[Federal Register Volume 66, Number 34 (Tuesday, February 20, 2001)]
[Proposed Rules]
[Pages 10834-10839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-4104]


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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. 66, No. 34 / Tuesday, February 20, 2001 / 
Proposed Rules

[[Page 10834]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[Docket No. PRM 51-7]


Nuclear Energy Institute; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking submitted by the Nuclear Energy Institute (NEI) (PRM-51-
7). The petitioner requested that the NRC amend its regulations to 
delete the requirement to consider Severe Accident Mitigation 
Alternatives (SAMAs) as part of the environmental review to support 
license renewal decisions. The NRC is denying the petition because the 
NRC must continue to consider SAMAs for issuance of a new or renewed 
operating license for a power reactor in order to meet its 
responsibilities under the National Environmental Policy Act (NEPA), 
notwithstanding the legal arguments presented in the petition. However, 
the NRC staff will continue to work with stakeholders to determine if 
efficiencies in the conduct of SAMA analyses for environmental reviews 
can be realized.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and the NRC's letter of denial to the petitioner are 
available for public inspection or copying for a fee, at the NRC's 
Public Document Room, located at One White Flint North, 11555 Rockville 
Pike (first floor), Rockville, Maryland. These documents are also 
available at the NRC's rulemaking website at http://ruleforum.llnl.gov

FOR FURTHER INFORMATION CONTACT: Donald P. Cleary, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-3903, e-mail <a href="/cdn-cgi/l/email-protection#15716576557b67763b727a63"><span class="__cf_email__" data-cfemail="a6c2d6c5e6c8d4c588c1c9d0">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    On July 14, 1999, the NRC received a petition for rulemaking 
submitted by the NEI, by letter dated July 13, 1999. On September 2, 
1999 (64 FR 48117), the NRC published a notice of receipt of the 
petition (PRM-51-7). The petitioner requested that the NRC amend its 
regulations to delete the requirement for the NRC to evaluate Severe 
Accident Mitigation Alternatives (SAMAs) as part of its National 
Environmental Policy Act (NEPA) review associated with license renewal. 
The petitioner requests that the NRC take this action to achieve 
consistency in the scope of its regulatory requirements for 
environmental protection under NEPA, 10 CFR part 51, and its technical 
requirements for license renewal under the Atomic Energy Act, 10 CFR 
part 54.
    The technical requirements for renewal of operating licenses are 
specified in 10 CFR part 54 (60 FR 22461; May 8, 1995). This regulation 
focuses the license renewal review on certain types of systems, 
structures, and components that the NRC has determined require 
evaluation to ensure that the effects of aging will be adequately 
managed in the period of extended operation. This regulation is based 
on two regulatory principles. The first principle of license renewal is 
that, with the possible exception of the detrimental effects of aging 
on the functionality of certain plant systems, structures, and 
components in the period of extended operation and possibly a few other 
issues related to safety only during extended operation, the ongoing 
regulatory process is adequate to ensure that the licensing bases of 
all currently operating plants provide and maintain an acceptable level 
of safety. The second principle of license renewal is that the plant-
specific licensing basis must be maintained during the renewal term in 
the same manner and to the same extent as during the original licensing 
term. This principle is attained, in part, through a program of age-
related degradation management for systems, structures, and components 
that are within the scope of license renewal. There is no requirement 
in 10 CFR part 54 for analysis of SAMAs.
    The NRC's regulations implementing NEPA appear in 10 CFR part 51. 
The regulations contain specific provisions related to the requirements 
for the environmental review of applications to renew the operating 
licenses of nuclear power plants. See, for example, 10 CFR 51.53(c) and 
Subpart A, Appendix B. The regulations were developed to improve the 
efficiency of the process of environmental review for applicants 
seeking to renew a nuclear power plant operating license for up to an 
additional 20 years. The regulations are based on generic analyses 
reported in NUREG-1437, ``Generic Environmental Impact Statement for 
License Renewal of Nuclear Plants'' (May 1996) and in part on NUREG-
1437, Vol. 1, Addendum 1 (August 1999). Those environmental issues for 
which the NRC made generic findings that may be adopted in individual 
plant license renewal reviews are defined as Category 1 issues in the 
rule. Those environmental issues that require further site-specific 
review are defined as Category 2 issues in the rule. The regulations 
also provide for the consideration of ``new and significant 
information'' that might change a previous finding or introduce issues 
not previously reviewed and codified in the regulations.
    With respect to the issue of environmental effects of severe 
accidents from license renewal, the NRC found that the probability 
weighted consequences are small. Specifically, the regulations state in 
Table B-1: ``The probability-weighted consequences of atmospheric 
releases, fallout onto open bodies of water, releases to groundwater, 
and societal and economic impacts from severe accidents are small for 
all plants.'' Accordingly, the impacts of severe accidents are encoded 
in the rule and are not open for review in individual license renewal 
actions. However, one of the criteria for a Category 1 finding is, as 
stated in footnote 2 of Table B-1, Part 51, ``Mitigation of adverse 
impacts associated with the issue have been considered in the analysis, 
and it has been determined that additional plant-specific mitigation 
measures are likely not to be sufficiently beneficial to warrant 
implementation.'' At the time the final rule was promulgated in 1996, 
the NRC discussed the ongoing regulatory programs focused on individual 
plant vulnerabilities to severe accidents and cost-beneficial 
improvements for reducing severe

[[Page 10835]]

accident frequency or consequences. For each plant, an individual plant 
examination (IPE) to look for plant vulnerabilities to internally 
initiated events and a separate IPE for externally initiated events 
(IPEEE) was performed (61 FR 28467; June 5, 1996). The NRC believed 
that it would be premature to reach a generic conclusion regarding 
severe accident mitigation alternatives before completing these 
programs. Therefore, even though the Commission has reached a generic 
conclusion on the magnitude of severe accident impacts, the issue is 
nevertheless designated as a Category 2 issue because of the unresolved 
questions regarding mitigation, and applicants for license renewal are 
subject to the following requirement at 10 CFR 51.53(c)(3)(ii)(L): ``If 
the staff has not previously considered severe accident mitigation 
alternatives for the applicant's plant in an environmental impact 
statement or in an environmental assessment, a consideration of 
alternatives to mitigate severe accidents must be provided.'' The NRC 
stated, ``* * * that upon completion of its IPE/IPEEE program, it may 
review the issue of severe accident mitigation for license renewal and 
consider, by separate rulemaking, reclassifying severe accidents as a 
Category 1 issue'' (61 FR 28481; June 5, 1996).

The Petition

    The petition was submitted by the Nuclear Energy Institute (NEI) by 
letter dated July 13, 1999. Its receipt was noticed in the Federal 
Register on September 2, 1999 (64 FR 48117), with a full description of 
its content. The petitioner requested the NRC ``* * * to delete 10 CFR 
51.53(c)(3)(ii)(L) and, thereby, eliminate the requirement for NRC to 
evaluate SAMAs as part of the NEPA review associated with license 
renewal.'' The rulemaking would include conforming changes to 10 CFR 
part 51, Appendix B and NUREG-1437.
    The petitioner requests elimination of the requirement for SAMA 
reviews in 10 CFR part 51 on the belief that the requirement conflicts 
with the technical requirements for license renewal in 10 CFR part 54. 
The petitioner argues that actions to evaluate and address SAMAs are 
part of each licensee's current licensing basis and that 10 CFR part 54 
is designed to separate matters related to maintaining the current 
licensing basis from those considered in a license renewal review. The 
petitioner's argument, briefly stated, is as follows. The petition 
makes reference to the two principles of license renewal, discussed in 
the Background section above. The first principle focuses the license 
renewal review on age-related degradation of plant systems, structures, 
and components. The second principle is continuation of the current 
licensing basis during the renewal term, in part, through a program of 
age-related degradation management of systems, structures, and 
components that are important to license renewal. The petitioner notes 
that 10 CFR 54.39, ``Matters not subject to a renewal review,'' 
specifically provides that deviations from the current licensing basis 
identified in the integrated plant assessment performed for license 
renewal will be corrected under the terms of the current license and 
are not within the scope of the license renewal review. The petitioner 
then states that actions to evaluate and address SAMAs are part of each 
licensee's current licensing basis, citing the IPE and IPEEE program to 
identify and evaluate plant-specific severe accident vulnerabilities 
and ways to mitigate those vulnerabilities.
    Concluding that SAMAs are outside of the scope of a 10 CFR part 54 
license renewal review, the petitioner then presents legal arguments 
for deleting SAMAs from the NEPA review. The essence of these arguments 
is that 10 CFR part 54 defines the scope of the proposed Federal 
action, and that Federal action establishes the scope of environmental 
consequences of license renewal that are to be reviewed under NEPA. 
Citing several court cases, the petitioner asserts that this approach 
is consistent with the ``rule of reason'' that generally governs 
environmental impact reviews under NEPA. The petitioner then states, 
``Thus, under the `rule of reason,' the impacts appropriately 
considered under NEPA would be those that reasonably flow from the part 
54 decision-making.'' Next, the petitioner cites two cases to support 
the position that there should be no consideration of SAMAs for license 
renewal. In City of Aurora v. Hunt, the court ruled that a new 
procedure to use a specific airport runway in particular weather 
conditions involved ``* * * no significant safety impact * * * to 
trigger further assessment or inquiry under NEPA.'' 749 F.2d 1457, 1468 
n. 8 (10th Cir. 1984) overruled on other grounds by Village of Los 
Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992). In the 
second court case, Upper Snake River Chapter of Trout Unlimited v. 
Hodel, the court ruled that the Department of Interior did not have to 
prepare an environmental impact statement (EIS) to adjust the flow of 
water from a dam to accommodate drought conditions where the range of 
flow change was within the contemplation of the original project. 921 
F.2d 232, 235 (9th Cir. 1990). The petitioner concludes from these 
decisions that a NEPA review of SAMAs is not required in the license 
renewal review because, (1) the current licensing basis is not subject 
to evaluation in a license renewal review, and (2) by maintaining the 
current licensing basis in the renewal term, there will be no change in 
risk of a severe accident due to license renewal.
    The petitioner goes on to assert that NRC's requirement to include 
SAMAs in NEPA license renewal reviews was based on an overly broad 
application of language in the Limerick Ecology Action v. NRC, 869 F.2d 
719 (3rd Cir. 1989), decision and that the decision ``* * * leaves 
undisturbed the proposition that the `rule of reason' defines whether 
the EIS has addressed the significant aspects of the probable 
environmental consequences * * * that reasonably may flow from the 
proposed action--renewing a plant's license as that plant is currently 
designed and operated.'' Finally, citing a number of court cases, the 
petitioner argues that ``* * * judicial precedents allow the NRC to 
eliminate SAMAs from consideration in license renewal proceedings based 
on a determination, through proper rulemaking, that severe accidents 
are highly unlikely.''

Public Comments on the Petition

    The NRC received letters from 11 commenters. Ten of the comment 
letters supported the petition. Nine of those letters were from nuclear 
utilities and the tenth was from NEI, providing supplemental 
information to support the arguments made in the petition. Except for 
one comment, Comment 1 below, all of the comments made by supporters of 
the petition reiterated arguments made in the petition. Because those 
arguments are addressed in the NRC's reasons for denying the petition 
they are not addressed in the comment response below. A public interest 
group provided the one letter opposed to the petition, and NRC's 
responses to their comments are provided below.
    Comment 1: A utility commented that the costs of performing the 
SAMA reviews required by Part 51 are not justified when compared to the 
small potential safety benefits that result from the reviews, when the 
costs associated with implementing changes to realize those benefits 
are evaluated, and when the fact that the reviews are largely 
duplicative of the previously completed Individual Plant Examination 
(IPE) and Individual Plant Examination for

[[Page 10836]]

External Events (IPEEE) programs is considered.
    Response: The NRC believes that it should continue to consider 
SAMAs for individual license renewal applications to continue to meet 
its responsibilities under NEPA. That statute requires NRC to analyze 
the environmental impacts of its actions and consider those impacts in 
its decisionmaking. In doing so, Section 102(2)(C) of NEPA implicitly 
requires agencies to consider measures to mitigate those impacts when 
preparing impact statements. See Robertson v. Methow Valley Citizens 
Council, 490 U.S. 332 (1989). NRC's obligation to consider mitigation 
exists whether or not mitigation is ultimately found to be cost-
beneficial and whether or not mitigation ultimately will be implemented 
by the licensee. Id. The NRC understands that a SAMA analysis can be 
relatively expensive and is prepared to discuss ways in which SAMA 
analyses can be conducted efficiently while, at the same time, ensuring 
that NRC meets its NEPA responsibilities.
    Comment 2: Granting the petition would continue the NRC's recent 
course of ``regulatory subtraction'' during which it has ``methodically 
amputated and dismantled its statutory authority.'' Further, numerous 
site-specific and generic challenges have precipitated ``beyond design 
basis'' events, and demonstrate that it is imperative to maintain 
Severe Accident Mitigation Alternatives evaluations.
    Response: The NRC has denied the petition because it believes that 
the legal arguments presented are insufficient to demonstrate that a 
license renewal NEPA review need not consider alternatives to mitigate 
the potential for and consequences of severe accidents.
    Comment 3: Given the NRC's shrinking budget, ``this type of 
frivolous legal action must be indexed to punitive damages.'' NEI 
``must be held accountable, and reimburse the NRC for all legal and 
administrative costs associated with this malicious petition.''
    Response: While NRC has denied the petition, NRC does not believe 
that there are any aspects of the submittal that would suggest an abuse 
of the petition process. Accordingly, whether or not reimbursement 
measures are even available to the Commission, no Commission action is 
warranted in this regard.

Reasons for Denial

    The Commission is denying the petition for the following reasons:

1. Scope of the License Renewal Rule

    The petitioner's principal argument for the elimination of SAMAs as 
part of the NEPA review associated with individual license renewal 
reviews is that the scope of license renewal establishes a basis for 
deleting SAMAs from associated NEPA reviews. In particular, the 
petitioner believes that because the NRC's safety review under Part 54 
does not require consideration of all aspects of plant operation and 
administration, the agency's review of environmental impacts under NEPA 
should be similarly limited. In its petition and subsequent comments, 
NEI identified several Federal court cases and NRC decisions to support 
its position.\1\ The petitioner believes that the primary thrust of 
these cases is that no consideration of impacts is necessary where the 
proposed Federal action would not change the status quo. In its 
comments, the petitioner indicated that ``[t]he line of cases using the 
status quo analysis does not turn on maintaining the level of safety 
per se, but on whether the major federal action will change the 
operation of the facility sufficient to warrant an inquiry into the 
changes in environmental effect.''
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    \1\ City of Aurora v. Hunt, 749 F.2d 1457 (10th Cir. 
1984)(overruled on other grounds); Upper Snake River Chapter of 
Trout Unlimited v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990); 
Consumers Power Company, (Big Rock Point Nuclear Plant), ALAB-636, 
13 NRC 312 (1982); and General Electric Company (GE Morris Operation 
Spent Fuel Storage Facility), LBP-82-14, 15 NRC 530 (1982).
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    The Commission does not find the petitioner's arguments here 
compelling. By approving a license renewal application under Part 54, 
the Commission authorizes operation of the entire plant for an 
additional 20 years beyond the initial licensing term. Thus, the review 
of the environmental impacts of this Federal action under the 
provisions of Part 51 appropriately involves the consideration of 
environmental impacts caused by 20 additional years of operation. The 
petitioner is correct in stating that the Commission, in promulgating 
10 CFR part 54, has limited its safety review under the Atomic Energy 
Act to certain aspects of the plant that are directly related to aging 
and other issues specific to the license renewal. The petitioner is 
also correct in pointing out that many environmental impact issues, 
such as SAMAs, are not addressed in the NRC's safety review under Part 
54. In fact, the vast majority of environmental impacts from license 
renewal required to be considered by the NRC under its NEPA review (in 
accordance with Part 51) are not included in the analysis conducted in 
fulfilling the NRC's Atomic Energy Act responsibilities under Part 54 
(see, 10 CFR part 51 Subpart A, Appendix B, Table B-1).
    However, under NEPA the NRC is charged with considering all of the 
environmental impacts of its actions, not just the impacts of specific 
technical matters that may need to be reviewed to support the action. 
These impacts may involve matters outside of the NRC's jurisdiction or 
matters within its jurisdiction that, for sound reasons, are not 
otherwise addressed in the NRC's safety review during the licensing 
process. In the case of license renewal, it is the Commission's 
responsibility under NEPA to consider all environmental impacts 
stemming from its decision to allow the continued operation of the 
entire plant for an additional 20 years. The fact that the NRC has 
determined that it is not necessary to consider a specific matter in 
conducting its safety review under Part 54 does not excuse it from 
considering the impact in meeting its NEPA obligations.
    The Commission does not believe that the various cases offered by 
the petitioner provide convincing support for the elimination of the 
review of SAMAs. It would appear that the logical extension of many of 
the petitioner's arguments go far beyond the mere elimination of SAMAs 
consideration from license renewal reviews. Indeed, to the extent that 
license renewal involves a continuation of impacts already experienced 
at the site under the current operating license, the arguments made by 
the petitioner would appear to call for the elimination of almost the 
entire environmental review of impacts from operation during the 
license renewal term, a position clearly at odds with the Commission's 
approach to the matter and also, as discussed below, inconsistent with 
case law related to relicensing.
    The Commission does not dispute that a line of cases exists under 
NEPA law which excuses agencies from preparing EISs (or considering 
certain environmental impacts) where the Federal action does not change 
existing environmental conditions. See, for example, State of North 
Carolina v. Federal Aviation Administration, 957 F.2d 1125 (4th Cir. 
1992); Cronin v. Department of Agriculture, 919 F.2d 439 (7th Cir. 
1990). In most of these cases, the Federal action taken does not itself 
create any additional impacts to activities that are ongoing and will 
continue with or without the Federal action. None of these cases 
appears to provide firm support for the petitioner's argument that the 
NRC can ignore the impacts of its actions in the context of

[[Page 10837]]

license renewal. In fact, at least one circuit court squarely addressed 
the issue of relicensing and concluded that there is the need to 
consider environmental impacts in that context.
    In Confederated Tribes and Bands of the Yakima Indian Nation v. 
Federal Energy Regulatory Commission, 746 F.2d 466 (9th Cir. 1984), the 
Ninth Circuit Court of Appeals considered whether the Federal Energy 
Regulatory Commission (FERC) was required to prepare an EIS for its 
relicensing decision for the Rock Island Dam. In response to the FERC's 
argument that there had been ``no change in the status quo'' and thus 
no EIS was necessary, the court found:

    Relicensing * * * is more akin to an irreversible and 
irretrievable commitment of a public resource than a mere 
continuation of the status quo. [Citation omitted] Simply because 
the same resource had been committed in the past does not make 
relicensing a phase in a continuous activity. Relicensing involves a 
new commitment of the resource, which in this case lasts for a 
forty-year period.\2\

    \2\ 746 F.2d 466 at 476-477.

    The court's statements here are consistent with NRC's position and 
its practice in promulgating and implementing the license renewal rule. 
The cases offered in support of the petitioner's arguments offer no 
compelling reasons to alter this approach.
    In City of Aurora v. Hunt,\3\ the Federal Aviation Administration 
(FAA), through a rulemaking, approved a new approach procedure for the 
Stapleton airport in order to reduce delays caused by the use of the 
existing procedure during periods of low visibility. The City of Aurora 
challenged the rule claiming, among other things, that the FAA failed 
to discuss the safety risks of the new procedure in its environmental 
assessment. In ruling against the City's claim, the Court pointed out 
that the FAA was required by law to issue the new procedure only if it 
did not involve a change in safety risk. The FAA considered and 
responded to a vast number of safety concerns as part of the rulemaking 
process. Accordingly, the Court found that the agency's approval of the 
procedure, in itself, was adequate to fulfill the agency's 
responsibility under NEPA. In a footnote, the Court explained that 
``[w]hile an agency may be required to consider the effects that will 
occur if a risk is realized, where no increase in risk is permitted, as 
here, no significant safety impact exists to trigger further assessment 
or inquiry under NEPA.'' 749 F.2d at 1468, n. 8.
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    \3\ 749 F.2d 1457 (10th Cir. 1984).
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    While certain aspects in the City of Aurora decision provide some 
general support for the petitioner's argument, the facts in that case 
do not appear to be sufficiently analogous to support the elimination 
of SAMAs reviews for license renewal. First of all, the Court found the 
FAA's decision to permit the new procedure, in essence, served as a 
finding of an equivalent level of flight safety and thus allowed the 
FAA to meet its NEPA obligations even though safety was not explicitly 
considered in the EA itself. Under NRC's license renewal process, NRC's 
review under Part 54 does not itself meet the agency's NEPA 
obligations. Environmental issues such as the potential impacts of 
severe accidents during the license renewal term do not fall under the 
Part 54 review. Accordingly, unlike the FAA in City of Aurora, NRC 
cannot use the Part 54 process as the vehicle for meeting its NEPA 
responsibilities for considering SAMAs in the license renewal context 
in the same way that the FAA was allowed to use its procedure approval 
process in City of Aurora. Secondly, it should be noted that, absent 
the NRC's decision to approve a license renewal application, the 
licensee's plant will not operate an additional 20 years. Accordingly, 
the NRC's action is a ``but for'' cause of those additional impacts and 
NRC has the responsibility to consider those impacts under NEPA. In 
City of Aurora, the FAA's rule permitted the use of a new landing 
procedure at the airport. While there is no explicit discussion in the 
decision, it appears that the current landing procedures at the airport 
would have continued whether or not FAA had issued the new procedure. 
Accordingly, the status quo in the context of the City of Aurora 
decision appears to have been the continued operation of the airport, 
whereas the status quo in the context of license renewal is the 
expiration of the facility's operating license.
    Similarly, the decision in Upper Snake River Chapter of Trout 
Unlimited v. Hodel \4\ does not appear to provide strong support for 
the petitioner's proposal. In that case, the court found that the 
reduction in river flows approved by Federal agencies was not a major 
Federal action within the meaning of NEPA. The court held that, in 
allowing the flow reductions, the Federal defendants were ``simply 
operating the facility in the manner intended'' and that they were 
doing ``nothing new, nor more extensive, nor other than that 
contemplated when the project was first operational.'' 921 F.2d at 235. 
In other words, the flow reductions were part of the normal operations 
originally approved by the agencies in that case. Conversely, in the 
license renewal context, the additional 20 years of operation 
authorized by a renewed license were not considered during the initial 
licensing of the facility. Thus, the reasoning in Upper Snake River 
Chapter does not appear to be applicable to NRC's license renewal 
decisions. The Commission believes, and has stated before, that a 
license renewal decision by NRC is a major Federal action that warrants 
the preparation of an environmental impact statement (61 FR 55637, 
66541; December 18, 1996).
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    \4\ 921 F.2d 232 (9th Cir. 1990).
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    In submitting comments on its petition, NEI identified several NRC 
decisions which it believes support its position. The first, Consumers 
Power Company (Big Rock Nuclear Plant) ALAB 636, 13 NRC 312 (1982), 
involved a license amendment request to expand the Big Rock Point 
Nuclear Plant's spent fuel pool. As NEI indicates, the Appeal Board 
emphasized the limited scope of the request in rejecting claims that 
aspects of the plant's continued operation should also be considered in 
the EA. As quoted by the petitioner, the Appeal Board found that 
``there are no environmental changes to evaluate'' with the secondary 
or indirect effects (e.g., the plant's continued operation) of the 
spent fuel pool licensing decision. 13 NRC at 328. The petitioner's 
comments indicate that:

    The Appeal Board correctly noted that, by granting the license 
amendment request, the Commission is not also issuing approval to 
alter any other aspect of the plant's operation or the licensed 
operating term of the facility.

Petition for Rulemaking (Docket No. PRM-51-7; July 13, 1999), letter 
from NEI to Secretary, NRC, dated November 16, 1999, at pp. 2, 3. The 
Commission believes that the petitioner's own statement here 
demonstrates the lack of support Consumers Power Company provides for 
its own position. In the context of license renewal, the Commission is, 
in fact, approving an extension of the licensed operating term of the 
facility. Accordingly, the facts in Consumers Power Company are not 
analogous to those presented by license renewal. While the Commission 
has appropriately decided through rulemaking that it may focus its 
safety evaluation on certain matters specified in Part 54, its overall 
license renewal decision applies to the operation of the entire plant. 
Therefore, the limited scope considered in Consumers Power

[[Page 10838]]

Company is not present in the license renewal context.
    Finally, petitioners have also cited General Electric (Morris 
Operation Spent Fuel Storage Facility) LBP-82-14, 15 NRC 530 (1982). In 
that case, the Atomic Safety and Licensing Board ruled that NRC did not 
have to issue an EIS for the license renewal of a storage facility. 
However, in that case, the NRC staff did issue an environmental impact 
appraisal (referred to under current NRC regulations as an 
environmental assessment (EA)) for the action. There is no suggestion 
that the NRC staff was free to eliminate or ignore consideration of the 
impacts of the action. Rather, the Board agreed with the NRC staff that 
the impacts of the action were not significant enough to warrant the 
preparation of a full EIS and, instead, an environmental impact 
appraisal was sufficient. The Commission believes that the preparation 
of EISs, not EAs, are appropriate in the context of license renewal. 
However, whether an EIS or an EA is prepared for a particular action, 
the Commission still is responsible for considering the environmental 
impacts of the action. Accordingly, this case seems to provide little 
support for the petitioner's position.

2. Impact of the Limerick Decision

    The petitioner is correct in stating that the 3rd Circuit's holding 
in Limerick Ecology Action v. NRC does not itself preclude NRC from 
ever eliminating SAMA reviews from its licensing actions. Specifically, 
the court held that the NRC could not generically dispense with the 
consideration of SAMAs through a policy statement. Instead, the NRC 
would need to do so through a generic rulemaking similar to the one 
completed for Table S-3 (10 CFR 51.51) and upheld by the Supreme Court 
in Baltimore Gas and Electric v. Natural Resources Defense Council, 464 
U.S. 87 (1983). Despite the limited nature of its holding, the court in 
the Limerick decision identified a variety of issues that NRC would 
have to address in order to eliminate the consideration of SAMAs. In 
addition to holding that the NRC could not eliminate consideration of 
these SAMAs through a policy statement, the court also suggested that 
the generic consideration of SAMAs may be difficult to accomplish given 
differences in individual plants. 869 F.2d at 733-739. In addition, as 
the petitioner has indicated, the court rejected NRC's argument that 
severe accidents were remote and speculative because there was no basis 
for this conclusion in the agency's record. Id. at 739-741.
    Despite the adverse ruling handed to NRC, the Limerick decision 
outlines several paths the Commission could attempt to follow in order 
to eliminate the requirements to analyze both severe accidents and 
associated mitigation alternatives in individual license renewal 
reviews. First of all, the Commission could attempt to conclude 
generically through rulemaking that it has considered these matters and 
that further consideration in individual license renewal actions is not 
warranted. In other words, the NRC would change the designation of the 
severe accident issue to ``Category 1'' for license renewal in Appendix 
B of 10 CFR part 51. Secondly, as discussed in Section 3 of this 
notice, the Commission could eliminate consideration of SAMAs for 
license renewal based on a finding that severe accidents, in the 
context of plant operation during the license renewal term, are remote 
and speculative.
    The Commission believes that insufficient information is available 
to conclude generically that a SAMA analysis is not warranted for 
individual plant license renewal reviews. In promulgating the license 
renewal rule in 1996, the Commission indicated that it ``may review the 
issue of severe accident mitigation for license renewal and consider, 
by separate rulemaking, reclassifying severe accidents as a Category 1 
issue'' (61 FR 66537; 66540; December 18, 1996). In early 1999, in 
anticipation of completion of the IPE and IPEEE programs, the NRC staff 
began considering the actions needed to fulfill the commitment made in 
the Federal Register notice. The IPE program has been completed and the 
findings of the program are summarized in NUREG-1560, ``Individual 
Plant Examination Program: Perspective on Reactor Safety and Plant 
Performance,'' December 1997. The IPEEE program is nearing completion. 
The current target for completing the reviews of the balance of the 
individual submittals is January 2001. A draft insights report will be 
issued for public comment in April 2001 and the final report is 
scheduled to be completed in October 2001.
    Over the past year, the staff has considered the scope of the 
analysis that would be required to reach generic technical conclusions 
supporting a rulemaking to reclassify severe accidents as a Category 1 
issue. While the information developed in the IPE/IPEEE program 
provides a valuable starting point, considerable staff and contractor 
effort would be required to extend the conclusions resulting from the 
IPE/IPEEE reviews to draw generic conclusions regarding SAMAs. This 
would include the need to evaluate changes in plant design and 
procedures since the IPEs/IPEEEs were completed, incorporate changes in 
the state of knowledge regarding certain severe accident issues, and to 
extend the IPE/IPEEE analyses to include offsite consequences. In 
addition, both benefit and cost considerations of potential plant 
improvements would need to be developed. Further, there is uncertainty 
whether, at the conclusion of this effort, the staff would be 
successful in developing a sufficient technical basis to reclassify 
severe accidents as a Category 1 issue. Given the resources that would 
be required and the uncertainty in achieving a successful outcome, the 
staff does not believe it would be cost beneficial to pursue rulemaking 
at this time.
    In September 2000, the staff issued Supplement 1 to Regulatory 
Guide 4.2, ``Preparation of Supplemental Environmental Reports for 
Applications to Renew Nuclear Power Plant Operating Licenses,'' which 
includes guidance on information and analysis content on SAMAs for 
environmental reports submitted as part of license renewal 
applications. Its use is intended to ensure the completeness of the 
information provided, to assist the NRC staff and others in locating 
the information, and to shorten the review process. The staff will 
continue to work with stakeholders to determine if additional 
efficiencies in the conduct of SAMA analyses for environmental reviews 
can be realized. Furthermore, if new information becomes available that 
indicates it is feasible to reclassify SAMAs to Category 1, the staff 
will notify the Commission and provide a recommendation as to a course 
of action.
    Accordingly, the Commission believes that there is an inadequate 
basis for a rulemaking to change severe accidents from a Category 2 to 
Category 1 issue at this time. Applicants should continue to refer to 
the guidance set out for SAMA analyses in the Statements of 
Consideration for the license renewal rule (61 FR 28467, 28480-28482; 
June 5, 1996). The NRC staff will continue to work with stakeholders to 
discuss the process by which SAMA reviews are done and to determine if 
efficiencies are possible while ensuring compliance with NRC's NEPA 
responsibilities to consider the environmental impacts of its licensing 
decisions.

3. Consideration of Remote and Speculative Impacts

    The Commission agrees with the petitioner that there is support in 
the

[[Page 10839]]

case law for the proposition that NEPA does not require the 
consideration of remote and speculative risks.\5\ The court in the 
Limerick proceeding rejected the NRC's argument that severe accidents 
were remote and speculative because the court could find no basis for 
the conclusion in the NRC record. Id. at 739-741. The Commission is not 
prepared to reach the conclusion that the risks of all severe accidents 
in the context of license renewal are so unlikely as to warrant their 
elimination from consideration in our NEPA reviews. Even though there 
is a low probability of a severe accident, the NRC has invested 
considerable resources toward understanding potential severe accident 
sequences and alternatives for further reducing the probability of and 
mitigating the consequences of severe accidents, but has not yet 
established an agency record that severe accidents may be eliminated 
from NRC's NEPA reviews. In reviewing licensing actions outside of the 
license renewal context, it may be possible for the NRC to conclude 
that certain severe accident scenarios are remote and speculative and 
do not warrant detailed consideration for the purposes of the NEPA 
review for that particular NRC action. However, for the purposes of 
consideration of severe accidents in the context of license renewal 
NEPA reviews, the NRC staff has not developed the necessary basis for 
concluding that such occurrences are remote and speculative, and thus 
inappropriate for NRC review under NEPA. This position does not alter 
the conclusion that, in light of margins of safety and defense-in-
depth, the likelihood of radiological offsite consequences is small.
---------------------------------------------------------------------------

    \5\ See, e.g., Limerick Ecology Action v. NRC, 869 F.2d at 739; 
San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1300-01 
(D.C. Cir. 1984).
---------------------------------------------------------------------------

    In its comments, the petitioner cited two cases which, in its view, 
demonstrate that NEPA's requirements are satisfied where potential 
impacts to the environment are remote and difficult to quantify and 
ongoing regulatory safeguards are in place to protect against potential 
risks of impacts into the future. Environmental Defense Fund v. Andrus, 
619 F.2d 1368 (10th Cir. 1980) reh'g en banc denied; and Citizens for 
Environmental Quality v. Lyng, 731 F. Supp. 970 (D. Colo. 1989). While 
these cases may provide more support for the general proposition that 
remote and speculative impacts need not be considered under NEPA, they 
do not displace the Commission's responsibility to make the threshold 
determination based on the NRC record that severe accidents are remote 
and speculative for the purpose of license renewal reviews. As 
discussed, the Commission is unable to reach that conclusion.
    For the reasons cited in this document, the Commission denies the 
petition.

    Dated at Rockville, Maryland, this 13th day of February, 2001.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 01-4104 Filed 2-16-01; 8:45 am]
BILLING CODE 7590-01-P


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