NRC Commissioners Adopt a Generic Environmental Impact Statement for Advanced Nuclear Reactors, Following Approaches Outlined in Pillsbury White Paper

Pillsbury Winthrop Shaw Pittman LLP

Pillsbury Winthrop Shaw Pittman LLP

On September 21, 2020, the Nuclear Regulatory Commission (NRC) announced that it has approved the development of a generic environmental impact statement (GEIS) for the construction and operation of advanced nuclear reactors using a technology-neutral, plant parameter envelope (PPE) approach, and that the GEIS should be codified in the Code of Federal Regulations.


  • The NRC decision memorializes the Commission’s commitment to follow through on a proposal that Pillsbury attorneys and firm client ClearPath set forth in an influential 2019 white paper regarding the development of a GEIS for the construction and licensing of advanced nuclear reactors.
  • An important indication of NRC’s deference to the 2019 white paper involves the Commission’s directive to NRC staff to consider PPE criteria that is “inclusive of as many ANR technologies as possible.”
  • The NRC decision takes place a little more than two months after the Trump Administration implemented a generational reform of the National Environmental Policy Act to promote efficiencies in the federal approval of energy and infrastructure development projects.

Background to NEPA and White Paper Submission

The National Environmental Policy Act (NEPA) requires federal agencies proposing to undertake, approve or fund “major Federal actions” to evaluate the action’s environmental impacts, including both direct and reasonably foreseeable indirect effects. NEPA also requires agencies to consider alternatives to the proposed action and to discuss cumulative impacts resulting from the incremental effects of the project when added to those of other past, present, and reasonably foreseeable future projects. In practice, NEPA review has developed into a burdensome, costly and time-consuming process resulting in inconsistent outcomes.

From the outset, the Trump administration established a policy objective of streamlining the environmental review process to promote infrastructure and energy development. Early steps in this regard included the issuance of Executive Order 13807 “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects” (August 15, 2017) and, specific to the nuclear industry, the January 2019 enactment of the Nuclear Energy Innovation and Modernization Act (NEIMA). The culmination of these efforts was the Council on Environmental Quality’s (CEQ’s) promulgation of a final rule, implementing sweeping amendments to NEPA.

Given the political climate and the appetite for change, Pillsbury attorneys Jeff Merrifield (a former NRC commissioner) and Reza Zarghamee represented ClearPath, a Washington, DC-based thinktank, in developing and submitting to NRC a white paper advocating the use of a GEIS to streamline the NRC’s NEPA procedures (codified at 10 CFR Part 51) for prospective environmental reviews of advanced nuclear reactors. The submission of the GEIS was in accordance with ClearPath’s dedication to the principle of United States leadership in clean energy, of which nuclear energy is an important source. A GEIS is a tool available under NEPA that allows agencies to address certain potential environmental impacts generically, thus obviating the need for redundant case-by-case review in each Environmental Impact Statement. To the extent that certain potential impacts cannot be addressed generically, they can be dealt with on a specific basis in a Supplemental Environmental Impact Statement (SEIS).

NRC Response to the White Paper

NRC responded to submission of the white paper, and other calls for NEPA reform by industry groups such as the Nuclear Energy Council and Nuclear Energy Institute, by launching an exploratory process, including consideration of public comments, for developing a GEIS for the construction and operation of advanced nuclear reactors. See 84 Fed. Reg. 62,559 (November 15, 2019). The exploratory process resulted in a February 28, 2020 NRC Policy Statement declaring the Commission staff’s intent to develop a GEIS based on a PPE approach focused to capture only non-light-water reactors with a generation output of approximately 30 Mwt or less per reactor. Among other things, the proposed PPE approach entailed the development of a table of values representing the “site parameter envelope” (e.g., size of site, quantity of water used, demographics). The GEIS would then apply to a reactor that fits within the bounds of the PPE on a site that fits within the bounds of the site parameter envelope to determine the environmental impact.

In April 2020, the NRC published its intent to prepare a GEIS on these grounds and conduct scoping in the Federal Register (85 Fed. Reg. 24,040 (April 30, 2020). In May 2020, NRC staff held a presentation on GEIS scoping to elaborate upon the proposed PPE approach. Among other things, the staff indicated its intent to divide the issues subject to environmental review into Category 1 and Category 2. The former would be addressed generically in the GEIS, whereas the latter would be treated specifically, through a SEIS. An important takeaway of this public meeting was that the NRC’s positions on what constitutes a Category 1, as opposed to Category 2, issue is hardly solidified. The scoping comment period ended on June 30, 2020.

September 21, 2020 Notice of Approval

On September 21, 2020, the NRC Commissioners voted on the development of a GEIS and the ancillary issue of whether a GEIS should be codified through rulemaking or issued in the form of Commission policy. The staff’s recommendation was to issue a GEIS but not turn into a rule. Four of the five Commissioners voted to adopt a GEIS (Chairman Kristine Svinicki, Annie Caputo, Christopher Hanson, and David Wright), with three of the four voting to codify it, as well, against the staff’s recommendations (Caputo, Wright, Svinicki). Only Commissioner Jeff Baran voted against the GEIS altogether.

The NRC’s notice of approval contained some important comments that stand to influence the scoping process on a forward-going basis. Notably, the notice directed the NRC staff to “continue to consider a PPE that is inclusive of as many ANR technologies as possible.” This directive picks up on a divergence to date between NRC’s policy statement and the white paper prepared by Pillsbury and Clearpath. Specifically, the white paper proposed a definition of “advanced nuclear reactor” that would capture both Generation III+ and Generation IV advanced nuclear reactors, whereas the policy statement applied to only a subset of Generation IV technologies. The Commissioners’ statement indicates the need to revisit and expand the policy statement bounding criteria. Other directives set forth in the notice of approval pertain to the presentation of the outcome of the scoping process, including the identificatation of resource areas for particular types of reactors.

What Should I Do?

At present, NRC estimates that it will issue a draft GEIS for public comment on May 1, 2021 and finalize the document a year later on May 1, 2022. Furthermore, NRC has indicated that it plans to engage with stakeholders during this time. Given the chance to interact with the Commission and influence the rulemaking process, interested parties should be proactive and take advantage of these opportunities to influence the final outcome of this important NRC initiative.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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