Renewing Nuclear Power Plant Operating Licenses: Environmental Review; Correction

Renewing Nuclear Power Plant Operating Licenses-Environmental Review; Correction

Supplementary Information

The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2018-0296. In addition, the Federal rulemaking website allows members of the public to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) navigate to the docket folder (NRC-2018-0296); (2) click the "Subscribe" link; and (3) enter an email address and click on the "Subscribe" link.

In the interest of clarity and transparency, the NRC is correcting the attachment to the final rule, published at 89 FR 64166 on March 14, 2023, to distinguish the quoted material. The text is unchanged.

Correction

In FR Doc. 2024-16643, published at 89 FR 64166 on August 6, 2024, on page 64197, the section titled "Separate Views of Commissioner Caputo on Renewing Nuclear Power Plant Operating Licenses-Environmental Review," following the NOTE is corrected to read as follows:

Separate Views of Commissioner Caputo on Renewing Nuclear Power Plant Operating Licenses-Environmental Review

The purpose of the first license renewal generic environmental impact statement (LR GEIS) in 1996 was to improve regulatory efficiency in environmental reviews for license renewals ". . . by drawing on the considerable experience of operating nuclear power reactors to generically assess many of the environmental impacts that are likely to be associated with license renewal" resulting lower costs for both license renewal applicants and the agency. ⁽⁶⁾ The use of the LR GEIS was expected to result in improved focus on significant case specific concerns a more effective NEPA review for each license renewal.

Today the Commission finalizes the rulemaking "Renewing Nuclear Power Plant Operating Licenses-Environmental Review" with all Commissioners agreeing that Revision 2 to NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants," appropriately considers the environmental impacts of license renewal of nuclear power plants licensed as of June 30, 1995. Because of this, licensees of such plants may rely on the LR GEIS in the preparation of their environmental reports under § 51.53(c) in connection with their applications for license renewal and subsequent license renewal. In addition, the NRC must prepare a supplement to the LR GEIS as a part of the environmental review of those applications.

This rulemaking was necessary because of the Commission's reversal in its adjudicative role of its prior holistic view of Part 51 in favor of a plain language reading of the wording of a single paragraph in the regulations. ⁽⁷⁾ This action disrupted two renewed licenses that had been issued. ⁽⁸⁾ The Commission then initiated a rulemaking to remove the word "initial" to clarify the applicability of the LR GEIS for subsequent license renewals, dramatically increasing the staff's environmental review workload with the additional work of the LR GEIS revision.

This action also precluded any subsequent license renewal applicants from using the LR GEIS in their applications while under revision, injecting considerable uncertainty into the nuclear planning process. As applicants wrestled with this protracted uncertainty, some potential applicants delayed filing their applications pending completion of the revision in order to rely on it. Others initially chose to delay and then apparently reconsidered, choosing instead to revise their applications to include a complete environmental report without the benefit of the LR GEIS. As business decisions were revised to address continuing uncertainty, the staff's workload management was complicated further. As a result, the Commission has unjustifiably undermined the reliability of license renewal reviews and, thus, the stability of the nuclear operational and planning processes as noted in correspondence from Senators Capito and Ricketts:

The Commission's misguided 2022 reversal of previously issued SLRs [subsequent license renewals] resulted in a cascading delay that impedes the ability for nuclear utilities to make long-term planning decisions and support those decisions with necessary investments. ⁽⁹⁾

Unfortunately, the decision enshrined in this final LR GEIS fails to learn from this mistake and misses the opportunity to establish the stability of environmental reviews for a future, third round of license renewals.

In CLI-20-3, the Commission chose a holistic interpretation of the 2013 LR GEIS upholding its applicability for subsequent license renewal and, indeed, any license renewal. ^(10 11) The 2013 LR GEIS had long been expected to apply to subsequent license renewal since applications were anticipated in the near future. Indeed, the agency began receiving notices from the industry of the intent to file applications in 2015  ⁽¹²⁾ with the first application filed in 2018. ⁽¹³⁾ As noted above, one of the regulatory purposes in the initial codification of the LR GEIS was "to promote efficiency in the environmental review process for license renewal applications."  ⁽¹⁴⁾ The reversal of CLI-20-03 strays from that regulatory purpose.

In SECY-22-0109, the staff had analyzed, recommended, and drafted the LR GEIS proposed rule to apply to any license renewal term ( i.e., initial, first SLR, or a term beyond the first SLR), excepting issues related to the Continued Storage Rule. ⁽¹⁵⁾ Contrary to this and despite the omission of a regulatory analysis regarding the impact of limiting LR GEIS applicability to a single subsequent license renewal term, my colleagues chose to limit the applicability of the LR GEIS to a single term of subsequent license renewal. In his response to the staff's recommendation, Chair Hanson stated the following:

The NRC's regulatory framework for renewal anticipates that the LR GEIS will be reviewed and updated every ten years to account for new information and lessons learned. It is at this ten-year review that it is most appropriate to consider whether the scope of the LR GEIS should be expanded to cover additional terms of license renewal beyond the first SLR.

It benefits the agency and the public it serves to use the ten-year review cycle of the LR GEIS as designed-to evaluate and incorporate new information gleaned from experience to generically address known impacts of continued operation. ⁽¹⁶⁾

While this statement is true, the Commission had previously deferred the anticipated revision that should be underway in favor of addressing the consequences flowing from the Commission's reversal of CLI-20-3. ⁽¹⁷⁾

A concern has been raised that there is inherent uncertainty in estimating environmental impacts from continued contributions to onsite waste storage beyond the first term of subsequent license renewal. While this might be considered a potential inconsistency between the LR GEIS and the Continued Storage GEIS (NUREG-2157), I note that the staff's recommendation specifically excepted issues related to the Continued Storage Rule. ⁽¹⁸⁾

Thereafter, in SRM-SECY-22-0109, the Commission directed the staff to "modify the proposed rule and draft License Renewal GEIS to explicitly state that the scope of the GEIS is initial license renewal and one term of subsequent license renewal . . . but include in the Federal Register notice, a specific question asking whether the proposed rule should be expanded beyond two license renewal terms."  ⁽¹⁹⁾

In response to the Commission's direction in SRM-SECY-22-0109, the staff provided the draft final LR GEIS in SECY 24-0017, and described the significant work done to support this final version:

Lessons learned, knowledge gained, and experience from license renewal environmental reviews performed by the NRC staff since development of the 2013 LR GEIS provided an important source of new information for this assessment. In addition, new scientific research, changes in environmental regulations and impact methodology, and other new information were considered in evaluating the significance of impacts associated with initial LR and SLR. Public comments on previous plant-specific license renewal environmental reviews also were analyzed to assess the existing environmental issues and identify new ones. The purpose of this evaluation was to determine if the findings presented in the 2013 LR GEIS remain valid for initial LR and to update the analysis and assumptions to support one SLR term. In doing so, the staff considered the need to modify, add to, or delete any of the 78 environmental issues presented in the 2013 LR GEIS and codified in Table B-1. As a result of the detailed evaluation, the staff identified 80 environmental issues, which are considered in detail in the LR GEIS revision.

And:

In the revised LR GEIS, the staff used the following general analytical approach to evaluate potential environmental issues and the impacts associated with continued operations and any refurbishment: (1) describe the nuclear power plant activity or aspect of plant operations or refurbishment that could affect the resource; (2) identify the resource that is affected; (3) evaluate past license renewal reviews and other available information, including information related to impacts during an SLR term; (4) assess the nature and magnitude of the potential environmental effect (impact) on the affected resource; (5) characterize the significance of the effect; (6) determine whether the results of the analysis apply to all or a specific subset of nuclear power plants, i.e., whether the issue is Category 1 (generic) or Category 2 (plant-specific); and (7) consider additional mitigation measures for reducing adverse impacts. ⁽²⁰⁾

This is a nearly identical recitation of the description provided in SECY 22-0109 of the staff's effort which supported their recommendation that ". . . the LR GEIS apply to any license renewal term". ⁽²¹⁾ Hence, the work was nonetheless completed and supported the applicability to any license renewal, laying bare any concerns that addressing a third round of renewals in this revision wasn't practical given the urgent need to complete it. Clearly, the benefits of accepting the staff's sound technical judgement as expressed in SECY-22-0109 would have outweighed the costs of establishing the applicability of this LR GEIS to all SLR terms.

The Nuclear Energy Institute, representing industry stakeholders, agreed that this revision should apply to any license renewal term and cited the proposed LR GEIS statement that "[t]here are no specific limitations in the Atomic Energy Act [AEA] or the NRC's regulations restricting the number of times a license may be renewed."  ⁽²²⁾ NEI also stated:

We believe that the LR GEIS provides a reasonable analysis of the environmental impacts of 20 years of reactor operation, irrespective of the prior number of years of reactor operation. Every license renewal review, regardless of term, requires a site-specific supplement to the LR GEIS ( i.e., SEIS), in which the NRC evaluates any issues not resolved generically by the GEIS. The NRC also evaluates any new and significant information. In addition, the NRC updates the GEIS roughly every 10 years to incorporate material new information and lessons learned. This review cycle is reasonable given that "changes in the environment around nuclear plants are gradual and predictable." There for, limiting the applicability of the proposed rule and GEIS to one SLR term is not necessary as a technical or legal matter, and contravenes the NRC's Principles of Good Regulation. ⁽²³⁾

In response to questions on the potential costs of limiting the applicability of the LR GEIS to one SLR, the staff identified 26 licensees that would be eligible to apply for a second SLR prior to their projected completion of the next revision to the LR GEIS. While licensees are allowed to apply for a license renewal up to 20 years in advance of the current license's expiration, the staff's projected completion date of the next LR GEIS revision in fiscal year 2034 would shorten the window for filing an application to as little as 10 years. ⁽²⁴⁾ In contrast, the first SLR application was filed in 2018, 14 years prior to license expiration and applying the LR GEIS finalized 5 years earlier. Given the uncertainty plaguing the 2013 LR GEIS that is finally being resolved 11 years later in this revision and the cascade of delays undermining the stability of nuclear operational and planning processes, a projected completion date for the next revision does not inspire confidence and any delay in completing the revision would drive a bow wave of applications awaiting completion of the LR GEIS.

In its regulatory analysis of the rule, the staff estimated that it would need to review 44 applications for license renewal over the next 10 years. We have already seen delays in environmental reviews due to limited staff resources. ⁽²⁵⁾ In order to assist the agency in this area, Congress has worked to grant direct hiring authority in this area. ⁽²⁶⁾ My colleagues propose that having the staff monitor interest in further license renewals and proposing to the Commission the short-cycling of revision of the LR GEIS would meet the needs to address their arbitrary decision. In my opinion, the net result of this would be a costly revisiting of the staff's hard look that was already completed to support the recommendation in SECY-22-0109. Further, this is wholly unnecessary given the fact that "environmental impacts of license renewal are expected to be bounded by data from operating experience given that license renewal is twenty years of continued operation, and our understanding that changes in the environment around nuclear plants are gradual and predictable."  ⁽²⁷⁾ This is not good stewardship of staff resources that are already overextended and may be exacerbated if the agency begins receiving more applications for new plants.

Licensee concerns with regulatory stability in this area are clearly demonstrated in the comments provided on this rulemaking. Duke Energy noted the status of the NRC's ongoing review of the SLR application for Oconee Nuclear Station, for which the current schedule includes finalization of the Supplemental EIS after the projected issuance of this final rule. ⁽²⁸⁾ In particular, Duke Energy expressed concerns that this could be construed as requiring further environmental reviews. ⁽²⁹⁾

I recognize concerns regarding aging management and that research into the safety of operating from 80-100 years continues. However, this is an area the staff must address in the safety review rather than the environmental review process and will have no effect on the environmental issues resolved as Category 1 in this final LR GEIS. The environmental review pertains to the plant's impact on the environment as distinct from the environment's impact on the plant which pertains to the safety review. There has been no sound argument presented that would link aging management to any of the LR GEIS issues. In addition, decades of operating experience since the first LR GEIS has demonstrated that experience has been consistent with the assumptions underlying license renewal. ⁽³⁰⁾

Conclusion

Our Reliability Principle of Good Regulation states:

Once established, regulation should be perceived to be reliable and not unjustifiably in a state of transition. Regulatory actions should always be fully consistent with written regulations and should be promptly, fairly, and decisively administered so as to lend stability to the nuclear operational and planning processes.

In the wake of the Commission decision to reverse its prior decision, there have been a series of ramifications that have undermined reliability, created uncertainty for all stakeholders, and resulted in a significant increase in workload for the staff. The Commission, though constituted differently than the one that issued the reversal in 2022, must own accountability for the consequences of that decision and should take all the steps necessary to ensure that the rule it issues here cannot be subject to a similar treatment in the future. It is my view that this final rule should be modified to encompass any license renewal period, as the staff recommended, ⁽³¹⁾ and that the revised final rule be provided to the Commission at least 10 business days prior to publication in the Federal Register .

⁽⁶⁾  Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, 61 FR 28467, June 5, 1996.

⁽⁷⁾ Florida Power & Light Co. (Turkey Point Nuclear Generating Units 1 and 2), CLI-22-2, 95 NRC 26, 31-2 (2022) (ADAMS Accession No. ML22055A496) (holding the 2013 LR GEIS does not cover subsequent license renewal, stating section 51.53(c) narrows the scope only to those applicants seeking an initial renewed license, and acknowledging that there is language in the regulatory analysis for the 2013 revisions to Part 51 that would support a contrary interpretation).

⁽⁸⁾ See Florida Power & Light Co., CLI-22-2, 95 NRC at 36 (stating that the licensee could "maintain its current subsequently renewed licenses, but with shortened terms to match the end dates of the previous licenses ( i.e., July 19, 2032, and April 10, 2033, for Units 3 and 4, respectively) until completion of the NEPA analysis."); Exelon Generation Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-22-4, 95 NRC 44, 46 (2022) (modifying the expiration date of the licenses for Units 2 and 3 to 2033 and 2034, respectively).

⁽⁹⁾  Letter from Hon. Shelley Moore Capito, Ranking Member, Committee on Environment and Public Works and Hon. Pete Ricketts, Ranking Member, Subcommittee on Clean Air, Climate, and Nuclear Safety, Committee on Environment and Public Works, to Chairman Christopher T. Hanson (Nov. 1, 2023), available at https://subscriber.politicopro.com/eenews/f/eenews/?id=0000018b-8b9a-da71-a98f-abff5d500000.

⁽¹⁰⁾ Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-20-3, 91 NRC 133, 141 (2020) (agreeing with the Board's determination that the regulatory language in section 51.53(c) is ambiguous and concurring that a holistic reading of Part 51 supports the conclusion that section 51.53(c) applies to all applicants for license renewal).

⁽¹¹⁾  The Commission's decision in CLI-20-3 notes that "the Board was `guided by the Supreme Court's approach in Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008)[.]" Florida Power & Light Co., CLI-20-3, 91 NRC at 140.

⁽¹²⁾ See, e.g., Letter from Mark Sartain, Virginia Electric and Power Company, to NRC Document Control Desk (Nov. 5, 2015) (ML15314A078) (providing notification of intent to submit a second renewed operating license application for Surry Power Station Units 1 and 2 in the first quarter of 2019).

⁽¹³⁾ See Letter from Mano K. Nazar, Florida Power & Light Co. to NRC Document Control Desk, "Turkey Point Units 3 and 4 Subsequent License Renewal Application" (Jan. 30, 2018) (ML18037A824).

⁽¹⁴⁾  Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, 61 FR 28467, 28468 June 5, 1996.

⁽¹⁵⁾  "Proposed Rule: Renewing Nuclear Power Plant Operating Licenses-Environmental Review (RIN 3150-AK32; NRC-2018-0296)," Commission Paper SECY-22-0109 (Dec. 6, 2022), at 6 (ML22165A003 (package)) (SECY-22-0109).

⁽¹⁶⁾  Commission Voting Record, "SECY-22-0109: Proposed Rule: Renewing Nuclear Power Plant Operating Licenses-Environmental Review, (Dec. 20, 2022), at 1 (ML23023A231) (Chair Hanson's Notation Vote).

⁽¹⁷⁾  Staff Requirements-SECY-22-0036-Rulemaking Plan for Renewing Nuclear Power Plant Operating Licenses-10-Year Environmental Regulatory Update (NRC-2022-0087) (June 17, 2022) (ML2216A130).

⁽¹⁸⁾  SECY-22-0109 at 6.

⁽¹⁹⁾  Staff Requirements-SECY-22-0109-Proposed Rule: Renewing Nuclear Power Plant Operating Licenses-Environmental Review (RIN 3150-AK32; NRC-2018-0296) (Jan. 23, 2023) (ML23023A200 (package)).

⁽²⁰⁾  "Final Rule-Renewing Nuclear Power Plant Operating Licenses-Environmental Review (RIN 3150-AK32; NRC-2018-0296," Commission Paper SECY 24-0017 (Feb. 21, 2024) at 3 (ML23202A179 (package)).

⁽²¹⁾  SECY 22-0109 at 4.

⁽²²⁾  Letter from Jennifer Uhle, Nuclear Energy Institute, to Secretary of the Commission, NRC (May 2, 2023), at 3-4 (ML23123A407).

⁽²³⁾ Id. at 4 (internal citations omitted).

⁽²⁴⁾  R.E. Ginna, Nine Mile Point, Unit 1, and Dresden, Unit 2, all operate under licenses that expire in 2029. The lack of an applicable LR GEIS in the first five years of their eligibility to apply for renewal and the timely renewal provision in § 2.109(b) requiring application 5 years prior to license expiration result in this severe reduction of the window to apply.

⁽²⁵⁾ See, e.g., Letter to Daniel Stoddard "Revision of Schedule for the Environmental Review of the North Anna Power Station, Units 1 and 2, Subsequent License Renewal Application (EPID Number: L-2020-SLE-0000) (Docket Numbers: 50-338 AND 50-339)" (Oct. 16, 2023), at 1 (ML23278A064).

⁽²⁶⁾ See H.R. 6544, Atomic Energy Advancement Act, § 103, "Strengthening the NRC workforce," as referred to the Senate on February 29, 2024.

⁽²⁷⁾  Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, 61 FR 28467, et seq., June 5, 1996.

⁽²⁸⁾ See Letter from Thomas Ray, Duke Energy, to Secretary of the Commission, NRC (May 2, 2023), at (ML23122A311).

⁽²⁹⁾ Id. at 2.

⁽³⁰⁾ Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-20-3, 91 NRC 133, 152 (2020).

⁽³¹⁾ See SECY-22-0109 at 6.