[Federal Register Volume 64, Number 170 (Thursday, September 2, 1999)]
[Proposed Rules]
[Pages 48117-48120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22915]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Part 51
[Docket No. PRM-51-7]
Nuclear Energy Institute; Receipt of Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; Notice of receipt.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) has received and
requests public comment on a petition for rulemaking filed by the
Nuclear Energy Institute (NEI). The petition has been docketed by the
Commission and
[[Page 48118]]
has been assigned Docket No. PRM-51-7. The petitioner requests that the
NRC amend its regulations to delete the requirement for the NRC to
evaluate Severe Accident Mitigation Alternatives as part of its
National Environmental Policy Act (NEPA) review associated with license
renewal. The petitioner requests that the NRC take this action to
achieve consistency in the scope of its regulatory requirements
associated with NEPA and license renewal.
DATES: Submit comments by November 16, 1999. Comments received after
this date will be considered if it is practical to do so, but assurance
of consideration cannot be given except as to comments received on or
before this date.
ADDRESSES: Submit comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555. Attention: Rulemakings and
Adjudications Staff.
Deliver comments to 11555 Rockville Pike, Rockville, Maryland,
between 7:30 am and 4:15 pm on Federal workdays.
For a copy of the petition, write to David L. Meyer, Chief, Rules
and Directives Branch, Division of Administrative Services, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001.
You may also provide comments via the NRC's interactive rulemaking
website at http://ruleforum.llnl.gov. This site provides the capability
to upload comments as files (any format), if your web browser supports
that function. For information about the interactive rulemaking
website, contact Ms. Carol Gallagher, (301) 415-5905 (e-mail:
[email protected]).
FOR FURTHER INFORMATION CONTACT: David L. Meyer, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555. Telephone: 301-415-7162 or Toll-free: 1-800-368-5642 or E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On July 14, 1999, the NRC received a petition for rulemaking
submitted by the NEI. The petitioner requests that the NRC amend its
regulations to delete the requirement for the NRC to evaluate Severe
Accident Mitigation Alternatives (SAMAs) as part of its NEPA review
associated with license renewal. The petitioner requests that the NRC
take this action to achieve consistency in the scope of its regulatory
requirements associated with NEPA and license renewal. The petition has
been docketed as PRM-51-7. The NRC is soliciting public comment on the
petition for rulemaking.
The NRC's regulations implementing NEPA appear in 10 CFR part 51.
Paragraph (c)(3)(ii)(L) of Sec. 51.53 requires that an applicant to
evaluate SAMAs as part of its environmental report for license renewal
if the NRC staff has not previously considered SAMAs for the plant in
an environmental impact statement or a related supplement or in an
environmental assessment. The NRC's regulations governing the renewal
of operating licenses for nuclear power plants appear in 10 CFR part
54.
The Petitioner's Request
The petitioner requests that the NRC amend its regulations to
remove 10 CFR 51.53 (c)(3)(ii)(L). This would eliminate the requirement
that the NRC evaluate SAMAs as part of its review of a nuclear power
plants application for renewal of its operating license. The petitioner
suggests that the rulemaking also include conforming amendments to 10
CFR part 51, Appendix B and that NUREG-1437 be amended to conform with
the suggested change.
The petitioner believes that the suggested action would eliminate a
conflict with the technical requirements for license renewal. The
petitioner states that 10 CFR part 54 is founded on the principle that
each plant's current licensing basis remains adequate and carries
forward into the renewal term. The petitioner characterizes the
Commission as concluding that the adequacy of plant design and
operating procedures is beyond the substantive scope of part 54. Yet,
the petitioner states that Sec. 51.53(c)(3)(ii)(L) requires that these
subjects be extensively analyzed under the procedural requirements in
part 51. The petitioner asserts that its suggested approach resolves
the conflict between part 51 and part 54 requirements. The petitioner
believes that this approach recognizes that the scope of NRC's proposed
actions, license renewal determinations under part 54, defines and
bounds the scope of environmental review for these actions. The
petitioner goes on to state that the courts have held that there is no
significant environmental impact requiring further assessment if a
proposed action maintains an equivalent level of safety, City of Aurora
v. Hunt, 749 F.2d 1457 (10th Cir. 1984). The petitioner contends that,
because part 54 assures that the current level of safety is maintained,
there is no increase in risk required to be considered for mitigation
under NEPA. Furthermore, the petitioner states that the court action
cited by the NRC as the basis for requiring consideration of SAMAs in
NEPA evaluations for license renewal, Limerick Ecology Action v. U.S.
Nuclear Regulatory Commission, 869 F. 2d 719 (3rd Cir. 1989), does not
preclude the suggested rulemaking. The petitioner also believes that,
under established precedent, an EIS does not have to include beyond-
design-basis accidents as long as the Commission considers them highly
improbable events, San Luis Obispo Mothers for Peace v. NRC, 751 F2
1287, 1301 (D.C. Cir 1984).
The Petitioner
The NEI characterizes itself as an organization of the nuclear
industry responsible for coordinating the efforts of all utilities
licensed by the NRC to construct or operate nuclear power plants, and
of other nuclear organizations, in all matters involving generic
regulatory policy issues and regulatory aspects of generic operating
and technical issues affecting the nuclear power industry. Its members
include every utility responsible for constructing or operating a
commercial nuclear power plant in the United States, as well as major
architect/engineering firms and all major nuclear steam supply system
vendors.
The Petitioner's Interest in the Requested Action
The petitioner states that 45 commercial nuclear power plants will
reach the end of their original 40-year operating license term by 2015.
These plants represent billions of dollars in capital investment and
generate electricity for 17 million households. Two NRC licensees have
submitted license renewal applications; Baltimore Gas and Electric for
its two-unit Calvert Cliffs plant and Duke Power for its three-unit
Oconee plant. The NEI anticipates that many of the licensees whose
licenses will expire in the near future will apply for renewed
licenses.
The petitioner characterizes continued plant operation as primarily
an economic decision. When considering license renewal, the utility
must evaluate future electricity demand, the cost of other electricity
supply options versus the cost of continued plant operation, and the
efficiency of the NRC license renewal process. The commercial power
industry is interested in promoting a license renewal process that
focuses on those items the NRC has determined could have a potential
effect on the ability of structures and components to function during
the extended period of operation. The industry also is interested in
ensuring that the NRC properly defines its NEPA review obligations for
license renewal so that an efficient, effective process can
[[Page 48119]]
be achieved. The petitioner believes that retaining the requirement
that the NRC evaluate SAMAs as part of its review of a nuclear power
plant's application for renewal of its operating license unnecessarily
increases the cost of a license application, and potentially increases
the review time for an application by introducing issues that conflict
with the fundamental principles underlying part 54.
Discussion
Part 54 Requirements
The NRC adopted regulations governing the renewal of nuclear power
plant operating licenses in a final rule adding part 54 to 10 CFR
chapter I (56 FR 64943; December 13, 1991). The NRC subsequently
revised part 54 in a final rule published May 8, 1995 (60 FR 22461).
The petitioner describes this revision as an attempt to make license
renewal a more focused, stable, and predictable regulatory process.
The petitioner states that the Statement of Considerations for each
rule carefully explained the scope of license renewal for the rule. The
petitioner cites NRC's commitment to two critical principles. First,
with the exception of the detrimental effects of aging during the
period of extended operation, the regulatory process is adequate to
ensure that the licensing bases of all currently operating plants
provide and maintain an acceptable level of safety so that operation
will not be inimical to public health and safety or common defense and
security. Second, the current licensing basis continues during the
renewal term. The petitioner states that the NRC specifically rejected
a requirement for a general demonstration of compliance with the
current licensing basis as a prerequisite for issuing a renewed license
by narrowing the findings required to be made for issuing a renewed
license under 10 CFR 54.29. The petitioner contends that the scope of
part 54 focuses license renewal only on those matters that relate to
the detrimental effects of aging and that are not currently managed and
on certain issues analyzed for a period covering the original term and
the renewal term. The petitioner believes that the scope of part 54 is
directly relevant to industry's view, as characterized by the
petitioner, that SAMAs should not be part of the NEPA review for
license renewal.
Part 51 Requirements
As indicated, part 51 contains NRC's regulations implementing NEPA.
Section 102(2) of NEPA requires the preparation of an environmental
impact statement for every major Federal action significantly affecting
the quality of the human environment. Section 51.53 defines the
environmental impacts that are to be addressed in the NEPA review for
license renewal. The petitioner indicates that many of the
environmental issues found to be relevant to license renewal were
addressed in a generic environmental impact statement (GEIS) issued as
NUREG-1437, Generic Environmental Impact Statement for License Renewal
of Nuclear Plants, in December 1995. The findings of the GEIS are
summarized in Appendix B to part 51, which was issued through formal
rulemaking in a final rule published December 18, 1996 (61 FR 66543).
The GEIS identified and evaluated the potential environmental impacts
that the NRC staff determined could be evaluated generically. The GEIS
also identified 22 environmental impacts that the NRC staff concluded
were not susceptible to generic evaluation and must be evaluated for
each plant as part of the license renewal review process.
The petitioner points out that SAMAs are among the items the NRC
has designated for plant-specific review. The petitioner describes
SAMAs as plant modifications or procedure changes that do not
necessarily prevent severe accidents but reduce the offsite
consequences or severity of the impact should a severe accident occur.
The petitioner indicates that the NRC has defined severe accidents as
those that would cause substantial damage to the reactor core,
regardless of whether there are severe offsite consequences. The
petitioner believes that in codifying the determination to consider
SAMAs in conjunction with license renewal at Sec. 51.53(c)(3)(ii)(L),
the NRC interpreted the Limerick Ecology Action v. U.S. Nuclear
Regulatory Commission decision to require this action.
Evaluation and Addressing of SAMAs Under the Current Licensing
Basis
The petitioner describes actions preformed by licensees to analyze
severe accident vulnerabilities and ways to mitigate these
vulnerabilities. These actions include conducting Individual Plant
Examinations, employing Probabilistic Safety Assessment methodology to
evaluate possibly significant, plant-specific risk contributors to
severe accidents, and Individual Plant Examination for External Events
that focus on external event risks involving fires and seismic events.
The petitioner indicates that the results of these examinations
indicate that generic upgrades beyond current levels of safety are not
justified on a cost-beneficial basis and that the relatively limited
risk from external events does not require additional licensee action.
However, the petitioner indicates that these actions and any resulting
modifications will carry forward into the renewal term.
Bases for Eliminating SAMAs
Scope of License Renewal
The petitioner classifies NEPA as a procedural statute that was
enacted to ensure that Federal agency decisionmaking evaluates
environmental consequences that may result from a proposed action and
informs the public of this decisionmaking process. The petitioner
contends that NEPA is not intended to force a particular result. It
does not require that any particular environmental issue be considered
or that potential environmental impacts control the decision regarding
a proposed action. The petitioner describes NEPA case law as providing
that the adequacy of an environmental impact statement is dependent on
the facts and circumstances related to the proposed action and that a
court will apply the ``rule of reason'' in reviewing the adequacy of an
environmental impact statement. The petitioner contends that the ``rule
of reason'' analysis has not been interpreted to require an exhaustive,
detailed discussion of all environmental impacts and that an
environmental impact statement will be considered adequate if it
provides information reasonably necessary to evaluate the project.
The petitioner states that the NRC must evaluate those impacts
resulting from the requested license renewal that have not been
evaluated generically in a plant-specific environmental impact
statement for license renewal. The petitioner indicates that the NRC
specifically determined that extending a license to operate a nuclear
power plant does not require the NRC to review all aspects of plant
operation or administration, and that the NRC deliberately limited its
license renewal process to items related to the extension of the
license term or for which aging management does not exist or would be
insufficient. Therefore, the petitioner concludes that the impacts
appropriately considered under NEPA would be those that reasonably flow
from the license renewal decision under part 54. The petitioner
references and describes court analyses and decisions in the City of
Aurora v. Hunt, 749 F.2d 1457 (10th Cir. 1984), and Upper Snake River
Chapter of Trout Unlimited v. Hodel, 921 F.2d 232 (9th Cir. 1990),
[[Page 48120]]
cases. The petitioner contends that these court actions support
industry's contention that because the current licensing basis (of
which severe accident management is a part) carries forward to the
license renewal term, the status quo will be maintained and because an
equivalent level of safety is maintained, SAMAs may be properly
excluded from NRC consideration in an environmental impact statement
for license renewal.
The petitioner asserts that individual licensee and generic
industry actions to address severe accidents demonstrate that this
issue is part of the license in the current term and that the increase
of the license term does not limit or diminish the value of these
actions. The petitioner contends that because items in the current
licensing basis are not subject to evaluation as part of the license
renewal review, the license renewal rule also eliminates the need to
consider the impact of their alternatives under NEPA. The petitioner
concludes that there can be no NEPA inquiry of the environmental
impacts and the mitigation alternatives of severe accidents if there is
no change in the risk of a severe accident generated by license
renewal.
The Limerick Decision
The petitioner examines the decision Limerick Ecology Action v.
U.S. Nuclear Regulatory Commission and concludes that the holding in
this decision is appropriately limited to the facts based on the
context in which the decision was made.
First, the NRC relied on a Policy Statement to conclude that it
could exclude consideration of severe accident mitigation design
alternatives (SAMDAs) from individual licensing proceedings. Although
the court found that the policy statement had the effect of a
substantive rule, it was unwilling to treat it as a rule and allowed
the policy statement to be challenged in an individual proceeding.
Second, the court was influenced by its perception that the NRC
failed to give sufficiently careful consideration to SAMDAs before
determining that they should not be subject to review in individual
proceedings. The court highlighted the differences between the facts in
Limerick and those in Baltimore Gas & Electric Co. v Natural Resources
Defense Council, 462 U.S. 87 (1985), where the Supreme Court held that
it was permissible under NEPA to treat the environmental effects of
nuclear fuel storage generically. The court indicated that under the
facts of BG&E, the NRC had proceeded under the basis of an extensive
formal rulemaking. In Limerick, the NRC failed to permit consideration
of SAMDAs without an explanation for doing so that was satisfactory to
the court. The court concluded that this failure to evaluate SAMDAs in
individual licensing proceedings meant that the NRC had concluded
inappropriately that no design mitigation alternative would be
worthwhile.
Third, the court was not persuaded by the NRC argument on judicial
review that the risks of a severe accident are ``remote and
speculative.'' The court held that the NRC had not based its decision
on this determination and refused to substitute this argument for the
reasons NRC articulated in the policy statement. Based on the facts
presented, the court was unwilling to read into the policy statement
and find that the risk is remote and speculative.
The petitioner contends that the courts articulated bases for
deciding that SAMDAs should not have been excluded from consideration
in an individual licensing proceeding support limiting the holding of
Limerick to its facts. The petitioner further contends that Limerick
does not affect the proposition that the ``rule of reason'' defines
whether the environmental impact statement has addressed the
significant aspects of probable environmental consequences for the
proposed action. Finally, the petitioner contends that the limited
nature of license renewal limits NEPA evaluation only to those
environmental consequences that may reasonably flow from the proposed
action, renewing a plant's license as that plant is currently designed
and operated.
Finding That Severe Accidents Are Highly Unlikely
The petitioner contends that, because a ``rule of reason'' applies
to all NEPA reviews and because a court has described it as a
``probabilistic rule of reason'' with respect to SAMAs, the NRC is not
required to consider beyond design-basis accidents if the Commission
reasonably believes that this type of accident is highly unlikely to
occur. The petitioner states that the court, in Limerick, recognized
that NEPA does not require consideration of remote and speculative
risks. However, because the NRC's decision to exclude SAMAs in the
Limerick licensing proceeding had not been based on such a
determination, the court declined to uphold the NRC's action on grounds
that had not been invoked by the NRC. Therefore, the petitioner
contends that the Limerick decision did not and cannot preclude the NRC
from elimination SAMAs from NEPA consideration based on an NRC finding
that these accidents are highly unlikely to occur. As a result, the
petitioner believes that the NRC has an ample basis to proceed with a
rulemaking to delete Sec. 51.53(c)(3)(ii)(L). The petitioner states
that, based on the assessment of severe accident risk in the GEIS and
the results of Individual Plant Examinations and Individual Plant
Examinations for External Events, the NRC has concluded that the risk
of a severe accident significantly affecting the environment is
extremely small. Therefore, the petitioner believes that considering
further mitigation is not worthwhile and SAMAs should be excluded from
part 51 review for license renewal.
The Petitioner's Conclusion
The petitioner believes that the NRC should conduct a rulemaking to
exclude the consideration of SAMAs from the NRC's NEPA review for
license renewal. The petitioner contends that the requirement to
include SAMAs was based on an overly broad application of language in
the Limerick case. The petitioner states that under NEPA the NRC is
responsible for reviewing those impacts that directly and indirectly
relate to license renewal. The petitioner contends that this evaluation
is bounded by the fact that an applicant's current licensing basis
continues in the renewal term and the impacts associated with the
current license are not subject to license renewal evaluation unless
they can be shown to be potentially greater in the renewal term. The
petitioner contends that such a demonstration has not been made for
severe accidents and, therefore, cannot be demonstrated for SAMAs.
Dated at Rockville, Maryland, this 27th day of August, 1999.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-22915 Filed 9-1-99; 8:45 am]
BILLING CODE 7590-01-P