[Federal Register Volume 71, Number 200 (Tuesday, October 17, 2006)]
[Proposed Rules]
[Pages 61330-61359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8656]
[[Page 61329]]
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Part IV
Nuclear Regulatory Commission
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10 CFR Parts 2, 50, 51 and 52
Licenses, Certifications, and Approvals for Nuclear Power Plants;
Supplemental Proposed Rule
Federal Register / Vol. 71, No. 200 / Tuesday, October 17, 2006 /
Proposed Rules
[[Page 61330]]
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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.
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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: [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 questions
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail
[email protected]. 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 [email protected].
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: [email protected].
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
Sec. 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. 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
[[Page 61331]]
(71 FR 12782). The public comment period on the March 2006 proposed
rule ended on May 30, 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, Sec. 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 Sec. 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). This change was implemented by amending
Sec. 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 Sec. 50.10 (37 FR 5745;
March 21, 1972). In that rulemaking, the Commission adopted a much more
expansive concept of construction. Specifically, a new Sec. 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. 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
Sec. 50.10(c).\1\
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\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)).
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Two years after the expansion of the Commission's permitting
authority resulting from the promulgation of Sec. 50.10(c), the NRC
promulgated Sec. 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 Sec. 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 Sec. 50.12. The
provisions of Sec. 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\
[[Page 61332]]
NEI's comments suggested modifications to the NRC's LWA process
including: (1) That non-safety related ``LWA-I'' activities, currently
reflected in Sec. 50.10(c) and Sec. 50.10(e)(1), be allowed to
proceed without prior authorization from the NRC, and (2) that the
approval process for safety-related ``LWA-II'' activities be
accelerated. NEI's comment also stated that the current definition of
construction in Sec. 50.10(b) reflects the correct interpretation of
the Commission's licensing authority under the AEA.
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\2\ See Letter from Adrian P. Heymer, Nuclear Energy Institute
to Annette L. Vietti-Cook, Secretary, U.S. Nuclear Regulatory
Commission, Pre-Licensing Construction Activity and Limited Work
Authorization Issues relating to NRC Proposed Rule, ``Licenses,
Certifications and Approvals for Nuclear Power Plants,'' 71 FR 12,
782 (March 13, 2006) (RIN 3150-AG24) (May 25, 2006).
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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 Sec. 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 Sec. 50.10(c) and the
authorization described in Sec. 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 Sec.
50.10(b), as construction requiring a LWA.
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\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.
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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. 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.
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\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.
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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
[[Page 61333]]
Commission's permitting/licensing authority under the AEA, the
elimination of the blanket inclusion of site preparation activities in
the definition of construction under Sec. 50.10(c) does not violate
NEPA.
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\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).
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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\
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\7\ Save the Bay, Inc. v. U.S. Army Corps of Engineers, 610 F.2d
322, 326 (5th Cir. 1980).
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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\
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\8\ See Landmark West! v. U.S. Postal Service, 840 F.Supp. 994,
1006 (S.D.N.Y. 1993) (citing cases).
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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.
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\
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\9\ Daniel R. Mandelker, NEPA Law and Litigation, 9-25 (2nd ed.
2004).
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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.
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\
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\10\ See Tennessee Valley Authority (Clinch River Breeder
Reactor Plant), 16 NRC 412, 424 (Aug. 17, 1982) (hereinafter Clinch
River).
\11\ Id.
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These considerations are reflected in the provisions of the
supplemental proposed rule. Specifically, Sec. 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, Sec. 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,
[[Page 61334]]
Sec. 50.10(c)(7) would require that the site redress plan be
implemented within a reasonable time and that the redress of the site
occur within eighteen (18) months of the Commission's final decision
denying a construction permit or combined license.
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 Sec.
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 Sec. 50.10(b).
Although the driving of piles was not expressly included in the
definition of ``construction'' contained in Sec. 50.10(b) before the
amendment of Sec. 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).\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).
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\12\ The proposed rule language was promulgated without
modification in the final rule. 33 FR 2381.
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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 Sec. 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 Sec. 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. 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, Sec. 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.
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 Sec.
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
[[Page 61335]]
activities to be performed under an LWA. The Commission believes that
this practice is appropriate because the referenced environmental
review will come in the form of a FEIS prepared by NRC staff for sites
on which permission to construct a nuclear power plant was ultimately
granted by the Commission. The Commission understands that the
activities proposed in a current LWA request may be different from the
activities proposed and analyzed in the previous FEIS referenced by an
applicant and relied upon by NRC staff. However, it is the Commission's
intent that if such differences will likely result in significant
changes to the environmental impacts caused by the LWA activities
currently proposed by the applicant, then the differences should be
considered ``new and significant information'' material to the
environmental impacts that may reasonably be expected to result from
the LWA activities and, therefore, should be addressed in the
applicant's environmental report, analyzed by the staff in a supplement
to the existing FEIS, and considered by the presiding officer.
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 Sec. 50.10(c).
If the application is a phased LWA application, the first part must
contain the information required by Sec. 50.10(c) on the LWA, as well
as the general information required of all production and utilization
facility applicants under Sec. 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 Sec. 2.101(a)(1)
thorough (4). However, the applicant would have the further option of
submitting part two in additional subparts in accordance with Sec.
2.101(a-1). The second part (or the first subpart of multiple subparts
under Sec. 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 Sec.
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 Sec. 2.104 would be modified to more
clearly refer to the authority requested under Sec. 52.17(c) as the
limited work authorization under Sec. 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 Sec.
2.600.
Section 2.600 Scope of Subpart
The statement of scope in Sec. 2.600 would be revised to reflect
the new set of procedures for phased LWA applications in proposed
Sec. Sec. 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 Sec. 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 Sec. Sec. 2.641 through 2.649.
Section 2.641 Filing Fees
Section 2.641, which is comparable to current Sec. 2.602, provides
that a phased LWA application shall be accompanied by the applicable
filing fees in Sec. 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 Sec. 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 Sec. 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.
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
Sec. 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 Sec. 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
[[Page 61336]]
officer, before part two of the application is filed.
Section 2.645 Notice of Hearing
Section 2.645, which is comparable to current Sec. 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 Sec. 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 Sec. 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 Sec. 2.309.
Paragraph (c) of the proposed rule differs somewhat from Sec.
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
Sec. 2.309, but the petition need not address the interest and
standing requirements in Sec. 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 Sec. 2.643,
nothing in Sec. 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 Sec. 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 Sec. 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. 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 Sec.
50.10(b), and removes the need for NRC approval to conduct the
activities currently described in Sec. 50.10(e)(1), except in two
important respects. First, whereas existing Sec. 50.10(b) allows the
driving of piles for the facility, proposed Sec. 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 Sec. 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
[[Page 61337]]
elevation, in preparation for the placement of the foundation and
associated retaining walls, is excavation that may not be performed
without an LWA, construction permit, or combined license under part 52.
The ``driving of piles'' not related to ensuring the structural
stability or integrity of any structure, systems or component required
by the Commission's regulations to be described in the FSAR does not
fall within the definition of construction in this paragraph.
Therefore, piles driven to support the erection of a bridge for a
temporary or permanent access road would not be considered
``construction'' under this section and may be performed without a LWA,
construction permit, or combined license. ``Installation of the
foundation,'' means soil compaction; the installation of drainage
systems and geofabric; the placement of concrete (e.g., ``mudmats'') or
other materials which will not be removed prior to placement of the
foundation of a structure; the placement and compaction of a subbase;
the installation of reinforcing bars to be incorporated into the
foundation of the structure; the erection of concrete forms for the
foundations that will remain in-place permanently (even if non-
structural); and placement of concrete or other material constituting
the foundation of any structure, systems or component required by the
Commission's regulations to be described in the FSAR. Foundation
installation activities will require a LWA, construction permit, or
combined license.
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. 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 Sec. 2.101(a)(1) through (4).
--Part one of a phased application under Sec. 2.101(a)(9).
--Part of a complete application for an early site permit under Sec.
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. 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 Sec. 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. 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)
[[Page 61338]]
provides that any activities undertaken under a limited work
authorization shall be entirely at the risk of the applicant and, with
exception of the matters determined under paragraph (c)(4)(ii) and
(iii), the issuance of the limited work authorization shall have no
bearing on the issuance of a construction permit or combined license
with respect to the requirements of the Act, and rules, regulations, or
orders promulgated pursuant thereto. Thus, this paragraph states that
the environmental impact statement for a construction permit or
combined license application for which a limited work authorization was
previously issued will not address, and the presiding officer will not
consider, the sunk costs of the holder of limited work authorization in
determining the proposed action (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 Sec. 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 Sec.
50.10(c), any discussion, evaluation or consideration of the
environmental impacts or benefits associated with non-construction
activities as effectively defined in Sec. 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 Sec. 51.17 of the March 2006 proposed rule would
be further modified by adding a reference to a new Sec. 51.49, which
requires submission of an environmental report by LWA applicants. While
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
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. 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 Sec. 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).
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 Sec. 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
[[Page 61339]]
(b), to eliminate the requirements for submission of a redress plan by
an early site permit applicant. The redress plan would be required
under Sec. 50.10(c)(3)(iii).
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 Sec. Sec. 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 Sec. 51.76 parallels that of Sec. 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 Sec. 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 Sec. 51.50, the NRC will prepare a supplemental EIS for
the construction permit or combined license in accordance with Sec.
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 Sec. 51.50, then the NRC will prepare a single,
complete EIS for the construction permit or combined license in
accordance with Sec. 51.71, and Sec. 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 Sec. 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.
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 Sec. 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 Sec. Sec. 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.
--In a contested proceeding, determine whether in accordance with the
regulations in subpart 51 the LWA should be issued.
[[Page 61340]]
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 Sec. 51.105(c).
Part 52
Section 52.1 Definitions
A new definition of limited work authorization would be added to
Sec. 52.1 of the March 2006 proposed rule, which would be defined as
the authorization provided under Sec. 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 Sec. 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 Sec. 50.10(c). This
regulatory approach is consistent with the current language of Sec.
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 Sec. 50.10(c).
Section 52.17 Contents of applications; technical information
Paragraph (c) of Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 50.10, either as part of a
complete application under Sec. 2.101(a)(1) through (4), or as a
phased application under Sec. 2.101(a)(9).
Section 52.80 Content of Applications; Additional Technical Information
Paragraph (c) of Sec. 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 Sec. Sec.
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.
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 X X ML061510471 ..........
Institute, Adrian P. Heymer on Proposed Rules...........
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. Agreement State Compatibility
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement States Programs,'' approved
[[Page 61341]]
by the Commission on June 20, 1997, and published in the 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. 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 Sec. 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 Sec. 51.22(c)(3)(i). All other
changes would qualify for the categorical exemption described in Sec.
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.
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 Sec. 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 Sec. 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
[email protected] 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 [email protected] or comment by telephone at (202) 395-4650.
[[Page 61342]]
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).
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 Sec. 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.
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. 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. In Sec. 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:
Sec. 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
[[Page 61343]]
inspection at the NRC Web site, 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 Sec. 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:
* * * * *
(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 Sec. 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. 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 Sec. 51.20(b) of
this chapter and is of the type specified in Sec. 50.21(b)(2) or (3)
or Sec. 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 Sec. 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 Sec. 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 Sec.
50.33(a) through (f) of this chapter, and the information required by
Sec. 50.10(c)(2) and (3) of this chapter.
(ii) Part two must include the remaining information required by
the Commission's regulations in this chapter which was not submitted in
part one, provided, however, that this information may be submitted in
accordance with the applicable provisions of paragraph (a-1) of this
section.
(iii) Part two of the application must be submitted no later than
twelve (12) months after submission of part one.
* * * * *
3. In Sec. 2.104, the introductory text of paragraph (a) is
revised, current paragraphs (d) and (e) are redesignated as paragraphs
(l) and (m), respectively, and revised, new paragraphs (d), (e), and
(f) are added, and paragraphs (g) through (k) are added and reserved,
and footnote 1 is revised to read as follows:
Sec. 2.104 Notice of hearing.
(a) In the case of an application on which a hearing is required by
the Act or this chapter, or in which the Commission finds that a
hearing is required in the public interest, the Secretary will issue a
notice of hearing to be published in the Federal Register as required
by law at least 15 days, and in the case of an application concerning a
construction permit, early site permit, or combined license for a
facility of the type described in Sec. 50.21(b) or Sec. 50.22 of this
chapter or a testing facility, at least
[[Page 61344]]
30 days, before the date set for hearing in the notice.\1\ In addition,
in the case of an application for an early site permit, construction
permit or combined license for a facility of the type described in
Sec. 50.22 of this chapter, or a testing facility, the notice (other
than a notice under paragraph (d) of this section) must be issued as
soon as practicable after the application has been docketed. However,
if the Commission, under Sec. 2.101(a)(2), decides to determine the
acceptability of the application based on its technical adequacy as
well as completeness, the notice must be issued as soon as practicable
after the application has been tendered. The notice will state:
---------------------------------------------------------------------------
\1\ If the notice of hearing concerning an application for a
construction permit, early site permit, or combined license for a
facility of the type described in Sec. 50.21(b) or Sec. 50.22 of
this chapter or a testing facility does not specify the time and
place of initial hearing, a subsequent notice will be published in
the Federal Register which will provide at least 30 days notice of
the time and place of that hearing. After this notice is given the
presiding officer may reschedule the commencement of the initial
hearing for a later date or reconvene a recessed hearing without
again providing at least 30 days notice.
---------------------------------------------------------------------------
* * * * *
(d) In the case of an application for an early site permit under
subpart A of part 52 of this chapter, the notice of hearing will state,
in implementation of paragraph (a)(3) of this section:
(1) If the proceeding is a contested proceeding, the presiding
officer will consider the following issues:
(i) Whether applicable standards and requirements of the Act and
the Commission's regulations have been met;
(ii) Whether any required notifications to other agencies or bodies
have been duly made;
(iii) If the applicant requests, under Sec. 52.17(c) of this
chapter, a limited work authorization under Sec. 50.10 of this
chapter, whether there is reasonable assurance that the proposed site
is a suitable location for a reactor of the general size and type
described in the application from the standpoint of radiological health
and safety considerations under the Act and regulations issued by the
Commission;
(iv) Whether there is reasonable assurance that the site is in
conformity with the provisions of the Act, and the Commission's
regulations;
(v) Whether the applicant is technically qualified to engage in any
activities authorized;
(vi) Whether the proposed inspections, tests, analyses and
acceptance criteria, including any on emergency planning, are necessary
and sufficient within the scope of the early site permit to provide
reasonable assurance that the facility has been constructed and will be
operated in conformity with the license, the provisions of the Act, and
the Commission's regulations;
(vii) Whether issuance of the early site permit will be inimical to
the common defense and security or to the health and safety of the
public; and
(viii) Whether, in accordance with the requirements of subpart A of
part 52 of this chapter and subpart A of part 51 of this chapter, the
early site permit should be issued as proposed.
(2) If the proceeding is not a contested proceeding, the presiding
officer will determine, without conducting a de novo evaluation of the
application, whether:
(i) The application and the record of the proceeding contain
sufficient information, and the review of the application by the NRC
staff has been adequate to support affirmative findings on paragraphs
(d)(1)(i) through (v) and (viii) of this section, and a negative
finding on paragraph (d)(1)(vii) of this section; and
(ii) The review conducted under part 51 of this chapter under the
National Environmental Policy Act (NEPA) has been adequate.
(3) Regardless of whether the proceeding is contested or
uncontested, the presiding officer will, in accordance with subpart A
of part 51 of this chapter:
(i) Determine whether the requirements of section 102(2) (A), (C),
and (E) of the NEPA and subpart A of part 51 of this chapter have been
complied with in the proceeding;
(ii) Independently consider the final balance among conflicting
factors contained in the record of the proceeding with a view to
determine the appropriate action to be taken; and
(iii) If the applicant requests authorization to perform the
activities under Sec. 52.17(c) of this chapter, whether there is
reasonable assurance that the proposed site is a suitable location for
a reactor of the general size and type described in the application
from the standpoint of radiological health and safety considerations
under the Act and regulations issued by the Commission.
(iv) Determine whether the combined license should be issued,
denied or appropriately conditioned to protect environmental values.
(e) In the case of an application for a combined license under
subpart C of part 52 of this chapter, the notice of hearing will state,
in implementation of paragraph (a)(3) of this section:
(1) If the proceeding is a contested proceeding, the presiding
officer will consider the following issues:
(i) Whether applicable standards and requirements of the Act and
the Commission's regulations have been met;
(ii) Whether any required notifications to other agencies or bodies
have been duly made;
(iii) Whether there is reasonable assurance that the facility will
be constructed and will operate in conformity with the license, the
provisions of the Act, and the Commission's regulations;
(iv) Whether the applicant is technically and financially qualified
to engage in the activities authorized;
(v) Whether the proposed inspections, tests, analyses, and
acceptance criteria, including those applicable to emergency planning,
are necessary and sufficient to provide reasonable assurance that the
facility has been constructed and will be operated in conformity with
the license, the provisions of the Act, and the Commission's
regulations;
(vi) Whether any inspections, tests, or analyses have been
successfully completed and the acceptance criteria in a referenced
early site permit, standard design certification or for a manufactured
reactor have been met, but only to the extent that the combined license
application represents that those inspections, tests and analyses have
been successfully completed and the acceptance criteria have been met;
(vii) Whether the issuance of the combined license will be inimical
to the common defense and security or to the health and safety of the
public; and
(viii) Whether, in accordance with the requirements of subpart C of
part 52 of this chapter and subpart A of part 51 of this chapter, the
combined license should be issued as proposed.
(2) If the proceeding is not a contested proceeding, the presiding
officer will determine, without conducting a de novo evaluation of the
application, if:
(i) The application and the record of the proceeding contain
sufficient information, and the review of the application by the NRC
staff has been adequate to support affirmative findings on paragraphs
(e)(1)(i) through (vii) and (e)(1)(ix) of this section, and a negative
finding on paragraph (e)(1)(viii) of this section; and
(ii) The review conducted under part 51 of this chapter under NEPA
has been adequate.
(3) Regardless of whether the proceeding is contested or
uncontested, the presiding officer will, in accordance with subpart A
of part 51 of this chapter:
[[Page 61345]]
(i) Determine whether the requirements of section 102(2) (A), (C),
and (E) of the NEPA and subpart A of part 51 of this chapter have been
complied with in the proceeding;
(ii) Independently consider the final balance among conflicting
factors contained in the record of the proceeding with a view to
determine the appropriate action to be taken; and
(iii) Determine whether the combined license should be issued,
denied or appropriately conditioned to protect environmental values.
(f) In the case of an application for a manufacturing license under
subpart F of part 52 of this chapter, the issues stated in the notice
of hearing under paragraph (a)(3) of this section will not involve
consideration of the particular sites at which any of the nuclear power
reactors to be manufactured may be located and operated. Unless the
Commission determines otherwise, the notice of hearing will state:
(1) If the proceeding is a contested proceeding, the presiding
officer will consider the following issues:
(i) Whether applicable standards and requirements of the Act and
the Commission's regulations have been met;
(ii) Whether there is reasonable assurance that the reactor(s) will
be manufactured, and can be transported, incorporated into a nuclear
power plant, and operated in conformity with the manufacturing license,
the provisions of the Act, and the Commission's regulations;
(iii) Whether the proposed reactor(s) to be manufactured can be
incorporated into a nuclear power plant at sites having characteristics
that fall within the site parameters postulated for the design of the
manufactured reactor(s) without undue risk to the health and safety of
the public;
(iv) Whether the applicant is technically qualified to design and
manufacture the proposed nuclear power reactor(s);
(v) Whether the proposed inspections, tests, analyses, and
acceptance criteria are necessary and sufficient, within the scope of
the manufacturing license, to provide reasonable assurance that the
reactor has been manufactured and will be operated in conformity with
the license, the provisions of the Act, and the Commission's
regulations;
(vi) Whether the issuance of a license for manufacture of the
reactor(s) will be inimical to the common defense and security or to
the health and safety of the public; and
(vii) Whether, in accordance with the requirements of subpart F of
part 52 and subpart A of part 51 of this chapter, the license should be
issued as proposed.
(2) If the proceeding is not a contested proceeding, the presiding
officer will determine, without conducting a de novo evaluation of the
application, whether:
(i) The application and the record of the proceeding contain
sufficient information, and the review of the application by the NRC
staff has been adequate to support affirmative findings on paragraphs
(f)(1)(i) through (v) and (f)(1)(vii) of this section proposed to be
made and a negative finding on paragraph (f)(1)(vi) of this section;
and
(ii) The review conducted under part 51 of this chapter under NEPA
has been adequate.
(3) Regardless of whether the proceeding is contested or
uncontested, the presiding officer will, in accordance with subpart A
of part 51 of this chapter:
(i) Determine whether the requirements of section 102(2) (A), (C),
and (E) of the National Environmental Policy Act and subpart A of part
51 of this chapter have been complied with in the proceeding;
(ii) Independently consider the final balance among conflicting
factors contained in the record of the proceeding with a view to
determine the appropriate action to be taken; and
(iii) Determine whether the manufacturing license should be issued,
denied or appropriately conditioned to protect environmental values.
(4) The place of hearing on an application for a manufacturing
license will be Rockville, Maryland, or such other location as the
Commission deems appropriate.
(g)-(k) Reserved
(l) In an application for a construction permit or an operating
license for a facility on which a hearing is required by the Act or
this chapter, the notice of hearing will, unless the Commission
determines otherwise, state:
(1) A time of the hearing, which will be as soon as practicable
after compliance with section 189a of the Act and this part;
(2) The presiding officer for the hearing who shall be either an
administrative law judge or an atomic safety and licensing board
established by the Commission or by the Chief Administrative Judge of
the Atomic Safety and Licensing Board Panel; and
(3) That matters of radiological health and safety and common
defense and security, and matters raised under NEPA, will be considered
at another hearing if otherwise required or ordered to be held, for
which a notice will be published under paragraphs (a) and (b) of this
section, unless otherwise authorized by the Commission.
(m)(1) The Secretary will transmit a notice of hearing on an
application for a license for a production or utilization facility
including an early site permit, combined license (but not for a
manufacturing license), for a license for receipt of waste radioactive
material from other persons for the purpose of commercial disposal by
the waste disposal licensee, for a license under part 61 of this
chapter, for a construction authorization for a HLW repository at a
geologic repository operations area under parts 60 or 63 of this
chapter, for a license to receive and possess high-level radioactive
waste at a geologic repository operations area under parts 60 or 63 of
this chapter, and for a license under part 72 of this chapter to
acquire, receive or possess spent fuel for the purpose of storage in an
independent spent fuel storage installation (ISFSI) to the governor or
other appropriate official of the State and to the chief executive of
the municipality in which the facility is to be located or the activity
is to be conducted or, if the facility is not to be located or the
activity conducted within a municipality, to the chief executive of the
county (or to the Tribal organization, if it is to be located or
conducted within an Indian reservation).
(2) The Secretary will transmit a notice of opportunity for hearing
under Sec. 52.103 of this chapter on whether the facility as
constructed complies, or on completion will comply, with the acceptance
criteria in the combined license, except for those ITAAC that the
Commission found were met under Sec. 52.97 of this chapter, to the
governor or other appropriate official of the State and to the chief
executive of the municipality in which the facility is to be located or
the activity is to be conducted or, if the facility is not to be
located or the activity conducted within a municipality, to the chief
executive of the county (or to the Tribal organization, if it is to be
located or conducted within an Indian reservation).
(3) The Secretary will transmit a notice of hearing on an
application for a license under part 72 of this chapter to acquire,
receive or possess spent fuel, high-level radioactive waste or
radioactive material associated with high-level radioactive waste for
the purpose of storage in a monitored retrievable storage installation
(MRS) to the same persons who received the notice of docketing under
Sec. 72.16(e) of this chapter.
4. The heading of subpart F is revised to read as follows:
[[Page 61346]]
Subpart F--Additional Procedures Applicable to Early Partial
Decisions on Site Suitability Issues in Connection With an
Application for a Construction Permit or Combined License To
Construct Certain Utilization Facilities; and Advance Issuance of
Limited Work Authorizations
5. Section 2.600 is revised to read as follows:
Sec. 2.600 Scope of Subpart.
This subpart prescribes procedures applicable to licensing
proceedings which involve an early submittal of site suitability
information in accordance with Sec. 2.101(a-1), and a hearing and
early partial decision on issues of site suitability, in connection
with an application for a permit to construct a utilization facility
which is subject to Sec. 51.20(b) of this chapter and is of the type
specified in Sec. 50.21(b) (2) or (3) or Sec. 50.22 of this chapter
or is a testing facility. This subpart also prescribes procedures
applicable to proceedings for a construction permit for a utilization
facility which is subject to Sec. 51.20(b) of this chapter and is of
the type specified in Sec. 50.21(b)(2) or (3) or Sec. 50.22 of this
chapter, or an applicant for a combined license under part 52 of this
chapter, who seeks to conduct the activities authorized under Sec.
50.10(c) of part 50 of this chapter in advance of issuance of the
construction permit or combined license, and submits an application in
accordance with Sec. 2.101(a)(9).
6. Section 2.601 is revised to read as follows:
Sec. 2.601 Applicability of other sections.
The provisions of subparts A, C, G, L and N of this part relating
to applications for construction permits and proceedings thereon apply,
respectively, to applications and proceedings in accordance with this
subpart, except as specifically provided otherwise by the provisions of
this subpart.
7. Preceding Sec. 2.602, an undesignated center heading is added
to read as follows:
Early Partial Decisions on Site Suitability
8. In Sec. 2.606, paragraph (a) is revised to read as follows:
Sec. 2.606 Partial decision on site suitability issues.
(a) The provisions of Sec. Sec. 2.331, 2.339, 2.340(b), 2.343,
2.712, and 2.713 apply to any partial initial decision rendered in
accordance with this subpart. Section 2.340(c) does not apply to any
partial initial decision rendered in accordance with this subpart. No
construction permit may be issued without completion of the full review
required by section 102(2) of the National Environmental Policy Act of
1969, as amended, and subpart A of part 51 of this chapter. The
authority of the Commission to review such a partial initial decision
sua sponte, or to raise sua sponte an issue that has not been raised by
the parties, will be exercised within the same time period as in the
case of a full decision relating to the issuance of a construction
permit.
* * * * *
9. Following Sec. 2.606, an undesignated center heading and
Sec. Sec. 2.641 through 2.649 are added to read as follows:
Phased Applications Involving Limited Work Authorizations
Sec.
2.641 Filing Fees.
2.643 Acceptance and docketing of applications for limited work
authorization.
2.645 Notice of hearing.
2.647 [Reserved]
2.649 Partial decisions on limited work authorization.
Sec. 2.641 Filing fees.
Each application which contains a request for limited work
authorization under the procedures of Sec. 2.101(a)(9) and this
subpart shall be accompanied by any fee required by Sec. 50.30(e) and
part 170 of this chapter.
Sec. 2.643 Acceptance and docketing of application for limited work
authorization.
(a) Each part of an application submitted in accordance with Sec.
2.101(a)(9) will be initially treated as a tendered application. If it
is determined that any one of the parts as described in Sec.
2.101(a)(9) is incomplete and not acceptable for processing, the
Director of Nuclear Reactor Regulation will inform the applicant of
this determination and the respects in which the document is deficient.
A determination of completeness will generally be made within a period
of thirty (30) days.
(b) The Director will accept for docketing part one of an
application for a construction permit for a utilization facility which
is subject to Sec. 51.20(b) of this chapter and is of the type
specified in Sec. 50.21(b) (2) or (3) or Sec. 50.22 of this chapter
or an application for a combined license where part one of the
application as described in Sec. 2.101(a)(9) is complete. Part one
will not be considered complete unless it contains the information
required by Sec. 50.10(c) of this chapter. Upon assignment of a docket
number, the procedures in Sec. 2.101(a)(3) and (4) relating to formal
docketing and the submission and distribution of additional copies of
the application must be followed.
(c) If part one of the application is docketed, the Director will
cause to be published in the Federal Register and send to the Governor
or other appropriate official of the State in which the site is
located, a notice of docketing of the application which states the
purpose of the application, states the location of the proposed site,
states that a notice of hearing will be published, and requests
comments on the limited work authorization from Federal, State, and
local agencies and interested persons. The notice will state that
comments must be submitted to the NRC within 60 days or such other time
as may be specified in the notice.
(d) Part two of the application will be docketed upon a
determination by the Director that it is complete.
(e) If part two of the application is docketed, the Director will
cause to be published in the Federal Register and sent to the Governor
or other appropriate official of the State in which the site is
located, a notice of docketing of part two of the application which
states the purpose of the application, states that a notice of hearing
will be published, and requests comments on the construction permit or
combined license application, as applicable, from Federal, State, and
local agencies and interested persons. The notice will state that
comments must be submitted to the NRC within 60 days or such other time
as may be specified in the notice.
2.645 Notice of hearing.
(a) The notice of hearing on part one of the application must set
forth the matters of fact and law to be considered, as required by
Sec. 2.104, which will be modified to state that the hearing will
relate only to the matters related to Sec. 50.33(a) through (f) of
this chapter, and the limited work authorization.
(b) After docketing of part two of the application, as provided in
Sec. Sec. 2.101(a)(9) and 2.643(d), a supplementary notice of hearing
will be published under Sec. 2.104 with respect to the remaining
unresolved issues in the proceeding within the scope of Sec. 2.104.
The supplementary notice of hearing will provide that any person whose
interest may be affected by the proceeding and who desires to
participate as a party in the resolution of the remaining issues shall
file a petition for leave to intervene within the time prescribed in
the notice. The petition to intervene must meet the applicable
requirements in subpart C of part 2 of this chapter, including Sec.
2.309.
[[Page 61347]]
This supplementary notice will also provide appropriate opportunities
for participation by a representative of an interested State under
Sec. 2.315(c) and for limited appearances under Sec. 2.315(a).
(c) Any person who was permitted to intervene under the initial
notice of hearing on the limited work authorization and who was not
dismissed or did not withdraw as a party, may continue to participate
as a party with respect to the remaining unresolved issues only if,
within the time prescribed for filing of petitions for leave to
intervene in the supplementary notice of hearing, that person files a
petition for intervention which meets the applicable requirements in
subpart C of part 2, including Sec. 2.309, provided, however, that the
petition need not address Sec. 2.309(d). However, a person who was
granted discretionary intervention under Sec. 2.309(e) must address in
its petition the factors in Sec. 2..309(e) as they apply to the
supplementary hearing.
(d) A party who files a non-timely petition for intervention under
subsection (c) of this section to continue as a party may be dismissed
from the proceeding, absent a determination that the party has made a
substantial showing of good cause for failure to file on time, and with
particular reference to the factors specified in Sec. Sec.
2.309(c)(1)(i) through (iv) and 2.309(d). The notice will be ruled upon
by the Commission or presiding officer designated to rule on petitions
for leave to intervene.
(e) To the maximum extent practicable, the membership of the atomic
safety and licensing board, or the individual presiding officer, as
applicable, designated to preside in the proceeding on the remaining
unresolved issues pursuant to the supplemental notice of hearing will
be the same as the membership or individual designated to preside in
the initial notice of hearing.
Sec. 2.647 [Reserved].
Sec. 2.649 Partial decisions on limited work authorization.
The provisions of Sec. Sec. 2.331, 2.339, 2.340(b), 2.343, 2.712,
and 2.713 apply to any partial initial decision rendered in accordance
with this subpart. Section 2.340(c) does not apply to any partial
initial decision rendered in accordance with this subpart. A limited
work authorization may not be issued under 10 CFR 50.10(c) without
completion of the review for limited work authorizations required by
subpart A of part 51 of this chapter. The authority of the Commission
to review such a partial initial decision sua sponte, or to raise sua
sponte an issue that has not been raised by the parties, will be
exercised within the same time period as in the case of a full decision
relating to the issuance of a construction permit or combined license.
PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES
10. The authority citation for Part 50 continues to read as
follows:
Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846);
sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5841). Section 50.10 also issued under secs. 101,
185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub.
L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd),
and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42
U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued
under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a,
50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued
under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58,
50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42
U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939
(42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184,
68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued
under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
11. Section 50.10 is revised to read as follows:
Sec. 50.10 License required; limited work authorization.
(a) Requirement for license. Except as provided in Sec. 50.11, no
person within the United States shall transfer or receive in interstate
commerce, manufacture, produce, transfer, acquire, possess, or use any
production or utilization facility except as authorized by a license
issued by the Commission.
(b) Requirement for construction permit, early site permit,
combined license, or limited work authorization. No person may begin
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
either a construction permit under this part or a combined license
under part 52 of this chapter, or a limited work authorization under
paragraph (c) of this section. As used in this paragraph, the term
``construction'' includes excavation, subsurface preparation, including
the driving of piles, installation of the foundation, including the
placement of concrete, 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. The term ``construction'' excludes:
(1) Changes for the temporary use of the land for public
recreational purposes;
(2) Site exploration, including: necessary borings to determine
foundation conditions or other preconstruction monitoring to establish
background information related to the suitability of the site, the
environmental impacts of construction or operation, or the protection
of environmental values;
(3) Preparation of the site for construction of a facility,
including clearing of the site, grading, installation of drainage,
erosion and other environmental mitigation measures, and construction
of temporary roads and borrow areas;
(4) Construction of fencing and other access control measures;
(5) Construction of temporary construction support buildings (such
as construction equipment storage sheds, warehouse and shop facilities,
utilities, concrete mixing plants, docking and unloading facilities,
and construction support buildings and offices) for use in connection
with the construction of the facility;
(6) Construction of permanent service facilities, such as paved
roads, parking lots, railroad spurs, exterior utility and lighting
systems, potable water systems, sanitary sewerage treatment facilities,
transmission lines, support buildings, and office buildings;
(7) Procurement or manufacture of the components of the proposed
facility, or the manufacture of a nuclear power reactor under a
manufacturing license under subpart F of this part to be installed at
the proposed site and be part of the proposed facility; and
(8) With respect to production or utilization facilities, other
than testing facilities and nuclear power plants, required to be
licensed pursuant to section 104.a or section 104.c 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).
(c) Request for limited work authorization. (1) Any person to whom
the Commission may otherwise issue
[[Page 61348]]
either a license or permit under Sections 103, 104.b, or 185 of the Act
for a facility of the type specified in Sec. 50.21(b)(2) or (3), Sec.
50.22, or a testing facility, may request a limited work authorization
allowing that person to perform excavation, subsurface preparation,
including the driving of piles, and installation of the foundation,
including placement of concrete, for any structure, system or component
of the facility.
(2) An application for a limited work authorization may be
submitted as part of a complete application for a construction permit
or combined license in accordance with 10 CFR 2.101(a)(1) through (4),
or as a partial application in accordance with 10 CFR 2.101(a)(9). An
application for a limited work authorization must be submitted by an
applicant for or holder of an early site permit as a complete
application in accordance with 10 CFR 2.101(a)(1) through (4).
(3) The application must include:
(i) A safety analysis report required by 10 CFR 50.34, 10 CFR 52.17
or 10 CFR 52.79, as applicable, a description of the activities
requested to be performed, and the design and construction information
otherwise required by the Commission's rules and regulations to be
submitted for a construction permit or combined license, but limited to
those portions of the facility that are within the scope of the limited
work authorization. The safety analysis report must demonstrate that
activities conducted under the limited work authorization will be
conducted in compliance with the technically-relevant Commission
requirements in 10 CFR Chapter I applicable to the design of those
portions of the facility within the scope of the limited work
authorization;
(ii) An environmental report in accordance with Sec. 51.49 of this
chapter; and
(iii) A plan for redress of the site to achieve an environmentally
stable and aesthetically acceptable site suitable for whatever non-
nuclear use may conform with local zoning laws, should limited work
activities be terminated by the holder, the limited work authorization
is revoked by the NRC, or upon effectiveness of the Commission's final
decision denying the associated construction permit or combined license
application, as applicable.
(d) Issuance of limited work authorization. (1) The Director of the
Office of Nuclear Reactor Regulation may issue a limited work
authorization only after:
(i) The NRC staff issues the final environmental impact statement
for the limited work authorization in accordance with subpart A of part
51 of this chapter;
(ii) The presiding officer makes the finding in Sec. 51.105(c) or
Sec. 51.107(d) of this chapter, as applicable;
(iii) The Director determines that the applicable standards and
requirements of the Act and the Commission's regulations applicable to
the activities to be conducted under the limited work authorization
have been met; the applicant is technically qualified to engage in the
activities authorized; and issuance of the limited work authorization
will provide reasonable assurance of adequate protection to public
health and safety and will not be inimical to the common defense and
security; and
(iv) The presiding officer finds that there are no unresolved
safety issues relating to the activities to be conducted under the
limited work authorization that would constitute good cause for
withholding the authorization.
(2) Each limited work authorization will specify the activities
that the holder is authorized to perform. The limited work
authorization will include a condition requiring the holder to redress
the site in accordance with the redress plan required by Sec. 52.17(c)
of this chapter, if construction is 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.
(e) Effect of limited work authorization. Any activities undertaken
under a limited work authorization are entirely at the risk of the
applicant and, except as to the matters determined under paragraph
(d)(1) of this section, the issuance of the limited work authorization
has no bearing on the issuance of a construction permit or combined
license with respect to the requirements of the Act, and rules,
regulations, or orders promulgated pursuant thereto. The environmental
impact statement for a construction permit or combined license
application for which a limited work authorization was previously
issued will not address, and the presiding officer will not consider,
the sunk costs of the holder of limited work authorization in
determining the proposed action (i.e., issuance of the construction
permit or combined license).
(f) Implementation of redress plan. If construction is terminated
by the holder, the underlying application is withdrawn by the applicant
or denied by the NRC, or the LWA is revoked by the NRC, then the holder
must begin implementation of the redress plan in a reasonable time, and
complete the redress of the site no later than eighteen (18) months
after termination of construction, revocation of the LWA, upon
effectiveness of the Commission's final decision denying the associated
operating license application or the underlying combined license
application, as applicable.
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
12. The authority citation for Part 51 continues to read as
follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106
Stat. 2951, 2952, 2953 (42 U.S.C. 2201, 2297f); secs. 201, as
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841,
5842); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Subpart A
also issued under National Environmental Policy Act of 1969, secs.
102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334,
4335); and Pub. L. 95-604, Title II, 92 Stat. 3033-3041; and sec.
193, Pub. L. 101-575, 104 Stat. 2835 (42 U.S.C. 2243). Sections
51.20, 51.30, 51.60, 51.80, and 51.97 also issued under secs. 135,
141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec. 148, Pub. L. 100-
203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). Section
51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92
Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act
of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141). Sections 51.43,
51.67, and 51.109 also issued under Nuclear Waste Policy Act of
1982, sec. 114(f), 96 Stat. 2216, as amended (42 U.S.C. 10134(f)).
13. In Sec. 51.4, a new definition of construction is added to
read as follows:
Sec. 51.4 Definitions.
* * * * *
Construction includes excavation, subsurface preparation, including
the driving of piles, installation of the foundation, including the
placement of concrete, 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. The term ``construction'' excludes:
(1) Changes for the temporary use of the land for public
recreational purposes;
(2) Site exploration, including: Necessary borings to determine
foundation conditions or other preconstruction monitoring to establish
background information related to the suitability of the site, the
environmental
[[Page 61349]]
impacts of construction or operation, or the protection of
environmental values;
(3) Preparation of the site for construction of a facility,
including clearing of the site, grading, installation of drainage,
erosion and other environmental mitigation measures, and construction
of temporary roads and borrow areas;
(4) Construction of fencing and other access control measures;
(5) Construction of temporary construction support buildings (such
as construction equipment storage sheds, warehouse and shop facilities,
utilities, concrete mixing plants, docking and unloading facilities,
and construction support buildings and offices) for use in connection
with the construction of the facility;
(6) Construction of permanent service facilities, such as paved
roads, parking lots, railroad spurs, exterior utility and lighting
systems, potable water systems, sanitary sewerage treatment facilities,
transmission lines, support buildings, and office buildings;
(7) Procurement or manufacture of the components of the proposed
facility, or the manufacture of a nuclear power reactor under a
manufacturing license under subpart F of this part to be installed at
the proposed site and be part of the proposed facility; and
(8) With respect to production or utilization facilities, other
than testing facilities and nuclear power plants, required to be
licensed pursuant to section 104.a or section 104.c 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).
14. In Sec. 51.17, paragraph (b) is revised to read as follows:
Sec. 51.17 Information collection requirements; OMB approval.
* * * * *
(b) The approved information collection requirements in this part
appear in Sec. Sec. 51.6, 51.16, 51.41, 51.45, 51.49, 51.50, 51.51,
51.52, 51.53, 51.54, 51.58, 51.60, 51.61, 51.62, 51.66, 51.68, and
51.69.
15. In Sec. 51.20, the introductory text of paragraph (b) is
republished and a new paragraph (b)(5) is added to read as follows:
Sec. 51.20 Criteria for and identification of licensing and
regulatory actions requiring environmental impact statements.
* * * * *
(b) The following types of actions require an environmental impact
statement or a supplement to an environmental impact statement:
* * * * *
(5) Issuance of a limited work authorization under 10 CFR 50.10 of
the chapter.
* * * * *
16. A new Sec. 51.49 is added under the heading Environmental
Reports--Production and Utilization Facilities to read as follows:
Sec. 51.49 Environmental report--limited work authorization.
(a) Limited work authorization submitted as part of complete
construction permit or combined license application. Each applicant for
construction permit or combined license who applies for a limited work
authorization under Sec. 50.10(c) of part 50 of this chapter in a
complete application under 10 CFR 2.101(a)(1) through (4), shall submit
with its application a separate document, entitled, ``Applicant's
Environmental Report--Limited Work Authorization Stage,'' which is in
addition to the Environmental Report required by Sec. 51.50 of this
section. The Applicant's Environmental Report--Limited Work
Authorization Stage must contain the following information:
(1) A description of the activities proposed to be conducted under
the limited work authorization;
(2) A statement of the need for the activities; and
(3) A description of the environmental impacts that may reasonably
be expected to result from the activities, the mitigation measures that
the applicant proposes to implement in order to achieve the level of
environmental impacts described, and a discussion of the reasons for
rejecting mitigation measures that could be employed by the applicant
to further reduce environmental impacts.
(b) Phased application for limited work authorization and
construction permit or combined license. If the construction permit or
combined license application is filed in accordance with Sec.
2.101(a)(9) of this chapter, then the environmental report for part one
of the application may be limited to a discussion of the activities
proposed to be conducted under the limited work authorization, and the
proposed redress plan. If the scope of the environmental report for
part one is so limited, then part two of the application must include
the information required by Sec. 51.50, as applicable.
(c) Limited work authorization submitted as part of early site
permit application. Each applicant for an early site permit under
subpart A of part 51 who is requesting a limited work authorization
shall submit with its application the environmental report required by
Sec. 51.50(b), provided, however, that the report must also contain
the following information:
(1) A description of the activities proposed to be conducted under
the limited work authorization;
(2) A statement of the need for the activities; and
(3) A description of the environmental impacts that may reasonably
be expected to result from the activities, the mitigation measures that
the applicant proposes to implement in order to achieve the level of
environmental impacts described, and a discussion of the reasons for
rejecting mitigation measures that could be employed by the applicant
to further reduce environmental impacts.
(d) Limited work authorization request submitted by early site
permit holder. Each holder of an early site permit who requests a
limited work authorization shall submit with its application the
environmental report containing the following information:
(1) A description of the activities proposed to be conducted under
the limited work authorization;
(2) A statement of the need for the activities;
(3) A description of the environmental impacts that may reasonably
be expected to result from the activities, the mitigation measures that
the applicant proposes to implement in order to achieve the level of
environmental impacts described, and a discussion of the reasons for
rejecting mitigation measures that could be employed by the applicant
to further reduce environmental impacts; and
(4) A discussion of any new and significant information on the
environmental impacts of construction as determined in the
environmental impact statement for the early site permit, which may
materially affect the conclusions of the early site permit with respect
to the environmental impacts of the activities to be conducted under
the limited work authorization.
(e) Limited work authorization for site where EIS was prepared, but
the facility was not constructed. If the limited work authorization is
for activities to be conducted at a site for which the Commission has
previously prepared an environmental impact statement for the
construction and operation of a nuclear power plant, and a construction
permit was issued but construction of the plant was never completed,
then the applicant's environmental report may reference the earlier
environmental impact statement. In the event of such
[[Page 61350]]
referencing, the environmental report must identify whether there is
new and significant information material to the matters required to be
addressed in paragraph (a) of this section.
(f) Environmental Report. An environmental report submitted in
accordance with this section must separately evaluate the environmental
impacts and proposed alternatives attributable to the activities
proposed to be conducted under the limited work authorization. At the
option of the applicant, the Applicant's Environmental Report--Limited
Work Authorization Stage may contain the information required to be
submitted in the environmental report required under Sec. 51.50, which
addresses the impacts of construction and operation for the proposed
facility (including the environmental impacts attributable to the
limited work authorization), and discusses the overall costs and
benefits balancing for the proposed action.
17. Section 51.50 is revised to read as follows:
Sec. 51.50 Environmental report--construction permit, early site
permit, or combined license stage.
(a) Construction permit stage. Each applicant for a permit to
construct a production or utilization facility covered by Sec. 51.20
shall submit with its application a separate document, entitled
``Applicant's Environmental Report--Construction Permit Stage,'' which
shall contain the information specified in Sec. Sec. 51.45, 51.51 and
51.52. Each environmental report shall identify procedures for
reporting and keeping records of environmental data, and any conditions
and monitoring requirements for protecting the non-aquatic environment,
proposed for possible inclusion in the license as environmental
conditions in accordance with Sec. 50.36b of this chapter.
(b) Early site permit stage. Each applicant for an early site
permit shall submit with its application a separate document, entitled
``Applicant's Environmental Report--Early Site Permit Stage,'' which
shall contain the information specified in Sec. Sec. 51.45, 51.51, and
51.52, as modified in this paragraph. Environmental reports need not
include an assessment of the economic, technical, and other benefits
and costs of the proposed action or an analysis of other energy
alternatives. Environmental reports must focus on the environmental
effects of construction and operation of a reactor, or reactors, which
have characteristics that fall within the postulated site parameters.
Environmental reports must include an evaluation of alternative sites
to determine whether there is any obviously superior alternative to the
site proposed. For other than light-water-cooled nuclear power
reactors, the environmental report shall contain the basis for
evaluating the contribution of the environmental effects of fuel cycle
activities for the nuclear power reactor. Each environmental report
shall identify procedures for reporting and keeping records of
environmental data, and any conditions and monitoring requirements for
protecting the non-aquatic environment, proposed for possible inclusion
in the license as environmental conditions in accordance with Sec.
50.36b of this chapter.
(c) Combined license stage. Each applicant for a combined license
shall submit with its application a separate document, entitled
``Applicant's Environmental Report--Combined License Stage.'' Each
environmental report shall contain the information specified in
Sec. Sec. 51.45, 51.51 and 51.52, for other than light-water-cooled
nuclear power reactors, the environmental report shall contain the
basis for evaluating the contribution of the environmental effects of
fuel cycle activities for the nuclear power reactor. Each environmental
report shall identify procedures for reporting and keeping records of
environmental data, and any conditions and monitoring requirements for
protecting the non-aquatic environment, proposed for possible inclusion
in the license as environmental conditions in accordance with Sec.
50.36b of this chapter. The combined license environmental report may
reference information contained in a final environmental document
previously prepared by the NRC staff.
(1) Application referencing an early site permit. The applicant
must have a reasonable process for identifying any new and significant
information regarding the NRC's conclusions in the early site permit
environmental impact statement. If the combined license application
references an early site permit, then the ``Applicant's Environmental
Report--Combined License Stage'' need not contain information or
analyses submitted to the Commission in ``Applicant's Environmental
Report--Early Site Permit Stage,'' but must contain, in addition to the
environmental information and analyses otherwise required:
(i) Information to demonstrate that the design of the facility
falls within the site characteristics and design parameters specified
in the early site permit;
(ii) Information to resolve any other significant environmental
issue not considered in the early site permit proceeding, either for
the site or design; and
(iii) Any new and significant information on the site or design to
the extent that it differs from, or is in addition to, that discussed
in the early site permit environmental impact statement.
(2) Application referencing standard design certification. If the
combined license references a standard design certification, then the
combined license environmental report may incorporate by reference the
environmental assessment previously prepared by the NRC for the
referenced design certification. If the design certification
environmental assessment is referenced, then the combined license
environmental report must contain information to demonstrate that the
site characteristics for the combined license site fall within the site
parameters in the design certification environmental assessment.
(3) Application referencing a manufactured reactor. If the combined
license application proposes to use a manufactured reactor, then the
combined license environmental report may incorporate by reference the
environmental assessment previously prepared by the NRC for the
underlying manufacturing license. If the manufacturing license
environmental assessment is referenced, then the combined license
environmental report must contain information to demonstrate that the
site characteristics for the combined license site fall within the site
parameters in the manufacturing license environmental assessment. The
environmental report need not address the environmental impacts
associated with manufacturing the reactor under the manufacturing
license.
* * * * *
18. In Sec. 51.71, paragraph (d) and footnote 3 are revised,
paragraph (e) is redesignated as paragraph (f), and a new paragraph (e)
is added to read as follows:
Sec. 51.71 Draft environmental impact statement-contents.
* * * * *
(d) Analysis. (1) Unless excepted in this paragraph, the draft
environmental impact statement will include a preliminary analysis that
considers and weighs the environmental effects of the proposed action;
the environmental impacts of alternatives to the proposed action; and
alternatives available for reducing or avoiding adverse environmental
effects and consideration of the economic, technical, and other
benefits and costs of the proposed action and alternatives and indicate
[[Page 61351]]
what other interests and considerations of Federal policy, including
factors not related to environmental quality if applicable, are
relevant to the consideration of environmental effects of the proposed
action identified under paragraph (a) of this section.
(2) The draft environmental impact statement prepared at the early
site permit stage must focus on the environmental effects of
construction and operation of a reactor, or reactors, which have
characteristics that fall within the postulated site parameters, and
will not include an assessment of the benefits (for example, need for
power) of the proposed action or an evaluation of other alternative
energy sources unless considered by the applicant, but must include an
evaluation of alternative sites to determine whether there is any
obviously superior alternative to the site proposed.
(3) The draft supplemental environmental impact statement prepared
at the combined license stage when an early site permit is referenced
need not include detailed information or analyses that were resolved in
the final environmental impact statement prepared by the Commission in
connection with the early site permit, if:
(i) The design of the facility falls within the design parameters
specified in the early site permit;
(ii) The site falls within the site characteristics specified
within the early site permit; and
(iii) There is no significant new environmental issue or
information not considered on the site or the design only to the extent
that they differ from that discussed in the final environmental impact
statement prepared by the Commission in connection with the early site
permit.
(4) The draft supplemental environmental impact statement prepared
at the license renewal stage under Sec. 51.95(c) need not discuss the
economic or technical benefits and costs of either the proposed action
or alternatives except if benefits and costs are either essential for a
determination regarding the inclusion of an alternative in the range of
alternatives considered or relevant to mitigation. In addition, the
supplemental environmental impact statement prepared at the license
renewal stage need not discuss other issues not related to the
environmental effects of the proposed action and associated
alternatives. The draft supplemental environmental impact statement for
license renewal prepared under Sec. 51.95(c) will rely on conclusions
as amplified by the supporting information in the GEIS for issues
designated as Category 1 in appendix B to subpart A of this part. The
draft supplemental environmental impact statement must contain an
analysis of those issues identified as Category 2 in appendix B to
subpart A of this part that are open for the proposed action.
(5) The analysis for all draft environmental impact statements
will, to the fullest extent practicable, quantify the various factors
considered. To the extent that there are important qualitative
considerations or factors that cannot be quantified, these
considerations or factors will be discussed in qualitative terms.
(6) Due consideration will be given to compliance with
environmental quality standards and requirements that have been imposed
by Federal, State, regional, and local agencies having responsibility
for environmental protection, including applicable zoning and land-use
regulations and water pollution limitations or requirements issued or
imposed under the Federal Water Pollution Control Act. The
environmental impact of the proposed action will be considered in the
analysis with respect to matters covered by environmental quality
standards and requirements irrespective of whether a certification or
license from the appropriate authority has been obtained.\3\ While
satisfaction of Commission standards and criteria pertaining to
radiological effects will be necessary to meet the licensing
requirements of the Atomic Energy Act, the analysis will, for the
purposes of NEPA, consider the radiological effects of the proposed
action and alternatives.
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\3\ Compliance with the environmental quality standards and
requirements of the Federal Water Pollution Control Act (imposed by
EPA or designated permitting states) is not a substitute for, and
does not negate the requirement for NRC to weigh all environmental
effects of the proposed action, including the degradation, if any,
of water quality, and to consider alternatives to the proposed
action that are available for reducing adverse effects. Where an
environmental assessment of aquatic impact from plant discharges is
available from the permitting authority, the NRC will consider the
assessment in its determination of the magnitude of environmental
impacts for striking an overall cost-benefit balance at the
construction permit and operating license and early site permit and
combined license stages, and in its determination of whether the
adverse environmental impacts of license renewal are so great that
preserving the option of license renewal for energy planning
decision-makers would be unreasonable at the license renewal stage.
When the assessment of aquatic impacts is not available from the
permitting authority, NRC will establish on its own, or in
conjunction with the permitting authority and other agencies having
relevant expertise, the magnitude of potential impacts for striking
an overall cost-benefit balance for the facility at the construction
permit and operating license and early site permit and combined
license stages, and in its determination of whether the adverse
environmental impacts of license renewal are so great that
preserving the option of license renewal for energy planning
decision-makers would be unreasonable at the license renewal stage.
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(e) Effect of limited work authorization. If a limited work
authorization was issued either in connection with or subsequent to an
early site permit, or in connection with a construction permit or
combined license application, then the environmental impact statement
for the construction permit or combined license application will not
address or consider the sunk costs associated with the limited work
authorization.
* * * * *
19. Section 51.76 is revised to read as follows:
Sec. 51.76 Draft environmental impact statement-limited work
authorization.
The NRC will prepare a draft environmental impact statement
relating to issuance of a limited work authorization in accordance with
the procedures and measures described in Sec. Sec. 51.70, 51.71, and
51.73, as further supplemented or modified in the following paragraphs.
(a) Limited work authorization submitted as part of complete
construction permit or combined license application. If the application
for a limited work authorization is submitted as part of a complete
construction permit or combined license application, then the NRC may
prepare a partial draft environmental impact statement, provided,
however, that the analysis called for by Sec. 51.71(d) will be limited
to the activities proposed to be conducted under the limited work
authorization. Alternatively, the NRC may prepare a complete draft
environmental impact statement prepared in accordance with Sec.
51.75(a) or (c), as applicable.
(b) Phased application for limited work authorization under Sec.
2.101(a)(9) of this chapter. If the application for a limited work
authorization is submitted in accordance with Sec. 2.101(a)(9) of this
chapter, then the draft environmental impact statement for part one of
the application may be limited to consideration of the activities
proposed to be conducted under the limited work authorization, and the
proposed redress plan. However, if the environmental report contains
the full set of information required to be submitted under Sec.
51.50(a) or (c), then the draft environmental impact statement will be
prepared in accordance with Sec. 51.75(a) or (c), as applicable.
Siting issues, including whether there is an obviously superior
alternative site, or issues related to operation of the proposed
nuclear power plant at the site,
[[Page 61352]]
including need for power may not be considered. After part two of the
application is docketed, the NRC will prepare a draft supplement to the
final environmental impact statement for part two of the application
under Sec. 51.72. No updating of the information contained in the
final environmental statement prepared for part one is necessary in
preparation of the supplemental environmental impact statement. The
draft supplement must consider all environmental impacts associated
with the prior issuance of the limited work authorization, but may not
address or consider the sunk costs associated with the limited work
authorization.
(c) Limited work authorization submitted as part of an early site
permit application. If the application for a limited work authorization
is submitted as part of an application for an early site permit, then
the NRC will prepare an environmental impact statement in accordance
with Sec. 51.75(b). However, the analysis called for by Sec. 51.71(d)
must also address the activities proposed to be conducted under the
limited work authorization.
(d) Limited work authorization request submitted by early site
permit holder. If the application for a limited work authorization is
submitted by a holder of an early site permit, then the NRC will
prepare a prepare a draft supplement to the environmental impact
statement for the early site permit. The supplement is limited to
consideration of the activities proposed to be conducted under the
limited work authorization, the adequacy of the proposed redress plan,
and whether there is significant new information on the impacts of
construction which materially affect the conclusions of the early site
permit with respect to the environmental impacts of the activities to
be conducted under the limited work authorization. No other updating of
the information contained in the final environmental statement prepared
for the early site permit is required.
(e) Limited work authorization for site where EIS was prepared, but
the facility was not constructed. If the limited work authorization is
for activities to be conducted at a site for which the Commission has
previously prepared an environmental impact statement for the
construction and operation of a nuclear power plant, a construction
permit was issued but construction of the plant (as defined in Sec.
50.10 of this chapter) was never commenced, the draft environmental
impact statement shall incorporate by reference the earlier
environmental impact statement. The draft environmental impact
statement will be limited to a consideration of whether there is
significant new information with respect to the environmental impacts
of construction, relevant to the activities to be conducted under the
limited work authority, such that the conclusion of the referenced
environmental impact statement on the impacts of construction would,
when analyzed in accordance with Sec. 51.71, lead to the conclusion
that the limited work authorization should not be issued or should be
issued with appropriate conditions.
(f) A draft environmental impact statement prepared under this
section must separately evaluate the environmental impacts and proposed
alternatives attributable to the activities proposed to be conducted
under the limited work authorization. However, if the Applicant's
Environmental Report--Limited Work Authorization Stage also contains
the information required to be submitted in the environmental report
required under Sec. 51.50, then the environmental impact statement
must address the impacts of construction and operation for the proposed
facility (including the environmental impacts attributable to the
limited work authorization), and discuss the overall costs and benefits
balancing for the underlying proposed action, in accordance with Sec.
51.71, and Sec. 51.75(a) or (c), as applicable.
20. In Sec. 51.103, a new paragraph (a)(6) is added to read as
follows:
Sec. 51.103 Record of decision--general.
(a) * * *
(6) In a construction permit or the combined license proceeding,
where a limited work authorization under 10 CFR 50.10 was issued, the
Commission's decision on the construction permit or combined license
application will not address or consider the sunk costs associated with
the limited work authorization in determining the proposed action.
* * * * *
21. In Sec. 51.104, a new paragraph (c) is added to read as
follows:
Sec. 51.104 NRC proceedings using public hearings; consideration of
environmental impact statement.
* * * * *
(c) Limited work authorization. In any proceeding in which a
limited work authorization is requested, unless the Commission orders
otherwise, a party to the proceeding may take a position and offer
evidence only 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, in accordance with the provisions of part 2 of
this chapter applicable to the limited work authorization or in
accordance with the terms of any notice of hearing applicable to the
limited work authorization. In the proceeding, the presiding officer
will decide any such matters in controversy among the parties.
22. Section 51.105, is revised to read as follows:
Sec. 51.105 Public hearings in proceedings for issuance of
construction permits or early site permits; limited work
authorizations.
(a) In addition to complying with applicable requirements of Sec.
51.104, in a proceeding for the issuance of a construction permit or
early site permit for a nuclear power reactor, testing facility, fuel
reprocessing plant or isotopic enrichment plant, the presiding officer
will:
(1) Determine whether the requirements of section 102(2) (A), (C),
and (E) of NEPA and the regulations in this subpart have been met;
(2) Independently consider the final balance among conflicting
factors contained in the record of the proceeding with a view to
determining the appropriate action to be taken;
(3) Determine, after weighing the environmental, economic,
technical, and other benefits against environmental and other costs,
and considering reasonable alternatives, whether the construction
permit or early site permit should be issued, denied, or appropriately
conditioned to protect environmental values;
(4) Determine, in an uncontested proceeding, whether the NEPA
review conducted by the NRC staff has been adequate; and
(5) Determine, in a contested proceeding, whether in accordance
with the regulations in this subpart, the construction permit or early
site permit should be issued as proposed.
(b) The presiding officer in an early site permit hearing shall not
admit contentions proffered by any party concerning the benefits
assessment (e.g., need for power) or alternative energy sources if
those issues were not addressed by the applicant in the early site
permit application.
(c)(1) In addition to complying with the applicable provisions of
Sec. 51.104, in any proceeding for the issuance of a construction
permit for a nuclear power plant or an early site permit under part 52
of this chapter where the applicant requests a limited work
authorization under Sec. 50.10(c) of this chapter, the presiding
officer shall---
(i) Determine whether the requirements of section 102(2)(A), (C)
[[Page 61353]]
and (E) of NEPA and the regulations in the subpart have been met, with
respect to the activities to be conducted under the limited work
authorization;
(ii) Independently consider the balance among conflicting factors
with respect to the limited work authorization which is contained in
the record of the proceeding, with a view to determining the
appropriate action to be taken;
(iii) In an uncontested proceeding, determine whether the NEPA
review conducted by the NRC staff for the limited work authorization
has been adequate; and
(iv) In a contested proceeding, determine whether in accordance
with the regulations in this subpart, the limited work authorization
should be issued as proposed.
(2) If the limited work authorization is for activities to be
conducted at a site for which the Commission has previously prepared an
environmental impact statement for the construction and operation of a
nuclear power plant, and a construction permit was issued but
construction of the plant was never completed, then in making the
determinations in paragraph (c)(1) of this section, the presiding
officer shall be limited to a consideration whether there is, with
respect to construction activities encompassed by the environmental
impact statement which are analogous to the activities to be conducted
under the limited work authorization, significant new information on
the environmental impacts of those activities, such that the limited
work authorization should not be issued as proposed.
(3) The presiding officer's determination in this paragraph shall
be made in a partial initial decision to be issued separately from, and
in advance of, the presiding officer's decision in paragraph (a) of
this section.
23. Section 51.107 is added to read as follows:
Sec. 51.107 Public hearings in proceedings for issuance of combined
licenses; limited work authorizations.
(a) In addition to complying with applicable requirements of Sec.
51.104, in a proceeding for the issuance of a combined license for a
nuclear power reactor, the presiding officer will:
(1) Determine whether the requirements of section 102(2) (A), (C),
and (E) of NEPA and the regulations in this subpart have been met;
(2) Independently consider the final balance among conflicting
factors contained in the record of the proceeding with a view to
determining the appropriate action to be taken;
(3) Determine, after weighing the environmental, economic,
technical, and other benefits against environmental and other costs,
and considering reasonable alternatives, whether the combined license
should be issued, denied, or appropriately conditioned to protect
environmental values;
(4) Determine, in an uncontested proceeding, whether the NEPA
review conducted by the NRC staff has been adequate; and
(5) Determine, in a contested proceeding, whether in accordance
with the regulations in this subpart, the combined license should be
issued as proposed by the NRC's Director of Nuclear Reactor Regulation.
(b) If the combined license application references an early site
permit, then the presiding officer in a combined license hearing shall
not admit contentions proffered by any party on environmental issues
which have been accorded finality under Sec. 52.39 of this chapter,
unless this contention--
(1) Demonstrates that the design of the facility falls outside the
design parameters specified in the early site permit;
(2) Demonstrates that the site no longer falls within the site
characteristics specified in the early site permit; or
(3) Raises any other significant environmental issue not considered
which is material to the site or the design only to the extent that it
differs from those discussed or it reflects significant new information
in addition to that discussed in the final environmental impact
statement prepared by the Commission in connection with the early site
permit.
(c) If the combined license application references a standard
design certification, or proposes to use a manufactured reactor, then
the presiding officer in a combined license hearing may not admit
contentions proffered by any party concerning severe accident
mitigation design alternatives unless the contention demonstrates that
the site characteristics fall outside of the site parameters in the
standard design certification or underlying manufacturing license for
the manufactured reactor.
(d)(1) In addition to complying with the applicable provisions of
Sec. 51.104, in any proceeding for the issuance of a combined license
where the applicant requests a limited work authorization under Sec.
50.10(c) of this chapter, the presiding officer shall--
(i) Determine whether the requirements of section 102(2)(A), (C)
and (E) of NEPA and the regulations in the subpart have been met, with
respect to the activities to be conducted under the limited work
authorization;
(ii) Independently consider the balance among conflicting factors
with respect to the limited work authorization which is contained in
the record of the proceeding, with a view to determining the
appropriate action to be taken;
(iii) In an uncontested proceeding, determine whether the NEPA
review conducted by the NRC staff for the limited work authorization
has been adequate; and
(iv) In a contested proceeding, determine whether in accordance
with the regulations in this subpart, the limited work authorization
should be issued as proposed by the NRC's Director of Nuclear Reactor
Regulation.
(2) If the limited work authorization is for activities to be
conducted at a site for which the Commission has previously prepared an
environmental impact statement for the construction and operation of a
nuclear power plant, and a construction permit was issued but
construction of the plant was never completed, then in making the
determinations in paragraph (c)(1) of this section, the presiding
officer shall be limited to a consideration whether there is, with
respect to construction activities encompassed by the environmental
impact statement which are analogous to the activities to be conducted
under the limited work authorization, significant new information on
the environmental impacts of those activities, such that the limited
work authorization should not be issued as proposed by the Director of
Nuclear Reactor Regulation.
(3) In making the determination required by this section, the
presiding officer may not address or consider the sunk costs associated
with the limited work authorization.
(4) The presiding officer's determination in this paragraph shall
be made in a partial initial decision to be issued separately from, and
in advance of, the presiding officer's decision in paragraph (a) of
this section on the combined license.
PART 52--EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND
COMBINED LICENSES FOR NUCLEAR POWER PLANTS
24. The authority citation for part 52 continues to read as
follows:
Authority: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat.
936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as
[[Page 61354]]
amended (42 U.S.C. 2133, 2201, 2232, 2233, 2236, 2239, 2282); secs.
201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C.
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
25. Section 52.1 is removed.
26. Section 52.3 is redesignated as Sec. 52.1 and revised to read
as follows:
Sec. 52.1 Definitions.
(a) As used in this part--
Combined license means a combined construction permit and operating
license with conditions for a nuclear power facility issued under
subpart C of this part.
Decommission means to remove a facility or site safely from service
and reduce residual radioactivity to a level that permits--
(i) Release of the property for unrestricted use and termination of
the license; or
(ii) Release of the property under restricted conditions and
termination of the license.
Design characteristics are the actual features of a reactor or
reactors. Design characteristics are specified in a standard design
approval, a standard design certification, or a combined license
application.
Design parameters are the postulated features of a reactor or
reactors that could be built at a proposed site. Design parameters are
specified in an early site permit.
Early site permit means a Commission approval, issued under subpart
A of this part, for a site or sites for one or more nuclear power
facilities.
License means a license, including an early site permit, combined
license or manufacturing license under this part or a renewed license
issued by the Commission under this part or part 54 of this chapter.
Licensee means a person who is authorized to conduct activities
under a license issued by the Commission.
Limited work authorization means the authorization provided by the
Director of Nuclear Reactor Regulation under Sec. 50.10 of this
chapter.
Manufacturing license means a license, issued under subpart F of
this part, authorizing the manufacture of nuclear power reactors but
not their construction, installation, or operation at the sites on
which the reactors are to be operated.
Modular design means a nuclear power station that consists of two
or more essentially identical nuclear reactors (modules) and each
module is a separate nuclear reactor capable of being operated
independent of the state of completion or operating condition of any
other module co-located on the same site, even though the nuclear power
station may have some shared or common systems.
Prototype plant means a nuclear power plant that is used to test
new safety features, such as the testing required under 10 CFR
50.43(e). The prototype plant is similar to a first-of-a-kind or
standard plant design in all features and size, but may include
additional safety features to protect the public and the plant staff
from the possible consequences of accidents during the testing period.
Site characteristics are the actual physical, environmental and
demographic features of a site. Site characteristics are specified in
an early site permit or in a final safety analysis report for a
combined license.
Site parameters are the postulated physical, environmental and
demographic features of an assumed site. Site parameters are specified
in a standard design approval, standard design certification, or a
manufacturing license.
Standard design means a design which is sufficiently detailed and
complete to support certification in accordance with subpart B or E of
this part, and which is usable for a multiple number of units or at a
multiple number of sites without reopening or repeating the review.
Standard design approval or design approval means an NRC staff
approval, issued under subpart E of this part, of a final standard
design for a nuclear power reactor of the type described in 10 CFR
50.22. The approval may be for either the final design for the entire
reactor facility or the final design of major portions thereof.
Standard design certification or design certification means a
Commission approval, issued under subpart B of this part, of a final
standard design for a nuclear power facility. This design may be
referred to as a certified standard design.
(b) All other terms in this part have the meaning set out in 10 CFR
50.2, or Section 11 of the Atomic Energy Act, as applicable.
27. Section 52.17 is revised to read as follows:
Sec. 52.17 Contents of applications; technical information.
(a) The application must contain:
(1) A site safety analysis report. The site safety analysis report
must include the following:
(i) The specific number, type, and thermal power level of the
facilities, or range of possible facilities, for which the site may be
used;
(ii) The anticipated maximum levels of radiological and thermal
effluents each facility will produce;
(iii) The type of cooling systems, intakes, and outflows that may
be associated with each facility;
(iv) The boundaries of the site;
(v) The proposed general location of each facility on the site;
(vi) The seismic, meteorological, hydrologic, and geologic
characteristics of the proposed site with appropriate consideration of
the most severe of the natural phenomena that have been historically
reported for the site and surrounding area and with sufficient margin
for the limited accuracy, quantity, and period of time in which the
historical data have been accumulated;
(vii) The location and description of any nearby industrial,
military, or transportation facilities and routes;
(viii) The existing and projected future population profile of the
area surrounding the site;
(ix) A description and safety assessment of the site on which a
facility is to be located. The assessment must contain an analysis and
evaluation of the major structures, systems, and components of the
facility that bear significantly on the acceptability of the site under
the radiological consequence evaluation factors identified in
paragraphs (a)(1)(ix)(A) and (a)(1)(ix)(B) of this section. In
performing this assessment, an applicant shall assume a fission product
release \1\ from the core into the containment assuming that the
facility is operated at the ultimate power level contemplated. The
applicant shall perform an evaluation and analysis of the postulated
fission product release, using the expected demonstrable containment
leak rate and any fission product cleanup systems intended to mitigate
the consequences of the accidents, together with applicable site
characteristics, including site meteorology, to evaluate the offsite
radiological consequences. Site characteristics must comply with part
100 of this chapter. The evaluation must determine that:
---------------------------------------------------------------------------
\1\ The fission product release assumed for this evaluation
should be based upon a major accident, hypothesized for purposes of
site analysis or postulated from considerations of possible
accidental events. Such accidents have generally been assumed to
result in substantial meltdown of the core with subsequent release
into the containment of appreciable quantities of fission products.
---------------------------------------------------------------------------
(A) An individual located at any point on the boundary of the
exclusion area for any 2 hour period following the onset of the
postulated fission product release, would not receive a radiation
[[Page 61355]]
dose in excess of 25 rem \2\ total effective dose equivalent (TEDE).
---------------------------------------------------------------------------
\2\ A whole body dose of 25 rem has been stated to correspond
numerically to the once in a lifetime accidental or emergency dose
for radiation workers which, according to NCRP recommendations at
the time could be disregarded in the determination of their
radiation exposure status (see NBS Handbook 69 dated June 5, 1959).
However, its use is not intended to imply that this number
constitutes an acceptable limit for an emergency dose to the public
under accident conditions. Rather, this dose value has been set
forth in this section as a reference value, which can be used in the
evaluation of plant design features with respect to postulated
reactor accidents, to assure that these designs provide assurance of
low risk of public exposure to radiation, in the event of an
accident.
---------------------------------------------------------------------------
(B) An individual located at any point on the outer boundary of the
low population zone, who is exposed to the radioactive cloud resulting
from the postulated fission product release (during the entire period
of its passage) would not receive a radiation dose in excess of 25 rem
TEDE;
(x) For nuclear power facilities to be sited on multi-unit sites,
an evaluation of the potential hazards to the structures, systems, and
components important to safety of operating units resulting from
construction activities, as well as a description of the managerial and
administrative controls to be used to provide assurance that the
limiting conditions for operation are not exceeded as a result of
construction activities at the multi-unit sites;
(xi) Information demonstrating that site characteristics are such
that adequate security plans and measures can be developed;
(xii) For applications submitted after [effective date of final
rule], a description of the quality assurance program applied to site-
related activities for the future design, fabrication, construction,
and testing of the structures, systems, and components of a facility or
facilities that may be constructed on the site. Appendix B to 10 CFR
part 50 contains requirements for quality assurance programs for
nuclear power plants. The description of the quality assurance program
for a nuclear power plant site must include a discussion of how the
applicable requirements of appendix B to 10 CFR part 50 will be
satisfied; and
(xiii) An evaluation of the site against applicable sections of the
Standard Review Plan (SRP) revision in effect 6 months before the
docket date of the application. The evaluation required by this section
must include an identification and description of all differences in
analytical techniques and procedural measures proposed for a site and
those corresponding techniques and measures given in the SRP acceptance
criteria. Where such a difference exists, the evaluation must discuss
how the proposed alternative provides an acceptable method of complying
with the Commission's regulations, or portions thereof, that underlie
the corresponding SRP acceptance criteria. The SRP was issued to
establish criteria that the NRC staff intends to use in evaluating
whether an applicant/licensee meets the Commission's regulations. The
SRP is not a substitute for the regulations, and compliance is not a
requirement.
(2) A complete environmental report as required by 10 CFR 51.50(b).
(b)(1) The application must identify physical characteristics of
the proposed site, such as egress limitations from the area surrounding
the site, that could pose a significant impediment to the development
of emergency plans. If physical characteristics are identified that
could pose a significant impediment to the development of emergency
plans, the application must identify measures that would, when
implemented, mitigate or eliminate the significant impediment.
(2) The application may also:
(i) Propose major features of the emergency plans in the site
safety analysis report, in accordance with the pertinent standards of
10 CFR 50.47, and the requirements of appendix E to 10 CFR part 50,
such as the exact size and configuration of the emergency planning
zones, that can be reviewed and approved by NRC in consultation with
the Federal Emergency Management Agency (FEMA) in the absence of
complete and integrated emergency plans; or
(ii) Propose complete and integrated emergency plans in the site
safety analysis report for review and approval by the NRC, in
consultation with FEMA, in accordance with the applicable standards of
10 CFR 50.47, and the requirements of appendix E to 10 CFR part 50. To
the extent approval of emergency plans is sought, the application must
contain the information required by Sec. Sec. 50.33(g) and (j) of this
chapter.
(3) Emergency plans, and each major feature of an emergency plan,
submitted under paragraph (b)(2) of this section must include the
proposed inspections, tests, and analyses that the holder of a combined
license referencing the early site permit shall perform, and the
acceptance criteria that are necessary and sufficient to provide
reasonable assurance that, if the inspections, tests, and analyses are
performed and the acceptance criteria met, the facility has been
constructed and will operate in conformity with the license, the
provisions of the Atomic Energy Act, and the NRC's regulations.
(4) Under paragraphs (b)(1) and (b)(2)(i) of this section, the
application must include a description of contacts and arrangements
made with Federal, State, and local governmental agencies with
emergency planning responsibilities. The application must contain any
certifications that have been obtained. If these certifications cannot
be obtained, the application must contain information, including a
utility plan, sufficient to show that the proposed plans provide
reasonable assurance that adequate protective measures can and will be
taken in the event of a radiological emergency at the site. Under the
option set forth in paragraph (b)(2)(ii) of this section, the applicant
shall make good faith efforts to obtain from the same governmental
agencies certifications that:
(i) The proposed emergency plans are practicable;
(ii) These agencies are committed to participating in any further
development of the plans, including any required field demonstrations;
and
(iii) That these agencies are committed to executing their
responsibilities under the plans in the event of an emergency.
(c) An applicant may request that a limited work authorization
under 10 CFR 50.10 be issued in conjunction with the early site permit.
The application must include the information otherwise required by 10
CFR 50.10.
(d) The NRC staff will advise the applicant on whether any
information beyond that required by this section must be submitted.
28. Section 52.24 is revised to read as follows:
Sec. 52.24 Issuance of early site permit.
(a) After conducting a hearing under Sec. 52.21 and receiving the
report to be submitted by the ACRS under Sec. 52.23, the Commission
may issue an early site permit, in the form the Commission deems
appropriate, if the Commission finds that:
(1) An application for an early site permit meets the applicable
standards and requirements of the Act and the Commission's regulations;
(2) Notifications, if any, to other agencies or bodies have been
duly made;
(3) There is reasonable assurance that the site is in conformity
with the provisions of the Act, and the Commission's regulations;
(4) The applicant is technically qualified to engage in any
activities authorized;
(5) The proposed inspections, tests, analyses and acceptance
criteria,
[[Page 61356]]
including any on emergency planning, are necessary and sufficient,
within the scope of the early site permit, to provide reasonable
assurance that the facility has been constructed and will be operated
in conformity with the license, the provisions of the Act, and the
Commission's regulations;
(6) Issuance of the permit will not be inimical to the common
defense and security or to the health and safety of the public;
(7) Any significant adverse environmental impact resulting from
activities requested under Sec. 52.17(c) can be redressed; and
(8) The findings required by subpart A of 10 CFR part 51 have been
made.
(b) The early site permit must specify the site characteristics,
design parameters, and terms and conditions of the early site permit
the Commission deems appropriate. Before issuance of either a
construction permit or combined license referencing an early site
permit, the Commission shall find that any relevant terms and
conditions of the early site permit have been met.
29. Section 52.25 is revised to read as follows:
Sec. 52.25 Limited work authorization after issuance of early site
permit.
A holder of an early site permit may request a limited work
authorization in accordance with 10 CFR 50.10 of this chapter.
30. Section 52.79 is revised to read as follows:
Sec. 52.79 Contents of applications; technical information in final
safety analysis report.
(a) The application must contain a final safety analysis report
that describes the facility, presents the design bases and the limits
on its operation, and presents a safety analysis of the structures,
systems, and components of the facility as a whole. The final safety
analysis report must include the following information, at a level of
information sufficient to enable the Commission to reach a final
conclusion on all safety matters that must be resolved by the
Commission before issuance of a combined license:
(1)(i) The boundaries of the site;
(ii) The proposed general location of each facility on the site;
(iii) The seismic, meteorological, hydrologic, and geologic
characteristics of the proposed site with appropriate consideration of
the most severe of the natural phenomena that have been historically
reported for the site and surrounding area and with sufficient margin
for the limited accuracy, quantity, and time in which the historical
data have been accumulated;
(iv) The location and description of any nearby industrial,
military, or transportation facilities and routes;
(v) The existing and projected future population profile of the
area surrounding the site;
(vi) A description and safety assessment of the site on which the
facility is to be located. The assessment must contain an analysis and
evaluation of the major structures, systems, and components of the
facility that bear significantly on the acceptability of the site under
the radiological consequence evaluation factors identified in
paragraphs (a)(1)(vi)(A) and (a)(1)(vi)(B) of this section. In
performing this assessment, an applicant shall assume a fission product
release \1\ from the core into the containment assuming that the
facility is operated at the ultimate power level contemplated. The
applicant shall perform an evaluation and analysis of the postulated
fission product release, using the expected demonstrable containment
leak rate and any fission product cleanup systems intended to mitigate
the consequences of the accidents, together with applicable site
characteristics, including site meteorology, to evaluate the offsite
radiological consequences. Site characteristics must comply with part
100 of this chapter. The evaluation must determine that:
---------------------------------------------------------------------------
\1\ The fission product release assumed for this evaluation
should be based upon a major accident, hypothesized for purposes of
site analysis or postulated from considerations of possible
accidental events. Such accidents have generally been assumed to
result in substantial meltdown of the core with subsequent release
into the containment of appreciable quantities of fission products.
---------------------------------------------------------------------------
(A) An individual located at any point on the boundary of the
exclusion area for any 2 hour period following the onset of the
postulated fission product release, would not receive a radiation dose
in excess of 25 rem \2\ total effective dose equivalent (TEDE).
---------------------------------------------------------------------------
\2\ A whole body dose of 25 rem has been stated to correspond
numerically to the once in a lifetime accidental or emergency dose
for radiation workers which, according to NCRP recommendations at
the time could be disregarded in the determination of their
radiation exposure status (see NBS Handbook 69 dated June 5, 1959).
However, its use is not intended to imply that this number
constitutes an acceptable limit for an emergency dose to the public
under accident conditions. Rather, this dose value has been set
forth in this section as a reference value, which can be used in the
evaluation of plant design features with respect to postulated
reactor accidents, to assure that these designs provide assurance of
low risk of public exposure to radiation, in the event of an
accident.
---------------------------------------------------------------------------
(B) An individual located at any point on the outer boundary of the
low population zone, who is exposed to the radioactive cloud resulting
from the postulated fission product release (during the entire period
of its passage) would not receive a radiation dose in excess of 25 rem
TEDE; and
(2) A description and analysis of the structures, systems, and
components of the facility with emphasis upon performance requirements,
the bases, with technical justification, upon which these requirements
have been established, and the evaluations required to show that safety
functions will be accomplished. It is expected that reactors will
reflect through their design, construction and operation an extremely
low probability for accidents that could result in the release of
significant quantities of radioactive fission products. The
descriptions must be sufficient to permit understanding of the system
designs and their relationship to safety evaluations. Items as the
reactor core, reactor coolant system, instrumentation and control
systems, electrical systems, containment system, other engineered
safety features, auxiliary and emergency systems, power conversion
systems, radioactive waste handling systems, and fuel handling systems
must be discussed insofar as they are pertinent. The following power
reactor design characteristics and proposed operation will be taken
into consideration by the Commission:
(i) Intended use of the reactor including the proposed maximum
power level and the nature and inventory of contained radioactive
materials;
(ii) The extent to which generally accepted engineering standards
are applied to the design of the reactor;
(iii) The extent to which the reactor incorporates unique, unusual
or enhanced safety features having a significant bearing on the
probability or consequences of accidental release of radioactive
materials;
(iv) The safety features that are to be engineered into the
facility and those barriers that must be breached as a result of an
accident before a release of radioactive material to the environment
can occur. Special attention must be directed to plant design features
intended to mitigate the radiological consequences of accidents. In
performing this assessment, an applicant shall assume a fission product
release \3\ from the core into the containment assuming that the
facility
[[Page 61357]]
is operated at the ultimate power level contemplated;
---------------------------------------------------------------------------
\3\ The fission product release assumed for this evaluation
should be based upon a major accident, hypothesized for purposes of
site analysis or postulated from considerations of possible
accidental events. These accidents have generally been assumed to
result in substantial meltdown of the core with subsequent release
into the containment of appreciable quantities of fission products.
---------------------------------------------------------------------------
(3) The kinds and quantities of radioactive materials expected to
be produced in the operation and the means for controlling and limiting
radioactive effluents and radiation exposures within the limits set
forth in part 20 of this chapter;
(4) The design of the facility including:
(i) The principal design criteria for the facility. Appendix A to
part 50 of this chapter, ``General Design Criteria for Nuclear Power
Plants,'' establishes minimum requirements for the principal design
criteria for water-cooled nuclear power plants similar in design and
location to plants for which construction permits have previously been
issued by the Commission and provides guidance to applicants in
establishing principal design criteria for other types of nuclear power
units;
(ii) The design bases and the relation of the design bases to the
principal design criteria;
(iii) Information relative to materials of construction,
arrangement, and dimensions, sufficient to provide reasonable assurance
that the design will conform to the design bases with adequate margin
for safety.
(5) An analysis and evaluation of the design and performance of
structures, systems, and components with the objective of assessing the
risk to public health and safety resulting from operation of the
facility and including determination of the margins of safety during
normal operations and transient conditions anticipated during the life
of the facility, and the adequacy of structures, systems, and
components provided for the prevention of accidents and the mitigation
of the consequences of accidents. Analysis and evaluation of ECCS
cooling performance and the need for high-point vents following
postulated loss-of-coolant accidents must be performed in accordance
with the requirements of Sec. Sec. 50.46 and 50.46a of this chapter;
(6) A description and analysis of the fire protection design
features for the reactor necessary to comply with 10 CFR part 50,
appendix A, GDC 3, and Sec. 50.48 of this chapter;
(7) A description of protection provided against pressurized
thermal shock events, including projected values of the reference
temperature for reactor vessel beltline materials as defined in
Sec. Sec. 50.60, and 50.61(b)(1) and (b)(2) of this chapter;
(8) The analyses and the descriptions of the equipment and systems
required by Sec. 50.44 of this chapter for combustible gas control;
(9) The coping analyses required, and any necessary design features
necessary to address station blackout, as described in Sec. 50.63 of
this chapter;
(10) A description of the program required by Sec. 50.49(a) of
this chapter for the environmental qualification of electric equipment
important to safety and the list of electric equipment important to
safety that is required by 10 CFR 50.49(d);
(11) A description of the program(s) necessary to ensure that the
systems and components meet the requirements of the ASME Boiler and
Pressure Vessel Code in accordance with Sec. 50.55a of this chapter;
(12) A description of the primary containment leakage rate testing
program necessary to ensure that the containment meets the requirements
of Appendix J to 10 CFR part 50;
(13) A description of the reactor vessel material surveillance
program required by Appendix H to 10 CFR part 50;
(14) A description of the operator training program necessary to
meet the requirements of 10 CFR part 55;
(15) A description of the program for monitoring the effectiveness
of maintenance necessary to meet the requirements of Sec. 50.65 of
this chapter;
(16) The information with respect to the design of equipment to
maintain control over radioactive materials in gaseous and liquid
effluents produced during normal reactor operations, as described in
Sec. 50.34a(d) of this chapter;
(17) The information with respect to compliance with technically
relevant positions of the Three Mile Island requirements in Sec.
50.34(f) of this chapter, with the exception of Sec. Sec.
50.34(f)(1)(xii), (f)(2)(ix), and (f)(3)(v);
(18) If the applicant seeks to use risk-informed treatment of SSCs
in accordance with Sec. 50.69 of this chapter, the information
required by Sec. 50.69(b)(2) of this chapter;
(19) Information necessary to demonstrate that the SSCs important
to safety comply with the earthquake engineering criteria in 10 CFR
part 50, appendix S;
(20) Proposed technical resolutions of those unresolved safety
issues and medium- and high-priority generic safety issues that are
identified in the version of NUREG-0933 current on the date 6 months
before application and that are technically relevant to the design;
(21) Emergency plans complying with the requirements of Sec. 50.47
of this chapter, and 10 CFR part 50, appendix E;
(22)(i) All emergency plan certifications that have been obtained
from the State and local governmental agencies with emergency planning
responsibilities must state that:
(A) The proposed emergency plans are practicable;
(B) These agencies are committed to participating in any further
development of the plans, including any required field demonstrations;
and
(C) These agencies are committed to executing their
responsibilities under the plans in the event of an emergency;
(ii) If certifications cannot be obtained after sustained, good
faith efforts by the applicant, then the application must contain
information, including a utility plan, sufficient to show that the
proposed plans provide reasonable assurance that adequate protective
measures can and will be taken in the event of a radiological emergency
at the site.
(23) An applicant may request that a limited work authorization
under 10 CFR 50.10 be issued in advance of issuance of the combined
license. The application must include the information otherwise
required by 10 CFR 50.10, in accordance with either 10 CFR 2.101(a)(1)
through (4), or 10 CFR 2.101(a)(9).
(24) If the application is for a nuclear power reactor design which
differs significantly from light-water reactor designs that were
licensed before 1997 or use simplified, inherent, passive, or other
innovative means to accomplish their safety functions, the application
must describe how the design meets the requirements in Sec. 50.43(e)
of this chapter;
(25) A description of the quality assurance program to be applied
to the design, fabrication, construction, and testing of the
structures, systems, and components of the facility. Appendix B to 10
CFR part 50 sets forth the requirements for quality assurance programs
for nuclear power plants. The description of the quality assurance
program for a nuclear power plant shall include a discussion of how the
applicable requirements of appendix B to 10 CFR part 50 will be
satisfied;
(26) The applicant's organizational structure, allocations or
responsibilities and authorities, and personnel qualifications
requirements for operation;
(27) Managerial and administrative controls to be used to assure
safe operation. Appendix B to 10 CFR part 50 sets forth the
requirements for these controls for nuclear power plants. The
information on the controls to be used for a nuclear power plant shall
include a discussion of how the applicable requirements of appendix B
to 10 CFR part 50 will be satisfied;
[[Page 61358]]
(28) Plans for preoperational testing and initial operations;
(29) Plans for conduct of normal operations, including maintenance,
surveillance, and periodic testing of structures, systems, and
components;
(30) Proposed technical specifications prepared in accordance with
the requirements of Sec. Sec. 50.36 and 50.36a of this chapter;
(31) For nuclear power plants to be operated on multi-unit sites,
an evaluation of the potential hazards to the structures, systems, and
components important to safety of operating units resulting from
construction activities, as well as a description of the managerial and
administrative controls to be used to provide assurance that the
limiting conditions for operation are not exceeded as a result of
construction activities at the multi-unit sites;
(32) The technical qualifications of the applicant to engage in the
proposed activities in accordance with the regulations in this chapter;
(33) A description of the training program required by Sec. 50.120
of this chapter;
(34) A description and plans for implementation of an operator
requalification program. The operator requalification program must as a
minimum, meet the requirements for those programs contained in Sec.
55.59 of this chapter;
(35) A physical security plan, describing how the applicant will
meet the requirements of 10 CFR part 73 (and 10 CFR part 11, if
applicable, including the identification and description of jobs as
required by Sec. 11.11(a) of this chapter, at the proposed facility).
The plan must list tests, inspections, audits, and other means to be
used to demonstrate compliance with the requirements of 10 CFR parts 11
and 73, if applicable;
(36)(i) A safeguards contingency plan in accordance with the
criteria set forth in appendix C to 10 CFR part 73. The safeguards
contingency plan shall include plans for dealing with threats, thefts,
and radiological sabotage, as defined in part 73 of this chapter,
relating to the special nuclear material and nuclear facilities
licensed under this chapter and in the applicant's possession and
control. Each application for this type of license shall include the
information contained in the applicant's safeguards contingency
plan.\4\ (Implementing procedures required for this plan need not be
submitted for approval.)
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\4\ A physical security plan that contains all the information
required in both Sec. Sec. 73.55 of this chapter and appendix C to
10 CFR part 73 satisfies the requirement for a contingency plan.
---------------------------------------------------------------------------
(ii) Each applicant who prepares a physical security plan, a
safeguards contingency plan, or a guard qualification and training
plan, shall protect the plans and other related Safeguards Information
against unauthorized disclosure in accordance with the requirements of
Sec. 73.21 of this chapter, as appropriate.
(37) The information which demonstrates how operating experience
insights from generic letters and bulletins issued up to 6 months
before the docket date of the application, or comparable international
operating experience, have been incorporated into the plant design;
(38) A description and analysis of design features for the
prevention and mitigation of severe accidents (core-melt accidents),
including challenges to containment integrity caused by core-concrete
interaction, steam explosion, high-pressure core melt ejection,
hydrogen detonation, and containment bypass;
(39) The earliest and latest dates for completion of the
construction;
(40) [Reserved]
(41) For applications for light-water cooled nuclear power plant
combined licenses, an evaluation of the facility against the Standard
Review Plan (SRP) in effect 6 months before the docket date of the
application. The evaluation required by this section must include an
identification and description of all differences in design features,
analytical techniques and procedural measures proposed for a facility
and those corresponding features, techniques and measures given in the
SRP acceptance criteria. Where a difference exists, the evaluation must
discuss how the proposed alternative provides an acceptable method of
complying with the Commission's regulations, or portions thereof, that
underlie the corresponding SRP acceptance criteria. The SRP was issued
to establish criteria that the NRC staff intends to use in evaluating
whether an applicant/licensee meets the Commission's regulations. The
SRP is not a substitute for the regulations, and compliance is not a
requirement;
(42) Information demonstrating how the applicant will comply with
requirements for reduction of risk from anticipated transients without
scram (ATWS) events in Sec. 50.62 of this chapter;
(43) Information demonstrating how the applicant will comply with
requirements for criticality accidents in Sec. 50.68 of this chapter;
(44) The NRC staff will advise the applicant on whether any
information beyond that required by this section must be submitted.
(b) If the application for a final safety analysis report
references an early site permit, then the following requirements apply:
(1) The final safety analysis report need not contain information
or analyses submitted to the Commission in connection with the early
site permit, but must contain, in addition to the information and
analyses otherwise required, information sufficient to demonstrate that
the design of the facility falls within the site characteristics and
design parameters specified in the early site permit.
(2) If the final safety analysis report does not demonstrate that
design of the facility falls within the site characteristics and design
parameters, the application must include a request for a variance that
complies with the requirements of Sec. Sec. 52.39 and 52.93.
(3) The final safety analysis report must demonstrate that all
terms and conditions that have been included in the early site permit
will be satisfied by the date of issuance of the combined license.
(4) If the early site permit approves complete and integrated
emergency plans, or major features of emergency plans, then the final
safety analysis report must include any new or additional information
that updates and corrects the information that was provided under Sec.
52.17(b), and discuss whether the new or additional information
materially changes the bases for compliance with the applicable
requirements. If the proposed facility emergency plans incorporate
existing emergency plans or major features of emergency plans, the
application must identify changes to the emergency plans or major
features of emergency plans that have been incorporated into the
proposed facility emergency plans and that constitute a decrease in
effectiveness under Sec. 50.54(q) of this chapter.
(5) If complete and integrated emergency plans are approved as part
of the early site permit, new certifications meeting the requirements
of paragraph (a)(22) of this section are not required.
(c) If the combined license application references a standard
design approval, then the following requirements apply:
(1) The final safety analysis report need not contain information
or analyses submitted to the Commission in connection with the design
approval, but must contain, in addition to the information and analyses
otherwise required, information sufficient to
[[Page 61359]]
demonstrate that the characteristics of the site fall within the site
parameters specified in the design approval.
(2) The final safety analysis report must demonstrate that the
interface requirements established for the design under Sec. 52.137
have been met.
(3) The final safety analysis report must demonstrate that all
terms and conditions that have been included in the final design
approval will be satisfied by the date of issuance of the combined
license.
(d) If the combined license application references a standard
design certification, then the following requirements apply:
(1) The final safety analysis report need not contain information
or analyses submitted to the Commission in connection with the design
certification, but must contain, in addition to the information and
analyses otherwise required, information sufficient to demonstrate that
the characteristics of the site fall within the site parameters
specified in the design certification.
(2) The final safety analysis report must demonstrate that the
interface requirements established for the design under Sec. 52.47
have been met.
(3) The final safety analysis report must demonstrate that all
requirements and restrictions set forth in the referenced design
certification rule must be satisfied by the date of issuance of the
combined license.
(e) If the combined license application references the use of one
or more manufactured nuclear power reactors licensed under subpart F of
this part, then the following requirements apply:
(1) The final safety analysis report need not contain information
or analyses submitted to the Commission in connection with the
manufacturing license, but must contain, in addition to the information
and analyses otherwise required, information sufficient to demonstrate
that the site parameters for the manufactured reactor are bounded by
the site where the manufactured reactor is to be installed and used.
(2) The final safety analysis report must demonstrate that the
interface requirements established for the design have been met.
(3) The final safety analysis report must demonstrate that all
terms and conditions that have been included in the manufacturing
license will be satisfied by the date of issuance of the combined
license.
31. Section 52.80 is added to read as follows:
Sec. 52.80 Contents of applications; additional technical
information.
The application must contain:
(a) A plant-specific probabilistic risk assessment (PRA). If the
application references a standard design certification or standard
design approval, or if the application proposes to use a nuclear power
reactor manufactured under a manufacturing license under subpart F of
this part, the plant-specific PRA must use the PRA for the design
certification, design approval, or manufactured reactor, as applicable,
and must be updated to account for site-specific design information and
any design changes, departures, or variances.
(b) The proposed inspections, tests, and analyses, including those
applicable to emergency planning, that the licensee shall perform, and
the acceptance criteria which are necessary and sufficient to provide
reasonable assurance that, if the inspections, tests, and analyses are
performed and the acceptance criteria met, the facility has been
constructed and will operate in conformity with the combined license,
the provisions of the Atomic Energy Act, and the NRC's regulations.
(1) If the application references an early site permit with ITAAC,
the early site permit ITAAC must apply to those aspects of the combined
license which are approved in the early site permit.
(2) If the application references a standard design certification,
the ITAAC contained in the certified design must apply to those
portions of the facility design which are approved in the design
certification.
(3) If the application references an early site permit with ITAAC
or a standard design certification or both, the application may include
a notification that a required inspection, test, or analysis in the
ITAAC has been successfully completed and that the corresponding
acceptance criterion has been met. The Federal Register notification
required by Sec. 52.85 must indicate that the application includes
this notification.
(c) An environmental report, 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 in accordance
with Sec. Sec. 51.49 and 51.50(c) of this chapter if a limited work
authorization is requested in conjunction with the combined license
application.
Dated at Rockville, Maryland, this 6th day of October 2006.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 06-8656 Filed 10-16-06; 8:45 am]
BILLING CODE 7590-01-P