[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]
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NUCLEAR REGULATORY COMMISSION
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.
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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
decision.
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
http://ruleforum.llnl.gov.
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
20555-0001.
FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Office of
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].
SUPPLEMENTARY INFORMATION:
Background
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
inadequate.
[[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.''
Id.
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
question.
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]
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