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.

Proposed Rules Federal Register

10834

Vol. 66, No. 34

Tuesday, February 20, 2001

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.

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 dpc@nrc.gov.

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 plantspecific 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

Federal Register / Vol. 66, No. 34 / Tuesday, February 20, 2001 / Proposed Rules 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 plantspecific 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

10836 Federal Register / Vol. 66, No. 34 / Tuesday, February 20, 2001 / Proposed Rules

1City 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).

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.’’

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

Federal Register / Vol. 66, No. 34 / Tuesday, February 20, 2001 / Proposed Rules 10837

2 746 F.2d 466 at 476–477.

3 749 F.2d 1457 (10th Cir. 1984). 4 921 F.2d 232 (9th Cir. 1990).

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

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.

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).

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

10838 Federal Register / Vol. 66, No. 34 / Tuesday, February 20, 2001 / Proposed Rules

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

Federal Register / Vol. 66, No. 34 / Tuesday, February 20, 2001 / Proposed Rules 10839

5See, 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).

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.

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

NUCLEAR REGULATORY

COMMISSION

10 CFR Parts 73, 76, and 95

[Docket No. PRM–76–1]

United Plant Guard Workers of

America; Denial of Petition for

Rulemaking

AGENCY: Nuclear Regulatory

Commission.

ACTION: Denial of petition for

rulemaking.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is denying a petition

for rulemaking submitted by the United

Plant Guard Workers of America (PRM–

76–1). The petitioner requested that the

NRC amend its regulations concerning

security at the gaseous diffusion plants

to address sites that have both special

nuclear material security concerns and

protection of classified matter concerns;

to require that these facilities be able to

detect, respond to, and mitigate threats

of a sabotage event; and to require that

the security force be armed and

empowered to make arrests in limited

situations. The petitioner believes that

these amendments are necessary to

address the protection of classified

information, equipment and materials,

and special nuclear material at the

gaseous diffusion plants.

ADDRESSES: Copies of the petition for

rulemaking, the public comments

received, and NRC’s letter to the

petitioner may be examined at the NRC

Public Document Room, 11555

Rockville Pike, Rockville, MD. These

documents also may be viewed and

downloaded electronically via the

rulemaking website.

Documents created or received at the

NRC after November 1, 1999 are also

available electronically at the NRC’s

Public Electronic Reading Room on the

Internet at http://www.nrc.gov/NRC/

ADAMS/index.html. From this site, the

public can gain entry into the NRC’s

Agencywide Document Access and

Management System (ADAMS), which

provides text and image files of NRC’s

public documents. For more

information, contact the NRC Public

Document Room (PDR) Reference staff

at 1–800–397–4209, 301–415–4737, or

by e-mail, pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT:

Merri Horn, Office of Nuclear Material

Safety and Safeguards, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555–0001, telephone (301) 415–

8126, e-mail mlh1@nrc.gov.

SUPPLEMENTARY INFORMATION:

The Petition

On May 10, 2000 (65 FR 30018), the

NRC published a notice of receipt of a

petition for rulemaking filed by the

United Plant Guard Workers of America.

The petitioner requested that the NRC

amend its regulations concerning

security at the gaseous diffusion plants

to address sites that have both special

nuclear material security concerns and

protection of classified matter concerns;

to require that these facilities be able to

detect, respond to, and mitigate threats

of a sabotage event; and to require that

the security force be armed and

empowered to make arrests in limited

situations. The petitioner believes that

these amendments are necessary to

address the protection of classified

information, equipment and materials,

and special nuclear material at the

gaseous diffusion plants.

First, the petitioner asserted that the

regulations do not adequately address

sites that have both nuclear material

security concerns and classified matter

concerns. The petitioner believes that

the applicable regulations were not

appropriately merged in the regulations

governing gaseous diffusion plants to

address a site that covers the protection

of classified information, equipment

and materials, and special nuclear

material.

As an example, the petitioner stated

that the Controlled Area Fence Line

does provide a minimum level of

protection against the unauthorized

removal of special nuclear material

contained in 10- and 20-ton cylinders.

However, the petitioner questioned

whether the fence line adequately

protects against the unauthorized

removal of restricted information,

equipment, and other materials or the

unauthorized access to these types of

materials.

The petitioner asserted that other

facilities that possess Category III

quantities of special nuclear material

regulated by the NRC do not share the