Up & Atom


In a recently issued NRC adjudicatory decision, the Commission reaffirmed its regulatory interpretation allowing power reactor licensees applying for subsequent license renewal (SLR), and the NRC Staff reviewing these applications, to rely on the NRC’s Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants (GEIS). Two of the five Commissioners dissented, however, arguing this interpretation violates the NRC’s obligations under the National Environmental Policy Act (NEPA).

At issue in this proceeding is the SLR application for Peach Bottom Atomic Power Station Units 2 and 3 (Peach Bottom). Peach Bottom is the second power station to apply for (and receive) a subsequent 20-year renewed license. Beyond Nuclear, an anti-nuclear advocacy group, filed a hearing request and petition to intervene in the NRC proceeding, proposing two contentions to be litigated at an evidentiary hearing. After briefing and oral argument, the Atomic Safety and Licensing Board (Board) denied Beyond Nuclear’s hearing request and found neither of its contentions were admissible.

Beyond Nuclear only appealed the Board’s denial of Contention 2, which alleged, among other things, that the applicant’s environmental report violated the NEPA and 10 CFR 51.53(c)(2) by failing to address potential environmental impacts from hypothetical accidents associated with aging equipment. The central dispute was whether the applicant could rely on the NRC’s generic evaluation of this scenario as presented in the GEIS and codified in NRC regulations. Beyond Nuclear argued that Peach Bottom could not rely on the GEIS because 10 CFR 51.53(c)(3) limits its applicability to applicants seeking an “initial” renewed license.

In April 2020, as we previously discussed, a four-member Commission affirmed in a different SLR proceeding that Section 51.53(c)(3) does not limit the applicability of the GEIS to initial license renewal. Commissioner Baran dissented from that ruling, and Commissioner Hanson had not yet joined the Commission. In ruling on Beyond Nuclear’s appeal in the Peach Bottom proceeding, the majority of the Commission pointed to, and declined to revisit, its earlier decision. In dissent, Commissioners Baran and Hanson argued that applying Section 51.53(c)(3) to subsequent renewal conflicts with the wording of the regulation and violates the NRC’s NEPA obligations. They believe the Commission’s decision wrongly expands the scope of the GEIS “after the fact” because it did not “analyze the subsequent license renewal time period.”

Although this decision confirms the applicability of Section 51.53(c) and the GEIS to SLR applications, it is worth noting that Commission membership could change under a new administration. In addition, the NRC is in the process of updating the GEIS and its codified conclusions, and has indicated that it may seek to “clarify” the applicability of the GEIS to SLR applications as part of that proceeding, which potentially could resolve the issue. However, the update and associated rulemaking are not expected to be final until 2023, and the Staff’s approach is subject to change.

We will continue to monitor further developments in this area.