[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Proposed Rules]
[Pages 28316-28328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11418]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Proposed
Rules
[[Page 28316]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 54
[Docket No. PRM-54-6; NRC-2010-0291]
Filing a Renewed License Application
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; denial.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is denying a petition for rulemaking (PRM) submitted by Raymond Shadis
and Mary Lampert on behalf of Earth Day Commitment/Friends of the
Coast, Beyond Nuclear, Seacoast Anti-Pollution League, C-10 Research
and Education Foundation, Pilgrim Watch, New England Coalition, and
joined in by New Hampshire State Representative Robin Reed (the
petitioners). The petitioners requested that the NRC amend its
regulations to accept a license renewal application (LRA) no sooner
than 10 years before the expiration of the current license and to apply
the revised rule to all LRAs for which the NRC has not issued a final
safety evaluation report. The petitioners also requested a suspension
of all new license renewal activity until the rulemaking is decided.
After reviewing the petition, the NRC is denying the petition.
ADDRESSES: Please refer to Docket ID NRC-2010-0291 when contacting the
NRC about the availability of information for this petition. You may
access information related to this petition, which the NRC possesses
and is publicly available, by any of the following methods:
Federal Rulemaking Web Site: Go to http://www.regulations.gov and search on Docket ID NRC-2010-0291. Address
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; email: [email protected].
The NRC's Agencywide Documents Access and Management
System (ADAMS): You may access publicly available documents online in
the NRC Library at http://www.nrc.gov/reading-rm/adams.html. To begin
the search, select ``ADAMS Public Documents'' and then select ``Begin
Web-based ADAMS Search.'' For problems with ADAMS, please contact the
NRC's Public Document Room (PDR) reference staff at 1-800-397-4209,
301-415-4737, or by email to [email protected]. The ADAMS accession
number for each document referenced in this notice (if that document is
available in ADAMS) is provided the first time that a document is
referenced. In addition, for the convenience of the reader, the ADAMS
accession numbers are provided in a table in Section VI of this
document, Availability of Documents.
The NRC's PDR: You may examine and purchase copies of
public documents at the NRC's PDR, O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, MD 20852.
FOR FURTHER INFORMATION CONTACT: Margaret Stambaugh, Office of Nuclear
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone: 301-415-7069; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Modifying the 20-Year Application Timeframe
III. Ongoing and Future License Renewal Actions
A. Suspending All Ongoing and Future License Renewal Application
Reviews
B. Applying a 10-Year Timeframe to All Ongoing and Future
License Renewal Application Reviews
C. Petition Statements and Comments Referencing the Seabrook
Nuclear Generating Station, Unit 1 (Seabrook Unit 1), License
Renewal Application
IV. Public Comments on the Petition
V. Determination of Petition
VI. Availability of Documents
I. Background
The NRC received the petition on August 17, 2010, and assigned it
Docket No. PRM-54-6. The NRC published a notice of receipt of the
petition and request for public comment in the Federal Register (FR) on
September 27, 2010 (75 FR 59158).
The petitioners stated that the NRC's current regulation in Title
10 of the Code of Federal Regulations (10 CFR) 54.17(c) is unduly non-
conservative with respect to its effect on the accuracy and
completeness of LRAs, public participation, changing environmental
considerations, aging analysis and management, regulatory follow-
through, National Environmental Policy Act (NEPA) compliance, and
changing regulations. The petitioners stated that they seek to restore
some margin of conservatism by halving the lead time on LRAs from 20 to
10 years.
The petitioners raised the following seven issues in support of
their request that the NRC revise 10 CFR 54.17(c):
1. The NRC conducted the rulemaking for 10 CFR 54.17, ``Filing of
Application,'' more than 15 years ago, and it could not have foreseen
changes with respect to economic and regulatory shifts that have led to
an industry-wide shift of focus from decommissioning to power uprates
and license renewals. Such changes have affected the dynamics of
license renewal aging analysis and management.
2. The rulemaking for 10 CFR 54.17(c) proceeded without sufficient
consideration of the hearing rights of affected persons.
3. Under 10 CFR 54.17(c), licensees and the NRC can press to
untenable lengths of time the ability to predict the following:
a. Aging deterioration of systems;
b. Alternative energy sources that may be more available in the
future; and
c. Various other factors related to plant security and the
environment.
4. Failure rates for systems, structures, and components (SSCs) are
nonlinear, so licensees are unable to accurately predict aging-related
failures.
5. A 20-year timeframe exacerbates the NRC staff's and licensees'
difficulty in tracking license renewal commitments.
6. Regulatory changes over a 20-year period, from application to
onset of the period of extended operation, will result in grandfathered
non-compliance issues.
7. The 20-year timeframe allowed by 10 CFR 54.17(c) conflicts with
NEPA. This conflict results in environmental reviews of unduly limited
scope and unreasonably limits potential alternatives.
Section II, ``Modifying the 20-Year Application Timeframe,'' of
this document describes in detail each of the seven issues. Section II
also documents the NRC's responses to these issues.
The petitioners also requested that the NRC suspend all ongoing
reviews of
[[Page 28317]]
LRAs and that it apply the 10-year timeframe requirement to all ongoing
and future LRA reviews. In addition, the petitioners and some public
comment letters provide statements related to the license renewal
application for Seabrook, Unit 1. Section III, ``Ongoing and Future
License Renewal Actions,'' of this document contains the NRC's
responses to these requests and statements.
II. Modifying the 20-Year Application Timeframe
Issue 1
The petitioners stated that the NRC last updated 10 CFR 54.17 in
1995, before sweeping changes in NRC oversight and before economic and
regulatory shifts that enabled unprecedented changes in ownership and
an industry-wide shift of focus from anticipated plant decommissioning
to power uprates and license renewals. The petitioners stated that the
rulemaking cannot have contemplated how these changes have affected the
dynamics of license renewal aging analysis and aging management
planning over a period of 40 years (20 years of the current license,
plus 20 years of the extended period of operation). The petitioners
claimed that the rule is antiquated and obsolete and must be
reconsidered.
The petitioners stated that, of 32 license renewals granted, none
were filed 20 years in advance of license expiration and that there is
only one exception among the 14 LRAs under consideration and filed in
the last few years--Seabrook Unit 1. The petitioners stated that
NextEra Seabrook Nuclear LLC (NextEra) has provided no credible
justification for its very early filing of an LRA. The petitioners
stated that the great majority of licensees have filed applications for
license renewal within 10 years of the original license expiration
without any apparent negative consequences. The petitioners believe
that this experience is a clear demonstration that a lead time of more
than 10 years is unnecessary and of little benefit. The petitioners
argued that filing, reviewing, and granting LRAs more than 10 years in
advance of the original license expiration can have negative
consequences.
NRC Response to Issue 1
The NRC recognizes that it last revised 10 CFR part 54,
``Requirements for renewal of operating licenses for nuclear power
plants,'' in 1995 but disagrees that the age of the rule negatively
affects regulatory effectiveness or plant safety. The petitioners
provided no evidence or analysis demonstrating that regulatory changes
or corporate restructuring have negatively affected the NRC staff's
ability to review LRAs or the industry's ability to manage aging-
related degradation at nuclear power plants. Furthermore, the
petitioners presented no evidence or analysis for the assertion that
LRAs submitted more than 10 years before expiration have resulted in
negative consequences.
In its 1991 Statements of Consideration for 10 CFR 54.17(c), the
Commission considered the appropriate period for applicants to submit
applications for license renewal (Power Plant License Renewal, Final
Rule, 56 FR 64963; December 13, 1991). The NRC established the 20-year
timeframe to balance the need to collect sufficient operating history
data to support an LRA with the needs of a utility to plan for the
replacement of retired nuclear power plants in the event of an
unsuccessful LRA. The Statements of Consideration also discussed the
NRC's finding that the lead time for building new electric generation
facilities (alternatives to the proposed action) is 10-14 years,
depending on the technology. In addition, the Commission considered
that the NRC staff review would add time to the process. Thus, the NRC
found that a 20-year application timeframe provided a reasonable and
flexible timeframe for licensees to perform informed business planning.
The petitioners did not provide any reasoning to dispute this previous
consideration by the Commission but instead introduced and relied on
the assumption that a rule must be reconsidered because it is over 15
years old.
The petitioners cited Seabrook Unit 1 as the only case out of 32
license renewals where an applicant filed 20 years in advance of its
license expiration. This statement is incorrect because, as of the date
of the petition, nine reactor units were granted exemptions from 10 CFR
54.17(c), enabling the licensees to submit applications more than 20
years in advance of their license expiration. Similarly, the NRC
disagrees with the petitioners' assertion that ``the great majority of
licensees have filed applications for license renewal within 10 years
of the original license expiration,'' as most (43 of the 61) units with
renewed licenses at the date of the petition, filed their applications
earlier than 10 years before the original license expiration.
Nevertheless, neither statement contradicted the NRC's original basis
for its consideration in the rule.
Therefore, the arguments provided by the petitioners for this issue
do not provide sufficient justification for the NRC to revise the rule.
In particular, the petitioners did not present any new information that
would contradict the Commission's previous considerations when it
established the license renewal rule or demonstrate that sufficient
reason exists to modify the current regulations.
Issue 2
The petitioners asserted that, by renewing the license of a nuclear
power station 20 years in advance of the licensed extended period of
operation, the NRC removes, to the distance of a full generation, the
opportunity for an adjudicatory hearing. They contend that a future
generation of affected residents, visitors, and commercial interests
would be unable or unprepared to speak for themselves. The petitioners
further stated that ``10 CFR 54.17(c) introduces the question of
whether the action proposed is obtaining the license or entering into
an extended period of operation 20 years hence.'' They argue that ``the
safety and environmental ramifications; the physical impact on affected
persons begins 20 years away.'' They contended that this renders the
permission so far removed in time from the implementation as to provide
an intellectual disconnect or, in effect, void legal notice.
NRC Response to Issue 2
The petitioners pointed out that renewing an application up to 20
years in advance means that some future residents, visitors, and
commercial interests that relocate near the plant during the period of
extended operation would not have had the opportunity to participate in
the hearing process associated with the LRA review. However, the
interests of those future affected persons would be sufficiently
represented by those currently located in the area. Any impacts from
plant operation on persons currently in the area of the plant are
expected to be the same or representative of those impacts on persons
who will be located near the plant in the future. It is also an
untenable legal standard to provide a hearing opportunity for unknown
future residents, visitors, and commercial interests, as it would delay
the hearing process or deprive persons currently affected of a timely
hearing opportunity. Further, the future residents, visitors, and
commercial interests located near the plant may avail themselves of the
petition process set forth in 10 CFR 2.206, ``Request for action under
this subpart,'' which allows for a request
[[Page 28318]]
that an existing license be modified, suspended, or revoked. Future
residents, visitors, and commercial interests can also raise generic
issues by requesting modification of the NRC's regulations under 10 CFR
2.802, ``Petition for rulemaking.''
The petition statements in Issue 2 do not provide sufficient
justification for the NRC to revise the rule.
Issue 3
The petitioners stated that 10 CFR 54.17(c) allows licensees and
the NRC staff to press to untenable lengths of time the unproven
ability to predict the aging and deterioration of SSCs. The petitioners
also claimed that 10 CFR 54.17(c) promotes failure of the LRA to
encompass the potential effects of an environment that is arguably
changing at an unprecedented and unpredictable rate. As a result, the
petitioners questioned whether a rise in ocean temperatures in the
future would eventually lead to additional impacts, such as an increase
in species affected by the thermal discharge plume or cooling intake.
The petitioners also pointed out that ``more environmentally benevolent
alternative energy sources'' may be more available in the future (e.g.,
photovoltaic solar and wind power) but cannot be credibly projected
over 20 years. In addition, the petitioners raised the future
uncertainty of the global threat of terrorism and its impact on
security and the availability of offsite storage for spent fuel and
low-level radioactive waste. The petitioners noted that the predicted
failure rates for complex systems tend to increase exponentially with
respect to the length of time until the prediction matures.
NRC Response to Issue 3
Under Issue 3, the petitioners argued that the LRA fails to
encompass the potential effects of a changing environment, and then
raised several issues of concern stemming from the length of time
allowed by 10 CFR 54.17(c). The examples range from aging degradation
to environmental concerns to terrorism and security. The petitioners'
issues related to aging management are similar to those raised under
Issue 4; therefore, the NRC will address this aspect of the
petitioners' concern in its response to that issue. Likewise, the
petitioners' environmental concerns as well as the broader concern of a
changing environment are similar to the NEPA issues raised under Issue
7; the NRC will address the environmental questions in its response to
that issue. This response to Issue 3 addresses the remaining questions
related to future uncertainty related to acts of terrorism.
While security of the nuclear facilities the NRC regulates has
always been a priority, the terrorist attack of September 11, 2001,
brought heightened scrutiny and spurred more stringent physical
security requirements. The NRC staff regularly inspects and enforces
against these security requirements as part of its oversight role,
regardless of a plant's status with respect to license renewal.
Moreover, acts of terrorism are not aging-related issues and are,
therefore, outside the scope of license renewal hearings. Dominion
Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and
3), CLI-04-36, 60 NRC 631, 638-40 (2004). Therefore, where the
petitioners raised questions regarding the license renewal review's
ability to encompass uncertainties associated with future threats and
developments related to acts of terrorism, such concerns are addressed
by separate NRC requirements for physical security (10 CFR Part 73) and
are not related to the rules and regulations pertaining to license
renewal under 10 CFR part 54.
The petitioners did not present new information in Issue 3 that
would demonstrate that sufficient reason exists to modify the current
regulations.
Issue 4
The petitioners stated that submitting an application for license
renewal at midterm of the current license finds the licensee at a time
in SSC service life when, in industry experience, few failures are
observed and, generally, those that are observed are episodic or
anomalous and cannot be readily plotted as a trend for predictive
purposes. The period of increased failure rates due to design,
manufacturing, and construction defects has passed and is irrelevant to
aging management in the proposed extended period of operation. The
petitioners stated that the anticipated end-of-design life and aging
issues have barely begun to emerge. Therefore, little or no plant-
specific information on how a given plant will age is available to be
trended, provide lessons, or otherwise illuminate the path forward. The
petitioners continued that it is generally observed that for many SSCs
the information flow rates increase rapidly in the fourth quarter and
toward the end of a license. They argued that this SSC reliability
progression is well known and often illustrated in the so-called ``Bath
Tub Curve,'' and corrosion risk is a function of time. As an example,
the petitioners contended that the Beaver Valley Power Station
containment issue provides an example of operating experience emerging
at a late date in a way that affected license renewal.
Additionally, the petitioners included the example that Vermont
Yankee Nuclear Power Station also provides a series of later-life
structural failures. The petitioners stated that it is appropriate,
from a regulatory audit standpoint, to wait until data on the
applicable failure rate and observed aging phenomena are in hand before
attempting time-limited aging analysis or aging management planning;
less than 10; not less than 20 years in advance of operating license
expiration.
NRC Response to Issue 4
The petitioners asserted that a plant with only 20 years of
operating history will not have gathered sufficient plant-specific
aging data to make an informed decision about license renewal. The
Commission considered this issue in the 1991 rulemaking promulgating
the license renewal rule. In the Statements of Consideration from 1991,
the Commission stated that a minimum of 20 years provides a licensee
with substantial amounts of information and would disclose any plant-
specific concerns with regard to age-related degradation (56 FR 64963;
December 13, 1991).
With respect to the petitioners' claim that the licensees and the
NRC cannot prove the ability to predict the aging and deterioration of
SSCs in the future, the Commission recognized this in its 1991
Statements of Consideration and acknowledged that the ongoing
regulatory processes at the time did not fully address the safety
issues of extended operation beyond the initial 40-year license term
(56 FR 64965; December 13, 1991). Therefore, the Commission concluded
that a formal review of the adverse effects of aging on a SSC's ability
to perform its intended function would be needed at license renewal to
ensure that operation during the period of the extended license would
not be inimical to public health and safety. As such, the resulting
licensing basis for a nuclear power plant during the renewal term
consists of the current licensing basis (CLB), as well as any
additional obligations to monitor, manage, and correct the adverse
effects of aging. In other words, the intent of license renewal is to
actively manage aging effects with aging management programs rather
than just predicting future deterioration.
The bathtub curve analogy made by the petitioners would only apply
to a scenario where component failures could occur if no aging
management programs were used. The petitioners do not provide
convincing evidence or
[[Page 28319]]
analysis to show that the bathtub curve phenomenon actually exists at
nuclear power plants. Where the petitioners cited Beaver Valley and
Vermont Yankee as two examples, neither example conclusively
demonstrated how component failures were linked to the presence of a
bath-tub trend, other than the fact that both plants happened to be in
the later segments of their respective licenses. Nuclear power plant
licensees are required to maintain aging management programs as part of
their CLB following the license renewal review, to ensure that the
effects of aging are adequately managed such that SSC's are able to
perform their intended functions over time. The aging management
programs, which are evaluated by the NRC, provide reasonable assurance
that the effects of aging will be managed under the renewed license.
The petition statements in Issue 4 do not provide new information
that would contradict positions taken by the Commission when it
established the license renewal rule, nor do they demonstrate that
sufficient reason exists to modify the current regulations.
Issue 5
The petitioners stated that the current rule exacerbates the
difficulty the NRC staff and licensees have in following license
renewal commitments. They argued that LRAs are often approved with the
proviso that certain commitments be made and fulfilled, generally
before the period of extended operation begins. These commitments often
include inspections, tests, and analyses, as well as the development of
programs vital to safety and environmental protection.
The petitioners stated that regulatory experience shows NRC staff
turnover, as well as changes in oversight and licensee staff and
ownership, will complicate and place increased emphasis on the proper
handoff of unfulfilled licensee commitments.
NRC Response to Issue 5
The NRC agrees that it is important for licensees to fulfill
commitments made in LRAs and for the NRC to verify that those
commitments are met. Commitments are one part of the LRA review and
approval process. A license renewal review can result in new license
conditions and updates to final safety analysis reports (FSARs), as
well as commitments. In those instances where the NRC staff makes a
finding of reasonable assurance based on a commitment proposed by a
licensee, the NRC staff elevates the commitment to a legal obligation,
which is enforced in a license condition. Following the issuance of a
renewed license, the NRC performs inspections, under License Renewal
Inspection Procedure (IP) 71003, ``Post-Approval Site Inspection for
License Renewal,'' as part of its oversight process. One objective of
the IP 71003 inspection is to review the licensee's implementation of
aging management programs, license conditions, and commitments
associated with the license renewal review under 10 CFR part 54.
Generally, these inspections are coordinated by the NRC regional staff
and take place just before plants enter the period of extended
operation. Findings are documented in Inspection Reports following each
inspection. In addition to IP 71003 inspections, regulatory commitments
that have not been made legal obligations are subject to triennial
audits by the NRC staff. Where the petitioners claimed that the current
rule for license renewal complicates the conduct of these inspections
or other processes to verify license renewal commitments, they do not
provide any evidence to demonstrate their claim.
Therefore, the petitioners' statements in Issue 5 do not provide a
sufficient justification for the Commission to grant the petition for
rulemaking.
Issue 6
The petitioners stated that the 20 years that pass from an
application to the onset of the extended operation will, based on
regulatory history, certainly see an inordinate amount of applicable
regulatory change, resulting in grandfathered non-compliance issues.
The petitioners stated that current issues under consideration for
treatment in the license renewal process include aging management for
underground, buried, or inaccessible pipes that carry radionuclides and
aging management for safety-related, low-voltage cables that are below-
grade and not qualified for a wet environment.
NRC Response to Issue 6
The Commission addressed compliance with future regulatory changes
during the period of license renewal in promulgating the initial rule
(56 FR 64963; December 13, 1991). The Commission previously responded
to a similar comment, stating that comments to the rule ``incorrectly
suggest that new information about plant systems and components as well
as age-related degradation concerns discovered after the renewed
license is issued would not be considered by the NRC or would not be
factored into a plant's programs. The CLB of a plant will continue to
evolve throughout the term of the renewed license to address the
effects of age-related degradation as well as any other operational
concern that arises. The licensee must continue to ensure that the
plant is being operated safely and in conformance with its licensing
basis. As regulations change over time, the current licensing basis is
updated to the extent that the regulation is applicable to the plant.
Thus, a regulatory change does not result in grandfathering non-
compliance with applicable regulations. The NRC's regulatory oversight
activities will also assess any new information on age-related
degradation or plant operation issues and take whatever regulatory
action is appropriate for ensuring the protection of the public health
and safety.'' In addition, the petitioners do not further develop their
case in explaining how the examples of underground, buried, or
inaccessible piping and cables demonstrate their claim of non-
compliance issues being grandfathered. In fact, the aging management
for these SSCs are some examples of how ongoing operating experience
informs the licensees' aging management programs over time in order to
ensure compliance with 10 CFR 54.21(a)(3). Such programs are expected
to evolve as necessary to address new operating experience. In
addition, regulatory oversight activities such as IP 71003 inspections
also provide the means for the NRC staff to verify and assess the
ongoing effectiveness of licensees' aging management efforts.
The petitioners did not present new information in Issue 6 that
would contradict positions taken by the Commission when it established
the license renewal rule or demonstrate that sufficient reason exists
to modify the current regulations.
Issue 7
The petitioners argued that the regulation conflicts with,
circumvents, and frustrates the letter, spirit, object, and goals of
NEPA. The petitioners stated that ``NEPA provides at Section 1500.2,
that the Federal agencies, `shall to the fullest extent possible: (e)
Use the NEPA process to identify and assess the reasonable alternatives
to proposed actions that will avoid or minimize adverse effects of
these actions upon the quality of the human environment.''' The
petitioners stated that the ``Act provides at Section 1501(b) that
`NEPA procedures must insure [sic] that environmental information is
available to public officials and citizens before decisions are made
and before actions are taken. The information must be of high quality.
Accurate scientific analysis, expert agency comments, and
[[Page 28320]]
public scrutiny are essential to implementing NEPA. Most important,
NEPA documents must concentrate on the issues that are truly
significant to the action in question, rather than amassing needless
detail.' ''
The petitioners also presented arguments under Issue 3 related to
environmental considerations that will be addressed here. These
arguments include the potential availability of energy sources that may
be more available in the future (e.g., photovoltaic solar and wind
power) but cannot be credibly projected over 20 years, the failure of
the LRA to encompass effects of a changing environment, the effect of a
rise in ocean temperatures on species affected by a thermal discharge
plume or cooling intake, the availability of offsite storage for spent
fuel and low-level radioactive waste, and the status of threatened or
endangered species.
NRC Response to Issue 7
The NRC disagrees that the regulation conflicts with, circumvents,
or frustrates the intent of NEPA. Rather, the twin aims of NEPA do not
conflict with the licensing authority granted under the Atomic Energy
Act of 1954, as amended (AEA). Section 103(c) of the AEA states that
``each [operating] license shall be issued for a specified period, as
determined by the Commission, depending on the type of activity to be
licensed, but not exceeding forty years, and may be renewed upon the
expiration of such period.'' Consistent with the AEA, the NRC's license
renewal regulation allows for a renewed license providing up to 40
years of operation (up to 20 years of the existing license plus 20
years of extended operation). As previously discussed in response to
Issue 1, the Commission found that a 20-year application timeframe
provided a reasonable and flexible period for licensees to perform
informed business planning. The NRC fulfills its NEPA obligations and
meets NEPA's twin aims by examining the reasonably foreseeable impacts
and alternatives to issuing a renewed license for a period of up to 40
years. The petitioners did not provide any reasoning to dispute that
the renewed license period of up to 40 years was consistent with the
AEA, nor did the petition provide information to show that if the NRC,
consistent with the AEA, issues a renewed license for up to 40 years,
that the agency is, therefore, unable to meet NEPA's twin aims.
The petitioners also argued that the timing of LRAs affects the
implementation of NEPA with regard to the consideration of
alternatives. The NRC notes that the petitioners quoted the Council on
Environmental Quality (CEQ) regulations in support of their arguments
rather than NEPA, but neither the statute nor the CEQ regulations
support their petition. The extent of the environmental review is not
directly limited by the timing of the application submittal, nor does
the NRC staff limit its analysis to the information provided in the
environmental report. However, the NRC does apply the rule of reason in
conducting its environmental analysis under NEPA, which may limit the
extent of the environmental analysis to only those environmental
impacts and alternatives that are reasonably foreseeable. This means
that, while the environmental review considers various impacts and
alternatives, the NRC is not required to analyze every possible future
or speculative development, particularly those that cannot be
reasonably assessed to inform its decision-making process. For example,
the NRC analyzes alternative energy sources, but is not required under
NEPA to consider speculative technological advances in alternative
energy sources, which may or may not be available at the time of
extended operation. The NRC must complete its NEPA review before it
issues a renewed license in order to inform the agency's decision on
license renewal, and the agency meets the twin aims of NEPA by
analyzing those alternatives that are reasonably foreseeable at the
time that the renewed license is issued. The petitioners did not
provide information showing that the rule precludes the NRC from
considering reasonable alternatives within the licensing action
timeframe.
With respect to assessing the potential future environmental
impacts associated with the issuance of a renewed license, the NRC
complies with the statutory requirements of NEPA through its
consideration of impacts in the generic and supplemental environmental
impact statements (SEISs) for license renewal prepared in accordance
with 10 CFR part 51, ``Environmental protection regulations for
domestic licensing and related regulatory functions.'' As part of this
environmental review process, the NRC evaluates the environmental
impacts associated with operating a plant for an additional 20 years.
This evaluation includes generic determination in its Generic
Environmental Impact Statement for License Renewal (GEIS) of issues
such as the future storage of spent fuel for the period of extended
operation (see 10 CFR part 51, subpart A, Table B-1). The environmental
review also addresses concerns such as those cited by the petitioners
in Issue 3 related to the changing environment (e.g., rise in ocean
temperatures on species affected by a thermal discharge plume or
cooling intake), in addressing environmental impacts and alternatives
that are reasonably foreseeable for each site. Furthermore, the
petitioners did not provide new information to demonstrate that the
changing environment would have a significant impact to affect the
NRC's environmental analysis.
The petitioners also raised a concern in Issue 3 related to the
potential change in status of threatened or endangered species over the
renewed license period; such changes are accounted for in the NRC's
ongoing consultations with other Federal agencies under the Endangered
Species Act, which may result in imposing incidental take limits or
monitoring for certain species, depending on the facility and its
environment. To the extent that future developments or events may occur
that require reinitiation of consultations, the NRC staff must consult
with the relevant agency or agencies, regardless of whether the power
plant has a renewed license.
Therefore, the change to license renewal regulations proposed by
the petitioners would not affect the NRC's response to events related
to the Endangered Species Act.
In Issue 7, the petitioners stated that the rule ``sets the
[license renewal] application's environmental review at a maximum of 20
years in advance of the impacts from the Federal action.'' Other parts
of the petition made similar statements to imply that the actual
``action'' taken by the NRC is not going to occur until up to 20 years
into the future. For clarification, the ``proposed action'' before the
NRC for license renewal is the ``issuance'' of a new and superseding
license that allows operations for up to 40 years (any remaining time
on the initial license plus up to 20 years of extended operation),
which is discussed further in response to Issue 2. Therefore, NEPA
requires the NRC to perform and complete an environmental review to
support the agency's decision-making process with respect to issuance
of the renewed license. As previously stated, a 40-year license is
consistent with the AEA, and the NRC performs its NEPA analysis as part
of the LRA review process. The petitioners did not provide new
information that demonstrates that the NRC ought to perform its NEPA
analysis at some time other than before it issues a renewed license.
Finally, in their arguments supporting Issue 7, the petitioners
discussed the LRA submitted for Seabrook Unit 1. The
[[Page 28321]]
NRC considers these issues as intended by the petitioners and commenter
to be examples of a specific case for which the petitioners believe the
rule is deficient. Section III.C, ``Petition Statements and Comments
Referencing the Seabrook Nuclear Generating Station, Unit 1 (Seabrook
Unit 1), License Renewal Application,'' of this document contains a
detailed response to the Seabrook example.
Therefore, the petitioners' arguments in Issue 7 do not demonstrate
that sufficient reason exists to modify the current regulations.
III. Ongoing and Future License Renewal Actions
A. Suspending All Ongoing and Future License Renewal Application
Reviews
The petitioners requested that, pending promulgation of a rule to
revise 10 CFR 54.17(c), the NRC suspend all ongoing and future reviews
of LRAs. The review of LRAs is not a rulemaking issue and thus will not
be addressed in this response to a petition submitted under 10 CFR
2.802. The FR notice of receipt for the petition stated that the NRC
will address the request to suspend ongoing and future LRA reviews in a
separate action. Subsequently, the Commission denied the petitioners'
request to suspend licensing actions; the Commission's denial can be
found in ADAMS under Accession No. ML110250087.
B. Applying a 10-Year Timeframe to All Ongoing and Future License
Renewal Application Reviews
Under the presumption that the NRC would revise 10 CFR 54.17(c) to
10 years, the petitioners requested that the NRC apply the 10-year
requirement to the review of all ongoing and future LRAs. In this case,
since the NRC is denying the petition, a 10-year requirement will not
be applied to ongoing or future LRA reviews.
C. Petition Statements and Comments Referencing the Seabrook Nuclear
Generating Station, Unit 1 (Seabrook Unit 1), License Renewal
Application
The petitioners made multiple claims about license renewal that
refer specifically to Seabrook Unit 1. One commenter raised similar
claims. The NRC considers these issues as intended by the petitioners
and commenter to be examples of a specific case for which the
petitioners or commenter believe the rule is deficient. The petition
and comment claims are similar to the claims the petitioners have
submitted in a Seabrook adjudicatory proceeding, some of which the
Atomic Safety and Licensing Board Panel admitted as contentions in that
proceeding (including contentions related to alternatives the applicant
considered in its environmental report).
To the extent that the petitioners' concerns relate specifically to
Seabrook and the ongoing license renewal proceeding for that facility,
the petitioners must pursue those issues through the adjudicatory
process. Furthermore, to the extent that the petitioners or commenter
raised issues about a specific licensing proceeding, the issues and
comments are considered only as examples of specific cases where the
petitioners believe the current rule is unduly burdensome, deficient,
or needs to be strengthened, in support of the petition to amend 10 CFR
54.17(c). Any other comments regarding a specific licensing proceeding
are beyond the scope of a petition for rulemaking under 10 CFR 2.802
and are not considered further in the NRC's responses.
IV. Public Comments on the Petition
The NRC received six letters containing comments on the proposed
rulemaking from Mark Strauch, Marie Mackowoliez, NextEra Energy, the
Nuclear Energy Institute (NEI), Beyond Nuclear, and Strategic Teaming
and Resource Sharing. The comments are grouped into eight comment
categories. Individual comments and their grouping can be found in the
Public Comment Matrix in ADAMS under Accession Number ML113540177. The
NRC also received a letter from New Hampshire State Representative
Robin Reed asking to be added as a petitioner. The NRC accepted the
request from State Representative Reed and considers her to be a
petitioner for the purposes of this response.
Comment Category 1: The NRC wrote 10 CFR 54.17 before economic and
regulatory changes took place that would affect license renewal.
Comment 1.1
The petitioners stated that the NRC last updated the rulemaking for
10 CFR 54.17 in 1995, before changes in NRC oversight and economic and
regulatory shifts that enabled unprecedented changes in oversight and
an industry-wide shift of focus from anticipated decommissioning to
uprate and license renewal. The petitioners further stated that the
rulemaking did not consider how such changes would affect aging
analysis in LRA reviews or aging management planning. One commenter
stated that the petition does not demonstrate that the rule is out of
date and that the petitioners provided no supporting information for
the statement. Two commenters stated that all applicants for license
renewal must comply with 10 CFR part 50 and 10 CFR part 54, regardless
of their corporate structure, and both commented that the petition did
not include an analysis of how deregulation has affected aging
management. One commenter added that the petitioners' attempts to
provide new information that the NRC allegedly did not consider in its
rulemaking fails to explain what that new information is and thus fails
to demonstrate that sufficient reason exists to modify the current
regulations. The commenter also stated that the petition fails to
identify which changes in NRC oversight have affected aging management.
Lastly, a commenter noted that 10 CFR part 54 considers the present
context for a plant by requiring that each plant maintain its CLB.
NRC Response
The NRC recognizes that it last revised 10 CFR part 54 in 1995 but
disagrees that the age of the rule negatively affects regulatory
effectiveness or plant safety. The NRC agrees with the commenter that
the petitioners provided no evidence or analysis to demonstrate that
changes in regulatory structure or corporate structure of licensees
have negatively affected aging analysis practices, aging management
programs at plants, or the review of LRAs. This comment does not
provide new information that would justify revising the rule.
Comment 1.2
A commenter stated that Seabrook Unit 1 is the only plant to file
for license renewal 20 years in advance of the expiration of its
operating license. The commenter also stated that, given the
preponderance of license renewal review times for submittals and the
agency approvals to date, no more than 10 years in advance is warranted
for an application, which will significantly improve the quality and
reliability of the agency's environmental impact statements (EISs) and
the environmental reports upon which they rely, as required by NEPA.
Finally, the commenter stated that the preponderance of the license
renewal reviews and approvals conducted to date do not come close to
requiring 10 to 20 years to complete and, therefore, the basis of the
20-year advance application date is invalid.
Two other commenters stated that Seabrook Unit 1 is not the first
LRA filed 20 years in advance of the operating license expiration, and
the plant is not an outlier in that respect.
[[Page 28322]]
Both commenters also noted that the NRC has granted several LRAs at or
near the 20-year timeframe, and the NRC also has granted exemptions to
the 20-year requirement for special circumstances. One commenter
further stated that the need for sufficient lead time for corporate
decision-making, which underlies 10 CFR 54.17(c), applies whether
companies opt for license renewal of their nuclear facilities or
development of alternative sources of generating capacity. Completion
of the business planning process requires decisions about future
generating capacity to be made many years in advance.
NRC Response
The comment that Seabrook Unit 1 is the only plant to submit an
application 20 years before expiration of its license is incorrect. As
discussed in response to Issue 1, at the time of the petition, nine
reactor units were granted exemptions from 10 CFR 54.17(c), enabling
the licensees to submit applications more than 20 years in advance of
their license expiration.
The data does not support the commenter's corresponding conclusion
that no more than 10 years is warranted in which to submit an LRA.
Thus, the NRC agrees with the other comments that the Seabrook Unit 1
LRA is not an outlier with respect to the timeframe in which the
application was submitted.
A commenter also concluded that, since the NRC does not need 20
years to review an LRA, the basis for the 20-year application timeframe
is invalid. The NRC acknowledges that 20 years is not necessary to
perform its review of an LRA, as noted by a commenter. The NRC
typically reviews an application in about 2 years, when no hearings are
requested and when the review is appropriately supported by the
applicant. Applications for which hearings are requested would take
longer than 2 years. Rather, the NRC established the 20-year timeframe
to balance the need to collect sufficient operating history data to
support an LRA with a utility's need to plan for the replacement of
retired nuclear power plants in the case of an unsuccessful LRA. In
promulgating the 1991 license renewal rule, the Commission considered
the appropriate length of time for applicants to submit applications
for license renewal (56 FR 64963; December 13, 1991). The Statements of
Consideration discuss the NRC finding that the lead time for building
new electric generation facilities (alternatives to the proposed
action) is 10-14 years, depending on the technology. The NRC found that
a 20-year application timeframe provided a reasonable and flexible
period for licensees to perform informed business planning. Therefore,
the comment does not present new information that contradicts positions
taken by the Commission when it established the license renewal rule.
The NRC response to comments under Comment Category 7 discusses the
issues raised in the above comments related to environmental reviews
and EISs.
Comment 1.3
The petition noted that Seabrook Unit 1 provided no credible
justification for its very early filing of an LRA. A commenter stated
that, to the extent petitioners argued that the LRA is deficient, their
claims are inappropriate in a rulemaking petition and should be raised
in the ongoing adjudicatory proceeding, in which several of the
petitioners are currently participating and have already raised similar
claims.
NRC Response
As is discussed further in Section III.C of this document, the
petition and commenter statements that raised issues about a specific
licensing proceeding are beyond the scope of a petition for rulemaking
under 10 CFR 2.802 and are not considered in the NRC's responses in
this document. However, it should be noted that the rule language in 10
CFR part 54 contains no requirement for an applicant to justify the
year in which it applies to renew a license.
The comments related to Comment Category 1 do not present new
information that would contradict positions taken by the Commission
when it established the license renewal rule or demonstrate that
sufficient reason exists to modify the current regulations.
Comment Category 2: The rulemaking for 10 CFR 54.17 proceeded
without sufficient consideration of the hearing rights of affected
persons.
Comment 2.1
The petitioners stated that, by renewing the license of a nuclear
power station 20 years in advance of the licensed extended period of
operation, the NRC removes, to the distance of a full generation, the
opportunity for an adjudicatory hearing. They contended that a coming
generation of affected residents, visitors, and commercial interests
would be unable or unprepared to speak for themselves.
A commenter noted that, according to the petitioners' logic, with
even a 5-year renewal application period, some people might be unable
or unprepared to speak for themselves. The commenter also raised the
point that the 20-year renewal application period provides a greater
ability for people to decide not to relocate to the area near the
plant.
A commenter provided the following statements related to the
hearings on LRAs. Parties in NRC contested licensing hearings have the
opportunity to raise issues after the LRA is submitted and during the
months immediately following the NRC staff's completion of its
licensing review and the issuance of the safety and environmental
licensing documents. Because the licensing hearing focuses on the LRA
itself, and not future generations, hearing issues are most effectively
addressed while the LRA is before the agency. Contrary to the
petitioners' assertion, there is no statutory, regulatory, or other
rationale for delaying the hearing until the renewed license goes into
effect. The NRC will address any safety issues relating to plant
operation that arise after license renewal using the array of processes
available from the Commission's regulations.
Two commenters noted that there is no fundamental right to
participate in administrative adjudications. See Citizens Awareness
Network, Inc. v. NRC, 391 F.3d 338, 354 (1st. Cir. 2004). One commenter
also stated that the NRC issues initial operating licenses for 40-year
periods. The combination of a 20-year license renewal period with the
18 years (at most) that would remain on an initial license following
the NRC's review of an LRA is less than the 40-year period for
operating licenses that the NRC grants under 10 CFR part 50 or 10 CFR
part 52, ``Licenses, certifications, and approvals for nuclear power
plants.'' The petitioners' argument would mean that the NRC is
incapable of providing a meaningful hearing opportunity on an initial
operating license and that the AEA's provisions requiring both an
opportunity for hearing and a 40-year term are fundamentally
incompatible.
NRC Response
The NRC agrees that a longer renewal application period may
increase the ability of people to choose not to relocate to the area
near the plant but recognizes that this may not be true for some
people. Regardless of the renewal application time period, it is
impossible to identify all people who may relocate to the area during
the entire term of the license renewal period. However, as discussed in
Section II of this document in response to Issue 2 of the petition,
current residents would sufficiently represent potential future area
residents,
[[Page 28323]]
visitors, and commercial interests. Further, potential future
residents, visitors, and commercial interests have other regulatory
mechanisms to protect their interests, including a petition for
enforcement action under 10 CFR 2.206. Those future residents,
visitors, and commercial interests can also raise generic issues by
requesting modification of the NRC's regulations under 10 CFR 2.802.
The comments related to hearings are generally correct. The NRC's
regulations in 10 CFR part 2, ``Rules of practice for domestic
licensing proceedings and issuance of orders,'' and 10 CFR part 54
provide the opportunity for a hearing and establish the requirements
for intervention in a license renewal proceeding. Petitioners who meet
the requirements of 10 CFR part 2 may intervene in a hearing, subject
to the NRC's regulations.
The NRC agrees with the commenter who stated that the opportunity
for a hearing focuses on the adequacy of the LRA itself, and those
issues would be most effectively heard at the same time as the
licensing decision, as provided by the NRC's regulations. The topic of
hearing rights is discussed in response to Issue 2. As the commenter
stated, the petitioners do not provide a rationale in support of their
petition for why a hearing on the licensing issues would be more
effective after license issuance but before the beginning of the
extended operating period.
The commenter provided an example in which a plant may receive a
38-year renewed license. The commenter calculated 38 years by adding
the 20-year renewal application period to the 20-year extended
operation period and subtracting 2 years for NRC staff review of the
renewal application. The commenter argued that the initial licensing
period of 40 years and the approximately 38-year period for renewal
both represent an NRC licensing decision for which the effects of
operation would be realized over approximately a 40-year period. The
period of the renewed license may be up to 40 years, as provided in 10
CFR 54.31, ``Issuance of a renewed license.'' The commenter is correct
that the petitioners do not recognize the similarity of the licensing
periods of the two licensing actions and that the petition for
rulemaking does not explain why the initial 40-year licensing period is
appropriate while the renewal licensing period of up to 40 years would
be inappropriate. The NRC agrees with the commenter's point that,
similar to the AEA authorization to grant an initial license for 40
years, a 40-year renewal licensing period does not deprive future
residents of a fundamental hearing right. Specifically, the petition
does not provide any support to show why the AEA authorization for an
initial 40-year operating license does not deprive potential future
residents of a hearing right, but a license renewal period of up to 40
years does deprive potential future residents of a hearing right.
The comments related to Comment Category 2 do not provide a
sufficient justification for the Commission to grant the petition for
rulemaking.
Comment Category 3: The rule currently enables applications to
avoid addressing changing environmental considerations.
Comment 3.1
The petitioners stated that 10 CFR 54.17(c) promotes failure of the
LRA to encompass the potential effects of an environment that is
arguably changing at an unprecedented rate. In addition, the petition
raised issues about acts of terrorism, spent fuel storage, and the
potential for failures in complex systems. A commenter questioned the
impact that a potential rise in ocean temperatures could have on
aquatic species affected by a reactor's thermal discharge plume or the
cooling intake structure. Assuming such changes occur, the U.S.
Environmental Protection Agency or designated State agency that permits
operations under Sections 316(a) and (b) of the Clean Water Act could
modify those permits to account for the change in conditions.
Regardless of whether these permitting authorities amend the National
Pollutant Discharge Elimination System (NPDES) permits, Section
511(c)(2) of the Clean Water Act precludes the NRC from either second-
guessing the conclusions in NPDES permits or imposing its own effluent
limitations. The commenter further observed that the Commission
repeatedly stated that security issues are not among the aging-related
questions that are relevant in a license renewal review. Moreover, the
NRC's environmental review need not address acts of terrorism. The
storage and disposal of low-level waste and the onsite storage of spent
fuel generated during the additional 20 years of operation are Category
1 issues previously considered in the GEIS for which the NRC has
already codified environmental impact findings in 10 CFR part 51,
subpart A, appendix B, ``Environmental effect of renewing the operating
license of a nuclear power plant.'' In 10 CFR 51.23, ``Temporary
storage of spent fuel after cessation of reactor operation--generic
determination of no significant environmental impact,'' the NRC
generically addresses the eventual onsite or offsite storage of spent
fuel following the permanent cessation of operations.
NRC Response
The commenter's statements generally align with the responses to
Issues 3 and 7. As the commenter pointed out, a nuclear power plant's
environment, including applicable regulations, may change over time for
a variety of reasons. Not all of those potential changes are within the
scope of a license renewal application review.
The comments related to Comment Category 3 do not provide a
sufficient justification for the NRC to revise the rule.
Comment Category 4: The NRC and the licensees are unable to
accurately predict aging-related failures.
Comment 4.1
The petition stated that 10 CFR 54.17(c) allows licensees and the
NRC staff to press to untenable lengths of time the unproven ability to
predict the aging and deterioration of SSCs. A commenter noted that the
petitioners would have one believe that the NRC is powerless, once a
renewal is docketed, to address any of the potential safety or aging-
related issues enumerated in the petition.
A commenter stated that, to the extent these matters (the
prediction of SSC aging) were not properly within the scope of license
renewal, they were addressed as part of the licensees' ongoing
operation (e.g., the corrective action and operating experience
programs) and the NRC's continuing regulatory oversight process. The
commenter further noted that the petitioners' argument is also belied
by the stringency of the NRC's license renewal process.
A commenter noted that, in drafting 10 CFR part 54, the NRC did not
expect licensees to predict all possible age-related failures before
issuance of a renewed license. Instead, it requires licensees to have
inspection and testing programs that would detect aging effects such
that they could adequately manage those effects. A licensee's license
renewal programs are detection and not prediction programs. The
commenter concludes that this argument does not provide any grounds to
reconsider the Commission's current regulations.
NRC Response
As part of the license renewal review, the NRC evaluates a
licensee's aging management programs to ensure that each provides
reasonable assurance that the licensee will adequately manage the
[[Page 28324]]
effects of aging. The petitioners provided no support for the claim
that aging management technology is inadequate. The NRC agrees that the
comments made by two commenters are a correct description of the
process of aging management and continuing regulatory oversight. Those
SSCs within the scope of license renewal and that require aging
management review have specific aging management programs designed to
manage the effects of aging. Any SSCs outside the scope of license
renewal but subject to 10 CFR part 50 are subject to regulatory
oversight. Licensees are required to maintain their aging management
programs until the end of their license. As previously stated, the NRC
evaluates the aging management programs to determine if they provide
reasonable assurance that the licensee will manage the effects of
aging.
Comment 4.2
The petitioners stated that filing for license renewal at midterm
of the current license finds the licensee at a time in SSC service life
when, in industry experience, few failures are observed and, generally,
those that are observed are episodic or anomalous in nature and thus
cannot be readily plotted as a trend for prediction purposes. The
petition argued that the time of an elevated rate of failures caused by
design, manufacturing, and construction defects has passed and is
largely irrelevant to aging management in the proposed extended period
of operation.
A commenter stated that the ``bathtub curve'' for component
reliability trends does not apply to components that are subject to
aging management programs. Rather, this curve applies when components
have little or no maintenance or aging management activities applied.
The commenter further stated that renewal applicants should be
encouraged to perform the required aging management and environmental
reviews as early as possible, since that would allow more time to
evaluate and implement aging management programs for long-term
operation. Rather than discourage early applications, it would make
more sense to encourage such proactive efforts. Another commenter
stated that license renewal applicants benefit not only from their own
operating experience but from that of the entire industry.
Another commenter stated that petitioners argue that most aging
effects increase rapidly in the fourth quarter and toward the end of
the license and that licensees should be required to wait until these
later-life structural failures have presented themselves before filing
an LRA.
NRC Response
These comments relate to whether or not aging management programs
can address the potential for failure rates at a nuclear power plant to
exhibit a bathtub curve trend. The NRC agrees with the comment that a
licensee benefits from industry-wide operating experience with respect
to aging-related degradation. However, the NRC disagrees with the
comment that it is appropriate to wait until the presentation of
rapidly increasing aging effects at a plant before accepting an LRA. In
the 1991 final rule, the Commission did ``not agree that it is adequate
to wait to address aging concerns when they become apparent in plant
operations.'' The Commission found that waiting to take corrective
action after a failure occurs does not adequately control risk (56 FR
64974; December 13, 1991). Furthermore, the NRC stated that ``the
licensee must continue to ensure that the plant is being operated
safely and in conformance with its licensing basis.'' As such, the NRC
expects that the licensees' aging management programs would continue to
be informed over time by ongoing operating experience to address new
issues. In its 1991 Statements of Consideration, the Commission also
noted that the NRC's ``regulatory oversight activities will also assess
any new information on age-related degradation or plant operation
issues and take whatever regulatory action is appropriate for ensuring
the protection of the public health and safety'' (56 FR 64963; December
13, 1991).
Comment 4.3
The petitioners stated that it is appropriate, from a regulatory
audit standpoint, to wait until applicable failure rate and observed
aging phenomena data are in hand before attempting time-limited aging
analysis or aging management planning: Less than 10, not less than 20,
years in advance of operating license expiration. A commenter stated
that, to the extent the petition claimed that 20 years of plant
operating experience is insufficient to provide a valid basis for
renewal applications, the Commission has previously addressed and
dismissed that argument in its 1991 final rule.
NRC Response
The NRC addressed this argument in the Statements of Consideration
for the 1991 final rule. As the Commission stated, a minimum of 20
years provides a licensee with substantial amounts of information and
would disclose any plant-specific concerns with regard to age-related
degradation. A nuclear power plant will undergo a significant number of
fuel cycles over 20 years, and plant and utility personnel will have a
substantial number of hours of operational experience with every SSC
(56 FR 64963; December 13, 1991). The petitioners have not provided any
new insights or analyses that would cause the Commission to change the
rule.
The comments related to Comment Category 4 do not provide a
sufficient justification for the NRC to revise the rule.
Comment Category 5: The current rule exacerbates the NRC staff's
and licensee's difficulty in following license renewal commitments.
Comment 5.1
The petition stated that regulatory experience shows that NRC staff
turnover, as well as changes in oversight and licensee staff and
ownership, will at once complicate and place increased emphasis on the
proper handoff of unfulfilled licensee commitments. A commenter stated
that the petition does not account for the fact that 10 CFR part 54
requires license renewal commitments to be reflected in the Updated
Final Safety Analysis Report (UFSAR). Also, the commitments are
publicly available on the facility's NRC docket. The commenter noted
that the petition failed to acknowledge that the NRC's established
regulatory oversight process for nuclear power plants (and other NRC
licensees) has been functioning effectively for decades, despite NRC
staff turnover and changes in oversight and licensee staff and facility
ownership. The commenter continued that certain NRC regulations and
guidance provide various processes for ensuring that the licensee
satisfies such commitments. Such processes include, but are not limited
to, program development, testing, formalized commitment processes, and
NRC inspections, all of which require significant recordkeeping of
commitment status. The commenter also stated that, during the term of
the renewed license, the licensee continues to be subject to all NRC
regulations in 10 CFR parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54,
55, 70, 72, 73, and 100, and their appendices, as applicable to holders
of operating licenses under 10 CFR part 50 or combined license holders
under 10 CFR part 52.
Another commenter cited the petitioners' question about the NRC's
ability to keep track of license renewal commitments that are more than
10
[[Page 28325]]
years old, blaming NRC staff turnover, changes in oversight, and
potential new facility ownership. The commenter observed that the
license renewal commitments are in the docketed and searchable UFSAR.
The commenter continued that the petitioners do not explain why the NRC
staff would encounter any difficulty keeping track of documented
commitments in a licensee's UFSAR.
NRC Response
The topic of license renewal commitments is discussed in the
response to Issue 5. The NRC acknowledges that it is important for
licensees to fulfill commitments and obligations made in LRAs. The NRC
also agrees that existing regulatory processes are in place to verify
license renewal commitments, and that the petition does not explain why
the NRC staff would encounter complications in doing so.
The comments related to Comment Category 5 do not provide a
sufficient justification for the NRC to revise the rule.
Comment Category 6: A 20-year timeframe will result in
grandfathered non-compliance issues.
Comment 6.1
The petition stated that the 20 years that pass from application to
onset of the extended period of operation will, based on regulatory
history, certainly see an inordinate amount of applicable regulatory
change, resulting in grandfathered non-compliance issues. A commenter
stated that the Commission considered and dismissed this very concern
(regarding non-compliance with future changes in regulations) in
promulgating the original license renewal rules. The commenter further
stated that, from the outset, the license renewal process has
emphasized that, for renewal licensees (as well for reactor licensees
that do not seek a renewed license), the NRC will consider new
information and impose new requirements as appropriate, and more recent
Commission pronouncements confirm that this position has not changed.
The commenter concluded that, as a matter of policy, the Commission
was clearly correct in determining that licensees must address existing
issues at an operating nuclear facility under the current license
instead of postponing the matter until the license renewal period.
Obviously, the resolution of any current safety concerns should not be
deferred. By the same token, the resolution of current issues may have
little or no relevance to safety during the period of extended
operation, because those issues may be obviated by future changes in
circumstances or regulatory requirements. As the Commission has held,
it is not appropriate for the NRC or parties to spend valuable
resources litigating allegations of current deficiencies in a
proceeding that is directed to future-oriented issues. Additionally,
the NRC's license renewal process includes a ``safety valve'' allowing
consideration of additional issues if appropriate (see 10 CFR 2.335,
``Consideration of Commission rules and regulations in adjudicatory
proceedings'').
Finally, the commenter argued that the NRC's license renewal rules
represent an informed, reasoned, and permissible exercise of the
statutory authority under the AEA. The Commission established its
renewal regulations after extensive deliberations, based on its
determination that existing regulatory processes are adequate to ensure
that the licensing bases of currently operating nuclear power plants
provide and maintain an adequate level of safety. The license renewal
rules further reflect the NRC's considered policy judgments that (1)
issues relevant to both current operation and extended operation during
the license renewal period should be addressed when they arise, not
postponed until a license renewal decision (56 FR 64946; December 13,
1991); and (2) duplicating the Commission's ongoing regulatory reviews
in a license renewal proceeding would waste NRC resources, which are
better focused on aging management concerns.
Another commenter stated that the Commission has explained that it
expects licensees and license renewal applicants to adjust their aging
management programs to reflect lessons learned in the future through
individual and industry-wide experiences. The Commission has described
the license renewal program as a living program that continues to
evolve. If new insights or changes emerge over time, the NRC staff will
require, as appropriate, any modifications to SSCs that are necessary
to ensure adequate protection of public health and safety or to bring
the facility into compliance with a license or the rules and orders of
the Commission. The commenter further stated that the NRC will act to
ensure adequate protection, regardless of when an LRA is submitted. The
Commission also considered this same argument nearly 20 years ago in
its 1991 final rule.
NRC Response
The prior comments largely summarize the Commission's position
previously stated in relation to the promulgation of the initial rule.
The NRC generally agrees with the comment that it considered the issue
in the prior rulemaking for this regulation. The NRC also agrees with
the comment regarding expectations that licensee's aging management
programs should be informed, and enhanced when necessary, based on the
ongoing review of both plant-specific and industry operating
experience.
The comments related to Comment Category 6 do not provide a
justification for the NRC to revise the rule.
Comment Category 7: The 20-year timeframe allowed by 10 CFR
54.17(c) conflicts with NEPA.
Comment 7.1
The petitioners argued that an LRA for a nuclear power plant
submitted 20 years in advance of the expiration of its current
operating license cannot, to the fullest extent possible, accurately
and reliably evaluate nor reasonably foresee the alternatives to the
proposed action, as required by the CEQ regulations. They contended
that the premature information constitutes nothing more than amassing
needless detail that, in the case of a nuclear power plant relicensing
action, establishes a bias towards a premature relicensing decision.
A commenter stated that, by allowing applications 20 years in
advance of the licensing action, the NRC is rigging the purpose and
need in violation of NEPA, citing circuit court comments. The commenter
asserted that NEPA is to be interpreted to guard against and prevent
such misinformed and misleading actions. The commenter also argued that
the existence of a viable but unexamined alternative renders an EIS
inadequate, and therefore agencies must study significant alternatives
suggested by other agencies or the public. The commenter stated that
there is simply no showing of any attempt by the NRC to avoid the
consideration of the environmental impacts associated with license
renewal projects or to deprive the public of information related to
those impacts by dividing a larger project into smaller units.
NRC Response
The NRC disagrees with one commenter's statement that the 20-year
timeframe constitutes a rigging of the purpose or need with regard to
NEPA. Rather, the 20-year time frame, which is part of the 40-year
renewed license term, is consistent with the AEA. Section 103(c) of the
AEA states that ``each [operating] license shall be issued for a
specified period, as determined by
[[Page 28326]]
the Commission, depending on the type of activity to be licensed, but
not exceeding forty years, and may be renewed upon the expiration of
such period.'' Since the license renewal period consists of the period
of extended operation (20 years) and any time remaining on the original
license (up to 20 years per 10 CFR 54.17(c)), the license renewal
period is consistent with the 40-year license period allowed under the
AEA. Furthermore, the Commission considered the timing of an LRA in the
promulgation of the license renewal rule. As is discussed in more
detail in response to Issue 1, the Commission found that a 20-year
application timeframe provided a reasonable and flexible period for
licensees to perform informed business planning. The commenter provided
no information demonstrating that the NRC established the 20-year
application timeframe to rig the purpose or need of NEPA.
As discussed in Issue 7, the commenter argued that the timing of
LRAs affects the implementation of NEPA with regard to the
consideration of alternatives. The extent of the environmental review
is not directly limited by the timing of the application submittal, nor
does the NRC staff limit its analysis to the information provided in
the environmental report. The NRC applies the rule of reason in
conducting its environmental review under NEPA, which may limit the
extent of an environmental review to only those environmental impacts
that are reasonably foreseeable. This means that, while the
environmental review considers various impacts and alternatives, the
NRC is not required to analyze every possible future speculative
development. The NRC must complete its NEPA review before the issuance
of a renewed license to inform the agency's decision on license
renewal. The commenter did not provide information showing that the
rule precludes the NRC from considering reasonable alternatives within
the licensing action timeframe.
Comment 7.2
A commenter stated that setting the maximum advance date for the
submission of a relicensing application at 20 years in effect
needlessly restricts the substance of the environmental review by
fixing its analysis unreasonably and prematurely from an application's
expiration date and the beginning of impact from the proposed Federal
action. By setting the application's environmental review at a maximum
of 20 years in advance of the impacts from the Federal action, the
regulation, as currently written, effectively limits the scope and
content of an environmental review, rendering it a speculative venture
and a snapshot on the recent past rather than a rigorous and objective
assessment of what is reasonably foreseeable.
A commenter stated that it is well established that the scope of
the environmental review required in connection with license renewal is
appropriately limited and that the limited scope of review has been
consistently upheld. The NRC's regulations do require a discussion of
alternatives by both the applicant (in the environmental report) and
the NRC staff (in the SEIS) in connection with renewal applications.
The commenter argued that issuance of a renewed license and initiation
of the period of extended operation under the renewed license are part
of the same Federal action; there is no additional connected action.
Therefore, the potential environmental impacts of the proposed license
renewal are considered together, not piecemeal. Another commenter
stated that, with regard to Vermont Yankee, the Supreme Court made
clear that the concept of alternatives under NEPA must be bounded by
some notion of feasibility. As a result, agencies are not required to
consider alternatives that are remote and speculative. Instead,
agencies may deal with circumstances as they exist and are likely to
exist. While there will always be more data that could be gathered,
agencies must have some discretion to draw the line and move forward
with decision-making. The Commission's decision to allow licensees to
file LRAs in accordance with 10 CFR 54.17(c) and perform its
environmental review within that timeframe is a valid exercise of this
discretion.
NRC Response
As discussed in response to Issue 7, the extent of the
environmental review is not directly limited by the timing of the
application submittal, nor does the NRC staff limit its analysis to the
information provided in the environmental report. However, the NRC does
apply the rule of reason in conducting its environmental review under
NEPA, which may limit the extent of an environmental review to only
those environmental impacts that are reasonably foreseeable. This means
that, while the environmental review considers various impacts and
alternatives, the NRC is not required to analyze every possible future
or speculative development, particularly those that cannot be
reasonably assessed to inform its decision-making process. The NRC must
complete the NEPA review before it issues a renewed license to inform
the agency's decision on license renewal. The commenter did not provide
information showing that the rule precludes the NRC from considering
reasonable alternatives within the licensing action timeframe.
Comment 7.3
The petition stated that an application for relicensing submitted
20 years in advance of the current license expiration date cannot
reasonably be determined to be sufficiently complete nor reasonably be
represented to rigorously explore and objectively evaluate all
reasonable alternatives.
A commenter argued that it is not reasonable to consider that an
environmental report based on data that is 20 years old or older can
solely constitute the foundation for an adequately studied EIS prepared
by the NRC.
This in fact constitutes a violation of NEPA principles, as the
harm that NEPA seeks to prevent is complete when the agency makes a
decision without sufficiently considering information that NEPA
requires be placed before the decision-maker and the public. An
application that is filed 20 years in advance of a 2030 expiration date
relies on conclusions made 34 years before the requested action and
stretches the veracity and validity of the environmental report to an
amassing of outdated and meaningless details for the agency's
preparation of an EIS. For example, in the Seabrook Unit 1 relicense
application, filed in 2010, the preponderance of expert documentation
about renewable alternatives is gathered from 2008, effectively
freezing the environmental evaluation for the region of interest 22
years from the requested Federal action. It is disingenuous to
characterize that data 22 to 34 years out from the requested action as
sufficiently complete, as NEPA is established to require. NextEra
relies upon the 20-year advance provision in 10 CFR 54.17(c) to
truncate its alternative evaluation and justify the omission of more
recent documents from experts and expert agencies from 2009 and 2010.
One commenter stated that, as a matter of administrative law,
agencies have broad discretion to formulate their own procedures, and
the NRC's authority in this respect has been termed particularly great.
Similarly, although an agency may alter its rules in light of its
accumulated experience in administering them, an agency must offer a
reasoned explanation for the change. The petitioners' request for
relief provides no such reasonable basis
[[Page 28327]]
for overturning the NRC's current license renewal framework. Moreover,
in the context of environmental regulations, the Supreme Court has made
clear that NEPA does not require agencies to adopt any particular
internal decision-making structure and that the only procedural
requirements imposed by NEPA are those stated in the plain language of
the Act. Therefore, the Court found that NEPA cannot serve as the basis
for a substantial revision of the carefully constructed procedural
specifications of the Administrative Procedure Act.
Another commenter stated that NEPA does not require agencies to
adopt any particular internal decision-making structure. In fact, the
Commission has broad discretion to structure its NEPA inquiries. As the
Supreme Court made clear in Vermont Yankee over 30 years ago, NEPA does
not provide any basis for adding procedural requirements beyond the
carefully constructed procedural specifications imposed by the
Administrative Procedure Act. In Vermont Yankee, the Court also
explained that the only procedural requirements imposed by NEPA are
those stated in the plain language of the Act. The Commission has
decided that its safety review of LRAs under the AEA can be initiated
with 20 years remaining on the current license, and NEPA cannot compel
a different procedural timetable. Accordingly, the petitioners' claim
that NEPA requires the NRC to amend 10 CFR 54.17(c) to allow for a
later analysis of alternatives finds no support in law.
NRC Response
The NRC disagrees that the environmental reports submitted in
support of LRAs must rely on data that are 20 years old or older, and
the NRC disagrees that environmental report data forms the sole
foundation for EISs. As discussed in response to Issue 2, the
``proposed action'' before the NRC for license renewal is the
``issuance'' of a new and superseding license that allows operations
for up to 40 years (any remaining time on the initial license plus up
to 20 years of extended operation), which is also discussed in response
to Issue 2. Therefore, NEPA requires the NRC to perform and complete an
environmental review to support the agency's decision-making process
with respect to issuance of the renewed license. Furthermore, as
described in response to Issue 7, the license renewal regulation is
consistent with the 40-year license term allowed under the AEA. The
environmental report is submitted to support an LRA, and the NRC
reviews that environmental report along with the application. The
environmental report, therefore, does not need to rely on data that is
20 years old.
The comment that an environmental report forms the sole basis for a
license renewal EIS, or that alternatives proffered by the applicant in
its environmental report are the only alternatives the NRC staff
considers, is also incorrect. The NRC staff undertakes an independent
consideration of environmental impacts and documents its consideration
in the EIS.
These comments do not provide sufficient justification for the NRC
to revise the rule.
Comment 7.4
A commenter provided, as an example, that on June 1, 2010, NextEra
submitted its application for relicensing the Seabrook nuclear power
plants on the New Hampshire seacoast 20 years in advance of its current
40-year operating license expiration date, identified as March 15,
2030. Given that the proposed relicensing period for which the proposed
Federal action is being taken is for the period 2030-2050, Chapter 7 of
the Seabrook License Renewal Environmental Report provides a dated,
incomplete, and meaningless assessment of energy alternatives and is
biased towards the requested relicensing action.
Another commenter stated that, although the petitioners would have
one believe that a 20-year renewal window somehow circumvents or
frustrates NEPA, it does no such thing. The commenter stated that this
assertion is predicated on the misguided belief that somehow there will
be dramatic changes in how solar, wind, or other renewables penetrate
the grid. The commenter watched the California Altamont wind farm in
dismay every day. Consumers and energy regulators need certainty in the
near-, mid-, and long[hyphen]term horizon. Early nuclear power plant
license renewal injects more certainty, not less, in that process. The
commenter concluded that the petitioners convey no demonstrable safety,
security, or environmental concerns about Seabrook.
NRC Response
Section III.C of this document contains the NRC's responses to
issues related to the Seabrook LRA. One commenter raised several
concerns about alternatives in the environmental report or the NRC
staff's EIS. As stated in response to Issue 7, the extent of the
environmental review is not directly limited by the timing of the
application submittal, nor does the NRC staff limit its analysis to the
information provided in the environmental report. The NRC staff
undertakes an independent consideration of environmental impacts and
documents that consideration in its EIS. Furthermore, there is no
guarantee that a shorter application timeframe would increase the
number of alternatives analyzed in an environmental report. Some
alternatives may need more than 10 years of lead time for design and
construction. Therefore, allowing applicants to apply for license
renewal more than 10 years in advance of a license's expiration date
does not unreasonably foreclose alternatives, as suggested by the
petitioners and one commenter.
The comments related to Comment Category 7 do not provide a
justification for the NRC to revise the rule.
Comment Category 8: General comments.
Comment 8.1
A commenter argued that, to amend the regulations to a 10-year
advance time period would lead the way to a safer means of producing
energy. Two commenters argued that the petitioners have presented no
new information that contradicts the agency positions reflected in the
existing license renewal rule or provides sufficient cause to modify
those positions.
One of the commenters further stated that the petition fails to
provide adequate legal, factual, or policy-based support for the
assertions it makes or the relief it seeks. By raising issues the
Commission has already considered in promulgating its license renewal
rules, the petition ignores the carefully crafted regulatory framework,
including 10 CFR 54.17(c), that supports license renewal. Other aspects
of the petition address topics that are managed by the Commission's
ongoing regulatory oversight processes and regulations, which should
not be addressed through changes to the license renewal rules.
NRC Response
These particular comments express general support or opposition to
the petition requests. The comments do not provide additional analysis
or data that would justify revising the rule.
Comment 8.2
A commenter concluded that the NRC and the industry would
significantly benefit by avoiding subsequent adjudicatory challenges if
licensees were required to wait to apply for license renewal no more
than 10 years in advance of the license expiration, when trends,
studies, agreements, and
[[Page 28328]]
commercial ventures were more distinctly and discretely developed.
NRC Response
The Commission established the 20-year timeframe to balance the
need to collect sufficient operating history data to support an LRA
with the needs of a utility to plan for the replacement of retired
nuclear plants in the case of an unsuccessful LRA.
The rule, allowing a license period of 40 years, is in accordance
with the AEA, which provides for a license period of up to 40 years
(see Section 103(c) of the AEA). The rule is not intended to limit the
number of adjudicatory challenges. Rather, the NRC regulations are
designed to provide appropriate opportunities for hearings to affected
parties. Reducing the number of potential adjudicatory challenges is
not sufficient justification to revise the regulation.
The comments related to Comment Category 8 do not provide a
sufficient justification for the Commission to revise the rule.
V. Determination of Petition
The NRC has reviewed the petition and the public comments and
appreciates the concerns raised. For the reasons described in Sections
II and III of this document, the NRC is denying the petition under 10
CFR 2.803. The petitioners did not present any new information that
would contradict positions taken by the Commission when it established
the license renewal rule, nor did the petitioners provide new,
significant information to demonstrate that sufficient reason exists to
modify the current regulations.
The Commission previously established the earliest date for
submission of LRAs after soliciting and considering extensive comments
during the 1991 rulemaking for 10 CFR 54.17(c). In its 1991 Statements
of Consideration, the Commission determined that a 20-year timeframe
was reasonable for licensees to collect sufficient operating history
and also sufficient for a utility to plan for replacement of retired
nuclear plants in the case of an unsuccessful LRA. The petition did not
provide new information to challenge this basis.
Finally, the renewed license period of 40 years is consistent with
the AEA, and 10 CFR 54.17(c) does not cause environmental reviews
submitted to support LRAs to be in conflict with NEPA. The license
renewal environmental review and SEIS consider reasonably foreseeable
environmental impacts and alternatives in accordance with the
provisions of 10 CFR part 51. The rule change requested by the
petitioners would not affect the process the NRC uses to implement
NEPA. The petitioners do not provide new information or analysis to
demonstrate that the regulations in 10 CFR part 51 are insufficient for
the NRC to comply with the requirements of NEPA.
For these reasons, the NRC denies the petitioners' requests for the
NRC to modify its requirements related to the LRA period, to suspend
license renewal reviews, and to apply a 10-year application timeframe
to ongoing and future LRAs.
VI. Availability of Documents
The following table provides information on how to access the
documents referenced in this document. For more information on
accessing ADAMS, see the ADDRESSES section of this document.
------------------------------------------------------------------------
ADAMS accession No./
Date Document Federal Register
Citation
------------------------------------------------------------------------
December 13, 1991................ Nuclear Power 56 FR 64943
Plant License
Renewal.
September 27, 2010............... Earth Day 75 FR 59158
Commitment/
Friends of the
Coast, Beyond
Nuclear,
Seacoast Anti-
Pollution
League, C-10
Research and
Education
Foundation,
Pilgrim Watch,
and New
England
Coalition;
Notice of
Receipt of
Petition for
Rulemaking.
January 24, 2011................. Commission ML110250087
Memorandum and
Order (CLI-11-
01), In the
Matter of
Petition for
Rulemaking to
Amend 10 CFR
Sec.
54.17(c).
January 31, 2012................. Public Comment ML113540177
Matrix for
Petition for
Rulemaking 54-
6, License
Renewal.
------------------------------------------------------------------------
Dated at Rockville, Maryland, this 4th day of May 2012.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2012-11418 Filed 5-11-12; 8:45 am]
BILLING CODE 7590-01-P