[Federal Register Volume 59, Number 141 (Monday, July 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17985]


[[Page Unknown]]

[Federal Register: July 25, 1994]


  
                                                   VOL. 59, NO. 141

                                              Monday, July 25, 1994

NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

RIN 3150-AD94

 

Environmental Review for Renewal of Operating Licenses

AGENCY: Nuclear Regulatory Commission.

ACTION: Supplemental proposed rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing a 
supplement to the proposed rule concerning the environmental review for 
renewal of operating licenses. The supplement would revise the 
definition of purpose and need for the proposed Federal action that 
will be used in the environmental review of applications for renewal of 
nuclear power plant operating licenses. This action was developed in 
response to public comments on the proposed rule. The redefinition 
presented in the supplement to the proposed rule would also affect the 
identification of alternatives to the proposed action that will be 
considered in environmental reviews for license renewal.

DATES: Submit comments by September 8, 1994. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission is able to assure consideration only for comments received 
on or before this date.

ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555. ATTN: Docketing and Service Branch.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:45 a.m. and 4:15 p.m. Federal workdays.
    Comments received on the proposed rule as well as other documents 
relevant to this rulemaking are available for inspection at the NRC 
Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Donald P. Cleary, Office of Nuclear 
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 
20555; Telephone: (301) 415-6263.

SUPPLEMENTARY INFORMATION:

Background

    On September 17, 1991 (56 FR 47016), the NRC published in the 
Federal Register proposed amendments to its environmental protection 
regulations, 10 CFR Part 51, that would establish new requirements for 
the environmental review of applications to renew operating licenses 
for nuclear power plants. Concurrently, the NRC published NUREG-
1437,\1\ a draft Generic Environmental Impact Statement (GEIS) that 
contained the analysis which NRC proposed to codify in 10 CFR Part 51. 
In commenting on the proposed rule and the draft GEIS, a number of 
States expressed dissatisfaction with the treatment of need for 
generating capacity, alternative energy sources, and certain other 
issues. They expressed strong concerns that the proposed rule would 
intrude adversely on traditional State regulatory authority over these 
matters. They expressed concern that designation of need for generating 
capacity and alternative energy sources as Category 1\2\ issues would 
substantially eliminate public participation, would adversely affect 
independent State consideration of these matters, and would 
inadequately provide for use of current, project specific information.
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    \1\Copies of NUREG-1437 may be purchased from the Superintendent 
of Documents, U.S. Government Printing Office, Mail Stop SSOP, 
Washington, DC 20402-9328. Copies are also available from the 
National Technical Information Service, 5285 Port Royal Road, 
Springfield, VA 22161. A copy is also available for inspection and 
copying for a fee in the NRC Public Document Room, 2120 L Street, 
NW. (Lower Level), Washington, DC 20555-0001.
    \2\Category definitions:
    Category 1--A generic conclusion on the impact has been reached 
for all affected nuclear power plants.
    Category 2--A generic conclusion on the impact has been reached 
for all nuclear power plants that fall within defined bounds.
    Category 3--A generic conclusion on the impact was not reached 
for any nuclear power plant.
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    The Commission instructed the NRC staff to develop an options paper 
for responding to these State concerns, to solicit State views on the 
options, and to present these options to the Commission. To facilitate 
discussion of these matters the NRC staff developed an options paper 
entitled ``Addressing The Concerns Of States And Others Regarding The 
Role Of Need For Generating Capacity, Alternative Energy Sources, 
Utility Costs, And Cost-Benefit Analysis In NRC Environmental Reviews 
For Relicensing Nuclear Power Plants: An NRC Staff Discussion Paper.'' 
A Federal Register notice (January 18, 1994; 59 FR 2542) announced the 
scheduling of three regional workshops and the availability of the 
options paper.
    The workshops were held during the month of February 1994, in 
Rockville, MD (February 9, 1994), Rosemont, IL (February 15, 1994), and 
Chicopee, MA (February 17, 1994). Discussants represented seven States, 
the National Association of Utility Regulatory Commissioners, three 
public advocacy groups, the Nuclear Utility Management and Resources 
Council (now known as the Nuclear Energy Institute (NEI)) and the NRC. 
Representatives of several other States, public advocacy groups, and 
industry actively participated from the floor. A transcript of each 
workshop was taken. Subsequent to the workshops, written comments were 
filed by eight States, three public advocacy groups, the Nuclear Energy 
Institute (NEI) and two utilities. In addition, subsequent to the 
workshops and receipt of most of the written comments, the NRC staff 
met with the Environmental Protection Agency (EPA) and the Council on 
Environmental Quality to discuss the staff's proposed options and the 
comments and options offered by the States. EPA submitted written 
comments on May 11, 1994.
    In their written submittal, NEI and Yankee Atomic Electric Company 
(YAEC) each presented an approach to the handling of need and 
alternatives in the rule that they believe would resolve the concerns 
expressed by the States. These proposals had not been adequately 
developed for discussion at the time of the regional workshops. Because 
the NRC staff needed to better understand these proposals before 
reporting to the Commission on a recommended approach, a public meeting 
with NEI and YAEC was held on May 16, 1994. The meeting was announced 
in the Federal Register (May 4, 1994; 59 FR 23030). Participants in the 
regional workshops were notified of the meeting in advance and later 
furnished with the meeting transcript.
    After considering the range of options, the NRC staff has narrowed 
its consideration to two basic approaches to the treatment of ``purpose 
and need'' and ``alternatives'' that will best satisfy the concerns of 
the States and meet the requirements of the National Environmental 
Policy Act of 1969 (NEPA). One approach has been proposed by the State 
of New York and was endorsed by several other States. The other 
approach, recommended in this document, was developed by the NRC staff 
after consideration of the meeting transcripts and written comments. 
Borrowing from some of the elements of the YAEC and NEI proposals, the 
NRC staff has developed its own approach which it believes would 
contribute substantially to resolving the concerns raised by the 
States. Both approaches are discussed below.

The State Approach

    The approach proposed by the State of New York is a modification of 
the Option 2 as discussed in the NRC staff options paper. There are 
three major elements to the State option. Quoting from the written 
submittal of the State of New York:
    i. the text of the actual rule should be modified to include, and 
each individual relicensing decision should include, statements that 
the NRC's findings with respect to need for generating capacity and 
alternative energy sources are only intended to assist the NRC in 
meeting its NEPA obligations and do not preclude the States from making 
their own determinations with respect to these issues;
    ii. determinations regarding the issues of need for generating 
capacity and alternative energy sources should be designated ``Category 
3'' conclusions requiring site-specific review, rather than ``Category 
1'' generic conclusions; and
    iii. all NRC project specific EIS and relicensing decisions should 
make reference to State determinations on the issues of need for 
generating capacity and alternative energy sources, and should defer to 
and be guided by those State determinations to the maximum degree 
possible pursuant to NEPA.
    The purpose and need for the proposed Federal action (renewal of an 
operating license) continues to be defined in terms of the need for 
power. This approach would address some of the State concerns because 
the NRC would no longer perform the alternatives and need for power 
analyses unless State analyses of these issues were inadequate or non-
existent. The NRC staff does not recommend this option, however, for 
several reasons. First of all, the NRC would have to develop guidelines 
for determining the acceptability of State analyses. Some States may 
view the application of these guidelines as an intrusion on their 
planning process. In addition, some States may not be prepared to 
submit the required information to the NRC in a timely fashion given 
the differing time-tables used by States in their energy planning 
process. Finally, some States may not be capable of submitting the 
required information to the NRC.

Recommended Approach

    Based on the information gathered at the various public meetings 
and from written comments, the NRC staff has developed the following 
recommended approach. The major features of the recommended approach 
are:
     Redefine the purpose and need for the proposed action 
(renewal of an operating license) as preserving continued operation of 
a nuclear power plant as a safe option that State regulators and 
utility officials may consider in their future energy planning 
decisions.
     Consider a range of alternatives to the proposed action to 
identify any action that may reasonably serve the stated purpose and 
need. Review the environmental impacts of any such alternatives.
     Consider the environmental consequences of the ``no 
action'' alternative to license renewal, which the NRC is required to 
do by NEPA, i.e., the environmental impact of a range of energy sources 
that might be used if NRC should preclude the option of continued 
operation (license renewal).
     Change NRC's NEPA decision standard for license renewal so 
that renewal does not depend on an NRC conclusion that operation is the 
preferred NEPA option. Instead, license renewal would depend on an NRC 
conclusion that continued operation of a nuclear power plant is within 
the reasonable range of alternatives considered and should not be 
rejected as an option for future consideration.
    Under the NRC staff's recommended approach, the definition of the 
purpose and need of the Federal action in the GEIS would read:

    The purpose and need of the proposed action is to preserve the 
option of continued operation of the nuclear power plant for State 
regulators and utility officials in their future energy planning 
decisions.

    In formulating this proposed purpose and need statement, the NRC 
staff has attempted to consider the perspective of State regulators, 
the needs of license renewal applicants, the nature of the applications 
at issue, and the function that the NRC plays in the decisional 
process. This proposed definition does not indicate an endorsement by 
the NRC of nuclear power operation as a preferred energy source. 
Instead, the proposed definition is intended to convey that, absent 
findings in the Atomic Energy Act safety review or in the NEPA 
environmental analysis that would lead the NRC to reject a license 
renewal application, the NRC will not interfere with the energy 
planning decisions of state regulators and utility officials. It would 
also be explained in the GEIS that a renewed license is not a mandate 
nor a commitment to operate but is simply documentation that the 
licensee can meet the NRC's public health and safety requirements.
    The GEIS would continue to include a full discussion of the 
environmental impacts of license renewal, the purpose and need for 
license renewal, alternatives that can serve that purpose and need, the 
no action alternative, and the environmental consequences of the no 
action alternative. In doing so, the NRC would fulfill its obligations 
under NEPA to consider alternatives to the proposed action. The GEIS 
would contain no discussion of need for power, the economic 
competitiveness of nuclear power, or other economic considerations 
related to these issues.
    In applying the proposed definition of purpose and need to the 
GEIS, the NRC staff has identified only two basic alternatives which 
reasonably flow from the proposed approach: renewing an operating 
license, which would preserve the option, and not renewing the 
operating license (the no action alternative), which would not preserve 
the option but is nevertheless required under NEPA. The NRC staff will 
give further consideration to identifying additional alternatives and 
is soliciting public comment by means of this document. If any other 
reasonable alternatives are identified, the environmental impacts 
associated with them will be assessed.
    However, the NRC staff will examine the environmental impacts of 
alternative sources of energy in its analysis of the no action 
alternative. The implementation of the no action alternative, i.e., 
NRC's rejection of a license renewal application, would create a range 
of potential environmental impacts including those impacts which would 
result from the possible replacement of the nuclear plant's power by 
some other source of energy. Accordingly, under the NRC staff's 
proposed approach, the NRC staff will examine in the GEIS the full 
range of environmental impacts of other sources of energy in order to 
ensure a full consideration of the no action alternative.
    The NRC would use the statement of purpose and need as a basis for 
its decision standard in weighing the differences between license 
renewal and the various alternatives involved. Final determinations 
concerning alternatives in the GEIS would involve the following 
decision criterion: NRC would use the information on environmental 
impacts to reject the license renewal option only if the data 
concerning environmental impacts and alternatives, including the no 
action alternative, indicates that it would be unreasonable for the NRC 
to preserve the option of nuclear power generation for future decision 
makers.
    For the no action alternative, the NRC would reject the license 
renewal option only if the environmental impacts of license renewal 
were so much worse than those of other sources of energy that the NRC 
would be justified in eliminating the nuclear power plant as a tool for 
future energy planners. It would not be necessary for the NRC to find 
in the GEIS that existing nuclear power plants will be the preferred 
source of energy. The NRC would only have to find that the 
environmental impacts of nuclear plants place them within a 
``reasonable range'' of future energy options viewed from the 
perspective of environmental impacts. If, in an individual relicensing 
action, new and significant information created a doubt concerning 
previous conclusions in the GEIS, the NRC would consider that 
information to determine if the previous determinations in the GEIS 
were no longer valid for that particular plant.
    This decision method used in the recommended approach would allow 
the NRC to take a hard look at the environmental impacts of the 
proposed action and, at the same time, demonstrate an appreciation of 
the primacy and expertise of the States in the area of energy planning. 
This proposed standard for decision making in the GEIS would differ 
from current NRC practice for application of NEPA at the construction 
permit and the operating license stages and in the proposed amendments 
to 10 CFR Part 51 for license renewal. Currently, at the construction 
permit stage, the NRC compares the proposed action and the alternatives 
using a cost-benefit analysis which includes consideration of the need 
for power and other economic considerations related to power 
generation. Under the current approach, the NRC rejects the licensing 
action if the NEPA analysis demonstrates that an alternative is 
``obviously superior.''
    The recommended approach would avoid NRC determinations on such 
economic issues and, instead, focus NRC's analysis in the GEIS on the 
environmental impacts of license renewal and the associated 
alternatives. For the purposes of the license renewal GEIS, the 
proposed approach would replace the obviously superior standard with a 
standard which requires the environmental impacts of the alternatives 
considered to be so superior to the impacts of nuclear power as to 
justify the preclusion of nuclear plant operation as an option for 
future decision makers. In other words, based on the analysis of 
environmental impacts, the proposed action must be in the ``reasonable 
range'' of alternatives in order to justify NRC approval. Whether the 
definition of purpose and need proposed for the license renewal stage 
should also be applied at the construction permit and operating license 
stage is under review by the NRC staff. That determination will be made 
separately from the license renewal rulemaking.
    The NRC staff believes that of the options considered, the 
recommended approach will resolve concerns expressed by the States and 
meet the original objectives of the rulemaking, i.e., to increase 
regulatory efficiency and stability. The NRC notes that the primary 
elements of this approach are a departure from past NRC practice as 
applied at the construction permit and operating license stage. 
However, the proposed purpose and need statement and the reasonable 
range decision standard represent an approach to this issue which 
reflects the differing set of circumstances pertinent to decisions 
about continued operation of existing nuclear power plants. The NRC 
staff believes that the definition and explanation of purpose and need 
and the identification and consideration of alternatives is consistent 
with the trend of current NEPA case law which allows an agency to 
consider an applicant's wants when the agency formulates the goals of 
its own proposed action (see e.g., Citizens Against Burlington, Inc. v. 
Busey, 938 F.2d 190 (D.C. Cir. 1991); City of Grapevine, Tex. v. Dept. 
of Transportation, 17 F.3d 1502 (D.C. Cir. 1994)). Therefore, the staff 
believes that its approach will address the concerns of the States and 
meet the requirements of NEPA at the same time.
    Within 30 days from the close of the public comment period the NRC 
staff will report on the comments received. If the public comments 
indicate opposition to this approach or the desirability of making 
significant modifications to the approach, the NRC staff will seek 
Commission guidance. Otherwise the NRC staff intends to proceed with 
incorporation of the recommended approach in the final GEIS and the 
final rule.

    Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); 
secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42 
U.S.C. 5841, 5842); secs. 102, 104, 105, 83 Stat. 853-854, as 
amended (42 U.S.C. 4332, 4334, 4335).

    Dated at Rockville, Maryland, this 8th day of July, 1994.

    For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 94-17985 Filed 7-22-94; 8:45 am]
BILLING CODE 7590-01-P