NRC Seeking Input to Update NEPA Process for Categorical Exclusions

Since the statute’s enactment more than fifty years ago, the scope of the environmental review process has expanded greatly across all federal agencies. It often takes in excess of four years for agencies, including the U.S. Nuclear Regulatory Commission (NRC), to complete the environmental review needed to support the highest level of NEPA documentation, an environmental impact statement (EIS). Moreover, NEPA reviews have become largely redundant in light of more robust environmental permitting regimes at the federal and state levels, and the rigorous and onerous requirements of the environmental review process have become the subject of litigation, used by environmental groups and other stakeholders to delay or stop projects.

In these circumstances, there has been growing advocacy among industry and certain levels of government that NEPA stands to be modernized. The Trump administration took several important steps to this end, by among other things overhauling the Council on Environmental Quality’s implementing regulations for NEPA. Moreover, the NRC has committed to implementing a proposal made by Pillsbury client ClearPath, a conservative non-profit that endorses clean energy solutions, and other stakeholders to streamline its own implementing regulations by adopting a Generic Environmental Impact Statement for the construction and licensing of advanced nuclear reactors. Pillsbury’s previous alerts discussing ClearPath’s proposal and the NRC’s efforts to streamline its NEPA regulations can be viewed here, here, and here.

Proposed Revisions

On Friday May 7, 2021, the NRC took another step toward implementing NEPA reform for the nuclear industry by publishing an Advance Notice of Proposed Rulemaking (ANPR) (86 Fed. Reg. 24514) to solicit comments on proposed amendments to the categorical exclusions from its own NEPA process. Categorical exclusions are actions which an agency such as the NRC has determined do not significantly affect the human environment and therefore can be excluded from NEPA review. More specifically, the ANPR signals the Commission’s plan to revise its regulations governing categorical exclusions for the first time since 2010 and to “identify potential opportunities to . . . enhance the process, save time, and reduce resources [including] the possibility of creating new or revised categorical exclusions.”

At the broadest level, the NRC is contemplating revisions that would serve three aims:

• Clarifying the scopes of existing categorical exclusions;
• Establishing new categories of activities excluded from the environmental review process; and
• Reassessing whether existing categorical exclusions are no longer necessary or justified in light of the NRC’s criteria that the categorically excluded activity have no individually or cumulatively significant effect on the human environment. (see 10 CFR § 51.22(a)).

Notably, a number of the proposed amendments are of direct consequence to companies engaged in nuclear power plant decommissioning and spent fuel and radioactive waste management and would potentially create a number of new categorical exclusions that could impact these sectors. These include the following:

Proposed Changes Pertinent to Decommissioning

• Revisions to categorically exclude NRC actions during decommissioning that do not authorize changes to physical structures.
• Revisions to categorically exclude license terminations that are administrative acts that do not have the potential to affect the environment, such as termination of licensees for which no construction or pre-construction activities have occurred or where all decommissioning activities have been completed and approved and license termination is a final administrative step.
• Revisions to categorically exclude approval of decommissioning funding plans submitted under 10 C.F.R. parts 30, 40, 70, “Domestic Licensing of Special Nuclear Material,” or 72, “Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater than Class C Waste.”

Proposed Changes Pertinent to Spent Fuel:

• Revisions to categorically exclude issuance of new, amended, revised, and renewed certificates of compliance for cask designs used for spent fuel storage and transportation.

Proposed Changes Pertinent to Waste Management:

• Revisions to categorically exclude issuance of exemptions to low-level waste disposal sites for the storage and disposal of special nuclear material regulated by Agreement States.
• Revisions to categorically exclude approvals for alternative waste disposal procedures for reactor and material licenses in accordance with § 20.2002, “Method for obtaining approval of proposed disposal procedures.”
• Revisions to categorically exclude NRC concurrence on termination by an Agreement State of certain byproduct material licenses where all decommissioning activities have been completed and approved and NRC's concurrence is a final administrative step.

In addition, the NRC is proposing other revisions of broader applicability that could benefit licensees. These include new categorical exclusions covering administrative changes to emergency plans and authorizations for licensees to delay implementation of certain requirements that were previously found to not result in an environmental impact. These categorical exclusions could significantly enhance licensees’ ability to make such changes without having to expend resources in a potentially protracted NEPA review.

Next Steps

The public comment period on the ANPR will run until July 21, 2021, and the NRC plans to conduct a public meeting to discuss the potential rulemaking (time to be announced). While much of the NRC’s Advance Notice of Proposed Rulemaking focuses on potentially new categorical exclusions, it is likely that nuclear opponents may submit comments arguing the NRC should eliminate certain categorical exclusions.

The ANPR provides interested stakeholders with an opportunity to engage the NRC at an early stage of its decision-making process and potentially help shape the framework for new categorical exclusions. Although the NRC’s Notice stated that it will provide another opportunity for public comment for any subsequent proposed rule developed before it is finalized, this opportunity will likely come after the NRC has already made significant progress in establishing its framework for any revisions. Given the chance to interact with the NRC 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.

Pillsbury has leading nuclear regulatory and environmental practices with over 60 years of experience representing clients in connection with rulemakings and other important regulatory developments. Pillsbury practitioners include a former NRC commissioner and other attorneys with NEPA experience. Please contact Jeff Merrifield (at 202.663.8718 or jeff.merrifield@pillsburylaw.com) or Reza Zarghamee (at 202.663.8580 or reza.zarghamee@pillsburylaw.com) for assistance.