# 71 FR 61330: Licenses, Certifications, and Approvals for Nuclear Power Plants; Supplemental Proposed Rule

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_06-8656

## Section

- **Citation:** 71 FR 61330
- **Heading:** Licenses, Certifications, and Approvals for Nuclear Power Plants; Supplemental Proposed Rule
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 71 / 71 FR 61330

## Text

NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2, 50, 51 and 52 RIN 3150-AG24 Licenses, Certifications, and Approvals for Nuclear Power Plants; Supplemental Proposed Rule AGENCY:
Nuclear Regulatory Commission.

ACTION:
Supplemental proposed rule.

SUMMARY:
The Nuclear Regulatory Commission (NRC) is proposing to supplement its proposed rule entitled “Licenses, Certifications, and Approvals for Nuclear Power Plants,” which was published on March 13, 2006 (71 FR 12782). The NRC is proposing to supplement that proposed rule by amending the regulations applicable to limited work authorizations (LWA), which allow limited construction activities on nuclear power plants to commence before a construction permit or combined license is issued. This supplemental proposed rule would modify the scope of activities that are considered construction requiring a LWA and would also make changes to the review and approval process for LWA requests. The NRC is proposing these changes to enhance the efficiency of its licensing and approval process for new nuclear reactors.

DATES:
Submit comments by November 16, 2006. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.

ADDRESSES:
You may submit comments by any one of the following methods. Please include the following number RIN 3150-AG24 in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available to the public in their entirety on the NRC rulemaking Web site. Personal information will not be removed from your comments.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.
E-mail comments to: SECY@nrc.gov. If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at (301) 415-1966
ir entirety on the NRC rulemaking Web site. Personal information will not be removed from your comments.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.
E-mail comments to: SECY@nrc.gov. If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at (301) 415-1966. You may also submit comments via the NRC's rulemaking Web site at http://ruleforum.llnl.gov. Address questions about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail cag@nrc.gov. Comments may also be submitted via the Federal eRulemaking portal http://www.regulations.gov.
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone (301) 415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at (301) 415-1101.
Publicly available documents related to this rulemaking may be examined and copied for a fee at the NRC's Public Document Room (PDR), Public File Area O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. Selected documents, including comments, can be viewed and downloaded electronically via the NRC rulemaking Web site at http://ruleforum.llnl.gov.
Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/NRC/ADAMS/index.html. From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to pdr@nrc.gov.
FOR FURTHER INFORMATION CONTACT:
Mr. Geary Mizuno, Office of the General Counsel, U.S
gement System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to pdr@nrc.gov.
FOR FURTHER INFORMATION CONTACT:
Mr. Geary Mizuno, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone (301) 415-1639; e-mail: GSM@nrc.gov.

SUPPLEMENTARY INFORMATION:

I.. Background A. History of the Part 52 Rulemaking Proceeding II. Discussion A. History of the NRC's Concept of Construction and the LWA B. NRC's Proposed Concept of Construction and the LWA (PRM-50-82) C. NRC's Proposed Concept of Construction and the AEA D. Proposed Supplement Complies With NEPA 1. NRC's Proposed Concept of Construction Is Consistent With the Legal Effect of NEPA 2. NRC's Proposed Concept of the “Major Federal Action” Is Consistent With NEPA Law 3. NRC's Phased Approval Approach Is not Illegal Segmentation Under NEPA E. Inclusion of Additional Activities as “Construction” under § 50.10(b) F. Phased Application and Approval Process G. EIS Prepared, but Facility Never Constructed III. Section-by-Section Analysis IV. Specific Request for Comments V. Availability of Documents VI. Plain Language VII. Agreement State Compatibility VIII. Voluntary Consensus Standards IX. Environmental Impact—Categorical Exclusion X. Paperwork Reduction Act Statement XI. Regulatory Analysis XII. Regulatory Flexibility Act Certification XIII. Backfit Analysis I. Background
A. History of the Part 52 Rulemaking Proceeding
The NRC issued 10 CFR part 52 on April 18, 1989 (54 FR 15372), to reform its licensing process for future nuclear power plants. The rule added alternative licensing processes in 10 CFR part 52 for early site permits, standard design certifications, and combined licenses. These were additions to the two-step licensing process that already existed in 10 CFR part 50
he Part 52 Rulemaking Proceeding
The NRC issued 10 CFR part 52 on April 18, 1989 (54 FR 15372), to reform its licensing process for future nuclear power plants. The rule added alternative licensing processes in 10 CFR part 52 for early site permits, standard design certifications, and combined licenses. These were additions to the two-step licensing process that already existed in 10 CFR part 50. The processes in 10 CFR part 52 allow for resolving safety and environmental issues early in the licensing proceedings and were intended to enhance the safety and reliability of nuclear power plants through standardization.
The NRC had planned to update 10 CFR part 52 after using the standard design certification process. The proposed rulemaking action began with the issuance of SECY-98-282, “Part 52 Rulemaking Plan,” on December 4, 1998. The Commission issued a staff requirements memorandum on January 14, 1999 (SRM on SECY-98-282), approving the NRC staff's plan for revising 10 CFR part 52. Subsequently, the NRC obtained considerable stakeholder comment on its planned action, conducted three public meetings on the proposed rulemaking, and twice posted draft rule language on the NRC's rulemaking Web site before issuance of the initial proposed rule on July 3, 2003 (68 FR 40026). However, a number of factors led the NRC to question whether the July 2003 proposed rule would meet the NRC's objective of improving the effectiveness of its processes for licensing future nuclear power plants (71 FR 12782). As a result, the NRC decided that a substantial rewrite and expansion of the original proposed rulemaking was desirable so that the agency may more effectively and efficiently implement the licensing and approval processes for future nuclear power plants under part 52. Accordingly, the Commission decided to revise the July 2003 proposed rule and published the revised proposed rule for public comment on March 13, 2006
II. Discussion
A
antial rewrite and expansion of the original proposed rulemaking was desirable so that the agency may more effectively and efficiently implement the licensing and approval processes for future nuclear power plants under part 52. Accordingly, the Commission decided to revise the July 2003 proposed rule and published the revised proposed rule for public comment on March 13, 2006
II. Discussion
A. History of the NRC's Concept of Construction and the LWA
Section 101 of the Atomic Energy Act of 1954, as amended (AEA) prohibits the manufacture, production, or use of a commercial nuclear power reactor, except where the manufacture, production or use is conducted under a license issued by the Commission. While construction of a nuclear power reactor is not mentioned in section 101, section 185 of the AEA requires that the Commission grant construction permits to applicants for licenses to construct or modify production or utilization facilities, if the applications for such permits are acceptable to the Commission. However, the term construction is not defined anywhere in the AEA or in the legislative history of the Act.
To prevent the construction of production or utilization facilities before a construction permit is issued, the NRC proposed a regulatory definition of construction in 1960 (25 FR 1224; February 11, 1960). The definition of construction was adopted in a final rule that same year and codified in 10 CFR 50.10(b) (25 FR 8712; September 9, 1960). As promulgated, § 50.10(b) stated that no person shall begin the construction of a production or utilization facility on a site on which the facility is to be operated until a construction permit had been issued
truction in 1960 (25 FR 1224; February 11, 1960). The definition of construction was adopted in a final rule that same year and codified in 10 CFR 50.10(b) (25 FR 8712; September 9, 1960). As promulgated, § 50.10(b) stated that no person shall begin the construction of a production or utilization facility on a site on which the facility is to be operated until a construction permit had been issued. Construction was defined in § 50.10(b) as including:
pouring the foundation for, or the installation of, any portion of the permanent facility on the site; but [not to] include: (1) Site exploration, site excavation, preparation of the site for construction of the facility and construction of roadways, railroad spurs and transmission lines; (2) Procurement or manufacture of components of the facility; (3) Construction of non-nuclear facilities (such as turbo-generators and turbine buildings) and temporary buildings (such as construction equipment storage sheds) for use in connection with the construction of the facility; and (4) with respect to production or utilization facilities, other than testing facilities, required to be licensed pursuant to section 104a. or section 104c. of the Act, the construction of buildings which will be used for activities other than operation of a facility and which may also be used to house a facility. (For example, the construction of a college laboratory building with space for installation of a training reactor is not affected by this paragraph). (25 FR 8712; September 9, 1960) The definition of construction remained unchanged until 1968, when the driving of piles was specifically excluded from the definition (33 FR 2381; January 31, 1968)
ility and which may also be used to house a facility. (For example, the construction of a college laboratory building with space for installation of a training reactor is not affected by this paragraph). (25 FR 8712; September 9, 1960) The definition of construction remained unchanged until 1968, when the driving of piles was specifically excluded from the definition (33 FR 2381; January 31, 1968). This change was implemented by amending § 50.10(b)(1) to read: “Site exploration, site excavation, preparation of the site for construction of the reactor, including the driving of piles, and construction of roadways, railroad spurs, and transmission lines.” The rationale for this change, as articulated in the proposed rule (32 FR 11278; August 3, 1967), seems to have been that the driving of piles was closely related to “preparation of the site for construction” and that the performance of this type of site preparation activity would not affect the NRC's subsequent decision to grant or deny the construction permit. With the exception of the exclusion of the driving of piles from the definition of construction in 1968, the NRC's interpretation of the scope of activities requiring a construction permit under the AEA has remained largely unchanged.
However, following the enactment of the National Environmental Policy Act of 1969, as amended (NEPA), the Commission adopted a major amendment to the definition of construction in § 50.10 (37 FR 5745; March 21, 1972). In that rulemaking, the Commission adopted a much more expansive concept of construction. Specifically, a new § 50.10(c) was adopted stating that no person shall effect “commencement of construction” of a production or utilization facility on the site on which such facility will be constructed until a construction permit has been issued
tion of construction in § 50.10 (37 FR 5745; March 21, 1972). In that rulemaking, the Commission adopted a much more expansive concept of construction. Specifically, a new § 50.10(c) was adopted stating that no person shall effect “commencement of construction” of a production or utilization facility on the site on which such facility will be constructed until a construction permit has been issued. “Commencement of construction” was defined as
any clearing of land, excavation or other substantial action that would adversely affect the natural environment of a site and construction of nonnuclear facilities (such as turbogenerators and turbine buildings) for use in connection with the facility, but does not mean: (1) Changes desirable for the temporary use of the land for public recreational uses, necessary boring to determine foundation conditions or other preconstruction monitoring to establish background information related to the suitability of the site or to the protection of environmental values; (2) Procurement or manufacture of components of the facility; and (3) With respect to production or utilization facilities, other than testing facilities, required to be licensed pursuant to section 104a or section 104c of the Act, the construction of buildings which will be used for activities other than operation of a facility and which may also be used to house a facility * * * . (37 FR 5748) The Commission explained that expansion of the NRC's permitting authority was:
[C]onsistent with the direction of the Congress, as expressed in section 102 of the National Environmental Policy Act of 1969, that, to the fullest extent possible, the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in that Act
The Commission explained that expansion of the NRC's permitting authority was:
[C]onsistent with the direction of the Congress, as expressed in section 102 of the National Environmental Policy Act of 1969, that, to the fullest extent possible, the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in that Act. Since site preparation constitutes a key point from the standpoint of environmental impact, in connection with the licensing of nuclear facilities and materials, these amendments will facilitate consideration and balancing of a broader range of realistic alternatives and provide a more significant mechanism for protecting the environment during the earlier stages of a project for which a facility or materials license is being sought. (37 FR 5746)
Thus, the Commission's interpretation of its responsibilities under NEPA, not the AEA, was the driving factor leading to its adoption of § 50.10(c). 1
1 See The Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), 7 AEC 939, 943 (June 11, 1974) (hereinafter Shearon Harris) (“The regulations were revised in 1972, not because of any requirements of the Atomic Energy Act, but rather to implement the precepts of NEPA which had then recently been enacted.”); Kansas Gas and Electric Company (Wolf Creek Nuclear Generating Station, Unit No. 1), 5 NRC 1, 5 (Jan. 12, 1977) (explaining that NEPA led the AEC to amend its regulations in several respects, including the changes to 50.10(c)).
Two years after the expansion of the Commission's permitting authority resulting from the promulgation of § 50.10(c), the NRC promulgated § 50.10(e) (39 FR 14506; April 24, 1974). This provision created the current LWA process, which was added to allow site preparation, excavation and certain other on-site activities to proceed before issuance of a construction permit
g the changes to 50.10(c)).
Two years after the expansion of the Commission's permitting authority resulting from the promulgation of § 50.10(c), the NRC promulgated § 50.10(e) (39 FR 14506; April 24, 1974). This provision created the current LWA process, which was added to allow site preparation, excavation and certain other on-site activities to proceed before issuance of a construction permit. Prior to the promulgation of § 50.10(e), NRC permission to engage in site preparation activities before a construction permit was issued could only be obtained via an exemption issued under § 50.12. The provisions of § 50.10(e) allowed the NRC to authorize the commencement of both safety-related (known as “LWA-II” activities) and non safety-related (known as “LWA-I” activities) on-site construction activities before issuance of a construction permit if the NRC had completed a final environmental impact statement (FEIS) on the issuance of the construction permit and the presiding officer in the construction permit proceeding had made the requisite environmental and, in the case of an LWA-II, safety-related findings.
B. NRC's Proposed Concept of Construction and the LWA (PRM-50-82)
The NRC received several comments in response to its Part 52 proposed rule revision published on March 13, 2006 (71 FR 12782), including comments submitted by the Nuclear Energy Institute (NEI) dated May 25, 2006. 2
2 See Letter from Adrian P. Heymer, Nuclear Energy Institute to Annette L. Vietti-Cook,
Further, NEI's comment letter stated that “[t]o the extent the NRC determines that these LWA issues cannot be addressed in the current rulemaking, we ask that the Commission initiate an expedited rulemaking.” The NRC has determined that the changes suggested in the NEI comment could not be incorporated into the final Part 52 rule without re-noticing
ar Energy Institute to Annette L. Vietti-Cook,
Further, NEI's comment letter stated that “[t]o the extent the NRC determines that these LWA issues cannot be addressed in the current rulemaking, we ask that the Commission initiate an expedited rulemaking.” The NRC has determined that the changes suggested in the NEI comment could not be incorporated into the final Part 52 rule without re-noticing. Therefore, the Commission has decided that the NEI letter meets the sufficiency requirements described in 10 CFR 2.802(c) and is docketing the letter as a petition for rulemaking (PRM-50-82). Furthermore, the NRC has determined that it is appropriate to seek public comment on the action requested by petitioner within the context of this supplemental proposed rule, which has been developed in response to NEI's request, as allowed under 10 CFR 2.802(e).
NEI supported its suggested changes to the LWA process, stating that the business environment requires that new plant applicants seek to minimize the time interval between a decision to proceed with a combined license application and the start of commercial operation. In order to achieve this goal, NEI states that non safety-related “LWA-I” activities would need to be initiated up to two years before the activities currently defined as “construction” in § 50.10(b). In NEI's view, the current LWA approval process would constrain the industry's ability to use modern construction practices and needlessly add eighteen (18) months to estimated construction schedules for new plants that did not reference an early site permit (ESP) with LWA authority.
The NRC agrees, in part, with NEI's comments and is now issuing this supplement to the March 13, 2006 proposed rule. 3 This supplemental proposed rule would narrow the scope of activities requiring permission from the NRC in the form of limited work authorizations (LWA) by eliminating the concept of “commencement of construction” currently described in § 50.10(c) and the authorization described in § 50.10(e)(1)
, in part, with NEI's comments and is now issuing this supplement to the March 13, 2006 proposed rule. 3 This supplemental proposed rule would narrow the scope of activities requiring permission from the NRC in the form of limited work authorizations (LWA) by eliminating the concept of “commencement of construction” currently described in § 50.10(c) and the authorization described in § 50.10(e)(1). Instead, under the supplemental proposed rule, NRC authorization would only be required before undertaking activities that have a reasonable nexus to radiological health and safety and/or common defense and security (i.e. excavation, subsurface preparation, installation of the foundation, and on-site, in-place fabrication, erection, integration or testing, for any structure, system or component of a facility required by the Commission's rules and regulations to be described in the site safety analysis report or preliminary or final safety analysis report). While this redefinition of “construction” would result in fewer activities requiring NRC permission in the form of a LWA, it also redefines certain activities (such as the driving of piles), that are currently excluded from the regulatory definition of construction given in § 50.10(b), as construction requiring a LWA.
3 Industry stakeholders did not raise issues relating to perceived problems either with the LWA process or, more generally, with the definition of construction during the period leading to the March 2006 proposed rule and no such changes were suggested in the proposed rule. Therefore, the NRC is providing notice and an opportunity for public comment on the changes proposed in this supplement. The Commission may adopt this supplemental proposed rule either as part of the final rule promulgating the changes to Part 52 (see 71 FR 12782; March 13, 2006), or in a separate final rule
g to the March 2006 proposed rule and no such changes were suggested in the proposed rule. Therefore, the NRC is providing notice and an opportunity for public comment on the changes proposed in this supplement. The Commission may adopt this supplemental proposed rule either as part of the final rule promulgating the changes to Part 52 (see 71 FR 12782; March 13, 2006), or in a separate final rule.
Further, this proposed rule would provide an optional, phased application and approval procedure for construction permit and combined license applicants to obtain limited work authorizations. Specifically, the proposed rule would provide an environmental review and approval process for LWA requests that would allow the NRC to grant an applicant permission to engage in LWA activities after completion of a limited environmental impact statement addressing those activities, but before completion of the comprehensive environmental impact statement addressing the underlying request for a construction permit or combined license. Finally, this proposed rule would specifically address the environmental review required in situations where the LWA activities are to be conducted at sites for which the Commission has previously prepared an environmental impact statement for the construction and operation of a nuclear power plant, and for which a construction permit was issued, but construction of the plant was never completed.
C. NRC's Proposed Concept of Construction and the AEA
This change is fully consistent with the Commission's radiological health and safety and common defense and security responsibilities under the AEA. 4 Specifically, the Commission has determined that the site-preparation activities that would no longer be considered construction under this proposed rule do not have a reasonable nexus to radiological health and safety, or the common defense and security. Further, as previously mentioned, the term “construction” is not defined in the AEA or in the Act's legislative history
ilities under the AEA. 4 Specifically, the Commission has determined that the site-preparation activities that would no longer be considered construction under this proposed rule do not have a reasonable nexus to radiological health and safety, or the common defense and security. Further, as previously mentioned, the term “construction” is not defined in the AEA or in the Act's legislative history. Instead of expressly defining the term in the AEA, Congress entrusted the agency with the responsibility of determining what activities constitute construction. 5 The Commission believes that its proposed definition of the term “construction” is reasonable.
4 See State of New Hampshire v. Atomic Energy Commission , 406 F.2d 170, 174-75 (1st Cir. 1969).
5 Shearon Harris, 7 AEC 939.
D. Proposed Supplement Complies With NEPA
1. NRC's Proposed Concept of Construction is Consistent with the Legal Effect of NEPA
The proposed change in the definition of construction is also consistent with the legal effect of NEPA. Section 50.10(c) was originally added to part 50 due to the interpretation that the enactment of NEPA, not a change in the powers delegated to the agency in the AEA, required the NRC to expand its permitting/licensing authority. However, subsequent judicial decisions have made it clear that NEPA is a procedural statute and does not expand the jurisdiction delegated to an agency by its organic statute. 6 Therefore, while NEPA may require the NRC to consider the environmental effects caused by the exercise of its permitting/licensing authority, the statute cannot be the source of the expansion of the NRC's authority to require construction permits, combined licenses, or other forms of permission for activities that are not reasonably related to radiological health and safety or protection of the common defense and security. Since NEPA cannot expand the
6 See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-52 (1989); Natural Resources Defense Counsel v. U.S
ansion of the NRC's authority to require construction permits, combined licenses, or other forms of permission for activities that are not reasonably related to radiological health and safety or protection of the common defense and security. Since NEPA cannot expand the
6 See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-52 (1989); Natural Resources Defense Counsel v. U.S. Environmental Protection Agency, 822 F.2d 104, 129 (D.C. Cir 1987); Kitchen v. Federal Communications Commission, 464 F.2d 801, 802 (D.C. Cir. 1972).
2. NRC's Proposed Concept of the “Major Federal Action” is Consistent with NEPA Law
Because the AEA does not authorize NRC to require an applicant to obtain permission before undertaking site preparation activities that do not implicate radiological health and safety or common defense and security, as a general matter the Commission considers these activities “non-Federal action” for the purposes of implementing its NEPA responsibilities. Generally, non-Federal actions are not subject to the requirements of NEPA. 7
7 Save the Bay, Inc . v. U.S. Army Corps of Engineers, 610 F.2d 322, 326 (5th Cir. 1980).
Further, the Commission believes that these non-Federal site preparation activities would not generally be “federalized” if the Commission were to ultimately grant a combined license or construction permit. The grant of a construction permit or combined license by the Commission is not a legal condition precedent to these non-Federal, site preparation activities. While the Commission recognizes that there may be a “but for” causal relationship between certain non-Federal site preparation activities and the major Federal action of issuing a construction permit or combined license, such a “but for” causal relationship is not sufficient to require non-Federal site preparation activities to be treated as Federal action for the purposes of NEPA. 8
8 See Landmark West! v. U.S. Postal Service, 840 F.Supp. 994, 1006 (S.D.N.Y. 1993) (citing cases)
een certain non-Federal site preparation activities and the major Federal action of issuing a construction permit or combined license, such a “but for” causal relationship is not sufficient to require non-Federal site preparation activities to be treated as Federal action for the purposes of NEPA. 8
8 See Landmark West! v. U.S. Postal Service, 840 F.Supp. 994, 1006 (S.D.N.Y. 1993) (citing cases).
In addition, under the proposed definition of construction, the Commission does not believe that it has sufficient ability or discretion to influence or control the non-Federal, site preparation activities to the extent that its influence or control would constitute practical or factual veto power over the non-Federal action. Further, the Commission does not believe that allowing the non-Federal, site preparation activities to be undertaken would restrict its consideration of alternative sites or the need to assess whether there is an “obviously superior” site. Specifically, while the Commission recognizes that narrowing the definition of construction may result in substantial changes to the physical properties of a site, many of the fundamental elements that enter into a determination of the existence of an “obviously superior” site would not be affected by the changes to those physical properties. For example, meteorology and seismology would not be affected in any significant way by the non-Federal site preparation activities.
However, while the effects caused by the non-Federal, site preparation activities would not be considered effects of the Commission's licensing action, the effects of the non-Federal activities would be considered during any subsequent “cumulative impacts” analysis. Specifically, the effects of the non-Federal activities would be considered in order to establish a baseline against which the incremental effect of the Commission's major Federal action (i.e. issuing a LWA, construction permit or combined license) would be measured. These incremental impacts may be additive or synergistic
es would be considered during any subsequent “cumulative impacts” analysis. Specifically, the effects of the non-Federal activities would be considered in order to establish a baseline against which the incremental effect of the Commission's major Federal action (i.e. issuing a LWA, construction permit or combined license) would be measured. These incremental impacts may be additive or synergistic.
3. NRC's Phased Approval Approach is not Illegal Segmentation Under NEPA
The phased application and approval of LWAs does not raise the concerns underlying the prohibition of segmentation under NEPA law. Generally, the NEPA segmentation problem arises when the environmental impacts of projects are evaluated in a piecemeal fashion and, as a result, the comprehensive environmental impacts of the entire Federal action are never considered or are only considered after the agency has committed itself to continuation of the project. Another associated segmentation problem arises when pieces of a Federal action are evaluated separately and, as a result, none of the individual pieces are considered “major federal actions” requiring an EIS. 9
9 Daniel R. Mandelker, NEPA Law and Litigation, 9-25 (2nd ed. 2004).
Neither of these segmentation concerns are presented by the approach proposed here. First, under both LWA application options, the environmental effects associated with the LWA activities and the project as a whole (i.e. issuance of a construction permit or combined license) would be evaluated in an EIS. Therefore, the segmentation problem of considering a project in phases, thereby avoiding completion of an EIS, is not an issue. In addition, all of the environmental impacts associated with the construction and operation of the proposed plant, including the impacts associated with the LWA activities, would be considered together, through incorporation by reference, in the EIS prepared on the construction permit or combined license application
ring a project in phases, thereby avoiding completion of an EIS, is not an issue. In addition, all of the environmental impacts associated with the construction and operation of the proposed plant, including the impacts associated with the LWA activities, would be considered together, through incorporation by reference, in the EIS prepared on the construction permit or combined license application. This comprehensive consideration of environmental impacts would take place before the NRC is committed to issuing any construction permit or combined license. The fact that the NRC will not have prejudged the ultimate decision of whether to grant a construction permit or a combined license by issuing the LWA, coupled with the requirement that the site redress plan be implemented in the event that the permit or license is ultimately not issued, also ensures that issuance of the LWA would not foreclose reasonable alternatives.
In addition, the proposed application and approval process is consistent with the Commission's previously expressed position that NEPA does not, as a general matter, prohibit an agency from undertaking part of a project without a complete environmental analysis of the whole project. 10 The key factors used to support the Commission's position in Clinch River were; (1) That the site preparation activities in that case would not result in irreversible or irretrievable commitments to the remaining portions of the project and (2) the environmental impacts of the site preparation activities allowed in that case were substantially redressable. 11
10 See Tennessee Valley Authority (Clinch River Breeder Reactor Plant), 16 NRC 412, 424 (Aug. 17, 1982) (hereinafter Clinch River).
11 Id.
These considerations are reflected in the provisions of the supplemental proposed rule
ts to the remaining portions of the project and (2) the environmental impacts of the site preparation activities allowed in that case were substantially redressable. 11
10 See Tennessee Valley Authority (Clinch River Breeder Reactor Plant), 16 NRC 412, 424 (Aug. 17, 1982) (hereinafter Clinch River).
11 Id.
These considerations are reflected in the provisions of the supplemental proposed rule. Specifically, § 50.10(c)(6) of the proposed rule states that any activity undertaken pursuant to a LWA are entirely at the risk of the applicant, that the issuance of the LWA has no bearing on whether the construction permit or combined license should be issued, and that the environmental impact statement associated with the underlying request will not consider the sunk costs associated with the LWA activities. In addition, § 50.10(c)(3) would require an applicant requesting a LWA to submit a plan for redress of the site to be implemented in the event that the LWA holder is ultimately not issued a construction permit or combined license. This site redress plan must “achieve an environmentally stable and aesthetically acceptable site suitable for whatever non-nuclear use may conform with local zoning laws” in the event that the LWA holder is not ultimately issued a construction permit or combined license. The redress plan would achieve this objective by addressing site impacts resulting from LWA activities. Impacts associated with pre-LWA activities would not be addressed in the redress plan. Further,
It should be noted that while redress of site impacts may have the practical effect of mitigating some environmental impacts, the redress plan is not a substitute for a thorough evaluation of environmental impacts, or development of mitigation measures that may be necessary to provide relief from environmental impacts associated with the proposed LWA activities
ssed in the redress plan. Further,
It should be noted that while redress of site impacts may have the practical effect of mitigating some environmental impacts, the redress plan is not a substitute for a thorough evaluation of environmental impacts, or development of mitigation measures that may be necessary to provide relief from environmental impacts associated with the proposed LWA activities. The primary purpose of the site redress plan is to ensure that impacts associated with any LWA activities performed at the site will not prevent the site from being utilized for a permissible, non-nuclear alternative use. In this way, the redress plan helps to preserve the Commission's ability to objectively evaluate an application for a construction permit or combined license, despite the fact that LWA activities have been undertaken at the site.
E. Inclusion of Additional Activities as “Construction” Under § 50.10(b)
A significant change proposed in this supplemental proposed rule is the inclusion of activities—such as the driving of piles and excavation of foundations for safety-related structures—in the definition of construction that are not currently defined as construction in § 50.10(b).
Although the driving of piles was not expressly included in the definition of “construction” contained in § 50.10(b) before the amendment of § 50.10(b)(1) in 1968, this activity was generally considered to be encompassed in the existing definition of construction at that time (See 33 FR 2381; January 31, 1968). The proposed rule suggesting that the driving of piles be expressly excluded from the definition of construction simply states that the “activity is closely related to, and may be appropriately included in” site preparation activities, which were not considered construction (32 FR 11278; August 3, 1967)
sed in the existing definition of construction at that time (See 33 FR 2381; January 31, 1968). The proposed rule suggesting that the driving of piles be expressly excluded from the definition of construction simply states that the “activity is closely related to, and may be appropriately included in” site preparation activities, which were not considered construction (32 FR 11278; August 3, 1967). 12 The rationale for not including the driving of piles, and site preparation activities generally, in the definition of construction seems to have been that these activities would have no effect on the NRC's ultimate decision to grant or deny a construction permit and that these activities were undertaken entirely at the applicant's risk (32 FR 11278).
12 The proposed rule language was promulgated without modification in the final rule. 33 FR 2381.
The NRC does not currently believe that the exclusion of a site preparation activity from the definition of construction should hinge on this factor. The Commission believes that the site preparation activities described in § 50.10(b) of this supplement, including the driving of piles and excavation of foundations in certain situations, have a reasonable nexus to radiological health and safety, and/or common defense and security and, therefore, are properly considered “construction” as that term is used in § 185 of the AEA. In addition, the inclusion of these activities in the definition of construction (i.e. requiring an LWA before they are undertaken), coupled with the phased approval process suggested in this supplemental proposed rule, would allow for early resolution of the safety issues associated with these activities. Early resolution of safety issues is consistent with the general rationale underlying the licensing and permitting processes provided in 10 CFR part 52.
F
of construction (i.e. requiring an LWA before they are undertaken), coupled with the phased approval process suggested in this supplemental proposed rule, would allow for early resolution of the safety issues associated with these activities. Early resolution of safety issues is consistent with the general rationale underlying the licensing and permitting processes provided in 10 CFR part 52.
F. Phased Application and Approval Process
Another significant change suggested in this supplemental proposed rule is the modification of the procedure for obtaining LWA approval by implementing an optional phased application and approval process. Specifically, as proposed, § 2.101(a)(9) would allow applicants for construction permits and combined licenses the option of submitting either: (1) A complete application or (2) a two part application with part one including information required for the NRC to make a decision on the applicant's request to undertake LWA activities and part two containing all other information required to obtain the underlying license or permit. The proposed rule would allow the NRC to consider the environmental impacts attributable to the requested LWA activities separately, either as part of a comprehensive environmental impact statement (EIS) in the case where a complete application is submitted, or in a separate EIS addressing only the LWA activities in the case of a two-part application. After consideration of the environmental impacts and the relevant safety-related issues associated with the LWA activities, the NRC would be permitted to allow the applicant to undertake the LWA activities, even if the EIS on the underlying request (i.e. construction permit or combined license) is not complete
a separate EIS addressing only the LWA activities in the case of a two-part application. After consideration of the environmental impacts and the relevant safety-related issues associated with the LWA activities, the NRC would be permitted to allow the applicant to undertake the LWA activities, even if the EIS on the underlying request (i.e. construction permit or combined license) is not complete.
The NRC believes that this phased application/approval process would add efficiencies to the licensing/construction process by preventing unnecessary delay in construction schedules, which would result if issuance of an LWA for safety-related activities were delayed until the final environmental impact statement and adjudicatory hearing on the entire underlying license application were complete. In addition, the proposed application/approval process would result in the timely resolution of relevant safety and environmental issues at an earlier stage in the licensing process. As previously discussed, the NRC believes that these efficiencies can be gained without compromising the agency's NEPA responsibilities, as the phased approach presented in this supplemental proposed rule does not constitute illegal segmentation.
G. EIS Prepared, but Facility Never Constructed
The supplemental proposed rule also specifically addresses the situation where a request is made to perform LWA activities at a site for which an EIS has previously been prepared for the construction and operation of a nuclear power plant, and a construction permit has been issued, but construction of the plant was never completed. In this special situation, the proposed supplement would allow an applicant to reference the previous EIS in its environmental report, but requires that the applicant identify any new and significant information material to the matters required to be addressed in the proposed § 51.49(a)
clear power plant, and a construction permit has been issued, but construction of the plant was never completed. In this special situation, the proposed supplement would allow an applicant to reference the previous EIS in its environmental report, but requires that the applicant identify any new and significant information material to the matters required to be addressed in the proposed § 51.49(a). Further, in these special cases the proposed supplement would allow the NRC to incorporate the previous EIS by reference when preparing its draft EIS on the LWA activities. The draft EIS on the LWA request would be limited to the consideration of any significant new information dealing with the environmental impacts of construction, relevant to the activities to be carried out under the LWA. Further, in a hearing on issuance of an LWA at such sites, the presiding officer would be limited to determining whether there is significant new information pertaining to the environmental impacts of the construction activities encompassed by the previous EIS that are analogous to the activities to be conducted under the LWA. The presiding officer would evaluate significant new information indetermining whether an LWA should be issued as proposed by the Director of Nuclear Reactor Regulation.
This provision is designed to gain efficiency by using existing environmental impact statements to evaluate the environmental impacts of
Further, for the reasons previously discussed in section D.3, the Commission does not believe that authorizing LWA activities before completion of the FEIS on the combined license or construction permit would have the effect of prejudging the license/permit, or foreclosing reasonable alternatives.
III
cy by using existing environmental impact statements to evaluate the environmental impacts of
Further, for the reasons previously discussed in section D.3, the Commission does not believe that authorizing LWA activities before completion of the FEIS on the combined license or construction permit would have the effect of prejudging the license/permit, or foreclosing reasonable alternatives.
III. Section-by-Section Analysis
Part 2
Section 2.101 Filing of Application
Section 2.101 would be revised to add a new paragraph (a)(9), which would state that an applicant for a construction permit or combined license may submit a request for an LWA either as part of a complete application under paragraphs (a)(1) through (4), or in two parts under this paragraph (i.e., a “phased LWA application”). If the LWA application is submitted as part of a complete construction permit or operating license application, the application must include the information required by § 50.10(c).
If the application is a phased LWA application, the first part must contain the information required by § 50.10(c) on the LWA, as well as the general information required of all production and utilization facility applicants under § 50.33(a) through (f). The second part of the application would contain the remaining information otherwise required to be filed in a complete application under § 2.101(a)(1) thorough (4). However, the applicant would have the further option of submitting part two in additional subparts in accordance with § 2.101(a-1). The second part (or the first subpart of multiple subparts under § 2.101(a-1)) must be filed no later than twelve (12) months after the filing of part one. Part two of the application (or the first subpart of any additional subparts submitted in accordance with § 2.101(a-1)) must be submitted no later that twelve (12) months after submission of part one of the application
rdance with § 2.101(a-1). The second part (or the first subpart of multiple subparts under § 2.101(a-1)) must be filed no later than twelve (12) months after the filing of part one. Part two of the application (or the first subpart of any additional subparts submitted in accordance with § 2.101(a-1)) must be submitted no later that twelve (12) months after submission of part one of the application.
An applicant for an early site permit may not submit its LWA application in advance of the underlying early site permit application, and therefore is not permitted to use the procedures of Subpart F.
Section 2.104 Notice of Hearing
Paragraph (d)(1)(iii) of § 2.104 would be modified to more clearly refer to the authority requested under § 52.17(c) as the limited work authorization under § 50.10.
Subpart F
The title of Subpart F would be revised to reflect the broader scope of matters covered under this section, as described under § 2.600.
Section 2.600 Scope of Subpart
The statement of scope in § 2.600 would be revised to reflect the new set of procedures for phased LWA applications in proposed §§ 2.641 through 2.649.
Section 2.601 Applicability of Other Sections
Section 2.601 would be corrected to add references to subparts C, L and N of part 2, in order to make clear that these subparts (in addition to subparts A and G) apply to applications and proceedings under subpart F, except as specifically provided in subpart F.
Section 2.606 Partial Decision on Site Suitability Issues
Paragraph (a) of § 2.606, which provides that a LWA may not be issued without completion of the “full review” required by NEPA, would be revised to remove the reference to a LWA, inasmuch as LWAs would now be covered in §§ 2.641 through 2.649.
Section 2.641 Filing Fees
Section 2.641, which is comparable to current § 2.602, provides that a phased LWA application shall be accompanied by the applicable filing fees in § 50.30(e) and part 170 of this chapter
e issued without completion of the “full review” required by NEPA, would be revised to remove the reference to a LWA, inasmuch as LWAs would now be covered in §§ 2.641 through 2.649.
Section 2.641 Filing Fees
Section 2.641, which is comparable to current § 2.602, provides that a phased LWA application shall be accompanied by the applicable filing fees in § 50.30(e) and part 170 of this chapter.
Section 2.643 Acceptance and Docketing of Application for Limited Work Authorization
Section 2.643, which is comparable to current § 2.603, describes the acceptance and docketing requirements for phased LWA applications, and the requirement for publication in the Federal Register of a notice of docketing. Paragraph (a) provides that each part of the application, when first received, will be treated as a tendered application and assessed for sufficiency. If the submitted part of the application is determined to be incomplete, the Director of NRR (Director) will inform the applicant. The determination of completeness will generally be made in 30 days, barring unusual circumstances.
Under paragraph (b), the Director will docket part one of the application only if that part is “complete.” The NRC would use the existing guidelines and practices for determining the completeness of applications under this section, as are used in determining completeness under § 2.101. Upon docketing, the Director will assign a docket number that will be used throughout the entire proceeding (including that part of the proceeding on part two of the application). Under paragraph (c), the Director would make the designated distributions to the Governor of the state in which the nuclear power plant will be located, and publish a notice of docketing in the Federal Register . Often in practice, the notice of hearing required by the AEA is included in the notice of docketing, but as with existing applications, this will remain a matter of discretion by the NRC, who will determine what is the most efficient course of action in this regard
he Governor of the state in which the nuclear power plant will be located, and publish a notice of docketing in the Federal Register . Often in practice, the notice of hearing required by the AEA is included in the notice of docketing, but as with existing applications, this will remain a matter of discretion by the NRC, who will determine what is the most efficient course of action in this regard.
Paragraph (d) provides that part two of the application will be docketed, as with part one, when it is determined to be complete. The Commission reiterates that “part two” could be submitted in several subparts, if the applicant chose to take advantage of the provisions of § 2.101(a-1), which provides for submission of applications in three parts.
Finally, under paragraph (e), the Director will publish a second notice of docketing in the Federal Register , in this case for part two of the application. As with the notice of docketing for part one, the notice of docketing for part two may also include a notice of hearing on the second part of the application.
The Commission notes that nothing in § 2.101(a)(9), or any part of subpart F, requires that the hearing on part one of the application be completed and an initial decision issued by the presiding
Section 2.645 Notice of Hearing
Section 2.645, which is comparable to current § 2.604, sets forth the content of the notice of hearing for each of the two parts of the proceeding. Paragraph (a) provides that the notice of hearing for part one specify that the hearing will relate only to consideration of the matters related to § 50.33(a) through (f), and the limited work authorization issues under review. Although not explicitly stated in this paragraph, interested persons who seek to intervene in the hearing on part one of the application must file a petition to intervene in accordance with the notice of hearing, and § 2.309
r part one specify that the hearing will relate only to consideration of the matters related to § 50.33(a) through (f), and the limited work authorization issues under review. Although not explicitly stated in this paragraph, interested persons who seek to intervene in the hearing on part one of the application must file a petition to intervene in accordance with the notice of hearing, and § 2.309.
Under paragraph (b), a supplementary notice of hearing will be published in the Federal Register when part two of the application is docketed. This provides a second opportunity for interested persons to file petitions to intervene with respect to the matters relevant to part two of the application. These petitions must be filed within the time period specified in the notice of hearing, and must meet the applicable requirements of subpart C of part 2, including the contention requirements in § 2.309.
Paragraph (c) of the proposed rule differs somewhat from § 2.604, in that the Commission proposes not to allow a party admitted in part one of the proceeding, who did not withdraw or was not otherwise dismissed, to automatically continue as a party in phase two of the proceeding. Instead, each party who wishes to participate in the second phase must submit a second petition to intervene in accordance with § 2.309, but the petition need not address the interest and standing requirements in § 2.309(d). The petition must be filed within the time period provided by the supplementary notice of hearing published in the Federal Register for part two of the application.
As noted in the section-by-section analysis for § 2.643, nothing in § 2.101(a)(9) or subpart F requires that the hearing on part one of the application be completed and an initial decision issued by the presiding officer, before part two of the application is filed. Thus, there may be simultaneous hearings on parts one and two of the application
Federal Register for part two of the application.
As noted in the section-by-section analysis for § 2.643, nothing in § 2.101(a)(9) or subpart F requires that the hearing on part one of the application be completed and an initial decision issued by the presiding officer, before part two of the application is filed. Thus, there may be simultaneous hearings on parts one and two of the application. However, as reflected in paragraph (e), the Commission's intent is that the membership of the Atomic Safety and Licensing Board designated for hearings under part one be the same as for the hearings under part two, to the extent practical and consistent with timely completion of each hearing.
Section 2.647 [Reserved]
This section is reserved for future use by the Commission.
Section 2.649 Partial Decisions on Limited Work Authorization
Section 2.649, which is comparable to § 2.606, denotes the provisions in subparts C and G relative to issues such as oral arguments, immediate effectiveness of the presiding officer's initial decision, and petitions for Commission review, that apply to partial initial decisions on a LWA rendered in accordance with this subpart. This section also states that the LWA may not be issued without completion of the environmental review required for LWAs under subpart A of part 51. Finally, this section provides that the time periods for the Commission to exercise its review and sua sponte authority are the same time periods provided for in part 2 with respect to a final decision on issuance of a construction permit or combined license.
Part 50
Section 50.10 License Required; Limited Work Authorization
Paragraph (a). This paragraph, which is unchanged from the current rule, prohibits any person within the United States from transferring or receiving in interstate commerce, manufacturing, producing, transferring, acquiring, possessing, or using any production or utilization facility except as authorized by a license issued by the Commission, or as provided in § 50.11
Limited Work Authorization
Paragraph (a). This paragraph, which is unchanged from the current rule, prohibits any person within the United States from transferring or receiving in interstate commerce, manufacturing, producing, transferring, acquiring, possessing, or using any production or utilization facility except as authorized by a license issued by the Commission, or as provided in § 50.11.
Paragraph (b). This paragraph, which is substantially modified from the current rule, prohibits any person from beginning the “construction” of a production or utilization facility on a site on which the facility is to be operated until that person has been issued a construction permit, a combined license under part 52, or a limited work authorization under paragraph (c) of this section.
The remainder of this paragraph is devoted to specifying what activities are, and are not, deemed to constitute “construction” for purposes of this paragraph's prohibition. Activities, such as site clearing, grading, site exploration, test boring, erection of temporary buildings and erection of permanent structures which are not required to be described in the site safety analysis report, preliminary safety analysis report, or final safety analysis report, would not be regarded as “construction,” and no NRC approval would be needed to conduct those activities. The only work that would be considered construction would be the excavation, subsurface preparation, and on-site, in-place fabrication, erection, integration or testing (including the installation of foundations) of any structure, system or component required by the Commission's rules and regulations to be described in the site safety analysis report, preliminary safety analysis report, or final safety analysis report
uld be considered construction would be the excavation, subsurface preparation, and on-site, in-place fabrication, erection, integration or testing (including the installation of foundations) of any structure, system or component required by the Commission's rules and regulations to be described in the site safety analysis report, preliminary safety analysis report, or final safety analysis report. The term, “on-site, in place, fabrication, erection, integration or testing” is intended to describe the historical process of constructing a nuclear power plant in its final, on-site location, where components or modules are integrated into the final, in-plant location and elevation. The definition is intended to exclude persons from having to obtain a LWA, construction permit, or combined license, in order to fabricate, assemble and test components and modules in a shop building, warehouse, or laydown area located on-site.
Thus, the proposed redefinition of construction for the most part returns to the pre-1972 definition of “construction” in § 50.10(b), and removes the need for NRC approval to conduct the activities currently described in § 50.10(e)(1), except in two important respects. First, whereas existing § 50.10(b) allows the driving of piles for the facility, proposed § 50.10(b) would not permit driving of piles for any structure, system or component required to be described in an SSAR, PSAR, or FSAR unless NRC permission is obtained in the form of a LWA, construction permit, or combined license
vities currently described in § 50.10(e)(1), except in two important respects. First, whereas existing § 50.10(b) allows the driving of piles for the facility, proposed § 50.10(b) would not permit driving of piles for any structure, system or component required to be described in an SSAR, PSAR, or FSAR unless NRC permission is obtained in the form of a LWA, construction permit, or combined license. Second, existing § 50.10(e)(1) allows a person, with NRC permission in the form of a LWA, to excavate and install the structural foundations for any structure, systems and components “which do not prevent or mitigate the consequences of postulated accidents that could cause undue risk to the health and safety of the public.” The proposed redefinition would not remove the need for NRC approval, but substitutes a slightly different scope of structures, systems and components whose excavation and foundation installation may be allowed under an LWA, viz., those which are required to be described in the FSAR.
“Excavation,” as used in paragraph (b), excludes initial site grading to attain the final ground elevation, and erosion control measures to preclude run-off, at the location where further excavation will be required for a structure, systems or component required by the Commission's regulations to be described in the FSAR. By contrast, the removal of any soil, rock, gravel or other material below the final ground
Construction is deemed to also include the “on-site, in-place,” fabrication, erection, integration or testing activities for any structure, system or component required by the Commission's regulations to be described in the FSAR. The use of the term, “on-site, in place,” is intended to allow such structures, systems and components, including any “modules” and subassemblies, to be fabricated, assembled and tested in a shop building, warehouse, or laydown area located on-site without a LWA, construction permit, or combined license
ture, system or component required by the Commission's regulations to be described in the FSAR. The use of the term, “on-site, in place,” is intended to allow such structures, systems and components, including any “modules” and subassemblies, to be fabricated, assembled and tested in a shop building, warehouse, or laydown area located on-site without a LWA, construction permit, or combined license. However, the installation or integration of that structure, system, or component into its final location in the reactor would require either a construction permit or combined license. The Commission notes that this paragraph does not apply to manufacturing, inasmuch as “manufacturing” is not “construction.” Moreover, paragraph (b) refers to construction “on a site on which the facility is to be operated;” which is not within the scope of a “manufacturing license” under subpart F of part 52. Accordingly, manufacturing is not covered by paragraph (b).
Paragraph (c). This paragraph, which is substantially modified from the current rule, addresses the need for, nature and contents of an application for a LWA. Paragraph (c)(1) allows the Commission to issue an LWA in advance of a construction permit or combined license, authorizing the holder to perform certain delineated construction requirements.
Paragraph (c)(2) provides that an LWA application may be submitted as:
—Part of a complete application for a construction permit or combined license under § 2.101(a)(1) through (4). —Part one of a phased application under § 2.101(a)(9). —Part of a complete application for an early site permit under § 2.101(a)(1) through (4). —An amendment to an already-issued early site permit Paragraph (c)(3) establishes the requirements for the content of an LWA application. The application must include a safety analysis report, an environmental report, and a redress plan
a)(1) through (4). —Part one of a phased application under § 2.101(a)(9). —Part of a complete application for an early site permit under § 2.101(a)(1) through (4). —An amendment to an already-issued early site permit Paragraph (c)(3) establishes the requirements for the content of an LWA application. The application must include a safety analysis report, an environmental report, and a redress plan. The safety analysis report, which may be a stand-alone document or incorporated into the construction permit or combined license application's preliminary or final safety analysis report, as applicable, must describe the LWA activities that the applicant seeks to perform, provide the final design for the structures to be constructed under the LWA and a safety analysis for those portions of the structure, and provide a safety analysis of the design demonstrating that the activities will be conducted in accordance with applicable Commission safety requirements.
The environmental report must meet the requirements of 10 CFR 51.49, which is discussed in more detail in the section by section analysis for that provision.
The redress plan must describe the activities that would be implemented by the LWA holder, should construction be terminated by the holder, the LWA is revoked by the NRC, or upon effectiveness of the Commission's final decision denying the associated operating license application or the underlying combined license application, as applicable. The primary purpose of the redress plan is to return the site to an environmentally stable and aesthetically acceptable condition that would allow the site to be utilized for alternative, non-nuclear uses that conform with local zoning laws. This will be accomplished through redress of site impacts resulting from LWA activities performed at the site. Redress of site impacts resulting from pre-LWA activities will not be required under the redress plan
he site to an environmentally stable and aesthetically acceptable condition that would allow the site to be utilized for alternative, non-nuclear uses that conform with local zoning laws. This will be accomplished through redress of site impacts resulting from LWA activities performed at the site. Redress of site impacts resulting from pre-LWA activities will not be required under the redress plan. In addition, while redress of site impacts may have the practical effect of mitigating some environmental impacts, the redress plan is not a substitute for a thorough evaluation of environmental impacts, or development of mitigation measures that may be necessary to provide relief from environmental impacts associated with the proposed LWA activities.
Paragraph (d). This paragraph, which is substantially modified from the current rule, generally addresses the requirements associated with issuance of a LWA. Paragraph (d)(1) sets forth the requirements for the appropriate Director to issue an LWA under this section. The Director may issue an LWA only after making the appropriate findings on: (i) Necessary technical qualifications, and the matter of foreign ownership or control relevant to the information required by § 50.33(a) through (f), as mandated by sections 103.d. and 182.a. of the AEA; (ii) making the necessary findings on public health and safety and common defense and security with respect to the activities to be carried out under the LWA; (iii) NRC staff issuance of a final EIS on the LWA in accordance with the applicable requirements of part 51; and (iv) the presiding officer finding on the environmental issues relevant to the LWA in accordance with the applicable requirements of part 51, and a finding on the safety issues relevant to the LWA.
Paragraph (d)(2) requires that the LWA specify the activities that the holder is authorized to perform, consistent with the LWA application and as modified based upon the NRC's review
of part 51; and (iv) the presiding officer finding on the environmental issues relevant to the LWA in accordance with the applicable requirements of part 51, and a finding on the safety issues relevant to the LWA.
Paragraph (d)(2) requires that the LWA specify the activities that the holder is authorized to perform, consistent with the LWA application and as modified based upon the NRC's review. In addition, each LWA will be issued with a condition requiring implementation of the redress plan if the LWA holder terminates construction, the LWA is revoked, or upon effectiveness of the Commission's final decision denying the associated operating license application or the underlying combined license application, as applicable. As discussed in the analysis of paragraph (e), this condition survives the merging of the LWA into the underlying construction permit, early site permit, or combined license.
Paragraph (e). This paragraph, which is substantially modified from the current rule, addresses the legal effect of an issued LWA. Paragraph (e)(1) i.e. , issuance of the construction permit or combined license).
Paragraph (f). This new paragraph would require the LWA holder to begin implementation of the redress plan in a reasonable time, and complete the redress no later than eighteen (18) months after termination of construction by the holder, revocation of the LWA, or upon effectiveness of the Commission's final decision denying the associated operating license application or the underlying combined license application, as applicable.
Part 51
Section 51.4 Definitions
Section 51.4 would be revised by adding a new definition of ``construction,'' which would make applicable throughout part 51 the definition of construction in proposed § 50.10(b)
the LWA, or upon effectiveness of the Commission's final decision denying the associated operating license application or the underlying combined license application, as applicable.
Part 51
Section 51.4 Definitions
Section 51.4 would be revised by adding a new definition of ``construction,'' which would make applicable throughout part 51 the definition of construction in proposed § 50.10(b). This would have the effect of excluding from an EIS for any early site permit, construction permit, combined license, or LWA issued under § 50.10(c), any discussion, evaluation or consideration of the environmental impacts or benefits associated with non-construction activities as effectively defined in § 50.10(b). This would also remove the need for the NRC decision maker, including a presiding officer, to make a NEPA finding with respect to the environmental impacts or benefits associated with those non-construction activities.
Section 51.17 Information collection requirements; OMB approval
Paragraph (b) of § 51.17 of the March 2006 proposed rule would be further modified by adding a reference to a new § 51.49, which requires submission of an environmental report by LWA applicants. While § 51.49 contains a new information collection requirement, it is not expected to result in a net increase in the burden placed on LWA applicants because the information required under this new section was formerly required to be submitted by such applicants as part of a complete environmental report for the underlying construction permit or combined license under § 51.50, or for the ESP application (or amendment) under Part 52. The primary effect of this supplementary proposed rule would be to delay submission of most of the environmental information to the time that the underlying construction permit or combined license application and environmental report is submitted. Thus, the environmental report submitted under § 51.49 at the LWA stage would be limited in scope to address environmental impacts of LWA activities
52. The primary effect of this supplementary proposed rule would be to delay submission of most of the environmental information to the time that the underlying construction permit or combined license application and environmental report is submitted. Thus, the environmental report submitted under § 51.49 at the LWA stage would be limited in scope to address environmental impacts of LWA activities.
Section 51.20 Criteria for and identification of licensing and regulatory actions requiring environmental impact statements
Section 51.20 would be revised by adding a new paragraph (b)(6), explicitly stating that issuance of a LWA under § 50.10 is one of the actions requiring the preparation of an environmental impact statement (or a supplement to environmental impact statement).
Section 51.49 Environmental report-limited work authorization
Section 51.49 is a new section that the Commission proposes to add to part 51, to require the applicant for an LWA to submit an environmental report containing certain specified information. Both paragraph (a), which applies to an applicant requesting a LWA as part of a complete application, and paragraph (b), which applies to an applicant submitting its application in two parts under § 2.101(a)(9), must submit an environmental report which describes the activities proposed to be conducted under the LWA, the need to conduct those activities in advance of the main action, a description of the environmental impacts that may reasonably be expected to result from the conduct of the requested activities, the mitigation measures to be implemented in order to achieve the level of environmental impacts described, and a discussion of the reasons for rejecting other mitigation measures that could be utilized to further reduce environmental impacts.
Paragraph (c) describes the contents of the environmental report when the request for the LWA is submitted as part of an early site permit application
es, the mitigation measures to be implemented in order to achieve the level of environmental impacts described, and a discussion of the reasons for rejecting other mitigation measures that could be utilized to further reduce environmental impacts.
Paragraph (c) describes the contents of the environmental report when the request for the LWA is submitted as part of an early site permit application. There is no opportunity for an early site permit holder to submit its application in two parts, with the LWA information submitted in advance of the main early site permit application.
Paragraph (d) describes the contents of the environmental report when the LWA request is submitted by an early site permit holder. In this situation, the environmental report need only contain information on the LWA activities and their environmental impact, and would not include the general information required by § 51.50(b).
Paragraph (e) establishes a limited exception from the information required by paragraphs (a) and (b) to be submitted in an environmental report. For those situations where the LWA is to be conducted at a site: (i) For which the Commission previously prepared an environmental impact statement for the construction and operation of a nuclear power plant, (ii) the construction permit was issued, but (iii) the construction of the plant was never completed, then the applicant's environmental report may reference the earlier environmental impact statement. However, in the event of such referencing, the environmental report must identify whether there is new and significant information relative to the matters required to be addressed in the environmental report with respect to the environmental impacts of the requested LWA activities, as specified in paragraphs (a) or (b)
environmental report may reference the earlier environmental impact statement. However, in the event of such referencing, the environmental report must identify whether there is new and significant information relative to the matters required to be addressed in the environmental report with respect to the environmental impacts of the requested LWA activities, as specified in paragraphs (a) or (b).
Paragraph (f) would require, for any application containing a LWA request, that the environmental report must separately evaluate the environmental impacts and proposed alternatives to the activities proposed to be conducted under the limited work authorization. However, at the option of the applicant, the environmental report may also include the information required by § 51.50 to be submitted in the environmental report for the construction permit or combined license application. In those situations, the ``integrated'' environmental report would separately address the total impacts of constructing (including the LWA activities) and operating the proposed facility. This will allow the NRC to prepare in parallel the EIS for the LWA activities and a supplemental EIS for the underlying construction permit or operating license, or a complete EIS at the LWA stage.
Section 51.50 Environmental report-construction permit, early site permit, or combined license stage
Section 51.50 of the March 2006 proposed rule would be modified by deleting in its entirety, proposed paragraph (c)(4), and revising paragraph
Section 51.71 Draft environmental impact statement-contents
Section 51.71 would be modified by redesignating the current paragraph (e) as paragraph (f), and a new paragraph (e) would be added to re-emphasize that the draft environmental impact statement for the underlying construction permit or combined license will not address or consider the sunk costs associated with the LWA. Paragraph (e) is consistent with §§ 50.10(c)(6) and 51.71(e)
tement-contents
Section 51.71 would be modified by redesignating the current paragraph (e) as paragraph (f), and a new paragraph (e) would be added to re-emphasize that the draft environmental impact statement for the underlying construction permit or combined license will not address or consider the sunk costs associated with the LWA. Paragraph (e) is consistent with §§ 50.10(c)(6) and 51.71(e).
Section 51.76 Draft environmental impact statement-limited work authorization
Section 51.76 is a new section that the Commission proposes to add to part 51, governing the NRC's preparation of a draft environmental impact statement to support a decision on a LWA. The internal organization of § 51.76 parallels that of § 51.49. Paragraph (a) addresses the EIS to be prepared in connection with a complete application for a construction permit or combined license. This section allows the NRC to prepare either an EIS limited to LWA activities (to be followed by a supplemental EIS on the underlying construction permit or combined license), or a single, complete EIS for the construction permit or combined license. The Commission notes that this paragraph addresses the situation where the application for the construction permit or combined license is complete and includes the request and necessary information for a LWA. Paragraph (b), by contrast, addresses the situation where the LWA request is submitted in advance of the complete application for the construction permit or combined license.
Paragraph (b) applies to an EIS prepared in support of a phased LWA under § 2.101(a)(9). In this situation, if the environmental report submitted in part one is limited to the LWA activities, then the NRC will prepare an EIS limited to the LWA activities. Once part two of the application is received, which includes the environmental report required by § 51.50, the NRC will prepare a supplemental EIS for the construction permit or combined license in accordance with § 51.71, and “ 51.75(a) or (c), as applicable
environmental report submitted in part one is limited to the LWA activities, then the NRC will prepare an EIS limited to the LWA activities. Once part two of the application is received, which includes the environmental report required by § 51.50, the NRC will prepare a supplemental EIS for the construction permit or combined license in accordance with § 51.71, and “ 51.75(a) or (c), as applicable. By contrast, if the environmental report submitted in part one is a complete environmental report required by § 51.50, then the NRC will prepare a single, complete EIS for the construction permit or combined license in accordance with § 51.71, and § 51.75(a) or (c), as applicable.
Paragraph (c) applies to an EIS prepared for issuance of an early site permit which will also include an LWA. The EIS will address the scope of matters required to be addressed under § 51.75(d), which depends upon the matters which the applicant chooses to address in its environmental report, as well as the environmental impacts of conducting the LWA activities requested.
Paragraph (d) addresses the situation where an early site permit holder (as opposed to an applicant) requests a limited work authorization. In this situation, siting and many of the environmental issues have been addressed and resolved in the EIS supporting issuance of the ESP. This paragraph provides for the NRC to prepare a supplemental EIS, addressing the impacts of conducting LWA activities (including any new and significant information that would change the NRC's prior conclusion with respect to those construction activities which would actually be conducted earlier under the LWA instead of a referencing construction permit or combined license), and the adequacy of the proposed redress plan. Other than this updating, the supplemental EIS will not present any updated information on the matters resolved in the ESP EIS
information that would change the NRC's prior conclusion with respect to those construction activities which would actually be conducted earlier under the LWA instead of a referencing construction permit or combined license), and the adequacy of the proposed redress plan. Other than this updating, the supplemental EIS will not present any updated information on the matters resolved in the ESP EIS.
Paragraph (e) addresses the nature of the EIS prepared for an LWA requested for a site that was approved by the NRC for a plant which was never built. In such cases, the EIS will incorporate by reference the earlier EIS, address whether there is any significant new information with respect to the environmental impacts of construction relevant to the scope of activities to be performed under the LWA, and evaluate any such information in accordance with § 51.71 in determining if the LWA should be issued, or issued with appropriate conditions.
Paragraph (f) indicates that in all cases, the EIS must separately address the impacts of and proposed alternatives to the activities to be conducted under the LWA, in order to ensure that there are specific environmental findings addressing LWA activities for purposes of transparency of the final NRC NEPA findings and decision on the LWA request.
Section 51.103 Record of decision—general
Section 51.103 would be revised by adding a new paragraph (a)(6), which specifies that in a construction permit or combined license proceeding, where an LWA was previously issued, the Commission's decision on the construction permit or combined license application will not address or consider the sunk costs associated with the LWA. This provision, which is consistent with §§ 50.10(c)(6) and 51.71(e), is intended to ensure that the Commission's decision whether to issue the construction permit or combined license is not biased in favor of issuance in evaluating the environmental impacts and benefits of the construction permit or combined license
application will not address or consider the sunk costs associated with the LWA. This provision, which is consistent with §§ 50.10(c)(6) and 51.71(e), is intended to ensure that the Commission's decision whether to issue the construction permit or combined license is not biased in favor of issuance in evaluating the environmental impacts and benefits of the construction permit or combined license.
Section 51.104 NRC proceedings using public hearings, consideration of environmental impact statements or environmental assessment
Section 51.104 would be revised by adding a new paragraph (c) specifying that in an LWA proceeding, a party may only take a position and offer evidence on the aspects of the proposed action within the scope of NEPA and this subpart which are within the scope of that party's admitted contention. This paragraph would also specify that the presiding officer will decide the matters in controversy among the parties, viz. , the contentions related to the adequacy of the environmental impact statement prepared for the LWA.
Section 51.105 Public hearings in proceedings for issuance of construction permits or early site permits; limited work authorizations
Section 51.105 of the March 2006 proposed rule would be modified in two respects. The title of this section would be modified to add a reference to LWAs, reflecting the expanded scope of matters addressed in this section. Second, a new paragraph (c) would be added to specify the determinations which must be made by the presiding officer in an LWA hearing associated with either a construction permit or early site permit. Under this new paragraph, the presiding officer would:
—Determine whether the requirements of section 102(2)(A), (C) and (E) of NEPA have been met with respect to the activities to be conducted under the LWA. —Independently consider the balance among conflicting factors with respect to the LWA. —In an uncontested proceeding, determine whether the NRC's NEPA review has been adequate
site permit. Under this new paragraph, the presiding officer would:
—Determine whether the requirements of section 102(2)(A), (C) and (E) of NEPA have been met with respect to the activities to be conducted under the LWA. —Independently consider the balance among conflicting factors with respect to the LWA. —In an uncontested proceeding, determine whether the NRC's NEPA review has been adequate. —In a contested proceeding, determine whether in accordance with the regulations in subpart 51 the LWA should be issued. Section 51.107 Public hearings in proceedings for issuance of combined licenses; limited work authorizations
Section 51.107 of the March 2006 proposed rule would be modified in two respects. The title of this section would be modified to add a reference to LWAs, reflecting the expanded scope of matters addressed in this section. A new paragraph (d) would also be added to specify the determinations which must be made by the presiding officer in an LWA hearing associated with a combined license. This paragraph is essentially the same as § 51.105(c).
Part 52
Section 52.1 Definitions
A new definition of limited work authorization would be added to § 52.1 of the March 2006 proposed rule, which would be defined as the authorization provided under § 50.10(c). The Commission wishes to clarify that an applicant of an early site permit who requests authority to perform the activities permitted by § 50.10(c), would not, if the request were granted, receive a limited work authorization separate from its early site permit. Instead, the early site permit itself would authorize the activities permitted by § 50.10(c). This regulatory approach is consistent with the current language of § 52.17(c) and 52.25(b). However, once an ESP is issued, the holder could apply for, and would be issued an LWA directly under § 50.10(c)
the request were granted, receive a limited work authorization separate from its early site permit. Instead, the early site permit itself would authorize the activities permitted by § 50.10(c). This regulatory approach is consistent with the current language of § 52.17(c) and 52.25(b). However, once an ESP is issued, the holder could apply for, and would be issued an LWA directly under § 50.10(c).
Section 52.17 Contents of applications; technical information
Paragraph (c) of § 52.17 of the March 2006 proposed rule would be modified by removing the proposed language with respect to limited work authorizations, and instead specify that if the applicant wishes to obtain an LWA, then the information required by § 50.10(c)(2) must be included in the site safety analysis report.
Section 52.24 Issuance of early site permit
This section would be removed from the March 2006 proposed rule. The requirements applicable to the holder of an early site permit with respect to limited work authorization activities are set forth in proposed § 50.10(f).
Section 52.25 Limited Work Authorization After Issuance of Early Site Permit
Section 52.25 is a new section that allows an early site permit holder to request a LWA in accordance with § 50.10.
Section 52.79 Contents of Application; Technical Information in Final Safety Analysis Report
Section 52.79 of the March 2006 proposed rule would be modified by removing the proposed language in paragraph (a)(23) with respect to limited work authorizations. Instead, this paragraph would specify that if the applicant wishes to obtain a LWA, then the applicant must include the information required by § 50.10, either as part of a complete application under § 2.101(a)(1) through (4), or as a phased application under § 2.101(a)(9)
sed rule would be modified by removing the proposed language in paragraph (a)(23) with respect to limited work authorizations. Instead, this paragraph would specify that if the applicant wishes to obtain a LWA, then the applicant must include the information required by § 50.10, either as part of a complete application under § 2.101(a)(1) through (4), or as a phased application under § 2.101(a)(9).
Section 52.80 Content of Applications; Additional Technical Information
Paragraph (c) of § 52.80(c) of the March 2006 proposed rule would be modified to require that a combined license application containing a request for a LWA must contain an environmental report, either: (i) In accordance with 10 CFR 51.50(c) if a limited work authorization under 10 CFR 50.10 is not requested in conjunction with the combined license application; or (ii) in accordance with §§ 51.49 and 51.50(c) of part 51 of this chapter if a limited work authorization is requested in conjunction with the combined license application.
IV. Specific Request for Comments
As explained above, this supplemental proposed rule would impact the types of activities that could be undertaken without prior approval from the NRC, with NRC approval in the form of a LWA, and with NRC approval in the form of a construction permit or combined license.
Therefore, in addition to the general invitation to submit comments on the proposed rule, the NRC also requests comments on the following questions:
1. What types of activities should be permitted without prior NRC approval?
2. What types of activities should be permitted under a LWA?
3. What types of activities should only be permitted after issuance of a construction permit or combined license?
V. Availability of Documents
The NRC is making the documents identified below available to interested persons through one or more of the following methods as indicated.
Public Document Room (PDR). The NRC Public Document Room is located at 11555 Rockville Pike, Rockville, Maryland
. What types of activities should only be permitted after issuance of a construction permit or combined license?
V. Availability of Documents
The NRC is making the documents identified below available to interested persons through one or more of the following methods as indicated.
Public Document Room (PDR). The NRC Public Document Room is located at 11555 Rockville Pike, Rockville, Maryland.
Rulemaking Web site (Web). The NRC's interactive rulemaking Web site is located at http://ruleforum.llnl.gov . These documents may be viewed and downloaded electronically via this Web site.
NRC's Public Electronic Reading Room (EPDR). The NRC's electronic public reading room is located at http://www.nrc.gov/reading-rm.html .
The NRC staff contact. Geary Mizuno, Mail Stop O-15D21, Washington, DC 20555, 301-415-1639.
Document PDR Web EPDR NRC Staff 2006/5/25—Comment (4) submitted by Nuclear Energy Institute, Adrian P. Heymer on Proposed Rules X X ML061510471 SECY-98-282, Part 52 Rulemaking Plan ML032801416 Staff Requirements—SECY-98-282—Part 52 Rulemaking Plan ML032801439 Regulatory Analysis X X ML062750434 X VI. Plain Language
The Presidential memorandum dated June 1, 1998, entitled “Plain Language in Government Writing” directed that the Government's writing be in plain language. This memorandum was published on June 10, 1998 (63 FR 31883). In complying with this directive, the NRC made editorial changes to improve the organization and readability of the existing language of the paragraphs being revised. These types of changes are not discussed further in this document. The NRC requests comments on this proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be submitted using one of the methods described under the ADDRESSES heading of the preamble to this proposed rule.
VII
adability of the existing language of the paragraphs being revised. These types of changes are not discussed further in this document. The NRC requests comments on this proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be submitted using one of the methods described under the ADDRESSES heading of the preamble to this proposed rule.
VII. Agreement State Compatibility
Under the “Policy Statement on Adequacy and Compatibility of Agreement States Programs,” approved Federal Register (62 FR 46517; September 3, 1997), this rule is classified as compatibility “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the AEA or provisions of Title 10 of the Code of Federal Regulations, and although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.
VIII. Voluntary Consensus Standards (Public Law 104)
The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this rule, the NRC is proposing to: (i) Redefine the scope of activities constituting “construction” for which NRC approval is required; (ii) redefine the scope of activities constituting construction which the NRC may approve in a limited work authorization granted in advance of the issuance of a construction permit or combined license, or which may be conducted by a holder of an early site permit; and (iii) revise the NRC's procedures for granting limited work authorizations
ting “construction” for which NRC approval is required; (ii) redefine the scope of activities constituting construction which the NRC may approve in a limited work authorization granted in advance of the issuance of a construction permit or combined license, or which may be conducted by a holder of an early site permit; and (iii) revise the NRC's procedures for granting limited work authorizations. This rulemaking does not establish standards or substantive requirements with which all applicants and licensees must comply. For the reasons set forth in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 2, 50, 51 and 52.
IX. Environmental Impact—Categorical Exclusion
The NRC has determined that the changes made in this rule fall within the types of actions described in categorical exclusions described in 10 CFR 51.22(c)(1) and (c)(3). Specifically, the conforming changes made to 10 CFR part 2 would qualify for the categorical exclusion described in § 51.22(c)(1). The changes to parts 50, 51 and 52 that describe procedures for filing and reviewing applications for limited work authorizations would qualify for the categorical exclusion described in § 51.22(c)(3)(i). All other changes would qualify for the categorical exemption described in § 51.22(c)(3)(iv). 13 Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this regulation
51 and 52 that describe procedures for filing and reviewing applications for limited work authorizations would qualify for the categorical exclusion described in § 51.22(c)(3)(i). All other changes would qualify for the categorical exemption described in § 51.22(c)(3)(iv). 13 Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this regulation.
13 Although the industry's request came in the form of a comment on the proposed Part 52 rule (71 FR 12782; March 13, 2006), the comment letter stated; “To the extent the NRC determines that these LWA issues cannot be addressed in the current rulemaking, we ask that the Commission initiate an expedited rulemaking.” The NRC has determined that the changes suggested by the industry in Comment 4 (docketed on May 30, 2006, 4:50 PM) could not be incorporated into the final Part 52 rule without re-noticing. Therefore, the Commission has decided to treat the comments submitted by the industry as a petition for expedited rulemaking and is publishing this supplemental proposed rule for public comment. The NRC has determined that Comment 4 meets the sufficiency requirements described in 10 CFR 2.802(c) and that it is appropriate to seek public comment on the petition by publishing this proposed rule developed in response to the petition, as allowed under 10 CFR 2.802(e).
X. Paperwork Reduction Act Statement
The proposed rule published on March 13, 2006 imposed new or amended information collection requirements contained in 10 CFR parts 21, 25, 50, 52, and 54 that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). These new and amended information collection requirements were submitted to the Office of Management and Budget for review and approval. The existing requirements were approved by the Office of Management and Budget, approval numbers 3150-0044, 3150-0014, 3150-0146, 3150-0018, 3150-0132, 3150-0002, 3150-0055, 3150-0047, and 3150-0039
o the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). These new and amended information collection requirements were submitted to the Office of Management and Budget for review and approval. The existing requirements were approved by the Office of Management and Budget, approval numbers 3150-0044, 3150-0014, 3150-0146, 3150-0018, 3150-0132, 3150-0002, 3150-0055, 3150-0047, and 3150-0039.
This supplement would reduce the proposed rule burden by eliminating the requirement to obtain NRC permission to engage in site preparation activities that do not have a direct impact on radiological health and safety or common defense and security at sites where new nuclear power plants are to be constructed. Specifically, the burden associated with the preparation of applications for permission to engage in these activities, as well as the burden of responding to requests for additional information associated with these applications, would be eliminated by the supplement. The burden reduction for information collections contained in 10 CFR part 52 (OMB approval number 3150-0151), is estimated to be 50 hours per application. The burden reduction associated with this proposed rule supplement will be included in the revised OMB clearance package prepared for the final rule.
This supplement also contains a new information collection requirement in § 51.49, however this new information collection is not expected to result in a net increase in the burden for LWA applicants because the information to be submitted under this new requirement was formerly submitted by such applicants as part of a complete environmental report for the underlying construction permit or combined license under § 51.50, or for the ESP application (or amendment) under part 52
, however this new information collection is not expected to result in a net increase in the burden for LWA applicants because the information to be submitted under this new requirement was formerly submitted by such applicants as part of a complete environmental report for the underlying construction permit or combined license under § 51.50, or for the ESP application (or amendment) under part 52. The primary effect of the new information collection requirement in part 51 of the supplemental proposed rule would be to delay submission of most of the environmental information to the time that the underlying construction permit or combined license application and environmental report is submitted. Thus, changes in burden for information collections contained in 10 CFR part 51 (OMB approval number 3150-0021) are expected to be minimal.
The U.S. Nuclear Regulatory Commission is seeking public comment on the potential impact of the information collections contained in the proposed rule supplement and on the following issues:
1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility?
2. Is the estimate of burden accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques?
Send comments on any aspect of this proposed information collection, including suggestions for reducing the burden and on the above issues, by December 18, 2006 to the Records and FOIA/Privacy Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to INFOCOLLECTS@NRC.GOV and to the Desk Officer, John A. Asalone, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0021, 3150-0151), Office of Management and Budget, Washington, DC 20503
and on the above issues, by December 18, 2006 to the Records and FOIA/Privacy Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to INFOCOLLECTS@NRC.GOV and to the Desk Officer, John A. Asalone, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0021, 3150-0151), Office of Management and Budget, Washington, DC 20503. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date. You may also e-mail comments to John_A._Asalone@omb.eop.gov or comment by telephone at (202) 395-4650.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
XI. Regulatory Analysis
The commission has prepared a draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission. The Commission requests public comment on the draft regulatory analysis. Availability of the regulatory analysis is provided in Section V. Comments on the draft analysis may be submitted to the NRC as indicated under the ADDRESSES heading.
XII. Regulatory Flexibility Act Certification
In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed rule affects only the licensing of nuclear power plants. The companies that will apply for an approval, certification, permit, site report, or license in accordance with the regulations affected by this proposed rule do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810)
his proposed rule affects only the licensing of nuclear power plants. The companies that will apply for an approval, certification, permit, site report, or license in accordance with the regulations affected by this proposed rule do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).
XIII. Backfit Analysis
The NRC has determined that the backfit rule does not apply to this proposed rule and, therefore, a backfit analysis is not required, because the proposed rule does not contain any provisions that would impose backfitting as defined in the backfit rule, 10 CFR 50.109.
There are no current holders of early site permits, construction permits, or combined licenses for nuclear power plants that would be protected by the backfitting restrictions in § 50.109. To the extent that the proposed rule would revise the requirements for future early site permits, construction permits, or combined licenses for nuclear power plants, these revisions would not constitute backfits because they are prospective in nature and the backfit rule was not intended to apply to every NRC action which substantially changes the expectations of future applicants.
List of Subjects
10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
10 CFR Part 50 Antitrust, Classified information, Criminal penalties, Emergency Planning, Fire protection, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements.
10 CFR Part 51 Administrative practice and procedure, Environmental impact statement, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requirements
mation, Criminal penalties, Emergency Planning, Fire protection, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements.
10 CFR Part 51 Administrative practice and procedure, Environmental impact statement, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requirements.
10 CFR Part 52 Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification.

For the reasons set forth in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR parts 2, 50, 51 and 52.
PART 2—RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS
1. The authority citation for part 2 continues to read as follows:
Authority:
Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)), sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C
ended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)), sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Sections 2.105 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161 b, I, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (I), (o), 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101-410, 104 Stat. 90, as amended by section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133), and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued under sec. 184 (42 U.S.C. 2234) and sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135).
2
2 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued under sec. 184 (42 U.S.C. 2234) and sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135).
2. In § 2.101, paragraphs (a)(1) and (a)(2) are revised, the introductory text of paragraph (a)(3) is revised, paragraph (a)(3)(ii) is revised, paragraph (a)(4) is revised, paragraphs (a)(6) through (a)(8) are added and reserved, and a paragraph (a)(9) is added to read as follows:
§ 2.101 Filing of application. (a)(1) An application for a permit, a license, a license transfer, a license amendment, a license renewal, and a standard design approval, shall be filed with the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as prescribed by the applicable provisions of this chapter. A prospective applicant may confer informally with the NRC staff before filing an application.
(2) Each application for a license for a facility or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee will be assigned a docket number. However, to allow a determination as to whether an application for a construction permit, operating license, early site permit, standard design approval, combined license, or manufacturing license for a production or utilization facility is complete and acceptable for docketing, it will be initially treated as a tendered application. A copy of the tendered application will be available for public http://www.nrc.gov , and/or at the NRC Public Document Room. Generally, the determination on acceptability for docketing will be made within a period of 30 days
ed license, or manufacturing license for a production or utilization facility is complete and acceptable for docketing, it will be initially treated as a tendered application. A copy of the tendered application will be available for public http://www.nrc.gov , and/or at the NRC Public Document Room. Generally, the determination on acceptability for docketing will be made within a period of 30 days. However, in selected applications, the Commission may decide to determine acceptability based on the technical adequacy of the application as well as its completeness. In these cases, the Commission, under § 2.104(a), will direct that the notice of hearing be issued as soon as practicable after the application has been tendered, and the determination of acceptability will be made generally within a period of 60 days. For docketing and other requirements for applications under part 61 of this chapter, see paragraph (g) of this section.
(3) If the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, determines that a tendered application for a construction permit, operating license, early site permit, standard design approval, combined license, or manufacturing license for a production or utilization facility, and/or any environmental report required under subpart A of part 51 of this chapter, or part thereof as provided in paragraphs (a)(5) or (a-1) of this section are complete and acceptable for docketing, a docket number will be assigned to the application or part thereof, and the applicant will be notified of the determination. With respect to the tendered application and/or environmental report or part thereof that is acceptable for docketing, the applicant will be requested to:
, or part thereof as provided in paragraphs (a)(5) or (a-1) of this section are complete and acceptable for docketing, a docket number will be assigned to the application or part thereof, and the applicant will be notified of the determination. With respect to the tendered application and/or environmental report or part thereof that is acceptable for docketing, the applicant will be requested to:

(ii) Serve a copy on the chief executive of the municipality in which the facility or site which is the subject of an early site permit is to be located or, if the facility or site which is the subject of an early site permit is not to be located within a municipality, on the chief executive of the county, and serve a notice of availability of the application or environmental report on the chief executives of the municipalities or counties which have been identified in the application or environmental report as the location of all or part of the alternative sites, containing the following information, as applicable: Docket number of the application, a brief description of the proposed site and facility; the location of the site and facility as primarily proposed and alternatively listed; the name, address, telephone number, and e-mail address (if available) of the applicant's representative who may be contacted for further information; notification that a draft environmental impact statement will be issued by the Commission and will be made available upon request to the Commission; and notification that if a request is received from the appropriate chief executive, the applicant will transmit a copy of the application and environmental report, and any changes to these documents which affect the alternative site location, to the executive who makes the request. In complying with the requirements of this paragraph, the applicant should not make public distribution of those parts of the application subject to § 2.390(d)
ved from the appropriate chief executive, the applicant will transmit a copy of the application and environmental report, and any changes to these documents which affect the alternative site location, to the executive who makes the request. In complying with the requirements of this paragraph, the applicant should not make public distribution of those parts of the application subject to § 2.390(d). The applicant shall submit to the Director of Nuclear Reactor Regulation an affidavit that service of the notice of availability of the application or environmental report has been completed along with a list of names and addresses of those executives upon whom the notice was served; and

(4) The tendered application for a construction permit, operating license, early site permit, standard design approval, combined license, or manufacturing license will be formally docketed upon receipt by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, of the required additional copies. Distribution of the additional copies shall be deemed to be complete as of the time the copies are deposited in the mail or with a carrier prepaid for delivery to the designated addresses. The date of docketing shall be the date when the required copies are received by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate. Within 10 days after docketing, the applicant shall submit to the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, an affidavit that distribution of the additional copies to Federal, State, and local officials has been completed in accordance with the requirements of this chapter and written instructions furnished to the applicant by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate
irector of Nuclear Material Safety and Safeguards, as appropriate, an affidavit that distribution of the additional copies to Federal, State, and local officials has been completed in accordance with the requirements of this chapter and written instructions furnished to the applicant by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate. Amendments to the application and environmental report shall be filed and distributed and an affidavit shall be furnished to the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, in the same manner as for the initial application and environmental report. If it is determined that all or any part of the tendered application and/or environmental report is incomplete and therefore not acceptable for processing, the applicant will be informed of this determination, and the respects in which the document is deficient.

(6)-(8) Reserved.
(9) Limited work authorization. An applicant for a construction permit for a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 of this chapter, an applicant for or holder of an early site permit under part 52 of this chapter, or an applicant for a combined license under part 52 of this chapter, who seeks to conduct the activities authorized under § 50.10(c) of this chapter may submit a complete application under paragraphs (a)(1)-(4) of this section which includes the information required by § 50.10(c) of this chapter. Alternatively, the applicant (other than a holder of an early site permit) may submit its application in two parts:
for a combined license under part 52 of this chapter, who seeks to conduct the activities authorized under § 50.10(c) of this chapter may submit a complete application under paragraphs (a)(1)-(4) of this section which includes the information required by § 50.10(c) of this chapter. Alternatively, the applicant (other than a holder of an early site permit) may submit its application in two parts:
(i) Part one must include the information required by § 50.33(a) through (f) of this chapter, and the i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_06-8656. Check the current official text before relying on it. Not legal advice.