On February 24, 2022, the Nuclear Regulatory Commission (NRC) issued three unusual decisions pertaining to the agency’s review of subsequent license renewal (SLR) applications.  The Commission orders reversed a previous Commission decision—CLI-20-03—pertaining to environmental reviews conducted by the NRC under the National Environmental Policy Act (NEPA) for SLRs.

In two of the orders the Commission reversed previously granted SLRs for four reactors—two reactors at Florida Power & Light Co.’s (FPL) Turkey Point nuclear power plant (CLI-22-02) and two reactors at Constellation Energy Corp.’s (Constellation) Peach Bottom nuclear power station (CLI-22-04). These orders, in part, moved the license terms back to their previous expiration dates and provided further direction to the NRC staff regarding next steps for the licenses.

The third Commission order provided further direction for conducting the environmental reviews for pending SLR proceedings, involving nine additional reactors at four more plants (CLI-22-03).

We walk through the three Commission decisions in more detail below, after providing a brief overview of SLRs and the regulations at issue.

1.  What is Subsequent License Renewal?

Typically, at initial licensing, the NRC issues a license for commercial reactors to operate for up to 40 years.  NRC regulations permit these licenses to be renewed beyond the initial 40-year term for an additional period of time, limited to 20-year increments per renewal There are no specific limitations in the Atomic Energy Act or the NRC’s regulations restricting the number of times a license may be renewed.  Initial license renewal generally extends a plant operating license from 40-60 years, while so-called “subsequent license renewal”—or SLR—extends a plant operating license from 60-80 years.

In deciding whether to grant a renewed license, the NRC evaluates whether the nuclear facility can continue to operate safely during the period of extended operation.  The review is conducted in accordance with both safety (10 C.F.R. Part 54) and environmental (10 C.F.R. Part 51) requirements.

a.  Environmental Reviews During License Renewal

In addition to a safety review, the renewal of a nuclear power plant operating license requires the preparation of an environmental impact statement (EIS) to comply with the requirements of NEPA. The EIS includes the Staff’s analysis that considers and weighs the environmental effects of the proposed action.  To support the preparation of EISs, the NRC published the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS) in 1996, and updated the GEIS in 2013.

The GEIS for license renewal assessed the environmental impacts associated with the continued operation of nuclear power plants during the license renewal term.  The NRC also promulgated a rule that codified the findings of the GEIS into its regulations in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 (“Table B-1”).

As explained in the Commission decision CLI-20-03 (at page 5), the intent of the GEIS was to improve the efficiency of license renewal by determining which environmental impacts would result in essentially the same impact at all nuclear power plants (i.e., generic or “Category 1” issues) and which ones could result in different levels of impacts at different plants and would require a plant-specific analysis to determine the impacts (“Category 2” issues).  In developing the GEIS, the NRC relied on the following factors:

  • License renewal will involve nuclear power plants for which the environmental impacts of operation are well understood as a result of lessons learned and knowledge gained from operating experience and completed license renewals.
  • Activities associated with license renewal are expected to be within this range of operating experience; thus, environmental impacts can be reasonably predicted.
  • Changes in the environment around nuclear power plants are gradual and predictable.

For the issues that could not be generically addressed—the Category 2 issues—the Staff prepares plant-specific supplements to the GEIS, i.e., a plant-specific supplemental EIS, or “SEIS”.

While the NRC is responsible for complying with NEPA, the process of creating an EIS begins with the license renewal applicant. Under 10 C.F.R. §§ 51.45(a) and 51.53(c)(1), license renewal applicants must submit an environmental report to the NRC “to aid the Commission in complying with section 102(2) of NEPA.”  See 10 C.F.R. § 51.14(a) (definition of “environmental report”). The NRC staff reviews the environmental report submitted by the applicant and uses it to draft the plant-specific SEIS.  See CLI-20-03 at 6.

Under 10 C.F.R. § 51.53(c)(3), “[f]or those applicants seeking an initial renewed license…the environmental report…for the operating license renewal stage is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues in [Table B-1].”  Therefore, applicants meeting this criteria may rely on the GEIS and Table B-1 in preparing their environmental reports, and the NRC staff may subsequently rely on the GEIS and Table B-1 when preparing its SEISs.

b.  Status of License Renewal Reviews

As of January 2022, the NRC has completed initial license renewal for 94 commercial nuclear reactors—58 have entered their extended period of operation, while 8 of those have since ceased operations.  An additional reactor with a renewed license shut down before reaching 40 years of operation.

The first SLR application, for Turkey Point Units 3 and 4 reactors, was submitted to the NRC in January 2018, and the NRC issued the Turkey Point SLRs in December 2019.  As of January 2022, the NRC had issued SLRs for six reactors, and SLR applications are under review for an additional nine reactors.

Completed SLR Applications (as of January 2022):

Plant Name and Unit(s) Application Date Renewed License Issued Date Entering Subsequent Period of Extended Operation
Turkey Point Units 3 and 4 01/31/18 12/04/19 07/19/32 (Unit 3)
04/10/33 (Unit 4)
Peach Bottom Units 2 and 3 07/10/18 03/05/20 08/08/33 (Unit 2)
07/02/34 (Unit 3)
Surry Units 1 and 2 10/15/18 05/04/21 05/25/2032 (Unit 1)
01/29/2033 (Unit 2)

SLR Applications Currently under Review:

Plant Name and Unit(s) Application Received
St. Lucie Plant, Units 1 and 2 08/03/2021
Oconee Nuclear Station, Units 1, 2, and 3 06/07/2021
Point Beach, Units 1 and 2 11/16/2020
North Anna, Units 1 and 2 08/24/2020

*Tables are taken from the NRC website.

2.  Summary of Commission Position before February 24th Orders

The Commission’s February 24th orders reversed a prior Commission decision—CLI-20-03.  The matter specifically before the Commission in CLI-20-3 was whether 10 C.F.R. § 51.53(c)—and therefore the GEIS and Table B-1—applied to SLRs or only initial license renewals.  At issue was the language in the regulation that stated that the regulation applied to “those applicants seeking an initial renewed license” and whether this language limited the applicability of § 51.53(c) to only initial license renewal and not to SLRs.

The matter had been referred to the Commission by the Licensing Board in the Turkey Point SLR proceeding.  When faced with this issue, the Licensing Board had determined the plain regulatory language does not resolve whether § 51.53(c)(3) can be applied to SLR applicants, explaining: “it neither directs the Commission to apply section 51.53(c)(3) to [subsequent license renewal] applicants, nor does it forbid the Commission from doing so.”  Because the Board found the regulations silent as to SLR applicants, the Board looked to “regulatory language and structure; regulatory purpose and history; the agency’s interpretative rules; and administrative efficiency, logic, and practicality.”  Based on its analysis, the Board concluded that the Commission intended § 51.53(c)(3) to apply to all license renewal applicants, including those for SLR.  See CLI-20-03 at 8-9 (citing LBP-19-3, 89 NRC 245 (2019)).

In affirming the Licensing Board’s decision, the Commission held in CLI-20-03 that, in SLR proceedings, the NRC staff may rely on the NRC’s GEIS and Table B-1, and could exclude consideration of “Category 1” issues from their environmental reports absent new and significant information that would change the conclusions in the GEIS.  See CLI-20-03 at 29 and 10 C.F.R. § 51.53(c)(3)(i).  Therefore, under CLI-20-03, an applicant’s environmental reports need only address “Category 2” issues and the NRC staff need only address the same information in their SEISs.  See 10 C.F.R. § 51.53(c)(3)(ii).

3.  Commission February 24th Orders

In the Commission’s February 24th orders, the Commission reversed its previous decision in CLI-20-03, and determined that the GEIS, Table B-1, and 10 C.F.R. § 51.53(c)(3) only apply to an initial license renewal (i.e., from years 40-60 of a plant’s operating life) and not subsequent license renewal (i.e., from years 60-80 of a plant’s operating life).  This decision impacts pending SLRs as well as already-issued SLRs as explained below.

Commissioner Wright also dissented from the majority decision, as further explained below.

  • Turkey Point and Peach Bottom. With respect to the four licenses at the Turkey Point and Beach Bottom plants, the Commission determined that as a result of overturning CLI-20-03, the environmental review of these license renewal applications is incomplete.  See CLI-22-02 at 2 and CLI-22-04 at 3.  The Commission directed that the NRC staff roll back the license dates for these facilities to where they were before the SLR, and directed the parties to submit their views on the practical effects of (1) the subsequent renewed licenses continuing in place and (2) the previous licenses being reinstated.

In the Turkey Point decision, the Commission explained the effects of its decision as follows (CLI-22-02 at 14):

The interpretation we apply today is consistent with the intent and text of NEPA and the APA, as well as judicial interpretations of those laws. This decision aligns the agency interpretation of section 51.53 with the plain language of the regulation.

We conclude that the Staff did not conduct an adequate NEPA analysis before issuing FPL licenses for the subsequent license renewal period.  While FPL’s subsequently renewed licenses became immediately effective upon issuance, the environmental analysis associated with the previous licenses analyzed the impacts of operation until 2032 and 2033 for Units 3 and 4, respectively. We conclude that it is appropriate for FPL to maintain its current subsequently renewed licenses, but with shortened terms to match the end dates of the previous licenses … until completion of the NEPA analysis.  Accordingly, we direct the Staff to amend the licenses to this effect. Given the timeframe involved, we fully expect that the Staff will be able to evaluate the environmental impacts prior to FPL entering the subsequent license renewal period. While we recognize that FPL and other subsequent license renewal applicants have relied on CLI-20-03 and prior agency statements, our holding today will ultimately promote the agency’s goals of clear communication with the public and transparency in our actions.

We would note that it is unusual for the NRC to alter pre-existing decisions without a demonstration of new information, especially in light of the fact that a licensing action had already been taken by the NRC based on a Commission decision.  This unusual course of action is further addressed in the overview of Commissioner Wright’s dissent below.

We would further note that Dominion Energy Inc.’s Surry nuclear power plant also received approval for a subsequent license renewal in 2021, but for reasons unclear at present to the blog authors is not named in the NRC’s recent decisions.

  • SLR Reviews Generally (CLI-22-03). The NRC issued a third order applicable to pending SLR proceedings.  The order addressed the existing proceedings as well as the previously granted license extensions.  With respect to SLRs in general, in light of its decision regarding CLI-20-03, the Commission stated that:

1. No SLRs will be issued until the “NEPA deficiencies” are addressed in each application.

It is directing the NRC staff to review and update the GEIS so that it covers operation during the SLR period. The Commission prefers that the staff update the GEIS before appropriate action be taken regarding the specific pending SLRs. However, the Commission concedes that applicants may not wish to first wait for completion of the generic analysis and rulemaking, so an applicant may instead submit a revised environmental report with information on impacts during the SLR period. Petitioners or intervenors could then submit new or revised contentions based on information in the revised site-specific EIS.

2. In the meantime, licensing reviews should continue to move forward, and in adjudicatory matters, any contentions that do not challenge the contents of the GEIS or site-specific environmental impact statement should proceed.

  • Commissioner Wright’s Dissent. Presently, there are only three NRC Commissioners—with two of the three Commissioners supporting the February 24th orders to reverse CLI-20-03, and one dissenting (Both Commissioner Baran and Commissioner Wright were Commissioners at the time of the CLI-20-03 decision, with Commissioner Baran dissenting at the time).  In his dissent, Commissioner Wright explained that he disagrees with the rationale reversing CLI-20-03, and had “serious concerns about the message this action sends to the public, applicants, licensees, and other stakeholders.”

Commissioner Wright explained that the reversal of CLI-20-03 was both arbitrary and inconsistent with the NRC’s Principles of Good Regulation (CLI-22-02, dissent at 1):

I view the majority’s decision to reverse direction now as arbitrary and inconsistent with the NRC’s Principles of Good Regulation. The majority’s decision is arbitrary because my colleagues do not base the reversal on any new information or arguments beyond what we previously considered and rejected in issuing CLI-20-03. The reversal is also contrary to the NRC’s Principles of Good Regulation, particularly the principles of Openness, Clarity, and Reliability. For the NRC to function as an effective and credible regulator, our stakeholders must be able to rely on our statements and positions. Such reliance is impossible when we may change our position at any time, based on nothing other than the information and arguments previously considered and rejected.

Moreover, changing course in this proceeding under these circumstances short-circuits our agency’s well-established and predictable adjudicatory process, set forth in the Atomic Energy Act 1954, as amended and detailed in our regulations.

         Commissioner Wright further states:

The majority also asserts that their reversal of CLI-20-03 promotes clear communication and transparent decision-making. I disagree and find that the reversal directly contravenes those goals. We previously clearly communicated our position on this matter in CLI-20-03. My colleagues note that “[a]gencies may change positions and interpretations, so long as they explain their reasoning for doing so.” While I agree in principle, the majority has not explained its reasoning here; rather, the majority is reversing CLI-20-03 based on information previously considered and rejected. In my view, that does not provide a sufficient basis for reversal.

4.  Next Steps

  • In the Turkey Point and Peach Bottom license proceedings, the NRC staff will need to amend the licenses to reflect the reversal in the operating dates of the licenses—e., for Turkey Point, term dates should be July 19, 2032 and April 10, 2033 for Units 3 and 4, respectively, and for Peach Bottom, August 8, 2033 and July 2, 2034 for Units 2 and 3, respectively.
  • The parties will need to conduct next steps as instructed by the Commission, and the applicants will need to update their environmental reports in those proceedings to align with the Commission’s direction. Consistent with the orders, the NRC staff is directed to separately update the GEIS to cure the NEPA deficiencies by addressing the subsequent license renewal period.
  • It is also possible that licensees may challenge the Commission’s decisions in federal court under the Administrative Procedures Act (APA), especially in light of Commissioner Wright’s dissent stating that the NRC’s change in course is arbitrary. Under the APA, final agency decisions may be subject to judicial review, and courts evaluate whether an agency’s actions are deemed to be “arbitrary or capricious” when deciding whether to overturn or remand an agency action.
  • In the other pending SLR proceedings, the environmental reports will require similar amendments to address the Commission’s order.

For more information, please contact the blog authors, Amy Roma, Partner, Rob Matsick, Associate, or Stephanie Fishman, Associate.