[Federal Register Volume 81, Number 97 (Thursday, May 19, 2016)]
[Proposed Rules]
[Pages 31532-31542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11820]


 ========================================================================
 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.
 
 ========================================================================
 

  Federal Register / Vol. 81, No. 97 / Thursday, May 19, 2016 / 
Proposed Rules  

[[Page 31532]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[Docket Nos. PRM-51-30 and PRM-51-31; NRC-2014-0014 and NRC-2014-0055]


Generic Determinations Regarding the Environmental Impacts of 
Spent Fuel Storage and Disposal When Considering Nuclear Power Reactor 
License Applications

AGENCY: Nuclear Regulatory Commission.

ACTION: Petitions for rulemaking; denial.

-----------------------------------------------------------------------

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying two 
petitions for rulemaking (PRMs), PRM-51-30 and PRM-51-31, submitted by 
Diane Curran on behalf of 34 environmental organizations (the 
petitioners). The petitioners request that the NRC revise certain 
regulations that concern the environmental impacts of spent fuel 
storage and disposal for nuclear power plant license applications. The 
NRC is denying the petitions because they provide an insufficient basis 
to consider a rulemaking to revise such regulations.

DATES: The dockets for the petitions, PRM-51-30 and PRM-51-31, are 
closed on May 19, 2016.

ADDRESSES: Please refer to Docket IDs NRC-2014-0014 and NRC-2014-0055, 
as appropriate, when contacting the NRC about the availability of 
information regarding these petitions. You can access publicly-
available documents related to the petitions using any of the following 
methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket IDs NRC-2014-0014 and NRC-
2014-0055. Address questions about NRC dockets to Carol Gallagher; 
telephone: 301-415-3463; email: [email protected]. For technical 
questions, contact the individual listed in the FOR FURTHER INFORMATION 
CONTACT section of this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection 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 (if it is available 
in ADAMS) is provided the first time that it is mentioned in the 
SUPPLEMENTARY INFORMATION section. For the convenience of the reader, 
instructions about obtaining materials referenced in this document are 
provided in the Section IV, Availability of Documents.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Jenny C. Tobin, Office of Nuclear 
Reactor Regulation, telephone: 301-415-2328, email: 
[email protected]; U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. The Petitions
II. Reasons for Denial
III. Determination of Petitions
IV. Availability of Documents

I. The Petitions

    Section 2.802 of title 10 of the Code of Federal Regulations (10 
CFR), ``Petition for rulemaking,'' provides an opportunity for any 
interested person to petition the Commission to issue, amend, or 
rescind any regulation. The NRC has consolidated its response to PRM-
51-30 and PRM-51-31 because both petitions make similar rulemaking 
requests. The NRC did not request public comment on PRM-51-30 and PRM-
51-31 because there was sufficient information for review and these 
issues have been well-vetted in past NRC proceedings.

PRM-51-30

    The petitioners filed the first of their two petitions on December 
20, 2013, as a part of their comments on the NRC's proposed Continued 
Storage Rule (formerly known as the Waste Confidence Decision and Rule) 
and that rule's associated generic environmental impact statement 
(Continued Storage Generic Environmental Impact Statement (GEIS)).\1\ 
The petitioners filed a corrected version of the first petition on 
January 7, 2014. The NRC published a notice of receipt of the first 
petition in the Federal Register (FR) on April 21, 2014, and assigned 
it Docket No. PRM-51-30 (79 FR 22055).
---------------------------------------------------------------------------

    \1\ The NRC published the Continued Storage Rule as a proposed 
rule on September 13, 2013 (78 FR 56776), and as a final rule on 
September 19, 2014 (79 FR 56238). As part of the final rule, all of 
the public comments on the proposed rule were addressed in NUREG-
2157, ``Generic Environmental Impact Statement for Continued Storage 
of Spent Nuclear Fuel.''
---------------------------------------------------------------------------

    The petition requests that the NRC revise certain regulations in 10 
CFR part 51 that concern the environmental impacts of spent fuel 
storage and disposal for nuclear power plants. The NRC implements its 
responsibilities under the National Environmental Policy Act (NEPA) 
through its 10 CFR part 51 regulations. The petitioners assert that the 
NRC's 10 CFR part 51 regulations are ``balkanized'' and ``disparate and 
inconsistent,'' and that these regulations should be made into a 
``cohesive and consistent whole.'' The petitioners identified the 
following NRC regulations as being within the scope of their request: 
10 CFR 51.53(c),\2\ 10 CFR 51.51 (Table S-3),\3\ 10 CFR 51.71(d),\4\ 
and Table B-1, ``Summary of

[[Page 31533]]

Findings on NEPA Issues for License Renewal on Nuclear Power Plants,'' 
in appendix B to subpart A of 10 CFR part 51 (Table B-1), as well as 
the NRC's proposed amendments to 10 CFR 51.23, as set forth in its 
September 13, 2013, proposed rule (78 FR 56776).\5\
---------------------------------------------------------------------------

    \2\ Section 51.53 is entitled ``Post construction environmental 
reports.'' Paragraph (c) describes the contents of the required 
environmental report submitted by an applicant in support of its 
application to renew a nuclear power plant's operating license.
    \3\ Table S-3 is entitled ``Table of Uranium Fuel Cycle 
Environmental Data'' and is set forth at 10 CFR 51.51. Table S-3 
shows the maximum environmental effect per annual fuel requirement 
for an operating reactor and is the basis for evaluating the 
contribution of the environmental effects of uranium mining and 
milling, the production of uranium hexafluoride, isotopic 
enrichment, fuel fabrication, reprocessing of irradiated fuel, 
transportation of radioactive materials and management of low-level 
wastes and high-level wastes related to uranium fuel cycle 
activities to the environmental costs of licensing a nuclear power 
reactor.
    \4\ Section 51.71 is entitled ``Draft environmental impact 
statement--contents.'' Paragraph (d) describes the analysis required 
to be included in draft EISs. For license renewal actions, the 
supplemental draft EIS relies on the findings and other supporting 
information in NUREG-1437, Revision 1, ``Generic Environmental 
Impact Statement for License Renewal of Nuclear Plants--Final 
Report'' (2013).
    \5\ The proposed amendments to 10 CFR 51.23 were adopted in the 
final rule (79 FR 56238; September 19, 2014). Section 51.23 is 
entitled ``Environmental impacts of continued storage of spent 
nuclear fuel beyond the licensed life for operation of a reactor'' 
and states that the Commission ``has generically determined that the 
environmental impacts of continued storage of spent nuclear fuel 
beyond the licensed life for operation of a reactor are those 
impacts identified in NUREG-2157 [the Continued Storage GEIS]'' (10 
CFR 51.23(a)).
---------------------------------------------------------------------------

    Section 51.53(c) and a portion of 10 CFR 51.71(d) are premised upon 
NUREG-1437, ``Generic Environmental Impact Statement for License 
Renewal of Nuclear Plants,'' an environmental impact statement (EIS) 
initially published in May 1996 and then revised and updated in June 
2013 (License Renewal GEIS).\6\ The License Renewal GEIS describes the 
potential environmental impacts of renewing the operating license of a 
nuclear power plant for an additional 20 years. The NRC classifies the 
license renewal issues described in the License Renewal GEIS as either 
generic or site-specific. Generic issues concern environmental impacts 
that are common to all nuclear power plants. Site-specific issues are 
addressed initially by the license renewal applicant (i.e., a nuclear 
power plant licensee seeking a renewal of its operating license under 
the NRC's license renewal regulations in 10 CFR part 54) in its 
environmental report, which is required by 10 CFR 51.45, and then by 
the NRC, in its supplemental environmental impact statement (SEIS) to 
the License Renewal GEIS prepared for each license renewal 
application.\7\ For any given license renewal action, the License 
Renewal GEIS together with the site-specific SEIS (along with any other 
applicable generic EISs) documents the NRC's NEPA analysis.
---------------------------------------------------------------------------

    \6\ The current version of the License Renewal GEIS is NUREG-
1437, Revision 1.
    \7\ 10 CFR 51.95(c).
---------------------------------------------------------------------------

    In Table B-1, generic issues are designated as ``Category 1'' 
issues and site-specific issues are designated as ``Category 2'' 
issues. Absent new and significant information, Category 1 issues are 
not required to be re-analyzed for an applicant's environmental report 
or the staff's SEIS. Table B-1 codifies the findings of the License 
Renewal GEIS and is wholly concerned with nuclear power plant license 
renewal.\8\
---------------------------------------------------------------------------

    \8\ Table B-1 was amended to reflect the June 2013 License 
Renewal GEIS update. The NRC rule amending Table B-1 and other 10 
CFR part 51 regulations was published in the Federal Register on 
June 20, 2013 (78 FR 37282).
---------------------------------------------------------------------------

    The purpose of Table S-3 is to support the environmental review for 
new reactor license applications. In addition to considering the 
environmental impacts of the construction and operation of a commercial 
nuclear power reactor, the NRC considers the contributions from the 
uranium fuel cycle activities.\9\ Table S-3 identifies the uranium fuel 
cycle impacts, generically, for new reactor license applications.
---------------------------------------------------------------------------

    \9\ Uranium fuel cycle activities include ``uranium mining and 
milling, the production of uranium hexafluoride, isotopic 
enrichment, fuel fabrication, spent fuel storage and disposal'' (44 
FR 45362; August 2, 1979).
---------------------------------------------------------------------------

    The petitioners also assert that the NRC's proposed amendments to 
10 CFR 51.23, as set forth in the NRC's proposed rule of September 13, 
2013 (78 FR 56776), are ``confusing'' to the extent that the proposed 
continued storage regulation included safety findings, which should be 
placed in either 10 CFR parts 50 or 52, and because the proposed 
regulation no longer includes the ``reasonable assurance'' finding. The 
petitioners also assert that Table S-3 has been ``repudiated'' and that 
it is inconsistent with the findings in Table B-1. In addition, the 
petitioners assert that Table B-1 does not include a finding as to 
whether offsite spent fuel disposal impacts are significant or not.
    The petitioners further assert that 10 CFR 51.53(c) and 51.71(d) 
``excuse'' license renewal applicants and the NRC, respectively, from 
addressing spent fuel storage impacts in individual license renewal 
cases. As both regulatory provisions are premised upon the findings in 
the License Renewal GEIS, the petitioners, essentially, object to the 
finding that impacts of spent fuel storage during the license renewal 
period are a Category 1, or generic, issue and have a ``small'' impact. 
Finally, the petitioners assert that the economic costs of spent fuel 
storage and disposal should be incorporated into reactor cost-benefit 
analyses and that the need for power should be considered in license 
renewal decisions.

PRM-51-31

    The petitioners filed their second petition on February 18, 2014. 
The petitioners' second petition asserts that COMSECY-13-0030, ``Staff 
Evaluation and Recommendation for Japan Lessons-Learned Tier 3 Issue on 
Expedited Transfer of Spent Fuel'' \10\ (the expedited spent fuel 
transfer analysis), and NUREG-2161, ``Consequence Study of a Beyond-
Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I 
Boiling Water Reactor,'' \11\ constitute new and significant 
information. The petitioners request that the NRC ``duly modify NRC's 
regulations that make or rely on findings regarding the environmental 
impacts of spent fuel storage during reactor operation, including Table 
B-1 and all regulations approving standardized reactor designs.''
---------------------------------------------------------------------------

    \10\ COMSECY-13-0030, ``Memorandum from Mark Satorius, Executive 
Director for Operations, to NRC Commissioners Re: Staff Evaluation 
and Recommendation for Japan Lessons-Learned Tier 3 Issue on 
Expedited Transfer of Spent Fuel'' (November 12, 2013), and 
documents cited therein.
    \11\ NUREG-2161, ``Consequence Study of a Beyond-Design-Basis 
Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling 
Water Reactor'' (September 2014).
---------------------------------------------------------------------------

    The NRC published a notice of receipt of the second petition in the 
Federal Register on May 1, 2014, and assigned it Docket No. PRM-51-31 
(79 FR 24595). The petitioners subsequently submitted an ``amended 
petition'' for rulemaking on June 26, 2014, seeking to add ``the 
observations made by [former] Chairman Macfarlane in her dissenting 
comments'' on the expedited spent fuel transfer analysis. The 
petitioners assert that the former Chairman's dissenting vote on the 
expedited spent fuel transfer analysis provides ``new and significant'' 
information that would affect the NRC's environmental reviews. The NRC 
treated the ``amended petition'' as a supplement to the February 18, 
2014, petition and re-noticed the petition, along with the supplement, 
for informational purposes only (79 FR 42989; July 24, 2014).

II. Reasons for Denial

    The NRC is denying the petitions because the petitioners have not 
presented a sufficient basis to amend the regulations. The petitioners 
largely contend that they present new and significant information that 
requires the agency to revisit its previous NEPA analyses that form the 
bases for the challenged regulations. Under Commission precedent, 
information that provides a ``seriously different picture'' of the 
environmental consequences than previously considered is new and 
significant information.\12\ As explained below, the NRC finds that the 
petitioners' information does not provide a ``seriously different 
picture'' of the environmental consequences of spent fuel storage. As a 
result, the NRC concludes that the current technical

[[Page 31534]]

bases for those regulations challenged by the petitioners remain sound.
---------------------------------------------------------------------------

    \12\ Hydro Res. Inc., CLI-99-22, 50 NRC 3, 14 (1999) (quoting 
Sierra Club v. Froehike, 816 F.2d 205, 210 (5th Cir. 1987)); see 
generally Marsh v. Oregon Natural Resources Council, 490 U.S. 360 
(1989).
---------------------------------------------------------------------------

The petitioners assert that the NRC's environmental review regulations 
are ``balkanized''

    The petitioners assert that ``[t]he NRC's piecemeal and disjointed 
approach to the consideration of spent fuel storage and disposal 
impacts violates the NEPA principle that an agency may not segment its 
analysis in a manner that conceals the environmental significance of 
its action.'' Segmentation refers to instances where a Federal agency 
splits a project into smaller components to avoid preparing an EIS, or 
where an agency does not consider related actions in a single EIS.\13\ 
The NRC does not agree that its approach to the consideration of spent 
fuel storage and disposal impacts is piecemeal and disjointed or that 
NRC's environmental review regulations in 10 CFR part 51 are 
``balkanized'' or result in NEPA segmentation.
---------------------------------------------------------------------------

    \13\ Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 
(D.C. Cir. 2014) (``An agency impermissibly `segments' NEPA review 
when it divides connected, cumulative, or similar federal actions 
into separate projects and thereby fails to address the true scope 
and impact of the activities that should be under consideration.''); 
see also Council on Environmental Quality (CEQ) regulation, 40 CFR 
1508.25.
---------------------------------------------------------------------------

    While the petitioners have pointed to some instances where the 
agency relies on generic analyses as part of its overall NEPA review 
for certain licensing actions, the petitioners have not shown any case 
where the NRC artificially divided a licensing action into smaller 
components. Rather, as discussed below, the NRC fully considers the 
environmental impacts of each licensing action through a combination of 
site-specific EISs and, where appropriate, GEISs. The use of generic 
analyses by the NRC to support licensing decisions has been upheld by 
the U.S. Supreme Court.\14\
---------------------------------------------------------------------------

    \14\ In a 1983 decision concerning a challenge to Table S-3, the 
U.S. Supreme Court stated that ``[t]he generic method chosen by the 
agency is clearly an appropriate method of conducting the hard look 
required by NEPA.'' Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 
101, 103 S.Ct. 2246, 2254 (1983).
---------------------------------------------------------------------------

    In addition to the License Renewal GEIS and the Continued Storage 
GEIS, the NRC prepares EISs for all new reactor and license renewal 
applications. Within the umbrella of both its generic and site-specific 
EISs, the NRC adequately considers the spent fuel storage impacts of 
its licensing decisions. The EISs for new nuclear power reactors 
describe the environmental impacts from the onsite storage and 
management of spent nuclear fuel and offsite disposal based on 40 years 
of reactor operation, which is the maximum initial term of a reactor 
license.\15\ The License Renewal GEIS describes the environmental 
impacts from the onsite storage and offsite disposal of spent nuclear 
fuel generated during an additional 20 years of reactor operation 
(i.e., 20 years beyond the expiration of the initial license).\16\ The 
Continued Storage GEIS describes the environmental impacts of the 
continued storage of spent nuclear fuel beyond the licensed life for 
operation of a reactor. Additionally, spent fuel storage and disposal 
impacts are considered by the NRC staff during each new reactor license 
and license renewal environmental review to determine if there is new 
and significant information that could alter the generic conclusions.
---------------------------------------------------------------------------

    \15\ 10 CFR 52.104.
    \16\ 10 CFR 54.31.
---------------------------------------------------------------------------

    Moreover, the underlying technical bases for the consideration of 
spent fuel storage and disposal impacts in EISs for new power reactor 
licenses and the License Renewal GEIS are the same. Combined with the 
Continued Storage GEIS, these NEPA documents provide a complete 
analysis of spent fuel storage and disposal environmental impacts. The 
regulations in 10 CFR part 51 are premised upon, and support, this NEPA 
framework of generic EISs supported by site-specific EISs.
    The NRC's approach improves the effectiveness of environmental 
reviews by generically resolving issues that are not substantially 
different from one proposed action to another, while still ensuring 
that those impacts are considered in subsequent licensing actions. The 
NRC conducts environmental and safety reviews for the issuance of 
licenses for the operation of nuclear power plants including the onsite 
storage of spent nuclear fuel. The NRC has also conducted separate 
environmental and safety reviews for the issuance of specific licenses 
for the storage of spent nuclear fuel in independent spent fuel storage 
installations (ISFSIs).\17\ With respect to spent fuel disposal, an EIS 
would fully discuss the environmental impacts for any proposed action 
to dispose of spent fuel in a geologic repository. In addition, the NRC 
has previously determined the potential radiological effects of offsite 
spent fuel disposal in a permanent repository or some other permanent 
disposal scenario while evaluating the environmental effects of the 
uranium fuel cycle.\18\
---------------------------------------------------------------------------

    \17\ NRC regulation, 10 CFR 72.3, defines an ISFSI as ``a 
complex designed and constructed for the interim storage of spent 
nuclear fuel.''
    \18\ See WASH-1248, ``Environmental Survey of the Uranium Fuel 
Cycle,'' April 1974, and NUREG-0116, ``Environmental Survey of the 
Reprocessing and Waste Management Portions of the LWR Fuel Cycle,'' 
October 1976.
---------------------------------------------------------------------------

    The consideration of spent fuel storage and disposal environmental 
impacts builds upon the knowledge gained from previous environmental 
reviews and associated rulemakings and is consistent throughout the 
NRC's regulations in that the NRC relies on the same technical bases to 
make impact determinations. The only differences are the timeframes in 
which these impacts occur and whether the impacts occur during 
continued onsite storage or offsite disposal. In each of these 
regulatory situations, the technical bases remain the same.
    Tables S-3 and B-1 in the NRC's regulations were developed at 
separate times for different purposes but have common technical bases. 
The 2014 continued storage rule, and its supporting Continued Storage 
GEIS, updated the NRC's NEPA findings in Table B-1 for issues 
pertaining to ``Onsite storage of spent nuclear fuel'' and ``Offsite 
radiological impacts of spent nuclear fuel and high-level waste 
disposal.'' In doing so, the NRC effectively incorporated the NEPA 
analysis of continued spent fuel storage into license renewal. For new 
reactors, 10 CFR 51.23(b) directs that the impact determinations in 
NUREG-2157 shall be deemed incorporated into the associated EIS. And 
for licensing actions for which an environmental assessment (EA) is 
being prepared (such as an ISFSI built under a specific license at a 
site occupied by a nuclear power reactor), 10 CFR 51.30(b) directs that 
the impacts determinations in NUREG-2157 regarding the continued 
storage of spent fuel shall be considered, if such impacts are relevant 
to the proposed action.
    For a given future reactor licensing action that relies on the 
Continued Storage GEIS and rule, the NRC will incorporate the 
environmental impacts analyzed in the Continued Storage GEIS into the 
overall licensing decision. The NRC's NEPA review for each licensing 
action that involves either a new reactor or a license renewal 
application will fully account for the reasonably foreseeable impacts 
of spent fuel storage and disposal, including, where applicable, the 
impacts that have been analyzed generically in the Continued Storage 
GEIS and License Renewal GEIS. The NRC concludes that its 10 CFR part 
51 environmental review regulations are internally consistent and are 
not inappropriately segmented, and

[[Page 31535]]

therefore, there is no reason to amend these regulations.

The petitioners assert that Table S-3 has been repudiated

    The petitioners' expert, Dr. Arjun Makhijani, in a declaration 
attached to the petitioners' January 2014 submission, states that the 
Table S-3 finding regarding the impacts of spent fuel disposal is no 
longer valid because the finding is based upon the disposal of spent 
fuel in a bedded salt repository and that such disposal would result in 
zero releases of radioactive effluents, and therefore, zero 
radiological dose. Dr. Makhijani asserts that

[m]oreover, we note that Table S-3 at 10 CFR 51.51 is invalid for 
estimating high-level waste disposal impacts. Among other things, 
its underlying assumption of disposal in a bedded salt repository 
for spent fuel disposal was repudiated by the NRC itself in 
2008.\19\
---------------------------------------------------------------------------

    \19\ ``Declaration of Dr. Arjun Makhijani Regarding the Waste 
Confidence Proposed Rule and Draft Generic Environmental Impact 
Statement,'' attached to PRM-51-30 (paragraph 2.8 on p. 6).

The petitioners, through Dr. Makhijani's declaration, assert that the 
NRC must prepare a new analysis concerning the impacts of spent fuel 
disposal.
    Contrary to Dr. Makhijani's assertion, the NRC has never repudiated 
Table S-3; the original assumption of spent fuel disposal in a bedded 
salt repository is not germane to the overall purpose of Table S-3 nor 
does the change in media for storing spent fuel undermine the findings 
of Table S-3. Dr. Makhijani's statement evaluates Table S-3 in 
isolation and does not consider later developments in the NRC's 
regulatory policy and U.S. Supreme Court precedent. The Atomic Energy 
Commission, the predecessor agency of the NRC, promulgated the initial 
version of Table S-3 on April 22, 1974 (39 FR 14188). Since the 
promulgation of Table S-3, the Nuclear Waste Policy Act of 1982 (NWPA) 
adopted deep geologic disposal as the nation's solution for spent fuel 
disposal. Furthermore, in 1983 the U.S. Supreme Court, in its Baltimore 
Gas & Elec. Co. v. National Resources Defense Council (NRDC) 
decision,\20\ upheld both Table S-3 and the approach taken by the NRC 
in using Table S-3 data in individual licensing proceedings. In 
Baltimore Gas & Elec. Co. v. NRDC, the U.S. Supreme Court recognized 
that the purpose of Table S-3 was not to evaluate or select the most 
effective long-term waste disposal technology or develop site selection 
criteria.\21\ The Court noted that the NRC's intent, as stated in the 
1979 rule revising Table S-3 (44 FR 45362; August 2, 1979), was to 
estimate the impact of the long-term waste disposal method 
conservatively.\22\
---------------------------------------------------------------------------

    \20\ Baltimore Gas & Elec. Co. v. National Resources Defense 
Council, 462 U.S. 87, 103 S.Ct. 2246 (1983).
    \21\ Id., 462 U.S. at 102, 103 S.Ct. at 2254-55.
    \22\ Id., 462 U.S. at 102, 103 S.Ct. at 2255.
---------------------------------------------------------------------------

    This conservative analysis included the NRC's use of the zero 
release assumption.\23\ The Court also noted that other aspects of 
Table S-3 were premised upon the assumption that ``all volatile 
materials in the fuel would escape to the environment'' prior to the 
sealing of the geologic repository; this assumption balanced the zero-
release assumption, an approach that the Court found acceptable.\24\ In 
addition to concluding that it was ``not unreasonable'' for the NRC to 
employ the zero release assumption, the Court stated that ``the zero-
release assumption is but a single figure in an entire Table, which the 
Commission expressly designed as a risk-averse estimate of the 
environmental impact of the fuel cycle . . . [a] reviewing court should 
not magnify a single line item beyond its significance as only part of 
a larger Table.'' \25\
---------------------------------------------------------------------------

    \23\ Id. (``The zero-release assumption cannot be evaluated in 
isolation. Rather, it must be assessed in relation to the limited 
purpose for which the Commission made the assumption.'').
    \24\ Id., 462 U.S. at 103, 103 S.Ct. at 2255.
    \25\ Id., 462 U.S. at 102-03, 103 S.Ct. at 2255.
---------------------------------------------------------------------------

    Following the enactment of the NWPA and the Baltimore Gas & Elec. 
Co. v. NRDC decision, the NRC issued a Waste Confidence decision in 
1984 (49 FR 34658; August 31, 1984) and subsequently updated this 
decision in 1990 (55 FR 38472; September 18, 1990) and again in 2010 
(75 FR 81032; December 23, 2010). In its 1990 revision, the Commission 
discussed the relationship of Table S-3 with its Waste Confidence 
decision. Specifically, the Commission noted that the promulgation of 
Table S-3 was the outgrowth of efforts to generically evaluate the 
environmental impacts of the operation of a light water reactor and in 
so doing, that Table S-3 assigned numerical values for environmental 
costs resulting from uranium fuel cycle activities to support 1 year of 
light water reactor operation. The number of curies indicated for spent 
fuel disposal in Table S-3 reflects the total volume of waste material, 
not the amount of radioactivity projected to be released from the 
repository--an issue that is to be addressed in the safety and 
environmental review for the actual geologic repository itself.
    Table S-3 lists environmental data to be used by applicants and the 
NRC staff for new reactor license applications under 10 CFR parts 50 
and 52. Specifically, Table S-3 is the basis for evaluating the 
environmental effects of the portions of the uranium fuel cycle for 
light water reactors that occur before new fuel is delivered to the 
plant and after spent fuel is removed from the plant site. The NRC has 
made generic determinations that the radiological impacts of the 
uranium fuel cycle on individuals off-site will remain at or below the 
Commission's regulatory limits (e.g., the public dose limits set forth 
in 10 CFR part 20). The NRC described this generic determination and 
conclusion in the License Renewal GEIS.\26\ Additionally, as part of 
the new reactor EISs under 10 CFR part 52 and the License Renewal GEIS, 
the NRC concluded that the assumptions and methodology used in 
preparing Table S-3 were conservative enough that the impacts described 
by the use of Table S-3 would still be bounding. In these EISs, the 
staff discussed why the contemporary fuel cycle impacts are below those 
identified in Table S-3 and as such, Table S-3 remains bounding.\27\
---------------------------------------------------------------------------

    \26\ 2013 GEIS section 4.12.1.1, p. 4-185.
    \27\ For example, see the Bell Bend Nuclear Power Plant EIS, 
NUREG 2179, vol. 1, section 6.1 (April 2015), for a discussion of 
the NRC determination that Table S-3 remains bounding.
---------------------------------------------------------------------------

    The NRC concludes that Table S-3 is bounding because, as reflected 
in Section 4.12.1.1 of the License Renewal GEIS, industry practice has 
shown that the current fleet of reactors uses nuclear fuel more 
efficiently due to higher fuel burnup. Therefore, less uranium fuel per 
year of reactor operation is required than in the past to generate the 
same amount of electricity. Fewer spent fuel assemblies per reactor-
year are generated, hence, the waste storage and deep geologic 
repository impacts are lessened. The petitioners have not provided any 
new and significant information that would cause the NRC to revisit 
these conclusions regarding Table S-3.
    While the NRC and the U.S. Department of Energy (DOE) have, in the 
past, concentrated efforts regarding geologic repository research and 
licensing efforts on a non-bedded salt repository, characterizing the 
resulting analysis as confirming that there is a risk of 
``significant'' radiation releases and radiation doses from deep 
geologic disposal is not accurate. As stated in Volume 1, Appendix B of 
the Continued Storage GEIS, ``the consensus within the scientific and 
technical community engaged in nuclear waste management is that safe 
geologic disposal is achievable with currently available technology. 
After decades of research into various geological media, no

[[Page 31536]]

insurmountable technical or scientific problem has emerged to challenge 
the conclusion that safe disposal of spent fuel and high-level 
radioactive waste can be achieved in a mined geologic repository.'' 
\28\
---------------------------------------------------------------------------

    \28\ NUREG-2157, pg. 2 of Appendix B, Section B.2.1.
---------------------------------------------------------------------------

    The issue of concern to the NRC in considering the disposal of 
spent nuclear fuel in a geologic repository has not been whether a 
zero-release assumption will be met or ultimately the type of 
environmental media (e.g., bedded salt, basalt, granite, etc.) selected 
for the repository but rather that the appropriate standards are 
established and met, thereby ensuring that any releases of radioactive 
materials to the environment would not be inimical to public health and 
safety. Radiation dose limits for disposal of radioactive materials are 
typically no greater than 100 mrem/yr (such as the U.S. Environmental 
Protection Agency (EPA) limits for the proposed Yucca Mountain geologic 
repository). Although a geologic repository meeting such radiation dose 
limits is not a ``zero'' release facility, compliance with these dose 
limits would provide adequate protection of public health and safety. 
Given the substantial effort developing repositories, it is reasonable 
to assume geologic disposal facilities can be developed within a 
variety of geologic formations and types that would be protective of 
public health and safety. For example, the NRC-National Academy of 
Sciences (NAS) study, referred to by Dr. Makhijani, concludes on the 
overall performance of candidate repositories that ``[a]ll 
radionuclides in unreprocessed spent fuel can be adequately 
contained.'' \29\ In conclusion, the NRC has determined that Table S-3 
is still bounding and that the petitioners have not provided new and 
significant information that requires the NRC to amend Table S-3.
---------------------------------------------------------------------------

    \29\ NRC-NAS Report, ``A Study of the Isolation System for 
Geologic Disposal of Radioactive Wastes,'' p. 8 and 11.
---------------------------------------------------------------------------

The petitioners assert that Table S-3 and Table B-1 are inconsistent 
with each other

    The petitioners assert that Table S-3 and Table B-1 are 
inconsistent with each other. The petitioners state in PRM-51-30, 
``[t]he inconsistencies and questions raised by comparing Table S-3 and 
Table B-1 are unacceptable under NEPA's standard for clarity and rigor 
of scientific analysis.'' In his comments, Dr. Makhijani stated,

    Table S-3 summarizes the NRC's conclusion that the impacts of 
spent fuel disposal will be zero, based on the assumption that spent 
fuel will be disposed of in a bedded salt repository. Proposed Table 
B-1 contradicts Table S-3 by concluding that long-term doses could 
be as high as 100 millirem per year. But the NRC does not attempt to 
reconcile proposed Table B-1 and Table S-3. . . .\30\
---------------------------------------------------------------------------

    \30\ Makhijani Declaration attached to PRM-51-30, p. 9.

    The environmental effects of operating uranium fuel cycle 
facilities including radioactive waste disposal at a geologic 
repository were evaluated in two NRC documents, WASH-1248 and NUREG-
0116. The results of these evaluations were summarized in and 
promulgated as Table S-3 in 10 CFR 51.51(b). Paragraph (a) in 10 CFR 
---------------------------------------------------------------------------
51.51 states:

    [E]very environmental report prepared for the construction 
permit stage or early site permit stage or combined license stage of 
a light-water-cooled nuclear power reactor, and submitted on or 
after September 4, 1979, shall take Table S-3, Table of Uranium Fuel 
Cycle Environmental Data, as the basis for evaluating the 
contribution of the environmental effects of uranium mining and 
milling, the production of uranium hexafluoride, isotopic 
enrichment, fuel fabrication, reprocessing of irradiated fuel, 
transportation of radioactive materials and management of low-level 
wastes and high-level wastes related to uranium fuel cycle 
activities to the environmental costs of licensing the nuclear power 
reactor. Table S-3 shall be included in the environmental report and 
may be supplemented by a discussion of the environmental 
significance of the data set forth in the table as weighed in the 
analysis for the proposed facility.

    The environmental effects or issues summarized in Table S-3 
include: Land use; water consumption and thermal effluents; radioactive 
releases; burial of transuranic, high-level and low-level radioactive 
wastes; and radiation doses from transportation and occupational 
exposures. The contributions in Table S-3 for reprocessing, waste 
management, and transportation of wastes are maximized for either of 
the two fuel cycles (i.e., a fuel cycle that includes spent fuel 
reprocessing and one that does not)--the cycle that results in the 
greater environmental impact, and thus the most conservative analysis, 
is used. The environmental impact values are expressed in terms 
normalized to show the potential impacts attributable to processing the 
fuel required for the operation of a 1,000-MWe nuclear power plant for 
1 year at an 80 percent availability factor to produce about 800 MW-yr 
of electricity. This normalization is referred to as one reference 
reactor year. For each environmental consideration, Table S-3 presents 
a result that has been integrated over the entire uranium fuel cycle 
except during reactor operations.\31\ The environmental impacts of 
reactor operations are addressed in the EIS prepared for each 
individual reactor licensing action (i.e., an EIS for a new reactor 
licensing application or a SEIS for a license renewal application). 
Although certain fuel cycle operations and fuel management practices 
have changed over the years, the assumptions and methodology used in 
preparing Table S-3 were, and continue to be, conservative enough that 
the impacts described in Table S-3 are still bounding.
---------------------------------------------------------------------------

    \31\ The only exception is that the waste quantities listed 
under the entry called ``solids (buried onsite)'' also include 
wastes generated at the reactor.
---------------------------------------------------------------------------

    In similar fashion, the NRC assessed the generic environmental 
impacts of renewing the operating license for a nuclear power plant in 
the License Renewal GEIS. Table B-1 summarizes the Commission's 
findings on the scope and magnitude of the environmental effects of 
renewing the operating license for a nuclear power plant, based on 
technical bases documented in the 2013 update of the License Renewal 
GEIS. Subject to an evaluation of those Category 2 issues, which 
require further site-specific analysis, and the identification of 
possible new and significant information for any Category 1 or Category 
2 issue, Table B-1 represents the analysis of the environmental impacts 
associated with the renewal of any operating license and is to be used 
in accordance with 10 CFR 51.95(c). On a 10-year cycle, the Commission 
intends to review the findings in Table B-1 and update the table if 
necessary. The latest review and update was completed in 2013.
    Both the License Renewal GEIS and Table B-1 incorporate Table S-3 
by reference.\32\ Tables S-3 and B-1 were developed at separate times 
for different purposes. However, the technical bases for the 
consideration of spent fuel storage and disposal impacts for both 
tables are the same, and as such, the tables are consistent with each 
other. The impact of the spent nuclear fuel disposal finding in Table 
B-1 (i.e., ``Offsite radiological impacts of spent nuclear fuel and 
high-level waste disposal'') is consistent with the solid waste 
disposal information presented in Table S-3, as the findings in Table 
B-1 could not have been reached without the environmental effects 
evaluations conducted in WASH-1248 and NUREG-

[[Page 31537]]

0116, which are summarized in Table S-3.
---------------------------------------------------------------------------

    \32\ Table B-1 references Table S-3 under the ``Uranium Fuel 
Cycle'' section of the table.
---------------------------------------------------------------------------

    Moreover, even if there were differences in the assumptions in 
Table S-3 and Table B-1, those differences are not significant from a 
NEPA perspective. As noted above, the issue of concern to the NRC in 
considering the environmental impacts of the disposal of spent nuclear 
fuel in a geologic repository has not been whether a zero-release 
assumption will be met or ultimately the type of environmental media 
(e.g., bedded salt, basalt, granite, etc.) selected for the repository 
but rather that the appropriate standards are established and met, 
thereby ensuring that any releases of radioactive materials to the 
environment would not be inimical to public health and safety. For NEPA 
purposes, such releases within regulatory limits are clearly not 
significant radiation releases and radiation doses. The NRC concludes 
that Tables B-1 and S-3 are consistent with each other and there is no 
technical or regulatory reason to amend either table.

No significance determination for ``off-site spent fuel disposal'' in 
Table B-1

    The petitioners assert that Table B-1, which codifies the findings 
of the License Renewal GEIS, does not include a finding as to whether 
the impacts of spent fuel disposal are significant or not. The 
``significance determination'' in NEPA is made by an agency in 
determining whether it is necessary to prepare an EIS for a given 
proposed action.\33\ With respect to the environmental review of 
reactor license renewal applications, the NRC has already prepared a 
GEIS, the License Renewal GEIS. In addition, for each site-specific 
license renewal action, the NRC prepares a SEIS. Therefore, the lack of 
a finding as to whether the impacts of spent fuel disposal are 
``significant'' or ``not significant'' is irrelevant, as the NRC has 
already satisfied the ``significance determination'' by preparing a 
generic EIS and by its regulatory requirement to prepare a site-
specific EIS for each reactor license renewal application it considers.
---------------------------------------------------------------------------

    \33\ Lower Alloways Creek Tp. v. Public Service Elec. & Gas Co., 
687 F.2d 732, 740 (3rd Cir. 1987) (``[A]n agency must undertake a 
comprehensive assessment of the expected effects of a proposed 
action before it can determine whether that action is `significant' 
for NEPA purposes . . . . [i]f, however, it is clear that the human 
environment will be `significantly' affected, then a full-scale EIS 
is mandatory.''); Blue Mountains Biodiversity Project v. Blackwood, 
161 F.3d 1208, 1211-14, and 1216 (9th Cir. 1998) (Forest Service 
made clear error of judgment in its decision to prepare an 
environmental assessment, rather than an environmental impact 
statement); see also Mandelker, NEPA Law and Litigation, 2d, 
Sec. Sec.  8.48-8.58.
---------------------------------------------------------------------------

    Moreover, the NRC has extensively analyzed spent fuel storage and 
disposal environmental impacts in Table S-3, and in various EISs, 
namely, the License Renewal GEIS, the Continued Storage GEIS, and SEISs 
for individual license renewal actions. The License Renewal GEIS 
provides the regulatory and technical basis for the Commission's 
findings and the associated impact significance levels for each 
environmental NEPA issue listed in Table B-1. The NRC's evaluation of 
the environmental impacts of the issue, ``Offsite radiological impacts 
of spent nuclear fuel and high-level waste disposal,'' \34\ was 
documented in the 1996 License Renewal GEIS, which relied upon the 
findings of the NRC's 1990 Waste Confidence Decision and Rule. In 
addition, the NRC analyzed the EPA's generic repository standards and 
dose limits in existence at the time and concluded that offsite 
radiological impacts warranted a Category 1 (generic) determination (61 
FR 28467; June 5, 1996). However, due to the decision of the U.S. Court 
of Appeals for the DC Circuit in New York v. NRC and its remand of the 
2010 Waste Confidence Decision and Rule (75 FR 81032; December 23, 
2010), the NRC was not able to complete its review and update of the 
impact finding for this issue in the 2013 License Renewal GEIS (NUREG-
1437, Revision 1) and update of Table B-1. As a result, the 2013 
License Renewal GEIS and rule (78 FR 37282; June 20, 2013) reclassified 
the issue from Category 1 with no impact level assigned, to an 
uncategorized issue with an uncertain impact level.
---------------------------------------------------------------------------

    \34\ This issue was named ``Offsite radiological impacts (spent 
fuel and high level waste disposal)'' in the 1996 license renewal 
GEIS and rule.
---------------------------------------------------------------------------

    On August 26, 2014, the Commission approved the Continued Storage 
Rule and its associated GEIS (Continued Storage GEIS) amending 10 CFR 
part 51 to revise the generic determination on the environmental 
impacts of continued storage of spent nuclear fuel beyond the licensed 
life for operation of a reactor. In making conforming changes to the 
Table B-1 entry for the issue ``Offsite radiological impacts of spent 
nuclear fuel and high-level waste disposal,'' the final rule restored 
the Category 1 designation and references the existing radiation 
protection standards for Yucca Mountain instead of making a single 
impact finding.
    The NRC's practice, once it has determined to prepare an EIS, has 
been to assign a significance level to most potential environmental 
impacts, by resource area or environmental issue, arising from the 
proposed action. These levels are ``Small, Moderate, and Large.'' The 
assigning of these levels to any given impact is not required by law; 
it is solely a matter of NRC practice. Neither the Council on 
Environmental Quality's nor the NRC's regulations for implementing NEPA 
under 10 CFR part 51 explicitly require an agency to assign a single 
significance level to environmental impact issues; CEQ regulations 
state that ``[i]mpacts shall be discussed in proportion to their 
significance'' in the context of preparing environmental impact 
statements for agency actions.\35\ Further, NRC does not assign such a 
level to every resource area or environmental issue covered by a given 
EIS. The NRC only assigns a single significance level for a generic 
issue where it is meaningful and appropriate to do so when considering 
both the context and intensity of a potential environmental impact.\36\
---------------------------------------------------------------------------

    \35\ 40 CFR 1502.2(b).
    \36\ See CEQ regulation 40 CFR 1508.27, which defines the term 
``significantly,'' in relation to both ``context'' and 
``intensity.''
---------------------------------------------------------------------------

    In this regard, the NRC has never assigned a single impact 
significance level to the issue of ``Offsite radiological impacts of 
spent nuclear fuel and high-level waste disposal.'' Although the status 
of a repository, including a repository at Yucca Mountain, remains 
uncertain and beyond the control of the NRC, the NRC has adopted EPA's 
radiation protection standards (40 CFR part 197) for Yucca Mountain 
because they are the current standard for ensuring that the ultimate 
disposal of spent nuclear fuel will present no undue risk to public 
health and safety. As discussed in the Continued Storage GEIS, it is 
reasonable to believe that wherever a geologic repository is ultimately 
sited, radiological protection standards comparable to those 
established for Yucca Mountain will be issued if necessary. Given these 
considerations, the Commission's narrative finding in Table B-1 with 
respect to the issue of offsite disposal is appropriate. That finding 
states ``[t]he Commission concludes that the impacts would not be 
sufficiently large to require the NEPA conclusion, for any plant, that 
the option of extended operation under 10 CFR part 54 should be 
eliminated. Accordingly, while the Commission has not assigned a single 
level of significance for the impacts of spent fuel and high level 
waste disposal, this issue is considered Category 1.'' Therefore, the 
Commission, by rule, has determined that a single significance 
determination is not necessary.

[[Page 31538]]

    The NRC concludes that the petitioners' significance determination 
argument does not provide a ``seriously different picture'' of the 
environmental consequences of spent fuel storage and disposal. Instead, 
based on the above, the NRC concludes that the petitioners' assertion 
that NEPA requires an agency to assign a single level of significance 
to the issue in question is without merit and that the petitioners' 
proposed amendment to the NRC's finding for the issue, ``Offsite 
radiological impacts of spent nuclear fuel and high-level waste 
disposal,'' in Table B-1 in appendix B to subpart A of 10 CFR part 51 
is not necessary.

The petitioners assert that license renewal applicants in 10 CFR 
51.53(c) and NRC staff in 10 CFR 51.71(d) are excused from addressing 
spent fuel storage impacts in license renewal environmental reviews

    The NRC disagrees with the petitioners' assertion that the NRC's 
regulations in 10 CFR 51.53(c) and 51.71(d) ``excuse license renewal 
applicants and the NRC from addressing spent fuel storage impacts in 
license renewal cases.'' The NRC has determined that the potential 
environmental impacts of spent fuel storage are of a generic nature and 
as such, do not need to be re-analyzed for every license renewal 
action. As mentioned previously, for future reactor license renewal 
applications that rely on the Continued Storage and License Renewal 
GEISs, the NRC will incorporate the environmental impacts analyzed in 
the Continued Storage GEIS as well as in the License Renewal GEIS into 
the overall NEPA analysis supporting its licensing decision. The U.S. 
Supreme Court has upheld the use of generic environmental analyses by 
the NRC.\37\ Moreover, as part of its environmental review for each 
license renewal application, the NRC reviews both generic and site-
specific issues for new and significant information. In the event that 
the NRC determines that there is new and significant information, the 
NRC will consider such information when preparing the SEIS for that 
particular licensing action and, if necessary, will also determine 
whether the License Renewal GEIS or Continued Storage GEIS should be 
revised accordingly.
---------------------------------------------------------------------------

    \37\ Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. at 101, 103 
S.Ct. at 2254 (``The generic method chosen by the agency is clearly 
an appropriate method of conducting the hard look required by 
NEPA.'').
---------------------------------------------------------------------------

    Moreover, the quality of the NRC's environmental analysis of spent 
fuel storage is not dependent on whether the NRC prepares a site-
specific or generic analysis. In developing both the License Renewal 
GEIS and the Continued Storage GEIS, the NRC employed assumptions, 
including those based upon reactor licensee operating experience, that 
are sufficiently conservative to bound the predicted impacts such that 
any variances that may occur from site to site are unlikely to result 
in environmental impact determinations that are greater than those 
presented in both GEISs.\38\ In addition, recent spent fuel studies 
(including the expedited spent fuel transfer regulatory analysis 
included in COMSECY-13-0030 and NUREG-2161) continue to support the 
findings of the License Renewal GEIS. Though the studies may contain 
``new'' information, the information is not ``significant'' for the 
purpose of the environmental analysis. The NUREG-2161 compared spent 
fuel pool accident consequences from previous research studies and 
determined that they were of the same magnitude. Finally, the Continued 
Storage GEIS reinforces the Commission's original determination that 
supports use of a generic analysis.
---------------------------------------------------------------------------

    \38\ Statements of Consideration for 1996 (61 FR 28467, 28479-
480) and 2013 (78 FR 37282, 37310) License Renewal GEISs.
---------------------------------------------------------------------------

    The NRC concludes that the petitioners' arguments regarding 10 CFR 
51.53(c) and 51.71(d) do not provide a ``seriously different picture'' 
of the environmental consequences of spent fuel storage and disposal. 
Instead, based on the above, the NRC concludes that spent fuel storage 
impacts are fully evaluated as part of the NRC's license renewal 
actions and that the petitioners' proposed amendments are not 
necessary.

The petitioners assert that the need for power and economic costs were 
excluded in license renewal environmental reviews

    The petitioners assert that NRC regulations in 10 CFR 51.53(c) and 
51.71(d) excuse license renewal applicants and the NRC staff from 
addressing the need for power in license renewal cases. The petitioners 
state, ``[b]y excluding need for power from consideration in re-
licensing decisions, the [Continued Storage] GEIS cripples its ability 
to assess the environmental impacts of storing spent fuel. This results 
in an `unbounded' analysis of radiological risk.'' The petitioners also 
assert that ``it is essential to incorporate the economic costs of 
spent fuel storage and disposal in reactor cost-benefit analyses.'' In 
conjunction with the issuance of the License Renewal GEIS in 1996, the 
Commission amended its regulations concerning environmental reviews for 
nuclear power plant license renewal actions.\39\ These amendments 
defined the generic environmental impacts addressed in the License 
Renewal GEIS and the environmental impacts for which nuclear plant 
site-specific analyses were to be performed. The Commission stated in 
the June 5, 1996, final rule for the ``Environmental Review for Renewal 
of Nuclear Power Plant Operating Licenses,''
---------------------------------------------------------------------------

    \39\ 61 FR 28467; June 5, 1996.

    [T]he NRC will neither perform analyses of the need for power 
nor draw any conclusions about the need for generating capacity in a 
license renewal review. [The] definition of purpose and need 
reflects the Commission's recognition that, absent findings in the 
safety review required by the Atomic Energy Act of 1954, as amended, 
or in the NEPA environmental analysis that would lead the NRC to 
reject a license renewal application, the NRC has no role in the 
energy planning decisions of State regulators and utility officials. 
From the perspective of the licensee and the State regulatory 
authority, the purpose of renewing an operating license is to 
maintain the availability of the nuclear plant to meet system energy 
requirements beyond the term of the plant's current license.\40\
---------------------------------------------------------------------------

    \40\ 61 FR at 28472.

---------------------------------------------------------------------------
    As stated in the 2013 License Renewal GEIS,

    The purpose and need for the proposed action (issuance of a 
renewed license) is to provide an option that allows for baseload 
power generation capability beyond the term of the current nuclear 
power plant operating license to meet future system generating 
needs. Such needs may be determined by other energy-planning 
decision-makers, such as State, utility, and, where authorized, 
Federal agencies (other than the NRC). Unless there are findings in 
the safety review required by the Atomic Energy Act or the NEPA 
environmental review that would lead the NRC to reject a license 
renewal application, the NRC does not have a role in the energy-
planning decisions of whether a particular nuclear power plant 
should continue to operate.\41\
---------------------------------------------------------------------------

    \41\ License Renewal GEIS, NUREG-1437, Revision 1 (2013), 
Section 1.3, p. 1-3-1-4.

    As shown by these statements, it has been the NRC's longstanding 
position not to consider the need for power or economic costs in making 
its license renewal decisions. Consideration of the need for power or 
the economic cost of renewing the operating license of a nuclear 
reactor is beyond the NRC's statutory and regulatory purview; rather, 
such consideration is the responsibility of State and local authorities 
and, where appropriate, Federal entities such as the Federal Energy 
Regulatory Commission or the Tennessee Valley Authority. The

[[Page 31539]]

petitioners' assertion that NRC's regulatory approach of excluding need 
for power from consideration in license renewal decisions ``cripples'' 
NRC's ability to assess the environmental impacts of storing spent fuel 
is not new and significant information and thus does not provide a 
basis for amending the regulations.

``Reasonable assurance'' findings not included in proposed 10 CFR 51.23

    In commenting upon the NRC's proposed Continued Storage rule (78 FR 
56776; September 13, 2013), the petitioners asserted that the NRC's 
proposal to remove the ``reasonable assurance'' statement from 10 CFR 
51.23(a) was improper. Prior to the promulgation of the Continued 
Storage final rule (79 FR 56238; September 19, 2014), 10 CFR 51.23(a) 
stated, in part, that ``the Commission believes there is reasonable 
assurance that sufficient mined geologic repository capacity will be 
available to dispose of the commercial high-level radioactive waste and 
spent fuel generated in any reactor when necessary.'' \42\ In the final 
Continued Storage rule, the NRC removed the ``reasonable assurance'' 
statement.\43\ The statements of consideration of the final Continued 
Storage rule explain that 10 CFR 51.23(a) sets forth the NRC's generic 
determination that the environmental impacts of the continued storage 
of spent nuclear fuel beyond the licensed life for operation of a 
reactor are those impacts identified in NUREG-2157 (the Continued 
Storage GEIS). In particular, the statements of consideration note 
that,
---------------------------------------------------------------------------

    \42\ 10 CFR 51.23(a) (2013).
    \43\ 79 FR at 56260.

    NEPA is a procedural statute directed at Federal agencies, and 
10 CFR 51.23 (including the additional clarifying amendments) 
addresses the manner by which the NRC complies with NEPA with 
respect to the subject of continued storage. These amendments do not 
require action by any person or entity regulated by the NRC, nor do 
these amendments modify the substantive responsibilities of any 
person or entity regulated by the NRC.\44\
---------------------------------------------------------------------------

    \44\ 79 FR at 56253.

    Consequently, there was no need to retain the ``reasonable 
assurance'' statement, which is a safety finding, as 10 CFR 51.23(a) 
stated only the generic environmental determination and the remainder 
of 10 CFR 51.23 concerns the NRC's NEPA compliance. In this regard, the 
---------------------------------------------------------------------------
statements of consideration explain,

    The [Continued Storage] GEIS fulfills the NRC's NEPA obligations 
and provides a regulatory basis for the rule rather than addressing 
the agency's responsibilities to protect public health and safety 
under the Atomic Energy Act (AEA), of 1954 as amended. Further, 
Appendix B of the [Continued Storage] GEIS discusses the technical 
feasibility of continued safe storage. It is important to note that, 
in adopting revised 10 CFR 51.23 and publishing the [Continued 
Storage] GEIS, the NRC is not making a safety determination under 
the AEA to allow for the continued storage of spent fuel. AEA safety 
determinations associated with licensing of these activities are 
contained in the appropriate regulatory provision addressing 
licensing requirements and in the specific licenses for facilities. 
Further, there is not any legal requirement for the NRC to codify a 
generic safety conclusion in the rule text. By not including a 
safety policy statement in the rule text, the NRC does not imply 
that spent fuel cannot be stored safely. To the contrary, the 
analysis documented in the [Continued Storage] GElS is predicated on 
the ability to store spent fuel safely over the short-term, long-
term, and indefinite timeframes. This understanding is based upon 
the technical feasibility analysis in Appendix B of the [Continued 
Storage] GElS and the NRC's decades-long experience with spent fuel 
storage and development of regulatory requirements for licensing of 
storage facilities that are focused on safe operation of such 
facilities, which have provided substantial technical knowledge 
about storage of spent fuel. Further, spent fuel is currently being 
stored safely at reactor and storage sites across the country, which 
supports the NRC's conclusion that it is feasible for spent fuel to 
be stored safely for the timeframes considered in the [Continued 
Storage] GEIS.\45\
---------------------------------------------------------------------------

    \45\ 79 FR at 56254-55.

    The petitions do not present any new and significant information 
that would form a basis to amend 10 CFR 51.23, particularly in light of 
the September 19, 2014, Continued Storage rulemaking.

The petitioners assert that expedited spent fuel transfer analysis is 
``new and significant information''

    The petitioners request that the NRC ``consider, in all pending and 
future reactor licensing and re-licensing decisions, new and 
significant information bearing on the environmental impacts of high-
density pool storage in reactor pools and alternatives for avoiding or 
mitigating those impacts.'' The petitioners assert that the NRC 
generated new and significant information during its post-Fukushima 
Expedited Spent Fuel Transfer proceeding.
    On October 9, 2013, the NRC released NUREG-2161, ``Consequence 
Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool 
for a U.S. Mark I Boiling Water Reactor'' and, on November 12, 2013, 
the NRC delivered a regulatory analysis in COMSECY-13-0030, ``Staff 
Evaluation and Recommendation for Japan Lessons-Learned Tier 3 Issue on 
Expedited Transfer of Spent Fuel.'' These documents concluded that 
spent fuel pools are very robust structures with large safety margins, 
and that proposed regulatory actions for spent fuel pool safety 
improvements were not warranted. This conclusion not only covers spent 
fuel pools at operating reactors applying for license renewal but also 
spent fuel pools that would be constructed at new reactor sites. Citing 
the low risk to public health and safety from spent fuel pool storage, 
the Commission subsequently concluded that regulatory action need not 
be pursued in Staff Requirements Memorandum (SRM), SRM-COMSECY-13-0030, 
issued on May 23, 2014.
    The petitioners contend that former Chairman Allison Macfarlane's 
comments on COMSECY-13-0030, also provide new and significant 
information that requires the NRC to reconsider its impact findings in 
the 2013 license renewal GEIS. The former Chairman's comments were 
considered by the other Commissioners in the development of the SRM on 
this issue. However, the Commission determined in SRM-COMSECY-13-0030, 
that no further generic assessments concerning the expedited transfer 
of spent fuel to dry cask storage should be pursued. Notably, the SRM 
supported the staff's approach of using the NRC's Safety Goal Policy 
Statement of 1986 as a screening metric. The SRM is the agency's 
determination on this issue.
    Nonetheless, the petitioners contend that NUREG-2161 and COMSECY-
13-0030 constitute new and significant information based on those 
documents' discussion of the severity of the impact of a spent fuel 
pool accident, sensitivity studies showing that some mitigation 
measures could be cost beneficial, and the possibility that a reactor 
accident could impact the likelihood of a spent fuel pool fire. 
However, none of these sources of information provides ``a seriously 
different picture'' of the environmental consequences of spent fuel 
storage. First, as noted above, the NRC has frequently recognized that 
the consequences of a spent fuel pool accident could be large but has 
determined that the overall risk of spent fuel pool accidents is small 
in light of the low probability of such an event.\46\ Therefore, the 
petitioners have not shown that the magnitude of the consequences of a 
spent fuel pool accident constitute new and significant information. 
Rather, NUREG-2161 and

[[Page 31540]]

COMSECY-13-0030's recognition that the consequences of a spent fuel 
pool accident could be large but that the overall risk from such an 
event is small in light of the very low probability of such an event 
comports with the agency's previous considerations of this issue. 
Second, while the sensitivity studies may have shown that some 
mitigation measures could be cost-beneficial, they are based on 
alternate assumptions that do not represent the NRC's analysis of the 
most likely impacts of a spent fuel pool accident. In any event, 
petitioners have not shown with specificity that any information in 
these sensitivity studies would undermine the agency's overall 
conclusion that despite potentially large consequences, the very low 
probability renders the overall risk of a spent fuel pool accident very 
low. Finally, contrary to petitioners' assertions, the NRC has 
frequently responded to claims that the probability of a reactor 
accident could impact the probability of a spent fuel pool accident and 
repeatedly found that such a probability is very low.\47\
---------------------------------------------------------------------------

    \46\ NUREG-1437, Rev.1, at E-34 to -339.
    \47\ 73 FR at 46210; 2013 GEIS at E-38; NUREG-2157 at D-438 to 
D-440; COMSECY-13-0030, Enclosure 1 at 138.
---------------------------------------------------------------------------

    In conclusion, neither NUREG-2161, COMSECY-13-0030, nor SRM-
COMSECY-13-0030 constitutes ``new and significant information'' 
requiring the NRC to supplement any of its prior EISs, whether generic 
or specific-- or amend those ``regulations that make or rely on 
findings regarding the environmental impacts of spent fuel storage 
during reactor operation, including Table B-1 and all regulations 
approving standardized reactor designs.''

III. Determination of Petitions

    For the reasons cited in Section II of this document, the NRC has 
concluded that the petitioners have not provided new and significant 
information that would form a basis to amend the NRC regulations 
identified in the PRM-51-30 and PRM-51-31.

Earlier 10 CFR Part 51 PRMs

    Several of the regulations identified by the petitioners have been 
the subject of prior rulemaking petitions (i.e., PRM-51-1, PRM-51-10, 
PRM-51-12, and PRMs-51-14 to 51-28) and issues similar to those raised 
by the petitioners were considered by the Commission in these prior 
petitions, therefore, these issues have been thoroughly evaluated by 
the Commission. The PRM-51-1 petitioner asserted that Table S-3 
``seriously understate[d]'' the impact on human health and safety from 
the uranium fuel cycle and that the Table S-3 values should be revised 
accordingly.\48\ The NRC denied PRM-51-1 based upon the Commission's 
``generic determination that the radiological impacts of the uranium 
fuel cycle on individuals off-site will remain at or below the 
Commission's regulatory limits, and as such, are of small 
significance.'' \49\ The NRC described this generic determination in 
Chapter 6 of the 1996 version of the License Renewal GEIS; the generic 
determination was based upon findings made in various NRC and EPA 
rulemakings.\50\
---------------------------------------------------------------------------

    \48\ 73 FR 14946; March 20, 2008.
    \49\ 73 FR at 14947.
    \50\ Id. at 14948.
---------------------------------------------------------------------------

    The petitioners in PRM-51-10 and PRM-51-12 challenged the generic 
findings for spent fuel storage impacts codified in Table B-1 and 
requested a rulemaking to remove this finding.\51\ The petitioners 
raised the prospect of a fire at a nuclear power reactor's spent fuel 
pool and the resulting release of radioactive material to the 
environment. According to the petitioners' scenario, the spent fuel 
pool fire would be initiated by either an accident or a successful 
terrorist strike that would cause a partial or complete drain of the 
cooling water in the spent fuel pool. The petitioners requested the 
amendment of several of the regulations that are the subject of PRM-51-
30 and PRM-51-31, namely, Table B-1, 10 CFR 51.23, 51.53(c), and 
51.95(c).\52\ The petitioners requested that the impacts of spent fuel 
storage be considered on a site-specific basis in license renewal 
cases, rather than generically, due to this potential threat. The 
Commission denied PRM-51-10 and PRM-51-12 and concluded that the risk 
of such a spent fuel pool fire was very low and that, given the safety 
and security requirements that applied to all plants, as well as the 
physical robustness of spent fuel pools, the environmental impacts of 
spent fuel pool storage could be handled generically.\53\ The NRC's 
denial of PRM-51-10 and PRM-51-12 was upheld by the U.S. Court of 
Appeals for the Second Circuit.\54\
---------------------------------------------------------------------------

    \51\ 73 FR 46204; August 8, 2008.
    \52\ Id. at 46205.
    \53\ Id. at 46206-12.
    \54\ New York v. U.S. Nuclear Regulatory Commission, 589 F.3d 
551 (2nd Cir. 2009).
---------------------------------------------------------------------------

    Finally, in a series of virtually identical petitions, docketed as 
PRM-51-14 through PRM-51-28, petitioners requested that the NRC rescind 
all regulations that reach generic environmental impact conclusions 
regarding severe reactor accidents and spent fuel pool accidents, which 
would include various provisions of Table B-1 and 10 CFR 51.53. The 
PRM-51-14 through PRM-51-28 petitions were filed shortly after the NRC 
issued its Near-Term Task Force (NTTF) report, ``Recommendations for 
Enhancing Reactor Safety in the 21st Century, the NTTF Review of 
Insights from the Fukushima Dai-ichi Accident,'' dated July 12, 2011. 
The NTTF report provided the NRC staff's recommendations to enhance 
U.S. nuclear power plant safety following the March 11, 2011, Fukushima 
accident in Japan. After determining that the NTTF report did not 
constitute new and significant information and further, that the 
petitioners had provided insufficient technical or regulatory basis to 
amend any of the NRC regulations in question, the NRC denied the PRM-
51-14 through PRM-51-28 petitions.\55\
---------------------------------------------------------------------------

    \55\ 80 FR 48235 (August 12, 2015).
---------------------------------------------------------------------------

IV. Availability of Documents

    The documents identified in the following table are available to 
interested persons through one or more of the following methods, as 
indicated. For more information on accessing ADAMS, see the ADDRESSES 
section of this document.

------------------------------------------------------------------------
                                        ADAMS Accession No./Web Link/
              Document                    Federal Register citation
------------------------------------------------------------------------
CLI-99-22, Hydro Resources, Inc.,    http://www.nrc.gov/reading-rm/doc-
 July 23, 1999.                       collections/commission/orders/1999/
                                      1999-022cli.pdf
CLI-14-07, DTE Electric Co., et      http://www.nrc.gov/reading-rm/doc-
 al., July 17, 2014.                  collections/commission/orders/2014/
                                      2014-07cli.pdf
``Comments by Environmental          ML14029A124, ML14029A169,
 Organizations on Draft Waste         ML14029A154
 Confidence Generic Environmental
 Impact Statement [GEIS] and
 Proposed Waste Confidence Rule and
 Petition to Revise and Integrate
 All Safety and Environmental
 Regulations Related to Spent Fuel
 Storage and Disposal,'' January 7,
 2014.

[[Page 31541]]

 
COMSECY-13-0030, Staff Evaluation    ML13273A601
 and Recommendation for Japan
 Lessons-Learned Tier 3 Issue on
 Expedited Transfer of Spent Fuel,
 November 12, 2013.
COMSECY-13-0030 Vote Sheet, Staff    http://www.nrc.gov/reading-rm/doc-
 Evaluation and Recommendation for    collections/commission/comm-secy/
 Japan Lessons-Learned Tier 3 Issue   2013/2013-0030comvtr.pdf
 on Expedited Transfer of Spent
 Fuel, April 8, 2014.
Federal Register notice--Waste       78 FR 56776
 Confidence--Continued Storage of
 Spent Nuclear Fuel (proposed
 rule), September 13, 2013.
Federal Register notice--            39 FR 14188
 Environmental Effects of the
 Uranium Fuel Cycle, April 22, 1974.
Federal Register notice--Licensing   44 FR 45362
 and Regulatory Policy and
 Procedures for Environmental
 Protection; Uranium Fuel Cycle
 Impacts From Spent Fuel
 Reprocessing and Radioactive Waste
 Management, August 2, 1979.
Federal Register notice--Waste       49 FR 34658
 Confidence Decision, August 31,
 1984.
Federal Register notice--            55 FR 38472
 Consideration of Environmental
 Impacts of Temporary Storage of
 Spent Fuel After Cessation of
 Reactor Operation, September 18,
 1990.
Federal Register notice--            61 FR 28467
 Environmental Review for Renewal
 of Nuclear Power Plant Operating
 Licenses, June 5, 1996.
Federal Register notice--Waste       75 FR 81037
 Confidence Decision Update,
 December 23, 2010.
Federal Register notice--Continued   79 FR 56238
 Storage of Spent Nuclear Fuel
 (final rule), September 19, 2014.
Federal Register notice--Revisions   78 FR 37282
 to Environmental Review for
 Renewal of Nuclear Power Plant
 Operating Licenses, June 20, 2013.
Federal Register notice--Revise and  79 FR 22055
 Integrate All Safety and
 Environmental Regulations Related
 to Spent Fuel Storage and
 Disposal, April 21, 2014.
Federal Register notice--            79 FR 24595
 Environmental Impacts of Spent
 Fuel Storage During Reactor
 Operation, May 1, 2014.
Federal Register notice--            79 FR 42989
 Environmental Impacts of Spent
 Fuel Storage During Reactor
 Operation, July 24, 2014.
Federal Register notice--New         73 FR 14946
 England Coalition on Nuclear
 Pollution; Denial of Petition for
 Rulemaking, March 20, 2008.
Federal Register notice--The         73 FR 46204
 Attorney General of Commonwealth
 of Massachusetts, The Attorney
 General of California; Denial of
 Petitions for Rulemaking, August
 8, 2008.
Federal Register notice--            80 FR 48235
 Environmental Impacts of Severe
 Reactor and Spent Fuel Pool
 Accidents, August 12, 2015.
Makhijani, Arjun, Comments of the    ML091310195
 Institute for Energy and
 Environmental Research on the U.S.
 Nuclear Regulatory Commission's
 Proposed Waste Confidence Rule
 Update and Proposed Rule Regarding
 Environmental Impacts of Temporary
 Spent Fuel Storage.
NRC-National Academies of Science    ML033040264
 Report, ``A Study of the Isolation
 System for Geologic Disposal of
 Radioactive Wastes,'' 1983.
NUREG-0116, ``Environmental Survey   ML14098A013
 of the Reprocessing and Waste
 Management Portions of the LWR
 Fuel Cycle,'' October 1976.
NUREG-1437, ``Generic Environmental  ML13107A023
 Impact Statement for License
 Renewal of Nuclear Plants,'' June
 20, 2013.
NUREG-2161, ``Consequence Study of   ML13256A334
 a Beyond-Design-Basis Earthquake
 Affecting the Spent Fuel Pool for
 a U.S. Mark I Boiling Water
 Reactor,'' October 9, 2013.
NUREG-2157, ``Generic Environmental  ML14196A105 (vol. 1), ML14196A107
 Impact Statement for Continued       (vol. 2)
 Storage of Spent Nuclear Fuel,''
 September 2014.
NUREG-2179, ``Environmental Impact   ML15103A012 (vol. 1)
 Statement for the Combined License
 (COL) for the Bell Bend Nuclear
 Power Plant (Draft Report for
 Comment),'' April 2015.
PRM-51-30, ``Petition to Revise and  ML14029A124
 Integrate All Safety and
 Environmental Regulations Related
 to Spent Fuel Storage and
 Disposal,'' submitted by Diane
 Curran on behalf of 34
 environmental organizations,
 January 7, 2014.
PRM-51-31, ``Environmental           ML14071A382
 Organizations' Petition to
 Consider New and Significant
 Information Regarding
 Environmental Impacts of High-
 Density Spent Fuel Storage and
 Mitigation Alternatives in
 Licensing Proceedings for New
 Reactors and License Renewal
 Proceedings for Existing Reactors
 and Duly Modify All NRC
 Regulations Regarding
 Environmental Impacts of Spent
 Fuel Storage During Reactor
 Operation,'' February 18, 2014.

[[Page 31542]]

 
PRM-51-31, ``Environmental           ML14177A660
 Organizations' Amended Petition to
 Consider New and Significant
 Information Regarding
 Environmental Impacts of High-
 Density Spent Fuel Storage and
 Mitigation Alternatives in
 Licensing Proceedings for New
 Reactors and License Renewal
 Proceedings for Existing Reactors
 and Duly Modify All NRC
 Regulations Regarding
 Environmental Impacts of Spent
 Fuel Storage During Reactor
 Operation,'' June 26, 2014.
Safety Goals for the Operations of   51 FR 30028
 Nuclear Power Plants; Policy
 Statement; Republication, August
 21, 1986.
SRM-SECY-13-0030, ``Staff            ML14143A360
 Evaluation and Recommendation for
 Japan Lessons-Learned Tier 3 Issue
 on Expedited Transfer of Spent
 Fuel,'' May 23, 2014.
WASH-1248, ``Environmental Survey    ML14092A628
 of the Uranium Fuel Cycle,'' April
 1974.
------------------------------------------------------------------------


    Dated at Rockville, Maryland, this 13th day of May, 2016.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2016-11820 Filed 5-18-16; 8:45 am]
 BILLING CODE 7590-01-P