[Federal Register Volume 66, Number 185 (Monday, September 24, 2001)]
[Proposed Rules]
[Pages 48832-48836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23790]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 52
[Docket No. PRM-52-1]
Nuclear Energy Institute; Receipt of Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; notice of receipt.
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SUMMARY: The Nuclear Regulatory Commission (NRC) has received and
requests public comment on a petition for rulemaking filed by the
Nuclear Energy Institute. The petition has been docketed by the NRC and
has been assigned Docket No. PRM-52-1. The petitioner is requesting
that the NRC
[[Page 48833]]
regulations governing early site permits and combined license
applications at existing reactor sites be amended to improve the
efficiency of the application and review process for companies seeking
early site permits or combined licenses at licensed facilities. The
petitioner believes that its proposed amendments would enhance the
focus and efficiency of the early site permit and combined license
process. The petitioner proposes to eliminate the need for what it
believes is duplicate applicant production and NRC review of existing
information relating to a licensed facility that has been previously
approved by the NRC and subject to a public hearing.
DATES: Submit comments by November 8, 2001. 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.
You may also provide comments via the NRC's interactive rulemaking
website through the NRC home page (http://ruleforum.llnl.gov). At this
site, you may view the petition for rulemaking, this Federal Register
notice of receipt, and any comments received by the NRC in response to
this notice of receipt. Additionally, you may 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 a copy of the petition, write to Michael T. Lesar, Chief, Rules
and Directives Branch, Division of Administrative Services, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001. Documents related to this action are available for public
inspection at the NRC Public Document Room (PDR) located at 11555
Rockville Pike, Rockville, Maryland.
FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555. Telephone: 301-415-7163 or Toll-Free: 1-800-368-5642 or e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
The Nuclear Regulatory Commission received a petition for
rulemaking dated July 18, 2001, submitted by the Nuclear Energy
Institute (petitioner). The petitioner is requesting that the
regulations in 10 CFR part 52 governing early site permits and combined
license applications at existing reactor sites be amended.
Specifically, the petitioner requests that the NRC amend 10 CFR part
52, subpart A, Early Site Permits, to add proposed Sec. 52.16 and amend
10 CFR part 52, subpart C, Combined Licenses, to add proposed
Sec. 52.80.
The NRC has determined that the petition meets the threshold
sufficiency requirements for a petition for rulemaking under 10 CFR
2.802. The petition has been docketed as PRM-52-1. The NRC is
soliciting public comment on the petition for rulemaking.
Discussion of the Petition
The petitioner expects that new power reactors will be ordered by
existing licensees in the near future and that the new reactors will
use many of the programs currently being used by those licensees.
Additionally, the petitioner anticipates that many of the new reactors
will be located on existing reactor sites. The petitioner believes
that, to avoid needless expenditure of NRC and licensee resources,
proposed Secs. 52.16 and 52.80 would use existing information as a
baseline and would provide for NRC review and an opportunity for a
hearing to account for changed circumstances, such as new regulations
and significant new information.
The petitioner notes that subpart A to part 52 contains provisions
governing issuance of early site permits (ESPs). The petitioner
proposes that a new Sec. 52.16 be added to subpart A to allow an ESP
applicant to incorporate by reference all or portions of the current
licensing basis for an existing reactor site to the extent that they
are valid and applicable to one or more additional nuclear power plants
that fit within the ESP environmental envelope. Proposed Sec. 52.16
would also require that any information incorporated by reference be
augmented to include:
Significant new safety or environmental information that
materially affects the ability of the site to support the proposed
additional nuclear facility
Information regarding the cumulative radiological and
environmental impacts of the existing facility and the facility as
described in the ESP application
An analysis of the potential safety impacts of the
existing facility on the suitability of the site for the facility as
described in the ESP application
An analysis of the potential safety impacts on the
existing facility from the facility as described in the ESP application
Information that addresses regulations applicable to
siting issues that became effective after licensing of the current
facility, to the extent that these regulations are not addressed in the
current licensing basis
The petitioner states that under proposed Sec. 52.16, the NRC would
treat as resolved those matters incorporated by reference, except to
the extent that those matters are subject to augmentation with new
information described above. The petitioner also states that proposed
Sec. 52.16 would allow the NRC to impose a change in the application
with respect to the information incorporated by reference to the extent
that the change satisfies the principles underlying 10 CFR 50.109,
Backfitting. The petitioner believes that in preparing the
environmental impact statement for the early site permit, the NRC would
adopt the applicable portions of the existing environmental impact
statement associated with the site, modified or supplemented as
necessary to reflect the NRC's review of the new environmental
information described above.
The petitioner notes that subpart C to part 52 contains provisions
governing issuance of combined construction permits and operating
licenses (COLs). The petitioner states that proposed Sec. 52.80 would
be added to subpart C and would contain provisions similar to those
proposed in Sec. 52.16. The petitioner also states that proposed
Sec. 52.80 would allow a COL applicant to incorporate by reference
programmatic information identified in the current licensing basis of
an existing licensed facility located at the same site or owned or
operated by the same licensee. Proposed Sec. 52.80 would require this
programmatic information to be augmented to include information that
addresses applicable regulations that became effective after the
existing facility was licensed, to the extent that these regulations
are not addressed by the current licensing basis for the existing
facility. The petitioner states that under proposed Sec. 52.80, the NRC
would treat as resolved those matters incorporated by reference from
the existing facility, except to the extent that those matters are
subject to new information as identified above. The petitioner believes
that the NRC could direct that a change be made in the COL application
with respect to the information incorporated by reference,
[[Page 48834]]
to the extent that the change satisfies the principles underlying 10
CFR 50.109.
The petitioner proposes that 10 CFR part 52 be amended to add
Secs. 52.16 and 52.80 as follows:
Section 52.16 Early site permits for licensed sites.
(a) If an application for an early site permit is filed for a
site for which a license or construction permit has been issued, the
application may incorporate by reference all or part of the current
licensing basis for the site to the extent that it pertains to the
siting issues specified in Sec. 52.17.
(b) Information incorporated by reference shall be supplemented
to include, to the extent applicable:
(1) Significant new information that materially affects the
ability of the site to support the additional nuclear facility as
described in the early site permit application;
(2) Information regarding the cumulative radiological impacts of
the existing facility and the facility as described in the early
site permit application;
(3) An analysis of the potential safety impacts of the existing
facility on the suitability of the site for the facility as
described in the early site permit application;
(4) An analysis of the potential safety impacts on the existing
facility from the facility as described in the early site permit
application; and
(5) Information that addresses regulations applicable to siting
issues that became effective after licensing of the existing
facility, to the extent that such regulations are not addressed by
the current licensing basis.
(c) Environmental information incorporated by reference shall be
supplemented to include, to the extent applicable:
(1) Significant new information relevant to environmental
concerns bearing on the ability of the site to support the
additional nuclear facility as described in the early site permit
application; and
(2) Information regarding the cumulative environmental impacts
of the existing facility and the facility as described in the early
site permit application.
(d) The Commission shall treat as resolved the environmental
information incorporated by reference under paragraph (a) of this
section, except to the extent that those matters are subject to new
information under paragraph (b) of this section. In addition, the
Commission may impose changes with respect to the information
incorporated by reference pursuant to paragraph (a) of this section
to the extent that each such change satisfies the criteria in 10 CFR
50.109.
(e) The Commission also shall treat as resolved the
environmental information incorporated by reference under paragraph
(a) of this section, except to the extent that those matters are
subject to new information under paragraph (c) of this section. In
preparing its environmental impact statement for the early site
permit, the Commission will adopt the applicable portions of the
existing environmental impact statement associated with the site
(including any supplements), modified or supplemented as necessary
to reflect the Commission's review of the new information identified
under paragraph (c) of this section.
* * * * *
Section 52.80 Combined licenses for sites with existing licensed
facilities or for applicants holding licenses for other facilities.
(a) If an application is filed for a combined license for a
facility located at a site with an existing licensed facility or by
an applicant that holds a license for an existing facility at
another site, the application may incorporate by reference the type
of information described in Sec. 52.16, subject to the requirements
of that section.
(b) The application may also incorporate by reference all or
part of the type of information identified in 10 CFR 50.33(g);
50.34(b)(6)(i), (ii), (iv), and (v); 50.34(c); 50.34(d);
50.34(f)(2)(ii); and 50.34(f)(3)(i), (ii), and (vii), to the extent
such information is contained in the current licensing basis of an
existing facility located at the same site or at a site owned or
operated by the same licensee or an affiliate of that licensee. The
information incorporated by reference shall be supplemented to
include:
(1) Information that addresses regulations applicable to the
incorporated information that became effective after licensing of
the existing facility, to the extent that such regulations are not
addressed by the current licensing basis for the existing facility.
(c) The Commission shall treat as resolved those matters
incorporated by reference under paragraph (a) of this section,
except to the extent that those matters are subject to new
information under paragraph (b) of this section. In addition, the
commission may direct that changes be made with respect to the
information incorporated by reference pursuant to paragraph (a) of
this section to the extent that each such change satisfies the
criteria in 10 CFR 50.109.
The petitioner believes that proposed Secs. 52.16 and 52.80 are
consistent with and promote the NRC's performance goals to: Maintain
safety; protection of the environment, and the common defense and
security; increase public confidence; make NRC activities and decisions
more effective, efficient, and realistic; and reduce unnecessary burden
on stakeholders. The petitioner states that the proposed amendments not
only are consistent with NRC's mission to ensure adequate protection of
the public health and safety, the common defense and security, and the
environment; but also, would focus NRC reviews on new information and
what the petitioner believes would be an incremental impact of an
additional unit at an existing site. The petitioner states that even in
the absence of new information, the proposed regulations would provide
the NRC with the authority to impose new requirements on previously
approved information if required to ensure adequate protection of the
public health and safety and the environment.
The petitioner states that the proposed amendments would serve to
enhance the efficiency of the regulatory process by eliminating
duplicate reviews of matters resolved in previous proceedings by
focusing agency resources on new and material information and the
impact of potential new units on the site. The petitioner also states
that proposed Secs. 52.16 and 52.80 would ensure that the public has an
opportunity for a hearing on all material issues, including significant
new information that would warrant further NRC review. The petitioner
believes that proposed Secs. 52.16 and 52.80 would reduce regulatory
burden by focusing attention on matters that have not been previously
decided in other proceedings.
The petitioner notes that 10 CFR 51.29(a)(3) provides that the NRC
may exclude issues that have been subject to a previous environmental
review. The petitioner believes that its proposed amendments support
NRC initiatives to place emphasis on the early identification of
regulatory issues and process improvements to handle new license
applications. The petitioner states that because the costs of a new
facility are affected by application preparation expenses, responding
to requests for additional information (RAIs), and possible hearing
expenses, ensuring that costs are predictable and commensurate with the
safety significance of issues associated with ESP and COL applications
and reducing the time for a new facility to be available will be
determining factors in business decisions on whether to proceed with
new nuclear projects.
The petitioner acknowledges that the NRC has the authority and
discretion to adopt new regulations under the Atomic Energy Act of
1954, as amended (AEA), and the Administrative Procedure Act (APA) by
either rulemaking or adjudication. The petitioner cites Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435
U.S. 519 (1978) in which the Supreme Court held that the NRC is free to
promulgate rules of procedure and methods for making factual findings
if they satisfy APA requirements. The petitioner believes that nothing
in the AEA or APA would preclude adoption of proposed Secs. 52.16 and
52.80 or prohibit the NRC from promulgating a rule that would treat
information the NRC reviewed and approved in a previous licensing
proceeding as resolved. The petitioner emphasizes that proposed
Secs. 52.16 and 52.80 would require NRC consideration of new
[[Page 48835]]
information that has not been previously reviewed or subject to a
hearing.
The petitioner notes that Secs. 52.39(a)(2), 52.63(a)(4), and
52.103 treat information the NRC has reviewed and approved in previous
proceedings as resolved and that the courts have held that these
provisions do not deprive individuals of rights to a hearing under
Sec. 189 of the AEA. The petitioner also notes that Sec. 52.73 allows a
COL application to reference a design certification and that in the COL
proceeding, Sec. 52.63(a)(4) requires the NRC to treat matters relating
to issuance of the design certification as resolved, even if the design
certification proceeding was a different proceeding that may have taken
place 15 or more years earlier and probably did not involve the parties
in the COL hearing. (See also, Secs. 52.55 and 52.61.)
The petitioner indicates that Sec. 52.73 also allows a COL
application to reference an ESP and that Sec. 52.39(a)(2) requires the
NRC to treat matters resolved in the ESP proceeding as final, even
though the ESP decision was a different matter that may have taken
place at least 20 years earlier and may not have involved the same COL
hearing parties. (See also, Secs. 52.27 and 52.33.) In Nuclear
Information & Resource Service v. NRC, 918 F.2d 189, 196-97 n. 14 (D.C.
Cir. 1990), aff'd on rehearing 969 F.2d 1169, 1172 (D.C. Cir. 1992),
the petitioner notes that the court rejected a challenge to the NRC's
decision to treat matters approved in the ESP and design certification
proceedings as resolved in a COL hearing in stating ``that the
Commission has wide latitude in structuring the scope and timing of its
hearings.'' The petitioner notes further that this decision found that
Sec. 189 of the AEA does not contain specific instruction on how the
hearing is to be conducted or if the NRC must rehear issues already
settled earlier in the licensing process. The petitioner believes that
the scope and timing of ESP and COL hearings contemplated in proposed
Secs. 52.16 and 52.80 are fully consistent with existing provisions and
court decisions.
The petitioner also believes that limitations on the scope of
issues contained in proposed Secs. 52.16 and 52.80 are consistent with
NRC practice in other areas such as, license renewal and amendments,
environmental effects associated with the nuclear fuel cycle, spent
fuel storage casks, quality assurance (QA) programs, and the facility
and procedure change process. The petitioner notes that the scope of
issues appropriate for review in operating license renewal proceedings
is limited under 10 CFR parts 51 and 54 that eliminate matters
previously considered in prior licensing proceedings or rulemaking
actions. The petitioner cites Vermont Yankee Nuclear Power Corp.
(Vermont Yankee nuclear Power Station), ALAB-235, 8 AEC 873, 875 (1974)
and Georgia Power Co. (Vogtle Nuclear Plant, Units 1 and 2) ALAB-291, 2
NRC 404, 415 (1975) in stating that the right to intervene and raise
contentions in license amendment proceedings is limited to issues that
directly relate to the proposed change and that it is inappropriate to
revisit issues considered in initial licensing that are not affected by
the amendment.
The petitioner also cites Baltimore Gas and Electric Corp. v. NRDC,
462 U.S. 87 (1983) in which the Supreme Court upheld the NRC's approach
in the Table S-3 rulemaking proceeding in stating that the generic
disposition of environmental issues is proper and precludes unnecessary
and repetitive litigation. The petitioner notes that 10 CFR 72.46(e)
prohibits review of spent fuel storage cask design issues during
licensing hearings for a site-specific independent fuel storage
installation (ISFSI) and when a cask was approved in a generic
proceeding. The petitioner also notes that 10 CFR 72.210 and 72.212
allow use of generically approved storage casks without providing any
opportunity for a plant-specific hearing. The petitioner cites Kelly v.
Selin, 42 F.3d 1501 (6th Cir. 1995), cert. denied 515 U.S. 1159 (1995)
in which the courts have held that this process does not deprive
individuals of any hearing rights under Sec. 189 of the AEA.
The petitioner states that 10 CFR 50.54(a) has been recently
revised to eliminate the need for prior NRC review and changes to a QA
program description when the change involves a QA alternative or
exception previously approved in an NRC safety evaluation for another
plant. The petitioner also states that 10 CFR 50.59(a)(2)(ii) and NRC
Regulatory Guide 1.187 permit licensees to adopt evaluation methods
approved by the NRC for use by other licensees if the method has been
approved for the intended application and the licensee satisfies the
applicable terms and conditions for its use. The petitioner believes
that proposed Secs. 52.16 and 52.80 are fully consistent with
precedents in which the NRC has treated prior decisions made in
rulemaking or licensing proceedings as resolved and has not permitted
further review and litigation of those issues in subsequent
proceedings.
The petitioner notes that Sec. 102 of the National Environmental
Policy Act of 1969 (NEPA) requires an environmental impact statement
(EIS) for major Federal actions that significantly affect the quality
of the environment and that 10 CFR 52.18 and 52.89 require an EIS for
an ESP and a COL. However, NEPA does not require the NRC to reconsider
previously settled issues to assess the environmental impacts of
approving a license application to locate an additional reactor at an
existing site. The petitioner cites the Council on Environmental
Quality (CEQ) regulations that became effective in 1979 to standardize
the NEPA process to reduce delays and eliminate duplication of
governmental efforts. These regulations allow agencies to use previous
environmental analyses when drafting a new EIS or to supplement an EIS
if an agency makes substantive changes in a proposed action or when new
circumstances or information arise that affect the environment. The
petitioner acknowledges that the NRC incorporated these regulations
into 10 CFR Part 51 but cites Deukmejian v. NRC, 751 F.2d 1287 (D.C.
Cir. 1984) in noting that although the NRC gives substantial deference
to the CEQ's regulations, it is not bound by them.
The petitioner states that 10 CFR 51.29(a)(3) permits the NRC to
exclude issues that have been covered by a previous environmental
review and that an EIS may provide a reference to a prior document that
settled a particular environmental issue. The petitioner believes that
although the NRC's regulations specifically refer to adoption of an EIS
prepared by another Federal agency, nothing prevents the NRC from using
a previous NRC EIS. The petitioner also believes that proposed
Secs. 52.16 and 52.80 are consistent with NRC and CEQ guidance on
referencing and adopting previous EISs.
The Petitioner's Conclusions
The petitioner has concluded that the NRC requirements governing
early site permits and the combined license process in 10 CFR Part 52
should be amended to permit the NRC to treat applicable information
approved in previous licensing proceedings as resolved. The petitioner
also has concluded that proposed Secs. 52.16 and 52.80 would accomplish
this objective and ensure consideration of significant new information
that could materially affect the NRC's findings. The petitioner has
also concluded that the proposed amendments are consistent with
Sec. 189 of the AEA and NRC and court decisions that authorize the NRC
to limit the scope of licensing proceedings to avoid additional review
and litigation of previously settled issues. Lastly, the
[[Page 48836]]
petitioner has concluded that the proposed amendments would conserve
NRC resources and streamline the agency's administrative processes to
eliminate what it believes are unnecessary costs and burdens on
applicants for new licenses.
Dated at Rockville, Maryland, this 18th day of September, 2001.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 01-23790 Filed 9-21-01; 8:45 am]
BILLING CODE 7590-01-P