[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]
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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. 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.
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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).
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\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.''
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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\
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\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)).
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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.
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\6\ The current version of the License Renewal GEIS is NUREG-
1437, Revision 1.
\7\ 10 CFR 51.95(c).
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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\
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\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).
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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.
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\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).
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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.''
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\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).
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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.
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\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).
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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.
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\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.
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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\
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\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).
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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.
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\15\ 10 CFR 52.104.
\16\ 10 CFR 54.31.
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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\
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\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.
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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\
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\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\
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\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.
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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\
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\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.
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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\
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\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.
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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\
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\28\ NUREG-2157, pg. 2 of Appendix B, Section B.2.1.
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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.
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\29\ NRC-NAS Report, ``A Study of the Isolation System for
Geologic Disposal of Radioactive Wastes,'' p. 8 and 11.
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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\
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\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.
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\31\ The only exception is that the waste quantities listed
under the entry called ``solids (buried onsite)'' also include
wastes generated at the reactor.
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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.
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\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,''
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\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\
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\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\
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\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\
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\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.
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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\
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\48\ 73 FR 14946; March 20, 2008.
\49\ 73 FR at 14947.
\50\ Id. at 14948.
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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