[Federal Register Volume 70, Number 155 (Friday, August 12, 2005)]
[Proposed Rules]
[Pages 47148-47151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15990]



10 CFR Part 51

[Docket No. PRM-51-9]

State of Nevada; Receipt of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; notice of receipt.


SUMMARY: The Nuclear Regulatory Commission (NRC) has received and 
requests public comment on a petition for rulemaking filed by the State 
of Nevada (petitioner). The petition has been docketed by the NRC and 
has been assigned Docket No. PRM-51-9. The petitioner is requesting 
that the NRC amend the regulation that governs adoption of an 
environmental impact statement prepared by the Secretary of Energy in 
proceedings for issuance of a construction authorization or materials 
license with respect to a geological repository. The petitioner 
believes that the current regulation, as written, violates the National 
Environmental Policy Act of 1969, as amended (NEPA), the Nuclear Waste 
Policy Act of 1982, as amended (NWPA), and a recent court of appeals 

DATES: Submit comments by October 26, 2005. Comments received after 
this date will be considered if it is practical to do so, but assurance 
of consideration cannot be given except as to comments received on or 
before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number PRM-51-9 in the subject line of 
your comments. Comments on petitions

[[Page 47149]]

submitted in writing or in electronic form will be made available for 
public inspection. Because your comments will not be edited to remove 
any identifying or contact information, the NRC cautions you against 
including personal information such as social security numbers and 
birth dates in your submission.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555. Attention: Rulemaking and Adjudications staff.
    E-mail comments to: [email protected]. 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 comments 
about our rulemaking Web site to Carol Gallagher, (301) 415-5905; (e-
mail [email protected]). Comments can also be submitted via the Federal 
eRulemaking Portal http://www.regulations.gov.
    Hand deliver comments to 11555 Rockville Pike, Rockville, Maryland, 
between 7:30 a.m. and 4:15 p.m. on Federal workdays.
    Publicly available documents related to this petition may be viewed 
electronically on the public computers located at the NRC Public 
Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville 
Pike, Rockville, Maryland. The PDR reproduction contractor will copy 
documents for a fee. Selected documents, including comments, may be 
viewed and downloaded electronically via the NRC rulemaking Web site at 
    Publically available documents created or received at the NRC after 
November 1, 1999 are also available electronically at the NRC's 
Electronic Reading Room at http://www.nrc.gov/reading--rm/adams.html. 
From this site, the public can gain entry into the NRC's Agencywide 
Documents 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 PDR Reference staff at 1-800-397-4209, 301-415-
4737 or by e-mail to [email protected].
    For a copy of the petition, write to Michael T. Lesar, Chief, Rules 
and Directives Branch, Division of Administrative Services, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 

Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555. Telephone: 301-415-7163 or toll-free: 1-800-368-5642 or e-mail: 
[email protected].



    The NRC has received a petition for rulemaking dated April 8, 2005, 
submitted by the State of Nevada (petitioner) entitled ``Petition by 
the State of Nevada to Amend 10 CFR 51.109.'' The petitioner requests 
that the NRC amend 10 CFR 51.109 because it believes the current 
regulation violates the NEPA, NWPA, and the decision in Nuclear Energy 
Institute, Inc. v. Environmental Protection Agency, 373 F. 3d 1251 
(D.C. Cir. 2004) (NEI). The petitioner recommends that 10 CFR 
51.109(a)(2) be deleted and proposes a new paragraph (h) to correct 
what it believes is an error regarding limitations on potential 
challenges to NRC's adoption of the Department of Energy's (DOE's) 
final environmental impact statement (FEIS). The NRC has determined 
that the petition meets the threshold sufficiency requirements for a 
petition for rulemaking under 10 CFR 2.802. The petition has been 
docketed as PRM-51-9. The NRC is soliciting public comment on the 
petition for rulemaking.

Discussion of the Petition

    The petitioner notes that sections 114(a)(1)(D) and (f)(1) of the 
NWPA require DOE to prepare an FEIS in connection with its 
recommendation of the Yucca Mountain, Nevada site as a geologic 
repository for the disposal of reactor spent fuel and other high-level 
radioactive waste, and that DOE issued the FEIS in February 2002 (DOE/
EIS-0250). The petitioner also notes that section 114(f)(4) of the NWPA 
provides that an FEIS ``shall, to the extent practicable, be adopted by 
the Commission in connection with the issuance by the Commission of a 
construction authorization and license for such repository,'' and that 
``[t]o the extent such statement is adopted by the Commission, such 
adoption shall be deemed to also satisfy the responsibilities of the 
Commission under [NEPA] and no further consideration shall be required, 
except that nothing in this subsection shall affect any independent 
responsibilities of the Commission to protect the public health and 
safety under the Atomic Energy Act of 1954.''
    The petitioner also notes that 10 CFR 51.109 implements NWPA 
section 114(f)(4). The petitioner believes that the NRC has added three 
special provisions to Sec.  51.109 that are not in the NWPA. The 
petitioner states that 10 CFR 51.109 provides for special procedures 
for litigation of NEPA issues that are not in the NWPA and contradict 
procedures that apply to litigation of safety issues under the NWPA and 
Atomic Energy Act. The petitioner also believes that Sec.  51.109 
provides for the NRC to adopt any supplement to the original DOE FEIS 
and notes that NWPA section 114(f) does not mention FEIS supplements. 
Lastly, the petitioner believes that Sec.  51.109 contains special 
provisions that specify precisely when the NRC will adopt the Yucca 
mountain FEIS that are not in the NWPA.
    The petitioner states that ``[w]ith regard to the special 
litigation procedures, 10 CFR 51.109(a)(2) conditions the admissibility 
of a contention that the NRC should not adopt the DOE FEIS (or 
supplemental FEIS) on satisfaction, to the extent possible, of the 
standards for reopening a closed record under 10 CFR 2.326.'' The 
petitioner believes that the principal difference between this 
contention standard and the contention standard in 10 CFR 51.109(f) 
that applies to other issues is that Sec.  2.326 requires submission of 
admissible evidence, while Sec.  2.309(f) does not. The petitioner 
states that under Sec.  2.326 that is referenced in Sec.  51.109(a)(2), 
a motion to reopen must include admissible evidence. The petitioner 
cites 54 FR 33168, 33171; (August 11, 1989) and states that the 
regulatory history of 10 CFR 2.309(f) is clear that ``the factual 
support necessary to show that a genuine dispute exists need not be in 
affidavit or formal evidentiary form and need not be of the quality 
necessary to withstand a summary disposition motion.''
    The petitioner states that the special adoption standards were 
promulgated by the NRC in 1989 (54 FR 27864; July 3, 1989) and appear 
as follows in 10 CFR 51.109(c):

    The presiding officer will find that it is practicable to adopt 
any environmental impact statement prepared by the Secretary of 
Energy in connection with a geologic repository proposed to be 
constructed under Title I of the Nuclear Waste Policy Act of 1982, 
as amended, unless: (1)(I) The action proposed to be taken by the 
Commission differs from the action proposed in the license 
application submitted by the Secretary of Energy; and (ii) The 
difference may significantly affect the quality of the human 
environment; or (2) Significant and substantial new information or 
new considerations render such environmental impact statement 

[[Page 47150]]

    The petitioner states that this regulation was adopted over the 
objections of the Council on Environmental Quality (CEQ). The 
petitioner notes that the CEQ comments are available on the NRC's 
Licensing Support Network (NRC 000024546) and believes they support 
Nevada's comments on the 1989 rulemaking emphasizing that NEPA does not 
allow NRC to adopt the DOE FEIS without a full and independent review 
of that FEIS. The petitioner cites Marsh v. Oregon Natural Resources 
Council, 490 U.S. 360, 372 (1989) and Andrus v. Sierra Club, 442 U.S. 
347, 358 (1979) in stating that CEQ's views on NEPA requirements are 
entitled to ``substantial deference.''
    The petitioner believes that the NRC conceded that ``Congress did 
not speak to the precise question of the standard to be used in 
deciding whether adoption of DOE's environmental impact statement is 
practicable'' and that ``our construction is not the only one that 
might be proposed'' (54 FR 27866; July 3, 1989) to defend the agency's 
interpretation of NWPA section 114(f)(4). The petitioner states that 
the NRC's approach cannot be reconciled with what it believes is the 
admonition in NEPA section 102 for agencies to follow the statutory 
procedures ``to the fullest extent possible.'' The petitioner cites 
Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm'n, 
449 F.2d 1109, 1115 (D.C. Cir. 1971) in stating that NEPA's procedural 
requirements must be enforced ``unless there is a clear conflict of 
statutory authority.''
    The petitioner states that the adoption standard in 10 CFR 
51.109(c) cannot be reconciled with certain portions of the NWPA's 
legislative history and cites the following excerpts from the 
Congressional Record: 128 Cong. Rec. S4302 (April 29, 1982): the NRC 
licensing process would include ``a detailed evaluation of the health 
and safety and environmental aspects of the proposed project'' and 128 
Cong. Rec. S15669 (December 20, 1982) (statement on the Senate floor 
that the bill should ``preserve the integrity and full scope of the NRC 
licensing review and environmental analysis under the National 
Environmental Policy Act.'')
    The petitioner states that in the NEI decision, Nevada challenged 
the adequacy of DOE's FEIS supporting the recommendation of the Yucca 
Mountain site. The Court held that any challenge to the FEIS that might 
be adopted in support of a future NRC construction authorization or 
licensing decision or used by the Department of Energy in support of a 
future transportation-alternative selection was not ready for review 
because ``the effect of the FEIS will not be felt in a concrete way by 
Nevada until it is used to support some other final decision of DOE or 
NRC'' and ``Nevada may raise its substantive claims against the FEIS if 
and when NRC or DOE makes such a final decision.'' 373 F.3d at 1313. 
The court noted the representation of NRC counsel at oral argument that 
``Nevada will be permitted to raise its substantive challenges to the 
FEIS in any NRC proceeding to decide whether to adopt the FEIS'' and 
agreed with NRC's acknowledgment that ``it would not be `practicable' 
to adopt the FEIS unless it meets the standards for an `adequate 
statement' under the NEPA and the Council on Environmental Quality's 
NEPA regulations.'' Id. At 1313-1314. The Court further stated that the 
NWPA ``cannot reasonably be interpreted to permit NRC to premise a 
construction-authorization or licensing decision upon an EIS that does 
not meet the substantive requirements of the NEPA or the Council on 
Environmental Quality's NEPA regulations.'' Id. At 1314.
    The petitioner states that the Court specifically addressed the NRC 
adoption standards in 10 CFR 51.109(c) and noted the NRC's 
representation that ``NRC will not construe the `new information or new 
considerations' requirement to preclude Nevada from raising substantive 
objections against the FEIS in administrative proceedings.'' Id. The 
petitioner states that after oral argument the NRC sent a letter to the 
Court attempting to explain this regulation. The petitioner believes 
that contrary to NRC's representations at oral argument, the letter 
states that although 10 CFR 51.109(c) did not limit the NEPA issues 
that could be raised on judicial review, it would limit what NEPA 
issues could be raised in the NRC licensing hearing. The petitioner 
states that the Court responded in the NEI decision that the suggested 
distinction in the letter between what could be raised on judicial 
review and what could be raised in the NRC licensing hearing ``makes no 
sense. Nevada's claims have not been adjudicated on the merits here and 
presumably will not have been passed upon by any court prior to the 
relevant NRC proceedings. The [Nevada] claims thus would certainly 
raise `new considerations' with regard to any decision to adopt the 
FEIS. Moreover * * * any substantive defects in the FEIS clearly would 
be relevant to the `practicability' of adopting the FEIS.'' Id. The 
petitioner states that the Court concluded that ``Government counsel's 
unequivocal representation to the court during oral argument that 
Nevada will not be foreclosed from raising substantive claims against 
the FEIS in administrative proceedings comports with the terms of the 
regulation and reflects a reasonable and compelling interpretation.'' 
    The petitioner has concluded that 10 CFR 51.109 must be amended 
because it believes that the NRC has not formally adopted the Court's 
interpretation of this regulation in the NEI decision. The petitioner 
has also concluded that the special litigation procedures in 10 CFR 
51.109(c) violate NEPA. The petitioner believes that section 102(2)(C) 
of NEPA requires an FEIS to be considered in the ``existing agency 
review processes'' [emphasis added] and that NRC is attempting to use a 
different review process applicable only to NEPA where interested 
persons must satisfy additional pleading requirements that do not 
apply. The petitioner cites Calvert Cliffs, 40 CFR 1505.1, and Aberdeen 
& Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320 (1975).

The Petitioner's Proposed Amendment

    The petitioner requests that 10 CFR 51.109 be amended by deleting 
paragraph (a)(2) and adding a new paragraph (h) to read as follows:

    Nothing in this section shall be construed to limit the ability 
of any party or interested governmental participant to challenge in 
a licensing hearing any environmental impact statement (Including 
any supplement thereto) prepared by the Secretary of Energy on the 
ground that such statement violates NEPA or the regulations of the 
Council on Environmental Quality, provided that the challenge is not 
barred by traditional principles of federal collateral estoppel. 
Collateral estoppel shall not bar the admission of a NEPA contention 
if the standards in subparagraph (c)(1) and (c)(2) of this section 
are met, provided that the change in the proposed action or new 
information or considerations became known after the litigation in 

    The petitioner believes the proposed amendment gives explicit 
effect to the representations of counsel adopted by the court and 
provides ``appropriate effect'' to 10 CFR 51.109(c) ``within the 
appropriate context of traditional Federal collateral estoppel 
principles.'' The petitioner also believes issues raised regarding 
special litigation procedures in 10 CFR 51.109(a)(2) can be resolved 
only by deleting that paragraph ``with the result that the admission of 
NEPA contentions will be guided by the same principles in 10 CFR 
2.309(f) that apply to other kinds of contentions.''

[[Page 47151]]

The Petitioner's Conclusion

    The petitioner concludes that 10 CFR 51.109(a)(2) as currently 
written violates the NEPA, NWPA, and the decision in NEI v. EPA with 
regard to special litigation procedures. The petitioner requests that 
the NRC amend 10 CFR 51.109 by deleting paragraph (a)(2) and adding a 
new paragraph (h) as detailed in its petition for rulemaking.

    Dated in Rockville, Maryland, this 8th day of August, 2005.

    For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 05-15990 Filed 8-11-05; 8:45 am]