEIS. standard is contained in 10 CFR separate NEPA review.
Public comments on the site-specific 51.95(c)(4). These separate NEPA reviews may additional information provided by the reference and otherwise use applicable
- 3. Final Supplemental Environmental applicant regarding Category 2 issues environmental information contained in Impact Statement will be considered in the SEIS. the GEIS. For example, an EA prepared The Commission will issue a final for a separate spent fuel pool expansion
- 2. Commissions Analysis and supplemental environmental impact request may use the information in the Preliminary Recommendation statement for a license renewal GEIS to support a finding of no The Commissions draft SEIS will application in accordance with 10 CFR significant impact.
include its analysis of the 51.91 and 51.93 after considering the V. Availability of Documents environmental impacts of the proposed public comments related to new issues license renewal action and the identified from the scoping and public The principal documents supporting environmental impacts of the comment process, Category 2 issues, this supplementary information are as alternatives to the proposed action. and any new and significant follows:
With the exception of offsite information regarding previously (1) NUREG-1437, Generic radiological impacts for collective analyzed and codified Category 1 issues. Environmental Impact Statement for effects and the disposal of spent fuel Pursuant to 10 CFR 51.102 and 51.103, License Renewal of Nuclear Plants and high level waste, the Commission the Commission will provide a record of (May 1996).
will integrate the codified its decision regarding the environmental (2) NUREG-1529, Public Comments environmental impacts of license impacts of the proposed action. In on the Proposed 10 CFR part 51 Rule for renewal as provided in Table B-1 of making a final decision, the Renewal of Nuclear Power Plant appendix B to 10 CFR part 51 Commission must determine whether Operating Licenses and Supporting (supplemented by the underlying the adverse environmental impacts of Documents; Review of Concerns and analyses in the GEIS), the appropriate license renewal (when compared with NRC Staff Response (May 1996).
site-specific analyses of Category 2 the environmental impacts of other (3) NUREG-1440, Regulatory issues, and any new issues identified energy generating alternatives) are so Analysis of Amendments to Regulations during the scoping and public comment great that preserving the option of Concerning the Environmental Review
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/ Rules and Regulations for Renewal of Nuclear Power Plant Nuclear Regulatory Commission, XII. Backfit Analysis Operating Licenses (May 1996). Washington, DC 20555-0001, or by The NRC has determined that these Copies of all documents cited in the Internet electronic mail at amendments do not involve any supplementary information are available BJS1@nrc.gov; and to the Desk Officer, provisions which would impose backfits for inspection and for copying for a fee Office of Information and Regulatory as defined in 10 CFR 50.109(a)(1);
in the NRC Public Document Room, Affairs, NEOB-10202 (3150-0021), therefore, a backfit analysis need not be 2120 L Street NW. (Lower Level), Office of Management and Budget, prepared.
Washington, DC. In addition, copies of Washington, DC 20503.
NRC final documents cited here may be List of Subjects in 10 CFR Part 51 purchased from the Superintendent of Public Protection Notification Administrative practice and Documents, U.S. Government Printing The NRC may not conduct or sponsor, procedure, Environmental impact Office, PO Box 37082, Washington, DC and a person is not required to respond statement, Nuclear materials, Nuclear 20013-7082. Copies are also available to, a collection of information unless it power plants and reactors, Reporting for purchase from the National displays a currently valid OMB control and recordkeeping requirements.
Technical Information Service, 5285 number. For the reasons set out in the Port Royal Road, Springfield, VA 22161. preamble and under the authority of the IX. Regulatory Analysis VI. Submittal of Comments in an Atomic Energy Act of 1954, as amended; The Commission has prepared a the Energy Reorganization Act of 1974, Electronic Format regulatory analysis for this final rule. as amended; the National Commenters are encouraged to The analysis examines the costs and Environmental Policy Act of 1969, as submit, in addition to the original paper benefits of the alternatives considered amended; and 5 U.S.C. 552 and 553, the copy, a copy of their letter in an by the Commission. The two NRC is adopting the following electronic format on IBM PC DOS- alternatives considered were: amendments to 10 CFR part 51.
compatible 3.5- or 5.25-inch, double- (A) Retaining the existing 10 CFR part sided, double-density (DS/DD) diskettes. 51 review process for license renewal, PART 51ENVIRONMENTAL Data files should be provided in which requires that all reviews be on a PROTECTION REGULATIONS FOR Wordperfect 5.1 or later version of plant-specific basis; and DOMESTIC LICENSING AND RELATED Wordperfect. ASCII code is also (B) Amending 10 CFR part 51 to allow REGULATORY FUNCTIONS acceptable or, if formatted text is a portion of the environmental review to required, data files should be provided be conducted on a generic basis. 1. The authority citation for part 51 in IBM Revisable-Form Text Document The conclusions of the regulatory continues to read as follows:
Content Architecture (RFT/DCA) format. analysis show substantial cost savings of Authority: Sec. 161, 68 Stat. 948, as alternative (B) over alternative (A). The amended, Sec. 1701, 106 Stat. 2951, 2952, VII. Finding of No Significant analysis, NUREG-1440, is available for 2953 (42 U.S.C. 2201, 2297f); secs. 201, as Environmental Impact: Availability inspection in the NRC Public Document amended, 202, 88 Stat. 1242, as amended, The NRC has determined that this Room, 2120 L Street NW. (Lower Level), 1244 (42 U.S.C. 5841, 5842).
Subpart A also issued under National final rule is the type of action described Washington, DC. Copies of the analysis Environmental Policy Act of 1969, secs. 102, as a categorical exclusion in 10 CFR are available as described in Section V. 104, 105, 83 Stat. 853-854, as amended (42 51.22(c)(3). Therefore, neither an U.S.C. 4332, 4334, 4335); and Pub. L.95-604, X. Regulatory Flexibility Act environmental impact statement nor an Title II, 92 Stat. 3033-3041. Sections 51.20, Certification environmental assessment has been 51.30, 51.60, 51.61, 51.80, and 51.97 also prepared for this regulation. This action As required by the Regulatory issued under secs. 135, 141, Pub. L.97-425, is procedural in nature and pertains Flexibility Act of 1980, 5 U.S.C. 605(b), 96 Stat. 2232, 2241, and sec. 148, Pub. L.
only to the type of environmental the Commission certifies that this final 100-203, 101 Stat. 1330-223 (42 U.S.C.
rule will not have a significant impact 10155, 10161, 10168). Section 51.22 also information to be reviewed.
on a substantial number of small issued under sec. 274, 73 Stat. 688, as VIII. Paperwork Reduction Act amended by 92 Stat. 3036-3038 (42 U.S.C.
entities. The final rule states the 2021) and under Nuclear Waste Policy Act of Statement application procedures and 1982, sec. 121, 96 Stat. 2228 (42 U.S.C.
This final rule amends information environmental information to be 10141). Sections 51.43, 51.67, and 51.109 collection requirements that are subject submitted by nuclear power plant also issued under Nuclear Waste Policy Act to the Paperwork Reduction Act of 1995 licensees to facilitate NRCs obligations of 1982, sec. 114(f), 96 Stat. 2216, as (44 U.S.C. 3501 et seq.). These under NEPA. Nuclear power plant amended (42 U.S.C. 10134(f)).
requirements were approved by the licensees do not fall within the 2. Section 51.45 is amended by Office of Management and Budget, definition of small businesses as defined revising paragraph (c) to read as follows:
approval number 3150-0021. in Section 3 of the Small Business Act, The public reporting burden for this 15 U.S.C. 632, or the Commissions Size § 51.45 Environmental report.
collection of information is estimated to Standards, April 11, 1995 (60 FR * * * *
- average 4,200 hours0.00231 days <br />0.0556 hours <br />3.306878e-4 weeks <br />7.61e-5 months <br /> per response, 18344). (c) Analysis. The environmental including the time for reviewing report shall include an analysis that instructions, searching existing data XI. Small Business Regulatory considers and balances the sources, gathering and maintaining the Enforcement Fairness Act environmental effects of the proposed data needed, and completing and In accordance with the Small action, the environmental impacts of reviewing the collection of information. Business Regulatory Enforcement alternatives to the proposed action, and Send comments regarding this burden Fairness Act of 1996, the NRC has alternatives available for reducing or estimate or any other aspect of this determined that this action is not a avoiding adverse environmental effects.
collection of information, including major rule and has verified this Except for environmental reports suggestions for reducing the burden, to determination with the Office of prepared at the license renewal stage the Information and Records Information and Regulatory Affairs of pursuant to § 51.53(c), the analysis in Management Branch (T-6F33), U.S. OMB. the environmental report should also
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/ Rules and Regulations 28487 include consideration of the economic, update Applicants Environmental either an operating license or technical, and other benefits and costs ReportConstruction Permit Stage. construction permit as of June 30, 1995, of the proposed action and of Unless otherwise required by the the environmental report shall include alternatives. Environmental reports Commission, the applicant for an the information required in paragraph prepared at the license renewal stage operating license for a nuclear power (c)(2) of this section subject to the pursuant to § 51.53(c) need not discuss reactor shall submit this report only in following conditions and the economic or technical benefits and connection with the first licensing considerations:
costs of either the proposed action or action authorizing full-power operation. (i) The environmental report for the alternatives except insofar as such In this report, the applicant shall operating license renewal stage is not benefits and costs are either essential for discuss the same matters described in required to contain analyses of the a determination regarding the inclusion §§ 51.45, 51.51, and 51.52, but only to environmental impacts of the license of an alternative in the range of the extent that they differ from those renewal issues identified as Category 1 alternatives considered or relevant to discussed or reflect new information in issues in appendix B to subpart A of this mitigation. In addition, environmental addition to that discussed in the final part.
reports prepared pursuant to § 51.53(c) environmental impact statement (ii) The environmental report must need not discuss other issues not related prepared by the Commission in contain analyses of the environmental to the environmental effects of the connection with the construction impacts of the proposed action, proposed action and alternatives. The permit. No discussion of need for including the impacts of refurbishment analyses for environmental reports power, or of alternative energy sources, activities, if any, associated with license shall, to the fullest extent practicable, or of alternative sites for the facility, or renewal and the impacts of operation quantify the various factors considered. of any aspect of the storage of spent fuel during the renewal term, for those To the extent that there are important for the facility within the scope of the issues identified as Category 2 issues in qualitative considerations or factors that generic determination in § 51.23(a) and appendix B to subpart A of this part.
cannot be quantified, those in accordance with § 51.23(b) is The required analyses are as follows:
considerations or factors shall be required in this report. (A) If the applicants plant utilizes discussed in qualitative terms. The (c) Operating license renewal stage. cooling towers or cooling ponds and environmental report should contain (1) Each applicant for renewal of a withdraws make-up water from a river sufficient data to aid the Commission in license to operate a nuclear power plant whose annual flow rate is less than its development of an independent under part 54 of this chapter shall 3.15x1012 ft3/year (9x1010 m3/year), an analysis. submit with its application the number assessment of the impact of the
- * * *
- of copies specified in § 51.55 of a proposed action on the flow of the river
- 3. Section 51.53 is revised to read as separate document entitled Applicants and related impacts on instream and follows: Environmental ReportOperating riparian ecological communities must License Renewal Stage. be provided. The applicant shall also
§ 51.53 Postconstruction environmental (2) The report must contain a provide an assessment of the impacts of reports. description of the proposed action, the withdrawal of water from the river (a) General. Any environmental report including the applicants plans to on alluvial aquifers during low flow.
prepared under the provisions of this modify the facility or its administrative (B) If the applicants plant utilizes section may incorporate by reference control procedures as described in once-through cooling or cooling pond any information contained in a prior accordance with § 54.21 of this chapter. heat dissipation systems, the applicant environmental report or supplement This report must describe in detail the shall provide a copy of current Clean thereto that relates to the production or modifications directly affecting the Water Act 316(b) determinations and, if utilization facility or any information environment or affecting plant effluents necessary, a 316(a) variance in contained in a final environmental that affect the environment. In addition, accordance with 40 CFR part 125, or document previously prepared by the the applicant shall discuss in this report equivalent State permits and supporting NRC staff that relates to the production the environmental impacts of documentation. If the applicant can not or utilization facility. Documents that alternatives and any other matters provide these documents, it shall assess may be referenced include, but are not described in § 51.45. The report is not the impact of the proposed action on limited to, the final environmental required to include discussion of need fish and shellfish resources resulting impact statement; supplements to the for power or the economic costs and from heat shock and impingement and final environmental impact statement, economic benefits of the proposed entrainment.
including supplements prepared at the action or of alternatives to the proposed (C) If the applicants plant uses license renewal stage; NRC staff- action except insofar as such costs and Ranney wells or pumps more than 100 prepared final generic environmental benefits are either essential for a gallons of ground water per minute, an impact statements; and environmental determination regarding the inclusion of assessment of the impact of the assessments and records of decisions an alternative in the range of proposed action on ground-water use prepared in connection with the alternatives considered or relevant to must be provided.
construction permit, the operating mitigation. The environmental report (D) If the applicants plant is located license, and any license amendment for need not discuss other issues not related at an inland site and utilizes cooling that facility. to the environmental effects of the ponds, an assessment of the impact of (b) Operating license stage. Each proposed action and the alternatives. In the proposed action on groundwater applicant for a license to operate a addition, the environmental report need quality must be provided.
production or utilization facility not discuss any aspect of the storage of (E) All license renewal applicants covered by § 51.20 shall submit with its spent fuel for the facility within the shall assess the impact of refurbishment application the number of copies scope of the generic determination in and other license-renewal-related specified in § 51.55 of a separate § 51.23(a) and in accordance with construction activities on important document entitled Supplement to § 51.23(b). plant and animal habitats. Additionally, Applicants Environmental Report (3) For those applicants seeking an the applicant shall assess the impact of Operating License Stage, which will initial renewal license and holding the proposed action on threatened or
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/ Rules and Regulations endangered species in accordance with (iv) The environmental report must State, and local officials; and any the Endangered Species Act. contain any new and significant affected Indian tribes, in accordance (F) If the applicants plant is located information regarding the with written instructions issued by the in or near a nonattainment or environmental impacts of license Director of the Office of Nuclear Reactor maintenance area, an assessment of renewal of which the applicant is aware. Regulation or the Director of the Office vehicle exhaust emissions anticipated at (d) Postoperating license stage. Each Nuclear Material Safety and Safeguards, the time of peak refurbishment applicant for a license amendment as appropriate.
workforce must be provided in authorizing the decommissioning of a * * * *
- accordance with the Clean Air Act as production or utilization facility 5. In § 51.71, paragraphs (d) and (e) amended. covered by § 51.20 and each applicant are revised to read as follows:
(G) If the applicants plant uses a for a license or license amendment to store spent fuel at a nuclear power plant § 51.71 Draft environmental impact cooling pond, lake, or canal or statementcontents.
discharges into a river having an annual after expiration of the operating license average flow rate of less than 3.15x1012 for the nuclear power plant shall submit * * * *
- with its application the number of (d) Analysis. The draft environmental ft3/year (9x1010 m3/year), an assessment copies specified in § 51.55 of a separate impact statement will include a of the impact of the proposed action on document entitled Supplement to preliminary analysis that considers and public health from thermophilic Applicants Environmental Report weighs the environmental effects of the organisms in the affected water must be Post Operating License Stage. This proposed action; the environmental provided.
supplement will update Supplement to impacts of alternatives to the proposed (H) If the applicants transmission Applicants Environmental Report action; and alternatives available for lines that were constructed for the Operating License Stage and reducing or avoiding adverse specific purpose of connecting the plant environmental effects. Except for to the transmission system do not meet Applicants Environmental Report Operating License Renewal Stage, as supplemental environmental impact the recommendations of the National statements for the operating license Electric Safety Code for preventing appropriate, to reflect any new information or significant renewal stage prepared pursuant to electric shock from induced currents, an § 51.95(c), draft environmental impact assessment of the impact of the environmental change associated with the applicants proposed statements should also include proposed action on the potential shock consideration of the economic, hazard from the transmission lines must decommissioning activities or with the applicants proposed activities with technical, and other benefits and costs be provided. of the proposed action and alternatives (I) An assessment of the impact of the respect to the planned storage of spent fuel. Unless otherwise required by the and indicate what other interests and proposed action on housing availability, considerations of Federal policy, land-use, and public schools (impacts Commission, in accordance with the generic determination in § 51.23(a) and including factors not related to from refurbishment activities only) environmental quality if applicable, are within the vicinity of the plant must be the provisions in § 51.23(b), the applicant shall address only the relevant to the consideration of provided. Additionally, the applicant environmental effects of the proposed shall provide an assessment of the environmental impact of spent fuel storage for the term of the license. action identified pursuant to paragraph impact of population increases (a) of this section. Supplemental
- 4. In § 51.55, paragraph (a) is revised attributable to the proposed project on environmental impact statements to read as follows:
the public water supply. prepared at the license renewal stage (J) All applicants shall assess the § 51.55 Environmental reportnumber of pursuant to § 51.95(c) need not discuss impact of the proposed project on local copies; distribution. the economic or technical benefits and transportation during periods of license (a) Each applicant for a license to costs of either the proposed action or renewal refurbishment activities. construct and operate a production or alternatives except insofar as such (K) All applicants shall assess utilization facility covered by benefits and costs are either essential for whether any historic or archaeological paragraphs (b)(1), (b)(2), (b)(3), or (b)(4) a determination regarding the inclusion properties will be affected by the of § 51.20, each applicant for renewal of of an alternative in the range of proposed project. an operating license for a nuclear power alternatives considered or relevant to (L) If the staff has not previously plant, each applicant for a license mitigation. In addition, the considered severe accident mitigation amendment authorizing the supplemental environmental impact alternatives for the applicants plant in decommissioning of a production or statement prepared at the license an environmental impact statement or utilization facility covered by § 51.20, renewal stage need not discuss other related supplement or in an and each applicant for a license or issues not related to the environmental environmental assessment, a license amendment to store spent fuel at effects of the proposed action and consideration of alternatives to mitigate a nuclear power plant after expiration of associated alternatives. The draft severe accidents must be provided. the operating license for the nuclear supplemental environmental impact (M) The environmental effects of power plant shall submit to the Director statement for license renewal prepared transportation of fuel and waste shall be of the Office of Nuclear Reactor pursuant to § 51.95(c) will rely on reviewed in accordance with § 51.52. Regulation or the Director of the Office conclusions as amplified by the (iii) The report must contain a of Nuclear Material Safety and supporting information in the GEIS for consideration of alternatives for Safeguards, as appropriate, 41 copies of issues designated as Category 1 in reducing adverse impacts, as required an environmental report or any appendix B to subpart A of this part.
by § 51.45(c), for all Category 2 license supplement to an environmental report. The draft supplemental environmental renewal issues in Appendix B to The applicant shall retain an additional impact statement must contain an Subpart A of this part. No such 109 copies of the environmental report analysis of those issues identified as consideration is required for Category 1 or any supplement to the environmental Category 2 in appendix B to subpart A issues in Appendix B to Subpart A of report for distribution to parties and of this part that are open for the this part. Boards in the NRC proceedings; Federal, proposed action. The analysis for all
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/ Rules and Regulations 28489 draft environmental impact statements described in paragraphs (a) through (d) the final environmental impact will, to the fullest extent practicable, of this section and §§ 51.75, 51.76, statement or that reflect significant new quantify the various factors considered. 51.80, 51.85, and 51.95, as appropriate, information concerning matters To the extent that there are important and will be reached after considering discussed in the final environmental qualitative considerations or factors that the environmental effects of the impact statement. Unless otherwise cannot be quantified, these proposed action and reasonable determined by the Commission, a considerations or factors will be alternatives,4 and, except for supplement on the operation of a discussed in qualitative terms. Due supplemental environmental impact nuclear power plant will not include a consideration will be given to statements for the operating license discussion of need for power, or of compliance with environmental quality renewal stage prepared pursuant to alternative energy sources, or of standards and requirements that have § 51.95(c), after weighing the costs and alternative sites, or of any aspect of the been imposed by Federal, State, benefits of the proposed action. In lieu storage of spent fuel for the nuclear regional, and local agencies having of a recommendation, the NRC staff may power plant within the scope of the responsibility for environmental indicate in the draft statement that two generic determination in § 51.23(a) and protection, including applicable zoning or more alternatives remain under in accordance with § 51.23(b), and will and land-use regulations and water consideration. only be prepared in connection with the pollution limitations or requirements first licensing action authorizing full-
§ 51.75 [Amended] power operation.
promulgated or imposed pursuant to the Federal Water Pollution Control Act. 6. In Section 51.75, redesignate (c) Operating license renewal stage. In The environmental impact of the footnote 4 as footnote 5. connection with the renewal of an proposed action will be considered in 7. Section 51.95 is revised to read as operating license for a nuclear power the analysis with respect to matters follows: plant under part 54 of this chapter, the covered by such standards and § 51.95 Postconstruction environmental Commission shall prepare a supplement requirements irrespective of whether a impact statements. to the Commissions NUREG-1437, certification or license from the (a) General. Any supplement to a final Generic Environmental Impact appropriate authority has been environmental impact statement or any Statement for License Renewal of obtained.3 While satisfaction of environmental assessment prepared Nuclear Plants (xxxx 1996).
Commission standards and criteria under the provisions of this section may (1) The supplemental environmental pertaining to radiological effects will be incorporate by reference any impact statement for the operating necessary to meet the licensing information contained in a final license renewal stage shall address requirements of the Atomic Energy Act, environmental document previously those issues as required by § 51.71. In the analysis will, for the purposes of prepared by the NRC staff that relates to addition, the NRC staff must comply NEPA, consider the radiological effects the same production or utilization with 40 CFR 1506.6(b)(3) in conducting of the proposed action and alternatives. facility. Documents that may be the additional scoping process as (e) Preliminary recommendation. The referenced include, but are not limited required by § 51.71(a).
draft environmental impact statement (2) The supplemental environmental to, the final environmental impact normally will include a preliminary impact statement for license renewal is statement; supplements to the final recommendation by the NRC staff not required to include discussion of environmental impact statement, respecting the proposed action. This need for power or the economic costs including supplements prepared at the preliminary recommendation will be and economic benefits of the proposed operating license stage; NRC staff-based on the information and analysis action or of alternatives to the proposed prepared final generic environmental action except insofar as such benefits impact statements; environmental and costs are either essential for a 3 Compliance with the environmental quality assessments and records of decisions determination regarding the inclusion of standards and requirements of the Federal Water Pollution Control Act (imposed by EPA or prepared in connection with the an alternative in the range of designated permitting states) is not a substitute for construction permit, the operating alternatives considered or relevant to and does not negate the requirement for NRC to license, and any license amendment for mitigation. In addition, the weigh all environmental effects of the proposed that facility. A supplement to a final action, including the degradation, if any, of water supplemental environmental impact quality, and to consider alternatives to the proposed environmental impact statement will statement prepared at the license action that are available for reducing adverse include a request for comments as renewal stage need not discuss other effects. Where an environmental assessment of provided in § 51.73. issues not related to the environmental aquatic impact from plant discharges is available (b) Initial operating license stage. In from the permitting authority, the NRC will effects of the proposed action and the consider the assessment in its determination of the connection with the issuance of an alternatives, or any aspect of the storage magnitude of environmental impacts for striking an operating license for a production or of spent fuel for the facility within the overall cost-benefit balance at the construction utilization facility, the NRC staff will scope of the generic determination in permit and operating license stages, and in its prepare a supplement to the final determination of whether the adverse § 51.23(a) and in accordance with environmental impacts of license renewal are so environmental impact statement on the § 51.23(b). The analysis of alternatives great that preserving the option of license renewal construction permit for that facility, in the supplemental environmental for energy planning decisionmakers would be which will update the prior impact statement should be limited to unreasonable at the license renewal stage. When no environmental review. The supplement such assessment of aquatic impacts is available the environmental impacts of such from the permitting authority, NRC will establish will only cover matters that differ from alternatives and should otherwise be on its own or in conjunction with the permitting prepared in accordance with § 51.71 and authority and other agencies having relevant 4 The consideration of reasonable alternatives to expertise the magnitude of potential impacts for a proposed action involving nuclear power reactors appendix A to subpart A of this part.
striking an overall cost-benefit balance for the (e.g., alternative energy sources) is intended to (3) The supplemental environmental facility at the construction permit and operating assist the NRC in meeting its NEPA obligations and impact statement shall be issued as a license stages, and in its determination of whether does not preclude any State authority from making final impact statement in accordance the adverse environmental impacts of license separate determinations with respect to these renewal are so great that preserving the option of alternatives and in no way preempts, displaces, or with §§ 51.91 and 51.93 after license renewal for energy planning decisionmakers affects the authority of States or other Federal considering any significant new would be unreasonable at the license renewal stage. agencies to address these issues. information relevant to the proposed
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/ Rules and Regulations action contained in the supplement or otherwise required by the Commission, Appendix A to Subpart AFormat for incorporated by reference. in accordance with the generic Presentation of Material in (4) The supplemental environmental determination in § 51.23(a) and the Environmental Impact Statements impact statement must contain the NRC provisions of § 51.23(b), a supplemental * * * *
- staffs recommendation regarding the environmental impact statement for the 4. Purpose of and need for action. The environmental acceptability of the postoperating license stage or an statement will briefly describe and specify license renewal action. In order to make environmental assessment, as the need for the proposed action. The its recommendation and final appropriate, will address the alternative of no action will be discussed. In conclusion on the proposed action, the the case of nuclear power plant construction environmental impacts of spent fuel NRC staff, adjudicatory officers, and or siting, consideration will be given to the storage only for the term of the license, potential impact of conservation measures in Commission shall integrate the license amendment, or license renewal conclusions, as amplified by the determining the demand for power and applied for. consequent need for additional generating supporting information in the generic capacity.
environmental impact statement for 8. In § 51.103, paragraph (a)(3) is issues designated Category 1 (with the revised and paragraph (a)(5) is added to * * * *
- exception of offsite radiological impacts read as follows: 10. A new appendix B is added to for collective effects and the disposal of subpart A of 10 CFR part 51 to read as spent fuel and high level waste) or
§ 51.103 Record of decisionGeneral. follows:
resolved Category 2, information (a) * *
- Appendix B to Subpart A developed for those open Category 2 (3) Discuss preferences among Environmental Effect of Renewing the issues applicable to the plant in alternatives based on relevant factors, Operating License of a Nuclear Power accordance with § 51.53(c)(3)(ii), and including economic and technical Plant any significant new information. Given considerations where appropriate, the The Commission has assessed the this information, the NRC staff, environmental impacts associated with NRCs statutory mission, and any adjudicatory officers, and Commission granting a renewed operating license for a shall determine whether or not the essential considerations of national nuclear power plant to a licensee who holds adverse environmental impacts of policy, which were balanced by the either an operating license or construction license renewal are so great that Commission in making the decision and permit as of June 30, 1995. Table B-1 preserving the option of license renewal state how these considerations entered summarizes the Commissions findings on for energy planning decisionmakers into the decision. the scope and magnitude of environmental would be unreasonable. * * * *
- impacts of renewing the operating license for (d) Postoperating license stage. In a nuclear power plant as required by section (5) In making a final decision on a 102(2) of the National Environmental Policy connection with an amendment to an license renewal action pursuant to part Act of 1969, as amended. Table B-1, subject operating license authorizing the 54 of this chapter, the Commission shall to an evaluation of those issues identified in decommissioning of a production or determine whether or not the adverse Category 2 as requiring further analysis and utilization facility covered by § 51.20 or possible significant new information, environmental impacts of license with the issuance, amendment, or represents the analysis of the environmental renewal are so great that preserving the impacts associated with renewal of any renewal of a license to store spent fuel at a nuclear power plant after expiration option of license renewal for energy operating license and is to be used in of the operating license for the nuclear planning decisionmakers would be accordance with § 51.95(c). On a 10-year power plant, the NRC staff will prepare unreasonable. cycle, the Commission intends to review the material in this appendix and update it if a supplemental environmental impact * * * *
- necessary. A scoping notice must be statement for the postoperating license 9. Paragraph 4 of appendix A to published in the Federal Register indicating stage or an environmental assessment, subpart A of 10 CFR part 51 is revised the results of the NRCs review and inviting as appropriate, which will update the as follows: public comments and proposals for other prior environmental review. Unless areas that should be updated.
TABLE B-1.
SUMMARY
OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1 Issue Category 2 Findings 3 Surface Water Quality, Hydrology, and Use (for all plants)
Impacts of refurbishment on sur- 1 SMALL. Impacts are expected to be negligible during refurbishment because best manage-face water quality. ment practices are expected to be employed to control soil erosion and spills.
Impacts of refurbishment on sur- 1 SMALL. Water use during refurbishment will not increase appreciably or will be reduced during face water use. plant outage.
Altered current patterns at intake 1 SMALL. Altered current patterns have not been found to be a problem at operating nuclear and discharge structures. power plants and are not expected to be a problem during the license renewal term.
Altered salinity gradients ............ 1 SMALL. Salinity gradients have not been found to be a problem at operating nuclear power plants and are not expected to be a problem during the license renewal term.
Altered thermal stratification of 1 SMALL. Generally, lake stratification has not been found to be a problem at operating nuclear lakes. power plants and is not expected to be a problem during the license renewal term.
Temperature effects on sedi- 1 SMALL. These effects have not been found to be a problem at operating nuclear power plants ment transport capacity. and are not expected to be a problem during the license renewal term.
Scouring caused by discharged 1 SMALL. Scouring has not been found to be a problem at most operating nuclear power plants cooling water. and has caused only localized effects at a few plants. It is not expected to be a problem dur-ing the license renewal term.
Eutrophication ............................. 1 SMALL. Eutrophication has not been found to be a problem at operating nuclear power plants and is not expected to be a problem during the license renewal term.
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/ Rules and Regulations 28491 TABLE B-1.
SUMMARY
OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1 Continued Issue Category 2 Findings 3 Discharge of chlorine or other 1 SMALL. Effects are not a concern among regulatory and resource agencies, and are not ex-biocides. pected to be a problem during the license renewal term.
Discharge of sanitary wastes 1 SMALL. Effects are readily controlled through NPDES permit and periodic modifications, if and minor chemical spills. needed, and are not expected to be a problem during the license renewal term.
Discharge of other metals in 1 SMALL. These discharges have not been found to be a problem at operating nuclear power waste water. plants with cooling-tower-based heat dissipation systems and have been satisfactorily miti-gated at other plants. They are not expected to be a problem during the license renewal term.
Water use conflicts (plants with 1 SMALL. These conflicts have not been found to be a problem at operating nuclear power once-through cooling systems). plants with once-through heat dissipation systems.
Water use conflicts (plants with 2 SMALL OR MODERATE. The issue has been a concern at nuclear power plants with cooling cooling ponds or cooling tow- ponds and at plants with cooling towers. Impacts on instream and riparian communities near ers using make-up water from these plants could be of moderate significance in some situations. See § 51.53(c)(3)(ii)(A).
a small river with low flow).
Aquatic Ecology (for all plants)
Refurbishment ............................ 1 SMALL. During plant shutdown and refurbishment there will be negligible effects on aquatic biota because of a reduction of entrainment and impingement of organisms or a reduced re-lease of chemicals.
Accumulation of contaminants in 1 SMALL. Accumulation of contaminants has been a concern at a few nuclear power plants but sediments or biota. has been satisfactorily mitigated by replacing copper alloy condenser tubes with those of an-other metal. It is not expected to be a problem during the license renewal term.
Entrainment of phytoplankton 1 SMALL. Entrainment of phytoplankton and zooplankton has not been found to be a problem at and zooplankton. operating nuclear power plants and is not expected to be a problem during the license re-newal term.
Cold shock .................................. 1 SMALL. Cold shock has been satisfactorily mitigated at operating nuclear plants with once-through cooling systems, has not endangered fish populations or been found to be a prob-lem at operating nuclear power plants with cooling towers or cooling ponds, and is not ex-pected to be a problem during the license renewal term.
Thermal plume barrier to migrat- 1 SMALL. Thermal plumes have not been found to be a problem at operating nuclear power ing fish. plants and are not expected to be a problem during the license renewal term.
Distribution of aquatic organisms 1 SMALL. Thermal discharge may have localized effects but is not expected to affect the larger geographical distribution of aquatic organisms.
Premature emergence of aquatic 1 SMALL. Premature emergence has been found to be a localized effect at some operating nu-insects. clear power plants but has not been a problem and is not expected to be a problem during the license renewal term.
Gas supersaturation (gas bubble 1 SMALL. Gas supersaturation was a concern at a small number of operating nuclear power disease). plants with once-through cooling systems but has been satisfactorily mitigated. It has not been found to be a problem at operating nuclear power plants with cooling towers or cooling ponds and is not expected to be a problem during the license renewal term.
Low dissolved oxygen in the dis- 1 SMALL. Low dissolved oxygen has been a concern at one nuclear power plant with a once-charge. through cooling system but has been effectively mitigated. It has not been found to be a problem at operating nuclear power plants with cooling towers or cooling ponds and is not expected to be a problem during the license renewal term.
Losses from predation, para- 1 SMALL. These types of losses have not been found to be a problem at operating nuclear sitism, and disease among or- power plants and are not expected to be a problem during the license renewal term.
ganisms exposed to sublethal stresses.
Stimulation of nuisance orga- 1 SMALL. Stimulation of nuisance organisms has been satisfactorily mitigated at the single nu-nisms (e.g., shipworms). clear power plant with a once-through cooling system where previously it was a problem. It has not been found to be a problem at operating nuclear power plants with cooling towers or cooling ponds and is not expected to be a problem during the license renewal term.
Aquatic Ecology (for plants with once-through and cooling pond heat dissipation systems)
Entrainment of fish and shellfish 2 SMALL, MODERATE, OR LARGE. The impacts of entrainment are small at many plants but in early life stages. may be moderate or even large at a few plants with once-through and cooling-pond cooling systems. Further, ongoing efforts in the vicinity of these plants to restore fish populations may increase the numbers of fish susceptible to intake effects during the license renewal pe-riod, such that entrainment studies conducted in support of the original license may no longer be valid. See § 51.53(c)(3)(ii)(B).
Impingement of fish and shellfish 2 SMALL, MODERATE, OR LARGE. The impacts of impingement are small at many plants but may be moderate or even large at a few plants with once-through and cooling-pond cooling systems. See § 51.53(c)(3)(ii)(B).
Heat shock ................................. 2 SMALL, MODERATE, OR LARGE. Because of continuing concerns about heat shock and the possible need to modify thermal discharges in response to changing environmental condi-tions, the impacts may be of moderate or large significance at some plants. See
§ 51.53(c)(3)(ii)(B).
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/ Rules and Regulations TABLE B-1.
SUMMARY
OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1 Continued Issue Category 2 Findings 3 Aquatic Ecology (for plants with cooling-tower-based heat dissipation systems)
Entrainment of fish and shellfish 1 SMALL. Entrainment of fish has not been found to be a problem at operating nuclear power in early life stages. plants with this type of cooling system and is not expected to be a problem during the li-cense renewal term.
Impingement of fish and shellfish 1 SMALL. The impingement has not been found to be a problem at operating nuclear power plants with this type of cooling system and is not expected to be a problem during the li-cense renewal term.
Heat shock ................................. 1 SMALL. Heat shock has not been found to be a problem at operating nuclear power plants with this type of cooling system and is not expected to be a problem during the license re-newal term.
Ground-water Use and Quality Impacts of refurbishment on 1 SMALL. Extensive dewatering during the original construction on some sites will not be re-ground-water use and quality. peated during refurbishment on any sites. Any plant wastes produced during refurbishment will be handled in the same manner as in current operating practices and are not expected to be a problem during the license renewal term.
Ground-water use conflicts (po- 1 SMALL. Plants using less than 100 gpm are not expected to cause any ground-water use con-table and service water; plants flicts.
that use <100 gpm).
Ground-water use conflicts (po- 2 SMALL, MODERATE, OR LARGE. Plants that use more than 100 gpm may cause ground-table and service water, and water use conflicts with nearby ground-water users. See § 51.53(c)(3)(ii)(C).
dewatering; plants that use
>100 gpm).
Ground-water use conflicts 2 SMALL, MODERATE, OR LARGE. Water use conflicts may result from surface water with-(plants using cooling towers drawals from small water bodies during low flow conditions which may affect aquifer re-withdrawing make-up water charge, especially if other ground-water or upstream surface water users come on line be-from a small river). fore the time of license renewal. See § 51.53(c)(3)(ii)(A).
Terrestrial Resources Refurbishment impacts ............... 2 SMALL, MODERATE, OR LARGE. Refurbishment impacts are insignificant if no loss of impor-tant plant and animal habitat occurs. However, it cannot be known whether important plant and animal communities may be affected until the specific proposal is presented with the li-cense renewal application. See § 51.53(c)(3)(ii)(E).
Cooling tower impacts on crops 1 SMALL. Impacts from salt drift, icing, fogging, or increased humidity associated with cooling and ornamental vegetation. tower operation have not been found to be a problem at operating nuclear power plants and are not expected to be a problem during the license renewal term.
Cooling tower impacts on native 1 SMALL. Impacts from salt drift, icing, fogging, or increased humidity associated with cooling plants. tower operation have not been found to be a problem at operating nuclear power plants and are not expected to be a problem during the license renewal term.
Bird collisions with cooling tow- 1 SMALL. These collisions have not been found to be a problem at operating nuclear power ers. plants and are not expected to be a problem during the license renewal term.
Cooling pond impacts on terres- 1 SMALL. Impacts of cooling ponds on terrestrial ecological resources are considered to be of trial resources. small significance at all sites.
Power line right-of-way manage- 1 SMALL. The impacts of right-of-way maintenance on wildlife are expected to be of small signifi-ment (cutting and herbicide cance at all sites.
application).
Bird collision with power lines .... 1 SMALL. Impacts are expected to be of small significance at all sites.
Impacts of electromagnetic fields 1 SMALL. No significant impacts of electromagnetic fields on terrestrial flora and fauna have on flora and fauna (plants, ag- been identified. Such effects are not expected to be a problem during the license renewal ricultural crops, honeybees, term.
wildlife, livestock).
Floodplains and wetland on 1 SMALL. Periodic vegetation control is necessary in forested wetlands underneath power lines power line right of way. and can be achieved with minimal damage to the wetland. No significant impact is expected at any nuclear power plant during the license renewal term.
Threatened or Endangered Species (for all plants)
Threatened or endangered spe- 2 SMALL, MODERATE, OR LARGE. Generally, plant refurbishment and continued operation are cies. not expected to adversely affect threatened or endangered species. However, consultation with appropriate agencies would be needed at the time of license renewal to determine whether threatened or endangered species are present and whether they would be ad-versely affected. See § 51.53(c)(3)(ii)(E).
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/ Rules and Regulations 28493 TABLE B-1.
SUMMARY
OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1 Continued Issue Category 2 Findings 3 Air Quality Air quality during refurbishment 2 SMALL, MODERATE, OR LARGE. Air quality impacts from plant refurbishment associated with (nonattainment and mainte- license renewal are expected to be small. However, vehicle exhaust emissions could be nance areas). cause for concern at locations in or near nonattainment or maintenance areas. The signifi-cance of the potential impact cannot be determined without considering the compliance sta-tus of each site and the numbers of workers expected to be employed during the outage.
See § 51.53(c)(3)(ii)(F).
Air quality effects of trans- 1 SMALL. Production of ozone and oxides of nitrogen is insignificant and does not contribute mission lines. measurably to ambient levels of these gases.
Land Use Onsite land use .......................... 1 SMALL. Projected onsite land use changes required during refurbishment and the renewal pe-riod would be a small fraction of any nuclear power plant site and would involve land that is controlled by the applicant.
Power line right of way ............... 1 SMALL. Ongoing use of power line right of ways would continue with no change in restrictions.
The effects of these restrictions are of small significance.
Human Health Radiation exposures to the pub- 1 SMALL. During refurbishment, the gaseous effluents would result in doses that are similar to lic during refurbishment. those from current operation. Applicable regulatory dose limits to the public are not expected to be exceeded.
Occupational radiation expo- 1 SMALL. Occupational doses from refurbishment are expected to be within the range of annual sures during refurbishment. average collective doses experienced for pressurized-water reactors and boiling-water reac-tors. Occupational mortality risk from all causes including radiation is in the mid-range for in-dustrial settings.
Microbiological organisms (occu- 1 SMALL. Occupational health impacts are expected to be controlled by continued application of pational health). accepted industrial hygiene practices to minimize worker exposures.
Microbiological organisms (pub- 2 SMALL, MODERATE, OR LARGE. These organisms are not expected to be a problem at most lic health) (plants using lakes operating plants except possibly at plants using cooling ponds, lakes, or canals that dis-or canals, or cooling towers or charge to small rivers. Without site-specific data, it is not possible to predict the effects ge-cooling ponds that discharge nerically. See § 51.53(c)(3)(ii)(G).
to a small river).
Noise .......................................... 1 SMALL. Noise has not been found to be a problem at operating plants and is not expected to be a problem at any plant during the license renewal term.
Electromagnetic fields, acute ef- 2 SMALL, MODERATE, OR LARGE. Electrical shock resulting from direct access to energized fects (electric shock). conductors or from induced charges in metallic structures have not been found to be a prob-lem at most operating plants and generally are not expected to be a problem during the li-cense renewal term. However, site-specific review is required to determine the significance of the electric shock potential at the site. See § 51.53(c)(3)(ii)(H).
Electromagnetic fields, chronic NA 4 UNCERTAIN. Biological and physical studies of 60-Hz electromagnetic fields have not found effects 5. consistent evidence linking harmful effects with field exposures. However, because the state of the science is currently inadequate, no generic conclusion on human health impacts is possible.5 Radiation exposures to public (li- 1 SMALL. Radiation doses to the public will continue at current levels associated with normal op-cense renewal term). erations.
Occupational radiation expo- 1 SMALL. Projected maximum occupational doses during the license renewal term are within the sures (license renewal term). range of doses experienced during normal operations and normal maintenance outages, and would be well below regulatory limits.
Socioeconomics Housing impacts ......................... 2 SMALL, MODERATE, OR LARGE. Housing impacts are expected to be of small significance at plants located in a medium or high population area and not in an area where growth con-trol measures that limit housing development are in effect. Moderate or large housing im-pacts of the workforce associated with refurbishment may be associated with plants located in sparsely populated areas or in areas with growth control measures that limit housing de-velopment. See § 51.53(c)(3)(ii)(I).
Public services: public safety, 1 SMALL. Impacts to public safety, social services, and tourism and recreation are expected to social services, and tourism be of small significance at all sites.
and recreation.
Public services: public utilities .... 2 SMALL OR MODERATE. An increased problem with water shortages at some sites may lead to impacts of moderate significance on public water supply availability. See
§ 51.53(c)(3)(ii)(I).
Public services, education (refur- 2 SMALL, MODERATE, OR LARGE. Most sites would experience impacts of small significance bishment). but larger impacts are possible depending on site- and project-specific factors. See
§ 51.53(c)(3)(ii)(I).
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/ Rules and Regulations TABLE B-1.
SUMMARY
OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1 Continued Issue Category 2 Findings 3 Public services, education (li- 1 SMALL. Only impacts of small significance are expected.
cense renewal term).
Offsite land use (refurbishment) 2 SMALL OR MODERATE. Impacts may be of moderate significance at plants in low population areas. See § 51.53(c)(3)(ii)(I).
Offsite land use (license renewal 2 SMALL, MODERATE, OR LARGE. Significant changes in land use may be associated with term). population and tax revenue changes resulting from license renewal. See § 51.53(c)(3)(ii)(I).
Public services, Transportation 2 SMALL, MODERATE, OR LARGE. Transportation impacts are generally expected to be of small significance. However, the increase in traffic associated with the additional workers and the local road and traffic control conditions may lead to impacts of moderate or large significance at some sites. See § 51.53(c)(3)(ii)(J).
Historic and archaeological re- 2 SMALL, MODERATE, OR LARGE. Generally, plant refurbishment and continued operation are sources. expected to have no more than small adverse impacts on historic and archaeological re-sources. However, the National Historic Preservation Act requires the Federal agency to consult with the State Historic Preservation Officer to determine whether there are properties present that require protection. See § 51.53(c)(3)(ii)(K).
Aesthetic impacts (refurbish- 1 SMALL. No significant impacts are expected during refurbishment.
ment).
Aesthetic impacts (license re- 1 SMALL. No significant impacts are expected during the license renewal term.
newal term).
Aesthetic impacts of trans- 1 SMALL. No significant impacts are expected during the license renewal term.
mission lines (license renewal term).
Postulated Accidents Design basis accidents .............. 1 SMALL. The NRC staff has concluded that the environmental impacts of design basis acci-dents are of small significance for all plants.
Severe accidents ........................ 2 SMALL. The probability weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants. However, alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives. See § 51.53(c)(3)(ii)(L).
Uranium Fuel Cycle and Waste Management Offsite radiological impacts (indi- 1 SMALL. Off-site impacts of the uranium fuel cycle have been considered by the Commission in vidual effects from other than Table S-3 of this part. Based on information in the GEIS, impacts on individuals from radio-the disposal of spent fuel and active gaseous and liquid releases including radon-222 and technetium-99 are small.
high level waste).
Offsite radiological impacts (col- 1 The 100 year environmental dose commitment to the U.S. population from the fuel cycle, high lective effects). level waste and spent fuel disposal is calculated to be about 14,800 person rem, or 12 can-cer fatalities, for each additional 20 year power reactor operating term. Much of this, espe-cially the contribution of radon releases from mines and tailing piles, consists of tiny doses summed over large populations. This same dose calculation can theoretically be extended to include many tiny doses over additional thousands of years as well as doses outside the U.S. The result of such a calculation would be thousands of cancer fatalities from the fuel cycle, but this result assumes that even tiny doses have some statistical adverse health ef-fect which will not ever be mitigated (for example, no cancer cure in the next thousand years), and that these does projection over thousands of years are meaningful. However these assumptions are questionable. In particular, science cannot rule out the possibility that there will be no cancer fatalities from these tiny doses. For perspective, the doses are very small fractions of regulatory limits, and even smaller fractions of natural background expo-sure to the same populations.
Nevertheless, despite all the uncertainty, some judgement as to the regulatory NEPA implica-tions of these matters should be made and it makes no sense to repeat the same judgement in every case. Even taking the uncertainties into account, the Commission concludes that these impacts are acceptable in that these impacts would not be sufficiently large to require the NEPA conclusion, for any plant, that the option of extended operation under 10 CFR Part 54 should be eliminated. Accordingly, while the Commission has not assigned a single level of significance for the collective effects of the fuel cycle, this issue is considered Cat-egory 1.
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SUMMARY
OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1 Continued Issue Category 2 Findings 3 Offsite radiological impacts 1 For the high level waste and spent fuel disposal component of the fuel cycle, there are no cur-(spent fuel and high level rent regulatory limits for offsite releases of radionuclides for the current candidate repository waste disposal). site. However, if we assume that limits are developed along the lines of the 1995 National Academy of Sciences (NAS) report, Technical Bases for Yucca Mountain Standards, and that in accordance with the Commissions Waste Confidence Decision, 10 CFR 51.23, a re-pository can and likely will be developed at some site which will comply with such limits, peak doses to virtually all individuals will be 100 millirem per year or less. However, while the Commission has reasonable confidence that these assumptions will prove correct, there is considerable uncertainty since the limits are yet to be developed, no repository application has been completed or reviewed, and uncertainty is inherent in the models used to evaluate possible pathways to the human environment. The NAS report indicated that 100 millirem per year should be considered as a starting point for limits for individual doses, but notes that some measure of consensus exists among national and international bodies that the limits should be a fraction of the 100 millirem per year. The lifetime individual risk from 100 millirem annual dose limit is about 310¥3.
Estimating cumulative doses to populations over thousands of years is more problematic. The likelihood and consequences of events that could seriously compromise the integrity of a deep geologic repository were evaluated by the Department of Energy in the Final Environ-mental Impact Statement: Management of Commercially Generated Radioactive Waste, Oc-tober 1980. The evaluation estimated the 70-year whole-body dose commitment to the maxi-mum individual and to the regional population resulting from several modes of breaching a reference repository in the year of closure, after 1,000 years, after 100,000 years, and after 100,000,000 years. Subsequently, the NRC and other federal agencies have expended con-siderable effort to develop models for the design and for the licensing of a high level waste repository, especially for the candidate repository at Yucca Mountain. More meaningful esti-mates of doses to population may be possible in the future as more is understood about the performance of the proposed Yucca Mountain repository. Such estimates would involve very great uncertainty, especially with respect to cumulative population doses over thousands of years. The standard proposed by the NAS is a limit on maximum individual dose. The rela-tionship of potential new regulatory requirements, based on the NAS report, and cumulative population impacts has not been determined, although the report articulates the view that protection of individuals will adequately protect the population for a repository at Yucca Mountain. However, EPAs generic repository standards in 40 CFR part 191 generally pro-vide an indication of the order of magnitude of cumulative risk to population that could result from the licensing of a Yucca Mountain repository, assuming the ultimate standards will be within the range of standards now under consideration. The standards in 40 CFR part 191 protect the population by imposing containment requirements that limit the cumulative amount of radioactive material released over 10,000 years. The cumulative release limits are based on EPAs population impact goal of 1,000 premature cancer deaths world-wide for a 100,000 metric tonne (MTHM) repository.
Nevertheless, despite all the uncertainty, some judgement as to the regulatory NEPA implica-tions of these matters should be made and it makes no sense to repeat the same judgement in every case. Even taking the uncertainties into account, the Commission concludes that these impacts are acceptable in that these impacts would not be sufficiently large to require the NEPA conclusion, for any plant, that the option of extended operation under 10 CFR part 54 should be eliminated. Accordingly, while the Commission has not assigned a single level of significance for the impacts of spent fuel and high level waste disposal, this issue is con-sidered Category 1.
Nonradiological impacts of the 1 SMALL. The nonradiological impacts of the uranium fuel cycle resulting from the renewal of an uranium fuel cycle. operating license for any plant are found to be small.
Low-level waste storage and dis- 1 SMALL. The comprehensive regulatory controls that are in place and the low public doses posal. being achieved at reactors ensure that the radiological impacts to the environment will re-main small during the term of a renewed license. The maximum additional on-site land that may be required for low-level waste storage during the term of a renewed license and asso-ciated impacts will be small.
Nonradiological impacts on air and water will be negligible. The radiological and nonradiologi-cal environmental impacts of long-term disposal of low-level waste from any individual plant at licensed sites are small. In addition, the Commission concludes that there is reasonable assurance that sufficient low-level waste disposal capacity will be made available when needed for facilities to be decommissioned consistent with NRC decommissioning require-ments.
Mixed waste storage and dis- 1 SMALL. The comprehensive regulatory controls and the facilities and procedures that are in posal. place ensure proper handling and storage, as well as negligible doses and exposure to toxic materials for the public and the environment at all plants. License renewal will not increase the small, continuing risk to human health and the environment posed by mixed waste at all plants. The radiological and nonradiological environmental impacts of long-term disposal of mixed waste from any individual plant at licensed sites are small. In addition, the Commis-sion concludes that there is reasonable assurance that sufficient mixed waste disposal ca-pacity will be made available when needed for facilities to be decommissioned consistent with NRC decommissioning requirements.
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/ Rules and Regulations TABLE B-1.
SUMMARY
OF FINDINGS ON NEPA ISSUES FOR LICENSE RENEWAL OF NUCLEAR POWER PLANTS 1 Continued Issue Category 2 Findings 3 On-site spent fuel ....................... 1 SMALL. The expected increase in the volume of spent fuel from an additional 20 years of op-eration can be safely accommodated on site with small environmental effects through dry or pool storage at all plants if a permanent repository or monitored retrievable storage is not available.
Nonradiological waste ................ 1 SMALL. No changes to generating systems are anticipated for license renewal. Facilities and procedures are in place to ensure continued proper handling and disposal at all plants.
Transportation ............................ 2 Table S-4 of this part contains an assessment of impact parameters to be used in evaluating transportation effects in each case. See § 51.53(c)(3)(ii)(M).
Decommissioning Radiation doses .......................... 1 SMALL. Doses to the public will be well below applicable regulatory standards regardless of which decommissioning method is used. Occupational doses would increase no more than 1 man-rem caused by buildup of long-lived radionuclides during the license renewal term.
Waste management ................... 1 SMALL. Decommissioning at the end of a 20-year license renewal period would generate no more solid wastes than at the end of the current license term. No increase in the quantities of Class C or greater than Class C wastes would be expected.
Air quality .................................... 1 SMALL. Air quality impacts of decommissioning are expected to be negligible either at the end of the current operating term or at the end of the license renewal term.
Water quality .............................. 1 SMALL. The potential for significant water quality impacts from erosion or spills is no greater whether decommissioning occurs after a 20-year license renewal period or after the original 40-year operation period, and measures are readily available to avoid such impacts.
Ecological resources .................. 1 SMALL. Decommissioning after either the initial operating period or after a 20-year license re-newal period is not expected to have any direct ecological impacts.
Socioeconomic impacts .............. 1 SMALL. Decommissioning would have some short-term socioeconomic impacts. The impacts would not be increased by delaying decommissioning until the end of a 20-year relicense pe-riod, but they might be decreased by population and economic growth.
Environmental Justice Environmental justice 6 ............... NA4 NONE. The need for and the content of an analysis of environmental justice will be addressed in plant-specific reviews.6 1 Data supporting this table are contained in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (xxxx 1996).
2 The numerical entries in this column are based on the following category definitions:
Category 1: For the issue, the analysis reported in the Generic Environmental Impact Statement has shown:
(1) The environmental impacts associated with the issue have been determined to apply either to all plants or, for some issues, to plants hav-ing a specific type of cooling system or other specified plant or site characteristic; (2) A single significance level (i.e., small, moderate, or large) has been assigned to the impacts (except for collective off site radiological im-pacts from the fuel cycle and from high level waste and spent fuel disposal); and (3) Mitigation of adverse impacts associated with the issue has been considered in the analysis, and it has been determined that additional plant-specific mitigation measures are likely not to be sufficiently beneficial to warrant implementation.
The generic analysis of the issue may be adopted in each plant-specific review.
Category 2: For the issue, the analysis reported in the Generic Environmental Impact Statement has shown that one or more of the criteria of Category 1 can not be met, and therefore additional plant-specific review is required.
3 The impact findings in this column are based on the definitions of three significance levels. Unless the significance level is identified as bene-ficial, the impact is adverse, or in the case of small, may be negligible. The definitions of significance follow:
SMALLFor the issue, environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any im-portant attribute of the resource. For the purposes of assessing radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in the Commissions regulations are considered small as the term is used in this table.
MODERATEFor the issue, environmental effects are sufficient to alter noticeably, but not to destabilize, important attributes of the resource.
LARGEFor the issue, environmental effects are clearly noticeable and are sufficient to destabilize important attributes of the resource.
For issues where probability is a key consideration (i.e. accident consequences), probability was a factor in determining significance.
4 NA (not applicable). The categorization and impact finding definitions do not apply to these issues.
5 Scientific evidence about a chronic biological effect on humans from exposure to transmission line electric and magnetic fields is inconclusive.
If the Commission finds that a consensus has been reached by appropriate Federal health agencies that there are adverse health effects, the Commission will require applicants to submit plant-specific reviews of these health effects. Until such time, applicants for license renewal are not required to submit information on this issue.
6 Environmental Justice was not addressed in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, because guidance for implementing Executive Order 12898 issued on February 11, 1994, was not available prior to completion of NUREG-1437. This issue will be addressed in individual license renewal reviews.
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/ Rules and Regulations 28497 Dated at Rockville, MD, this 29th day of Federal Register, 800 North Capitol levels of government. Therefore, in May, 1996. Street NW., suite 700, Washington, DC. accordance with Executive Order 12612, For the Nuclear Regulatory Commission. FOR FURTHER INFORMATION CONTACT: Tim it is determined that this final rule does John C. Hoyle, Backman, Aerospace Engineer, not have sufficient federalism Secretary of the Commission. Standardization Branch, ANM-113, implications to warrant the preparation
[FR Doc. 96-13874 Filed 6-4-96; 8:45 am] FAA, Transport Airplane Directorate, of a Federalism Assessment.
BILLING CODE 7590-01-P 1601 Lind Avenue SW., Renton, For the reasons discussed above, I Washington 98055-4056; telephone certify that this action (1) is not a (206) 227-2797; fax (206) 227-1149. significant regulatory action under SUPPLEMENTARY INFORMATION: A Executive Order 12866; (2) is not a DEPARTMENT OF TRANSPORTATION significant rule under DOT proposal to amend part 39 of the Federal Federal Aviation Administration Aviation Regulations (14 CFR part 39) to Regulatory Policies and Procedures (44 include an airworthiness directive (AD) FR 11034, February 26, 1979); and (3) 14 CFR Part 39 that is applicable to certain Airbus will not have a significant economic Model A300 B2 and B4 series airplanes impact, positive or negative, on a
[Docket No. 95-NM-161-AD; Amendment was published in the Federal Register substantial number of small entities 39-9644; AD 96-12-02] on February 28, 1996 (61 FR 7444). That under the criteria of the Regulatory RIN 2120-AA64 action proposed to require Flexibility Act. A final evaluation has measurements of the thickness of the been prepared for this action and it is Airworthiness Directives; Airbus Model inner skin of the longitudinal lap joint contained in the Rules Docket. A copy A300 B2 and B4 Series Airplanes, from the inside of the fuselage at certain of it may be obtained from the Rules Excluding Model A300-600 Series stringers using the ultrasonic thickness Docket at the location provided under Airplanes measurement method. That action also the caption ADDRESSES.
proposed to require high frequency List of Subjects in 14 CFR Part 39 AGENCY: Federal Aviation eddy current (HFEC) inspections to Administration, DOT. detect cracking in the subject area, and Air transportation, Aircraft, Aviation ACTION: Final rule. repair, if necessary. safety, Incorporation by reference, Interested persons have been afforded Safety.
SUMMARY
- This amendment adopts a an opportunity to participate in the new airworthiness directive (AD), Adoption of the Amendment making of this amendment. Due applicable to certain Airbus Model consideration has been given to the two Accordingly, pursuant to the A300 B2 and B4 series airplanes, that comments received. authority delegated to me by the requires measurements of the thickness Administrator, the Federal Aviation of the inner skin of the longitudinal lap Support for the Proposal Administration amends part 39 of the joint from the inside of the fuselage at Both commenters support the Federal Aviation Regulations (14 CFR certain stringers. This amendment also proposed rule. part 39) as follows:
requires inspections to detect stress corrosion cracking in the subject area, Conclusion PART 39AIRWORTHINESS and repair, if necessary. This After careful review of the available DIRECTIVES amendment is prompted by reports of data, including the comments noted stress corrosion cracking found in the above, the FAA has determined that air 1. The authority citation for part 39 skin at the longitudinal lap joint at safety and the public interest require the continues to read as follows:
certain stringers of the fuselage, which adoption of the rule as proposed. Authority: 49 U.S.C. 106(g), 40113, 44701.
was caused by the increased stress level Cost Impact § 39.13 [Amended]
in the subject area when it was reworked beyond certain limits. The The FAA estimates that 17 airplanes 2. Section 39.13 is amended by actions specified by this AD are of U.S. registry will be affected by this adding the following new airworthiness intended to prevent such stress AD, that it will take approximately 32 directive:
corrosion cracking which, if not work hours per airplane to accomplish 96-12-02 Airbus Industrie: Amendment 39-detected and corrected in a timely the required actions, and that the 9644. Docket 95-NM-161-AD.
manner, could result in rapid average labor rate is $60 per work hour. Applicability: Model A300 B2 and B4 depressurization of the airplane. Based on these figures, the cost impact series airplanes, manufacturer serial numbers of the AD on U.S. operators is estimated 003 through 156 inclusive; on which Airbus DATES: Effective July 10, 1996.
to be $32,640, or $1,920 per airplane. Modification 2611 has not been installed; The incorporation by reference of The cost impact figure discussed certificated in any category.
certain publications listed in the above is based on assumptions that no regulations is approved by the Director Note 1: This AD applies to each airplane operator has yet accomplished any of identified in the preceding applicability of the Federal Register as of July 10, the requirements of this AD action, and provision, regardless of whether it has been 1996. that no operator would accomplish modified, altered, or repaired in the area ADDRESSES: The service information those actions in the future if this AD subject to the requirements of this AD. For referenced in this AD may be obtained were not adopted. airplanes that have been modified, altered, or from Airbus Industrie, 1 Rond Point repaired so that the performance of the Maurice Bellonte, 31707 Blagnac Cedex, Regulatory Impact requirements of this AD is affected, the France. This information may be The regulations adopted herein will owner/operator must request approval for an alternative method of compliance in examined at the Federal Aviation not have substantial direct effects on the accordance with paragraph (c) of this AD.
Administration (FAA), Transport States, on the relationship between the The request should include an assessment of Airplane Directorate, Rules Docket, national government and the States, or the effect of the modification, alteration, or 1601 Lind Avenue SW., Renton, on the distribution of power and repair on the unsafe condition addressed by Washington; or at the Office of the responsibilities among the various this AD; and, if the unsafe condition has not