[Federal Register Volume 72, Number 167 (Wednesday, August 29, 2007)]
[Proposed Rules]
[Pages 49668-49669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17106]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 72, No. 167 / Wednesday, August 29, 2007 / 
Proposed Rules  

[[Page 49668]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

[Docket No. PRM-2-14]


State of Nevada; Receipt of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; Notice of receipt.

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SUMMARY: The Nuclear Regulatory Commission (NRC) has received and 
requests public comment on a petition for rulemaking filed by the State 
of Nevada (petitioner). The petition has been docketed by the NRC and 
has been assigned Docket No. PRM-2-14. The petitioner asserts that NRC 
will conduct a ``mandatory'' formal hearing if NRC dockets a Department 
of Energy (DOE) application for a construction authorization for the 
proposed Yucca Mountain repository and requests that the NRC amend its 
regulations governing rules of practice in hearings by specifying the 
issues to be heard in this ``mandatory'' hearing. The petitioner 
believes an amendment is necessary because NRC's rules of practice 
currently only specify issues to be heard in mandatory hearings on 
nuclear reactor construction permits.

DATES: Submit comments by November 13, 2007. Comments received after 
this date will be considered if it is practical to do so, but assurance 
of consideration cannot be given except as to comments received on or 
before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number PRM-2-14 in the subject line of 
your comments. Comments on petitions 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 such as name, 
address, phone, e-mail address, etc., will not be removed from your 
submission.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555. Attention: Rulemaking and Adjudications staff.
    E-mail comments to: [email protected]. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking Web site at http://ruleforum.llnl.gov. Address comments 
about our rulemaking Web site to Carol Gallagher, (301) 415-5905; (e-
mail [email protected]). Comments can also be submitted via the Federal 
eRulemaking Portal http://www.regulations.gov.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:30 am and 4:15 pm on Federal workdays.
    Publicly available documents related to this petition may be viewed 
electronically on the public computers located at the NRC Public 
Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville 
Pike, Rockville, Maryland. The PDR reproduction contractor will copy 
documents for a fee. Selected documents, including comments, may be 
viewed and downloaded electronically via the NRC rulemaking Web site at 
http://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC after 
November 1, 1999 are also available electronically at the NRC's 
Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. 
From this site, the public can gain entry into the NRC's Agencywide 
Documents Access and Management System (ADAMS), which provides text and 
image files of NRC's public documents. If you do not have access to 
ADAMS or if there are problems in accessing the documents located in 
ADAMS, contact the NRC PDR Reference staff at 1-800-397-4209, 301-415-
4737 or by e-mail to [email protected].
    For a copy of the petition, write to Michael T. Lesar, Chief, Rules 
and Directives Branch, Division of Administrative Services, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001.

FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555. Telephone: 301-415-7163 or Toll-Free: 1-800-368-5642 or E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The NRC has received a petition for rulemaking dated June 19, 2007, 
submitted by the State of Nevada (petitioner) entitled, ``Petition by 
the State of Nevada for Rulemaking to Specify Issues for the Yucca 
Mountain Mandatory Hearing.'' The petitioner requests that the NRC 
amend 10 CFR Part 2, which governs rules of practice for licensing 
proceedings. The petitioner notes that section 189a.(1)(A) of the 
Atomic Energy Act of 1954, as amended (AEA), requires a mandatory 
hearing for nuclear power reactor construction permits and that issues 
for these proceedings are specified by regulation. The petitioner 
asserts that in 1981 the Commission decided that there would be a 
``mandatory'' formal adjudicatory hearing on any application for a 
construction authorization for the proposed Yucca Mountain repository 
but that the issues for that ``mandatory'' hearing are not specified by 
regulation. The petitioner states that it would be inappropriate for 
the Commission to delegate to the NRC staff the function of determining 
the issues in this hearing because the petitioner asserts the NRC staff 
will be an adversary party in the proceeding. The NRC has determined 
that the petition meets the threshold sufficiency requirements for a 
petition for rulemaking under 10 CFR 2.802. The petition has been 
docketed as PRM-2-14. The NRC is soliciting public comment on the 
petition for rulemaking.

Discussion of the Petition

    The petitioner asserts that under section 161c. of the AEA, the NRC 
reserves the power to require a mandatory hearing even when the AEA 
does not require such a proceeding. The petitioner states that 10 CFR 
2.104(a) provides for issuance of a notice of hearing when required by 
the AEA or the Commission's regulations, and when the NRC ``finds that 
a hearing is required in the public interest.'' The petitioner notes 
that the NRC developed procedures for licensing of a high-level waste 
(HLW) repository during the early 1980s and published these procedures 
on February 25, 1981 (46 FR 13971). The petitioner asserts that these

[[Page 49669]]

procedures include a requirement for a ``mandatory hearing'' at the 
repository construction authorization stage. The petitioner also 
asserts that, in 2004, when NRC revised its rules of practice, it 
reaffirmed the decision to hold a ``mandatory,'' formal hearing for an 
HLW repository. (See, 69 FR 2182, 2204; January 14, 2004.)
    The petitioner states that although 10 CFR 2.101(e)(8) requires 
that the notice of a ``mandatory'' hearing on a repository construction 
authorization ``shall recite the matters specified in Sec.  2.104(a) of 
this part,'' Sec.  2.104(a) does not specify the matters of fact or law 
to be considered. The petitioner contrasts this provision with the 
notices of mandatory hearings for nuclear power reactors under Sec.  
2.104(b) that require the presiding officer to consider the evidence 
and make all safety and environmental findings required for issuance of 
the license, and to determine if the NRC staff's review of the 
application was adequate. The petitioner asserts this has resulted in a 
``regulatory gap'' in the NRC's rules of practice.
    The petitioner is concerned that the scope of issues to be 
considered must extend beyond admitted contentions ``because otherwise 
the decision to hold a mandatory hearing would be nothing more than an 
empty gesture.'' The petitioner states that its proposed amendment is 
patterned after Sec.  2.104(b) but notes that this provision currently 
applies only to nuclear power reactor proceedings. The petitioner 
believes that the recent notices of hearing for uranium enrichment 
facilities such as in the USEC, Inc. (American Centrifuge Plant), CLI-
04-30, 60 NRC 426 (2004) proceeding offer an easier template to follow 
for a hearing. The petitioner also states that because there is no 
reason to distinguish the ``mandatory'' hearing for Yucca Mountain from 
the ``mandatory'' hearing for other HLW repositories subject to 10 CFR 
Part 60, its suggested amendments would apply to repository facilities 
subject to either Part 60 or Part 63.

The Petitioner's Proposed Amendment

    The petitioner requests that 10 CFR 2.101(e)(8) be amended by 
deleting the reference to Sec.  2.104(a) and replacing it with a 
reference to Sec.  2.104(f). The petitioner also requests that Sec.  
2.104 be amended by adding a new paragraph (f) to read as follows:

    (f)(1) In the case of an application for a construction 
authorization for a high-level waste repository under parts 60 or 63 
of this chapter, the notice of hearing will state that the matters 
of fact and law to be considered are whether the application 
complies with the Nuclear Waste Policy Act of 1982, as amended, and 
the standards set forth in 10 CFR 60.10, 60.21, and 60.24(a), or 10 
CFR 63.10, 63.21, and 63.24(a), as applicable, and whether the 
requirements of 10 CFR 60.31 or 10 CFR 63.31, as applicable, have 
been met.
    (2) Regardless of whether the proceeding is contested or 
uncontested, the Atomic Safety and Licensing Board will determine 
the following, without conducting a de novo review of the 
application:
    (i) Whether the application and record of the proceeding contain 
sufficient information, and whether the NRC staff's review of the 
application has been adequate, to support findings to be made by the 
Director of the Office of Nuclear Materials Safety and Safeguards 
with respect to the matters set forth in paragraph (f)(1) of this 
section; and
    (ii) Whether the review conducted by the NRC Staff under 10 CFR 
part 51 has been adequate.
    (3) Regardless of whether the proceeding is contested or 
uncontested, the Atomic Safety and Licensing Board will, in its 
initial decision, under Subpart A of 10 CFR part 51, and the Nuclear 
Waste Policy Act of 1982, as amended:
    (i) Determine whether the requirements of section 102(2)(A), 
(C), and (D) of NEPA, section 114(f) of the Nuclear Waste Policy Act 
of 1982, as amended, and subpart A of 10 CFR part 51 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 
determining the appropriate action to be taken; and
    (iii) Determine whether the authorization should be issued, 
denied, or further conditioned to protect the environment.
    (4) If the proceeding becomes a contested proceeding, the Board 
shall also make findings of fact and conclusions of law on admitted 
contentions within the scope of paragraphs (f)(1), (2), and (3) of 
this section. With respect to matters set forth in paragraph (f)(1) 
of this section but not covered by admitted contentions, the Atomic 
Safety and Licensing Board will make the determinations set forth in 
paragraph (f)(2) of this section without conducting a de novo 
evaluation of the application.

Lastly, the petitioner requests that 10 CFR 2.700 be amended by 
deleting ``2.101(f)(8)'' and replacing it with ``2.104(f).''
    The petitioner states that its proposed Sec.  2.104(f)(2) would 
apply to both contested and uncontested proceedings. The petitioner 
explains that the safety findings required by this proposed amendment 
focus on the adequacy of the record of the proceeding, the license 
application, and the NRC staff's review. The petitioner states that 
limiting these findings to uncontested cases, as it believes was the 
NRC's prior practice, implies that these findings are irrelevant in 
litigating contested issues. However, the petitioner states that 
litigation and findings on contested issues necessarily include 
findings on the adequacy of the record, the application, and the NRC 
staff's review, insofar as these are relevant to contested issues.
    The petitioner also explains that proposed 2.104(f)(1) and (3) 
reference the Nuclear Waste Policy Act of 1982, as amended (NWPA), 
``for completeness'' and because of the National Environmental Policy 
Act provision in section 114(f) of the NWPA. Lastly, the petitioner 
explains that proposed Sec.  2.104(f)(4) includes a specific reference 
to paragraphs (f)(1)-(f)(3) of that section for clarity because these 
provisions define the scope of material issues that may be litigated. 
The petitioner requests that the NRC act expeditiously on these 
proposed amendments to 10 CFR Part 2 as detailed in this petition for 
rulemaking because the DOE intends to file a construction authorization 
license application for the Yucca Mountain facility with the NRC no 
later than June 30, 2008.

    Dated at Rockville, Maryland, this 23rd day of August 2007.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E7-17106 Filed 8-28-07; 8:45 am]
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