Up & Atom

The US Nuclear Regulatory Commission (NRC) has issued an order, with the four-member Commission acting in its appellate capacity, holding that power reactor licensees applying for Subsequent License Renewal (SLR), and the NRC Staff reviewing such applications, may rely on the environmental impact analyses and conclusions in the NRC’s Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants. Environmental activists had challenged the applicability of these conclusions in the SLR context. The Commission’s ruling is a positive development for the nuclear power industry, particularly for current and future SLR applicants.

By way of background, initial NRC power reactor licenses may be issued for a term of 40 years, and may be renewed in 20-year increments. The NRC’s National Environmental Policy Act (NEPA)-implementing regulations, codified in 10 CFR Part 51, delineate two types of environmental issues that must be considered for license renewals: Category 1 issues, which are generic and apply to all plants; and Category 2 issues, which require site-specific analyses. Although the agency is solely responsible for NEPA compliance, the regulations require applicants to provide information to assist in the agency’s review. These regulations permit applicants to rely on the generic findings in the GEIS as to Category 1 issues. And because these findings are codified in 10 CFR Part 51, Subpart A, Appendix B, Table B-1, they are not subject to challenge in individual licensing proceedings (absent a Commission-granted waiver).

Most power reactors in the United States already have received an initial renewal. In 2018, a Morgan Lewis client submitted an SLR application, becoming the first licensee to apply for (and receive) subsequent renewed licenses. As part of its application, the company submitted an Environmental Report providing site-specific analyses for all Category 2 issues, and incorporating the NRC’s Category 1 findings. However, various environmental groups (Petitioners) requested a public hearing to challenge, among other things, the company’s reliance on the NRC’s Category 1 findings. Petitioners argued before the Atomic Safety and Licensing Board (ASLB) that 10 CFR § 51.53(c)(3) (which only requires applicants to analyze Category 2 issues) applies solely to “applicants seeking an initial renewed license.”

The ASLB majority found (in LBP-19-3) that the plain language neither directs nor forbids reliance on the Category 1 findings in the SLR context, and thus did not resolve the issue. It then conducted a holistic analysis of the broader regulatory background, noting that other Part 51 regulations formally require the NRC Staff to use those Category 1 findings in preparing its Environmental Impact Statement. The majority concluded that interpreting 10 CFR § 51.53(c)(3) to prohibit applicants from doing the same would be an absurd result. It also noted that the regulatory analysis documents related to the NRC’s update of the GEIS in 2013, and related rulemaking to codify the updated findings, explicitly contemplated that SLR applicants would rely on those findings; and that the GEIS itself defines the scope of analysis to include all license renewal terms, not merely initial ones. Accordingly, the majority rejected Petitioners’ challenge. However, one ASLB judge filed a dissent. Given that its ruling presented an issue of first impression, and would impact all future SLR proceedings, the ASLB referred its ruling to the full Commission for review.

On April 23, 2020, in a 3-1 decision (CLI-20-03), the Commission affirmed the ruling. The Commission majority largely applied the same rationale as the ASLB majority with Commissioner Jeff Baran dissenting.

The Commission’s ruling is a significant positive development directly supporting regulatory stability for SLR applicants. Morgan Lewis will continue to monitor further developments in this area.