NRC Staff Proposes Rulemaking to Update Environmental Regulations

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Morgan Lewis - Up & Atom

The US Nuclear Regulatory Commission (NRC) Staff has sought the Commission’s approval to initiate a rulemaking to update the agency’s environmental protection regulations for licensing activities.

NRC Staff suggests that its recommended rulemaking would “streamline [its] environmental review process, assist the Commission and the staff . . . focus[] on the relevant environmental issues . . . ; maintain openness with the public; and reduce the burden on applicants, licensees, and the NRC.” NRC Staff has proposed the rulemaking to account for recent statutory and regulatory changes, to include Title 41 of the 2015 Fixing America’s Surface Transportation Act (FAST-41), the 2019 Nuclear Energy Innovation and Modernization Act (NEIMA), and a 2020 final rule issued by the Council on Environmental Quality (CEQ) that amended its National Environmental Policy Act (NEPA) regulations.

BACKGROUND

The NRC has long taken the position that, as an independent agency, it is not bound by CEQ’s NEPA-implementing regulations. Rather, the NRC has its own environmental regulations in 10 CFR Part 51 (Part 51), “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” which implement the agency’s responsibilities under NEPA. These regulations require NRC Staff to assess potential environmental impacts associated with NRC licensing decisions and other regulatory actions.

Under NEPA, federal agencies may prepare an Environmental Assessment (EA) to consider the potential environmental impacts of a proposed major federal action; if those impacts are likely to be “significant,” NEPA requires preparation of a more fulsome Environmental Impact Statement (EIS). However, the NRC’s regulations at 10 CFR § 51.20(b) short-circuit the traditional EA process for certain types of licensing actions, such as for the issuance or renewal of a license to operate a nuclear power reactor, and instead require preparation of an EIS for all such actions regardless of whether significant impacts are likely.

PROPOSED CHANGES

Among the significant changes, NRC Staff has proposed a rulemaking to eliminate certain types of licensing actions from the automatic-EIS provisions of 10 CFR § 51.20(b). NRC Staff suggests, “based on over 40 years of NRC regulatory experience,” that preparation of an EA instead of an EIS may be sufficient for some licensing applications, such as renewals for existing nuclear power reactors. Additionally, Staff has determined that an EA may be sufficient for initial licensing applications for advanced reactors and non-power production and utilization facilities, “such as those involving . . . micro-reactors.”

Additionally, NRC Staff proposes to use the rulemaking as a vehicle to evaluate CEQ’s 2020 rule changes and to consider whether the NRC should adopt similar regulatory changes or guidance updates. For example, NRC Staff proposes to consider: removing references to “cumulative impacts” in its regulations; defining “reasonable alternatives” to include consideration of “technical and economic feasibility;” and establishing schedule and page limits for an EIS or EA. The Staff would assess whether to adopt these changes as part of the rulemaking process, and would prepare a preliminary cost/benefit analysis, seek stakeholder input as part of its assessment, and review judicial decisions in pending suits challenging CEQ’s changes.

Notably, this proposal is separate from and in addition to other Part 51 rulemakings and guidance updates that are in progress or are being considered by the agency, including the NRC’s 10-year update of its Generic Environmental Impact Statement (GEIS) for License Renewal, and development of a GEIS for advanced reactors.

NEXT STEPS

Staff’s recommendation is presented in an options paper that also evaluates other options, including a no-action alternative, and an option to forego rulemaking and simply update existing guidance documents. The Commission will consider these options and issue a Staff Requirements Memorandum directing the agency’s path forward. If the Commission approves the rulemaking recommendation, Staff estimates it will take at least three years from Commission approval before it can deliver the final rule to the Commission. This process would require preparing a regulatory basis and resolving comments, preparing the proposed rule and resolving comments, and then preparing the final rule.

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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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