[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]


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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.

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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 (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

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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