[Federal Register Volume 72, Number 194 (Tuesday, October 9, 2007)]
[Rules and Regulations]
[Pages 57416-57447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19312]



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Part III





Nuclear Regulatory Commission





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10 CFR Parts 2, 50, 51, 52, and 100



 Limited Work Authorizations for Nuclear Power Plants; Final Rule

  Federal Register / Vol. 72, No. 194 / Tuesday, October 9, 2007 / 
Rules and Regulations  

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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2, 50, 51, 52, and 100

RIN 3150-AI05


Limited Work Authorizations for Nuclear Power Plants

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations applicable to limited work authorizations (LWAs), which 
allow certain construction activities on production and utilization 
facilities to commence before a construction permit or combined license 
is issued. This final rule modifies the scope of activities that are 
considered construction for which a construction permit, combined 
license, or LWA is necessary, specifies the scope of construction 
activities that may be performed under an LWA, and changes the review 
and approval process for LWA requests. The NRC is adopting these 
changes to enhance the efficiency of its licensing and approval process 
for production and utilization facilities, including new nuclear power 
reactors.

DATES: The effective date is November 8, 2007.

FOR FURTHER INFORMATION CONTACT: Nanette V. Gilles, Office of New 
Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001; telephone 301-415-1180; e-mail: [email protected] or 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. Development of the Supplemental Proposed LWA Rule
    1. 10 CFR Part 52 Rulemaking
    2. Industry Stakeholder Comments Seeking Changes to LWA Process
    B. Publication of Supplemental Proposed LWA Rule and External 
Stakeholder Interactions During the Public Comment Period
    C. Description of Supplemental Proposed LWA Rule
II. Public Comments
    A. Overview of Public Comments
    B. NRC Response to Public Comments
    1. Commission Questions
    2. LWA Process
    3. SSCs Within Scope of ``Construction''
    4. Excavation
    5. Compliance With NEPA
    6. LWA Application Process
    7. Other Topics
III. Discussion
    A. History of the NRC's Concept of Construction and the LWA
    B. NRC's Concept of Construction and the AEA
    C. NRC's LWA Rule Complies With NEPA
    1. NRC's Concept of Construction Is Consistent With the Legal 
Effect of NEPA
    2. NRC's Concept of the ``Major Federal Action'' Is Consistent 
With NEPA Law
    3. NRC's Phased Approval Approach Is Not Illegal Segmentation 
Under NEPA
    D. Consideration of Activities as ``Construction.''
    1. Driving of Piles
    2. Excavation
    3. Temporary Structures and Activities in the Excavation
    4. Construction SSCs
    E. Phased Application and Approval Process
    F. EIS Prepared, but Facility Construction Was Not Completed
    G. Commission Action on PRM-50-82
IV. Section-by-Section Analysis
V. Availability of Documents
VI. Agreement State Compatibility
VII. Voluntary Consensus Standards
VIII. Environmental Impact--Categorical Exclusion
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Act Certification
XII. Backfit Analysis
XIII. Congressional Review Act

I. Background

A. Development of the Supplemental Proposed LWA Rule

1. 10 CFR Part 52 Rulemaking
    This LWA rulemaking originated as a supplement to an NRC rulemaking 
effort to revise 10 CFR part 52. The NRC issued 10 CFR part 52 on April 
18, 1989 (54 FR 15372), to reform its licensing process for future 
nuclear power plants. 10 CFR part 52 added alternative licensing 
processes in 10 CFR part 52 for early site permits (ESPs), 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 
(SRM) 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 comments 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, including the experience gained in using 
the 10 CFR part 52 early site permit process, 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 (March 13, 2006; 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 (71 FR 12782). The public comment period on the March 2006 
proposed rule ended on May 30, 2006.
2. Industry Stakeholder Comments Seeking Changes to LWA Process
    In a May 25, 2006 comment letter,\1\ the Nuclear Energy Institute 
(NEI) suggested modifications to the NRC's LWA process including: (1) 
That non-safety-related ``LWA-1'' activities, currently reflected in 
Sec. Sec.  50.10(c) and 50.10(e)(1), be allowed to proceed without 
prior authorization from the NRC, and (2) that the approval process for 
safety-related ``LWA-2'' 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 Atomic Energy Act of 1954, as amended.
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    \1\ 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 12782 
(March 13, 2006) (RIN 3150-AG24) (May 25, 2006) (ADAMS ML061510471).
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    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. To 
achieve this goal, NEI stated that non-safety-related ``LWA-1'' 
activities would need to be initiated up to 2 years before the 
activities currently defined as ``construction'' in Sec.  50.10(b). NEI 
believes that the current LWA

[[Page 57417]]

approval process would constrain the industry's ability to use modern 
construction practices and needlessly add 18 months to estimated 
construction schedules for new plants that did not reference an early 
site permit with LWA authority. 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 determined that the changes suggested in the NEI letter 
could not be incorporated into the final part 52 rule without re-
noticing, but that the NEI letter met the sufficiency requirements for 
a petition for rulemaking as described in 10 CFR 2.802(c). Therefore, 
the NRC elected to treat the letter as a petition for rulemaking (PRM-
50-82).

B. Publication of Supplemental Proposed LWA Rule and External 
Stakeholder Interactions During the Public Comment Period

    The supplemental proposed LWA rule was published in the Federal 
Register on October 17, 2006 (71 FR 61330) for a 30-day public comment 
period which ended November 16, 2006. During the public comment period, 
the NRC held a public meeting on November 1, 2006, to answer external 
stakeholder questions about the supplemental proposed LWA rule. A 
transcript of the public meeting was made (Agencywide Documents Access 
and Management System (ADAMS) Accession No. ML063190396), as referenced 
in the meeting summary (ADAMS Accession No. ML062970517).
    In addition, the NRC informally contacted several Federal agencies 
that traditionally have been interested in environmental impacts 
statements (EISs) prepared by the NRC before the issuance of LWAs and 
construction permits, for the purpose of seeking their comments on the 
supplemental proposed LWA rule. These Federal agencies were the Council 
on Environmental Quality (CEQ), the U.S. Environmental Protection 
Agency (EPA), the Federal Energy Regulatory Commission (FERC), and the 
U.S. Department of the Interior, Fish, and Wildlife Service (FWS).
    Finally, the Commission held a public meeting on November 9, 2006, 
on the overall part 52 rulemaking, at which time industry stakeholders 
presented additional information on the supplemental proposed LWA rule.

C. Description of Supplemental Proposed LWA Rule

    The supplemental proposed LWA rule would narrow the scope of 
activities requiring permission from the NRC in the form of an 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 be required only 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 the proposed 
redefinition of ``construction'' would result in fewer activities 
requiring NRC permission in the form of an LWA, it also would redefine 
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 an LWA.
    Further, the supplemental proposed LWA rule provided an optional, 
phased application and approval procedure for construction permit and 
combined license applicants to obtain LWAs. The supplemental proposed 
rule provided for 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 an EIS addressing those 
activities, but before completion of the comprehensive EIS addressing 
the underlying request for a construction permit or combined license. 
The supplemental proposed rule also delineated the environmental review 
required in situations where the LWA activities are to be conducted at 
sites for which the Commission has previously prepared an EIS 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.

II. Public Comments

A. Overview of Public Comments

    The NRC received 13 public comments \2\ on the supplemental 
proposed rule. Ten comments were from external industry stakeholders, 
consisting of NEI and 7 nuclear power plant licensees--including the 3 
applicants for ESPs whose applications are currently pending before the 
NRC, and 2 companies who have applied (or are expected to apply) for 
standard design certifications (GE Nuclear and Areva NP). One 
commenter, Dianne Curran, submitted a comment on behalf of Public 
Citizen, a consumer advocacy organization, and the Nuclear Information 
and Resource Service (NIRS), an information and networking organization 
for organizations concerned about nuclear issues and energy 
sustainability. One comment was received from the EPA, and one comment 
was received from an NRC staff individual.
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    \2\ A public comment dated November 7, 2006, from Westinghouse 
Electric Company LLC, on the main part 52 rulemaking, was 
erroneously designated as comment no. 1 on the supplemental proposed 
LWA rule. This number was later assigned to a comment filed by Diane 
Curran on behalf of Public Citizen and the NIRS.
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    NEI supported the general approach and objective of the 
supplemental proposed rule, but raised three key issues on the 
supplemental proposed rule: (1) Inclusion of excavation in the 
definition of ``construction;'' (2) Designation of structures, systems, 
and components (SSCs) ``required to be described'' in the standard 
safety analysis report or final safety analysis report (FSAR) as a key 
element of the definition of ``construction;'' and (3) Limiting 
submittal of LWA applications up to 12 months in advance of a combined 
license application. NEI also proposed a number of changes to the 
supplemental proposed rule to address three less-significant areas of 
concern: (1) An LWA applicant's reliance on an earlier EIS for an 
unconstructed facility; (2) LWA applicant's ability to take advantage 
of the provisions of Sec.  2.101(a)(9) for an accelerated hearing 
schedule when submitting an LWA application in advance of a combined 
license application; and (3) The need for ``grandfathering'' of current 
ESP applicants. Finally, NEI suggested that Sec.  2.101(a)(5) be 
modified from the March 2006 proposed rule to allow one part of a 
combined license application to precede or follow the other part of the 
application by no more than 12 months. The other industry commenters, 
including GE Nuclear and Areva NP, generally supported the NEI 
comments, and in some cases provided additional discussion in support 
of one or more of NEI's specific comments.
    Public Citizen and NIRS opposed granting of an LWA in advance of 
issuance of a construction permit or combined license, in general 
because

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these commenters perceived the process as introducing additional 
complexity to the licensing process, and increasing the cost to 
individuals who wish to participate in the licensing process. These 
organizations supported the NRC's proposal to include excavation and 
the driving of piles in the definition of construction.
    The EPA indicated that it had no objections to the supplemental 
proposed LWA rule, stating that the supplemental rule would ``enhance 
the efficiency of the NRC's LWA approval process, while maintaining 
appropriate consideration of environmental effects pursuant to NEPA 
[National Environmental Policy Act of 1969, as amended].'' In addition, 
NRC was advised by telephone that CEQ had no objection to the 
supplemental proposed LWA rule, and therefore would not submit a 
written comment on the rule.
    The NRC staff individual provided eight numbered comments on the 
supplemental proposed LWA rule. The commenter focused on compliance 
with the NEPA and the potential adverse effect of the supplemental 
proposed rule on the NRC staff's resources.

B. NRC Response to Public Comments

    The NRC has carefully considered the stakeholder comments, and is 
adopting a final LWA rule which differs in some respects from the 
supplemental proposed LWA rule. The final rule is described and 
discussed in more detail in Sections III. Discussion, and IV. Section-
by-Section Analysis of this document.
    The NRC is adopting the LWA rule as a separate final rule, rather 
than incorporating its provisions into the final part 52 rule. 
Incorporating the provisions of the final LWA rule into the final part 
52 rulemaking would have resulted in a delay in publication of the 
final part 52 rule, because of the additional time needed for NRC 
consideration and resolution of the substantial issues raised in the 
public comments on the supplemental proposed LWA rule. Accordingly, the 
NRC has adopted the final part 52 rulemaking in a separate action, in 
advance of this final LWA rule.
1. Commission Questions
    In the statement of considerations (SOC) for the supplementary 
proposed LWA rule, the Commission posed three questions, as follows 
(October 17, 2006; 71 FR 61340, second column):

    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 an 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 an LWA?
    3. What types of activities should only be permitted after 
issuance of a construction permit or combined license?
    Only one commenter provided separate responses to these three 
Commission questions; but the responses were simply an abbreviated 
version of the comments. The remaining commenters addressed the issues 
raised in these questions in the course of the commenters' discussion 
on the supplementary proposed LWA rule. Accordingly, the NRC is not 
providing a separate discussion of these questions and commenters' 
responses. Instead, the NRC is responding to these issues in the NRC's 
responses to specific comments.
2. LWA Process
    Comment: The Commission should adopt the LWA final rule as a 
necessary improvement to the existing LWA process. (NEI, Dominion 
Nuclear North Anna, Duke Energy, Florida Power and Light, Progress 
Energy, Southern Company, Unistar, Areva, and GE Nuclear)
    NRC Response: The NRC agrees with the commenters that the former 
NRC provisions on LWAs should be amended to improve the LWA process.
    Comment: The Commission should not adopt regulations that allow 
approval of LWA activities in advance of the issuance of a construction 
permit or combined license. Allowing LWA activities before a plant is 
licensed would confirm to the public that the licensing process is a 
sham. The LWA process represents a further segmentation of the 
licensing process, which will add complexity to the licensing process, 
and result in further disenfranchisement of the public. (Public 
Citizen/NIRS 1)
    NRC Response: The NRC disagrees with these commenters. The 
commenters' position fails to recognize that the LWA process has been 
used by the agency for over 30 years, and therefore the proposed 
changes to the LWA process would not add to complexity, or otherwise 
represent further segmentation. The agency's rules include several 
longstanding requirements directed at avoiding NEPA segmentation. These 
requirements are retained in their essential form in the final LWA 
rulemaking.
    The NRC does not believe that the final LWA rule adds any further 
complexity to the licensing process, or otherwise results in further 
``disenfranchisement'' of the public. As stated above, the NRC's 
regulatory regime already includes the LWA process, and the rule does 
not modify or change the public's ability to participate in the 
licensing process. Indeed, rather than ``disenfranchising'' the public, 
the LWA rule may have the effect of enhancing the ability of external 
stakeholders to participate in a hearing to resolve their issues with 
respect to a particular nuclear power plant. Because of resource 
limitations, many public stakeholders have expressed their concern 
that, because of the broad range of issues addressed by the NRC at each 
stage of licensing, it is difficult for them to seek resolution in an 
NRC hearing for the full range of issues that they are interested in. 
For these stakeholders, the LWA process--by separating out a defined 
set of issues to be resolved in advance of the underlying combined 
license or construction permit proceeding--allows public stakeholders 
to focus their resources on the relevant issues in an LWA hearing. The 
``complexity'' of the process provides an orderly sequencing of the 
overall set of issues that must be resolved, without introducing 
unlawful segmentation. The NRC believes that if these public 
stakeholders consider the revised process in this light, they should 
conclude that the LWA process enhances, rather than detracts from, 
participation in the licensing process by interested members of the 
public who are resource-limited.
    The NRC does not believe that the NRC's proposed redefinition of 
``construction'' constitutes unlawful ``segmentation'' which results in 
non-compliance with NEPA. Segmentation, as discussed elsewhere in this 
SOC, embraces the situation where a Federal agency divides what would 
otherwise be regarded as a single, integrated Federal action into 
separate, smaller Federal actions, for the purpose of avoiding 
compliance with NEPA, or otherwise minimizing the apparent impact of 
the single, integrated Federal action. The NRC's redefinition of 
construction is not motivated by a desire to avoid compliance with 
NEPA, nor will it result in a single Federal action being divided into 
smaller, sequential Federal actions. Rather, the NRC's redefinition 
reflects its reconsideration of the proper regulatory jurisdiction of 
the agency, and properly divides what was considered a single Federal 
action into private action for

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which the NRC has no statutory basis for regulation, and the Federal 
action (licensing of construction activities with a reasonable nexus to 
radiological health and safety or common defense and security, for 
which no other regulatory approach is acceptable) which will require 
compliance with NEPA.
3. SSCs Within Scope of ``Construction''
    Comment: The scope of SSCs that must be described in the FSAR is 
not always clear, even under the words of existing NRC regulations 
(e.g., 10 CFR 50.34(b)(2)(i)), which requires discussion of certain 
systems ``insofar as they are pertinent.'' (Areva 1, 2)
    NRC Response: The NRC agrees, in part, with these comments and has 
revised the scope of SSCs that fall within the definition of 
construction to clearly identify the SSCs that have a reasonable nexus 
to radiological health and safety, or the common defense and security.
    Comment: The NRC's description of activities constituting 
``construction,'' which require a combined license or construction 
permit (October 17, 2006; 71 FR 61337), should be modified to refer to 
the ``installation or integration of that structure, system, or 
component into its final plant location and elevation * * *.'' 
(Progress Energy 4)
    NRC Response: The NRC agrees in part with the commenter, and the 
corresponding language of this SOC has been modified to state ``into 
its final plant location would require * * *.''
4. Excavation
    Comment: It is not necessary to define construction as including 
excavation of portions of the nuclear power plant facility having a 
``reasonable nexus to radiological health and safety.'' Problems 
identified during excavation should be identified as part of the site 
characterization and investigation required for preparing a combined 
license or construction permit. NRC Regulatory Guide (RG) 1.165, 
``Identification and Characterization of Seismic Sources and 
Determination of Safe-Shutdown Earthquake Ground Motion,'' was updated 
in 1997 to provide that combined license (COL) applicants' FSARs should 
include a commitment to geologically map all excavations and notify the 
NRC when excavations are open for inspection. For safety-related SSCs, 
these excavations and characterization/investigation activities would 
be conducted under the applicant's quality assurance (QA) program. This 
could result in relocation of such SSCs. This provides a better process 
for ensuring safety and would better support an effective licensing 
process. In addition, NRC will be involved in pre-application 
activities and may elect to conduct oversight of any activity involving 
site characterization and site preparation. The examples cited by the 
NRC in the public meeting as a basis for including excavation within 
the definition of ``construction'' did not involve questions about the 
safety of the excavation activities themselves, but rather the 
conditions that were identified as the result of excavation. In these 
cases, the commitments to geologic mapping and notification of the NRC 
are sufficient to meet the NRC's regulatory interests. Accordingly, 
Sec. Sec.  50.10(b) and 51.4 should be revised in the final rule to 
exclude excavation from the definition of construction, provided that 
the entity conducting excavation geologically maps the excavations and 
the NRC staff is notified when the excavations are opened for 
inspection. (NEI 1; GE Nuclear; Progress Energy 1)
    NRC Response: The NRC agrees, in part, with this comment and has 
deleted excavation from the definition of construction in 10 CFR 
50.10(a). A construction permit or combined license applicant is 
responsible, under the current regulations, to demonstrate that the 
site conditions are acceptable for the proposed facility design. This 
responsibility exists regardless of whether or not the NRC reviews and 
approves the proposed excavation activities and inspects the excavation 
activities as they are accomplished. Inasmuch as NRC inspection and 
regulatory oversight of the excavation are not necessary for reasonable 
assurance of adequate protection to public health and safety or common 
defense and security, and because the applicant bears the burden for 
accurately characterizing the parent material, the NRC concludes that 
excavation may be excluded from the definition of construction.
    Comment: Excavation and the driving of piles should be considered 
``construction.'' Prior agency experience has shown that safety issues 
have been identified during excavation, citing to the experience of 
North Anna nuclear power plant, as well as a nuclear power plant in the 
Midwest where soil conditions identified during excavation necessitated 
a change in foundation design. Neither the public nor a reviewing court 
would think that the NRC would be able to make the underlying licensing 
decision (i.e., granting a construction permit or a combined license) 
in an unbiased fashion if excavation proceeded in advance of the 
underlying licensing decision. (Public Citizen/NIRS 2)
    NRC Response: The NRC disagrees, in part, with this comment. As 
discussed in the response immediately above, the NRC concludes that 
excavation may be excluded from the definition of construction. 
However, the driving of piles and any other foundation work is defined 
as construction.
    Comment: The SOC for the final rule should specify that excavation 
includes appropriate erosion control measures necessary to stabilize 
site excavations pending LWA or license (i.e., combined license or 
construction permit) approval of construction activities. (NEI 1.5)
    NRC Response: The NRC agrees, in part, with this comment. The NRC's 
definition of construction in the final LWA rule includes: (1) Any 
change made to the parent material in which the excavation occurs 
(e.g., soil compaction, rock grouting); and (2) The placement of 
permanent SSCs that are put into the excavation during or after the 
excavation (e.g., installation of permanent drainage systems, or 
placement of mudmats). If the erosion control measures are conducted 
outside of the excavated hole and do not cover up the exposed soil 
conditions, then those activities would be allowed under Sec.  
50.10(a). However, under the final LWA rule, the placement of temporary 
SSCs in the excavation, such as retaining walls, drainage systems, and 
erosion control barriers, all of which are to be removed before fuel 
load, would not be considered construction.
    Comment: ``Construction'' should be limited to above-ground 
installation of certain SSCs. (Areva 1)
    NRC Response: The NRC disagrees. Even under the former provisions 
of Sec.  50.10(e)(3), construction included the setting of foundations 
and other work accomplished below grade. The commenter provided no 
basis for limiting the definition of construction to the above-grade 
installation of SSCs of interest. No change was made in the final rule 
as the result of this comment.
    Comment: Temporary buildings, structures, and roads, may be located 
in the eventual location of SSCs for which an LWA is required for 
excavation under the supplemental proposed LWA rule. If excavation is 
required for the temporary buildings, structures, and roads, the 
supplemental proposed rule would appear to prohibit such excavation. 
The final rule should make clear that excavation for SSCs outside the 
scope of an LWA, such as temporary buildings, structures, and roads, 
should be excluded from the definition of construction. (Areva 3)

[[Page 57420]]

    NRC Response: As discussed previously, the NRC has decided to 
exclude all excavation from the definition of construction. In 
addition, the NRC notes that under the final LWA rule, SSCs that are 
not within the scope of construction may be installed before receipt of 
an LWA, construction permit, or combined license. Accordingly, the 
final rule resolves the commenter's issue.
5. Compliance With NEPA
    Comment: The impacts of the construction activities that the NRC 
proposes to exclude from its regulations have been part of the NRC 
regulations since 1972. What has changed causing the NRC to decided 
that these activities will not longer be part of the environmental 
review? Has NRC been doing it wrong for more than 30 years (including 
the 3 early site permits that are either completed or near completion)? 
(Kugler 1)
    NRC Response: As discussed in the ``Discussion'' section of this 
final rule (as well as the supplemental proposed rule), the 1972 
amendment to the definition of construction in 10 CFR 50.10 was made 
early in the Federal government's implementation of then-new NEPA. 
Since that time, the Federal case law on NEPA has evolved, with several 
U.S. Supreme Court decisions on the requirements of NEPA. In addition, 
in preparing for the expected next generation of nuclear power plant 
construction applications, the nuclear power industry has reviewed the 
overall construction process based upon lessons learned from the 
construction and licensing process used for currently operating 
reactors. The industry submitted what is essentially a petition for 
rulemaking seeking changes to the LWA process, reflecting those lessons 
learned and their understanding of the current state of NEPA law. The 
NRC has reviewed the applicable law, and for the reasons stated 
elsewhere in this SOC, agrees with the petitioner that the current 
definition of construction and the current LWA requirements in Sec.  
50.10 are not compelled by NEPA or the Atomic Energy Act (AEA) of 1954, 
as amended. While the agency's regulations on construction and LWAs 
were a reasonable implementation of NEPA as understood in 1972, the NRC 
believes that, with more than 30 years experience in implementing NEPA 
and the evolving jurisprudence, the time is appropriate for 
reconsideration and revamping of these NRC requirements.
    Comment: The impacts of the construction of a nuclear power plant 
that NRC now proposes to exclude from NRC regulations are probably 90 
percent of the true environmental impacts of construction. Before even 
talking to the NRC, a power company can clear and grade the land, build 
roads and railroad spurs, erect permanent and temporary buildings, 
build numerous plant structures (e.g., cooling water intake and 
discharge, cooling towers), and build switchyards and transmission 
lines. After potentially doing all of that, THEN the company would come 
to the NRC and ask permission to build the power plant for which all of 
this work was done. How does this comply with NEPA? The commenter 
asserts that the NRC is going to ignore almost all of the construction 
impacts of the proposed action. (Kugler 2)
    NRC Response: The commenter assumes that, if a private action is 
preparatory to Federal action, then NEPA provides a statutory basis for 
the agency to extend its otherwise limited jurisdiction under the AEA 
to those private, preparatory actions, solely for the purpose of agency 
consideration of the environmental impacts under NEPA. The commenter 
has not pointed to, and the NRC has not identified, Federal case law 
that supports such a position. Indeed, even in a case where the Federal 
agency had unequivocal statutory authority to grant or deny a Federal 
permit, the U.S. Supreme Court specifically held that the Federal 
agency was not compelled to require mitigation based upon environmental 
considerations identified in the NEPA review. Robertson v. Methow 
Valley Citizens Council, 490 U.S. 332 (1989).
    The commenter also asserts that the NRC is going to ``ignore all 
the [pre-]construction impacts of the proposed action.'' On the 
contrary, as stated elsewhere in this SOC, the pre-construction private 
actions of clearing, grading, access road construction, etc., will be 
considered in the cumulative impacts analysis in the LWA EIS as the 
baseline for analyzing the environmental impacts associated with the 
Federal action authorizing LWA activities. This information will be 
used when evaluating the environmental impacts of construction and 
operation of the proposed nuclear power plant.
    Comment: The commenter states that the final rule says NRC won't 
consider the sunk costs of all of this work in your decision whether to 
approve the request to build the plant. The commenter asserts that NRC 
has allowed the company to do most of the environmental damage. Who 
cleans up the mess if the NRC says no? The commenter states that 
because the NRC has excluded from its review all of this work that's 
specifically for the purpose of building the plant, the NRC also can't 
require any redress plan for the site for those impacts. (Kugler 2.a)
    NRC Response: The commenter appears to believe that the NRC has 
authority to exercise its regulatory jurisdiction in an area where it 
does not otherwise possess regulatory authority under its organic 
statute, solely for the purpose of ensuring environmental redress of 
private activities with significant environmental impacts. The NRC does 
not agree with the commenter's implicit suggestion. As discussed in the 
response to the previous comment as well as elsewhere in this SOC, the 
NRC does not possess statutory authority to regulate activities that do 
not have an impact upon radiological health and safety or common 
defense and security, and NEPA does not provide independent statutory 
authority to extend the agency's jurisdiction solely for the purpose of 
assuring that adverse environmental impacts are considered and 
mitigated. While this may be a worthy goal, the NRC may not lawfully 
act in such a manner, absent additional statutory authority which is 
not currently provided by either NEPA or the AEA.
    Comment: The commenter asserts that NRC won't consider the sunk 
costs in its review. The commenter also asserts that it sounds like the 
``baseline'' for the environmental review will include the 
environmental damage done by a company in terms of ``pre-application'' 
activities. In other words, if an applicant for an LWA, CP, or COL has 
done all of the things NRC now allows without NRC review, the condition 
of the cleared and partially built site is now the starting point for 
the environmental review. The commenter states that in terms of 
comparing this partially built site to any alternative site, NRC has 
essentially ``pre-selected'' the site chosen by the applicant. The 
commenter states there will be less environmental impacts at a site 
that has already had most of the damage done to it as compared to any 
other site. The commenter believes the NRC has handed its 
responsibility for the site suitability determination over to the 
applicant. (Kugler 2.b)
    NRC Response: The commenter makes two incorrect assumptions. First, 
the commenter implicitly assumes that environmental matters are the key 
determinants of site suitability. The NRC believes that, as a practical 
matter and as borne out by the history of site suitability 
determinations in the past, other factors, such as seismic activity and 
intensity, geological structures, meteorological factors, impediments 
to development of emergency plans,

[[Page 57421]]

security issues, and demographics (population density and distance) 
from a safety perspective are at least as important, if not more 
important, than ``environmental'' matters as a key determinant of site 
suitability.
    Second, the commenter assumes that clearing of a site will always 
tilt the environmental balance in favor of the applicant's ``pre-
selected site.'' This may not be true in most cases. For example, even 
an ``obviously superior'' site from the standpoint of environmental 
impacts on water--which is likely to be the determining 
``environmental'' impact--will require grading and clearing in order to 
be used. If construction were to be abandoned at the applicant's ``pre-
selected site'' and commenced at the ``obviously superior site,'' the 
environmental impacts of pre-construction activities such as clearing 
and grading would still have to be performed at the ``obviously 
superior'' site. In essence, the ``sunk environmental impacts'' 
associated with preconstruction at the pre-selected site are balanced 
out by the ``future'' environmental impacts associated with 
preconstruction at the ``obviously superior'' site. Thus, pre-
construction at a ``pre-selected'' site could not, in and of itself, 
lead to automatic dismissal of otherwise ``obviously superior'' sites.
    In any event, the issue of the ``baseline'' for purposes of 
alternative sites is not addressed directly in the final LWA rule and 
will be resolved in the development of NRC guidance on implementation 
of the final LWA rule. Furthermore, the NRC notes that pre-construction 
impacts will be evaluated as part of the cumulative impacts analysis, 
which may render moot some aspects of the commenter's concerns in this 
area.
    Comment: How can NRC tell the world in an EIS that the only real 
impacts of construction of a nuclear power plant will be related to 
digging a big hole and a few other straggling items that will occur 
while the structures described in the FSAR are being built? (Kugler 
2.c)
    NRC Response: The commenter appears to assert that the NRC's EIS 
for a combined license must attribute to the NRC's Federal action all 
of the environmental impacts of constructing a nuclear power facility, 
including the private, pre-construction activities that may be 
accomplished by the applicant without any NRC approval. The commenter's 
implicit assertion is incorrect. The NRC's EIS need only describe the 
environmental impacts of the Federal action as those construction 
activities, as defined under Sec.  50.10, which can only be 
accomplished under an LWA and combined license or construction permit.
    The environmental impacts of pre-construction activities will also 
be described in the NRC's EIS because such description is necessary to 
evaluate the cumulative impacts of the Federal action, in light of the 
pre-existing impacts of the private, pre-construction action. The 
cumulative impacts discussion should provide information on the total 
environmental impacts of constructing the nuclear power plant to both 
the NRC decisionmaker and the general public.
    The NRC notes that, under the final LWA rule, excavation for SSCs 
that are important from a radiological health and safety or common 
defense and security standpoint will not be treated as 
``construction.'' Therefore, the environmental effects of excavation 
would not be evaluated as an impact attributable to the Federal 
licensing action, but instead be added to the environmental baseline 
for a site.
    Comment: How are applicants and NRC going to divide impacts if some 
of the construction activities now out side (sic.) the NRC's scope are 
going on at the same time as activities inside NRC's scope? For 
example, traffic impacts of the construction workforce are often an 
issue. But how does the NRC deal with it if part of the workforce is 
building cooling towers and intake systems, and part is building FSAR-
listed structures? Another case is property taxes. The property taxes 
paid by the company are a significant item in the socioeconomic review. 
Are the applicant and the NRC now going to have to differentiate 
between taxes paid for FSAR-related facilities and taxes paid for other 
facilities? (Kugler 2.d)
    NRC Response: The commenter raises a number of detailed issues with 
respect to NRC implementation of the final rule in the course of 
preparing EISs. None of these matters appear to raise issues that are 
insurmountable or would be unusually difficult to resolve. For example, 
the need to apportion the taxes for FSAR-related SSCs, versus taxes on 
other portions of the facility whose construction does not require NRC 
approval could be resolved by simply treating all the taxes paid as a 
benefit of operation, and the impacts from all portions of the plant as 
an impact of operation. The NRC expects that the staff will develop 
supplemental guidance to the environmental standard review plan on 
these and other implementation matters.
    Comment: The commenter states that the rule says that if an LWA is 
issued, the EIS to build and operate a nuclear power plant will be a 
supplement to the EIS for the LWA. The commenter believes this means 
that the EIS that evaluates the impacts of building and operating a 
large commercial power plant will be a supplement to the EIS for 
digging a big hole. The commenter states that assuming the EIS for the 
big hole ignores all of the other impacts of construction that may 
already have taken place, it's going to be pretty limited in scope. The 
commenter states that this EIS of very limited scope will now become 
the base document, and the EIS that considers ALL of the impacts of 
operations will be a supplement to it. (Kugler 3)
    NRC Response: The NRC believes that the proposed rule is consistent 
with NEPA. The commenter presented no rationale why the NRC's proposal 
violates either NEPA or CEQ's implementing regulations. NEPA itself 
only requires that a statement be prepared addressing the environmental 
impacts and alternatives of major Federal actions significantly 
affecting the environment. The statute does not contain any language 
specifically constraining the manner in which each EIS for two 
sequential Federal actions must be prepared. Hence, the NRC is free to 
select a manner of NEPA compliance which best meets the agency's needs.
    The commenter appears to be concerned that, if the LWA applicant 
chooses to submit an environmental report limited to LWA activities, 
then the LWA EIS would be a relatively narrow document which cannot be 
the basis for a supplemental EIS with a greatly expanded scope of 
subject matters addressed. The NRC does not believe that the 
commenter's concern is well-founded. First, the CEQ's regulations 
specifically permit ``tiering'' of EISs to ``eliminate repetitive 
discussions of the same issues and to focus on the actual issue ripe 
for consideration at each level of the environmental review * * *'' (40 
CFR 1502.20). Although most of the tiering discussion refers to a broad 
initial EIS followed by more specific EIS tiering on the earlier EIS, 
40 CFR 1502.20 also states, ``Tiering may also be appropriate for 
different stages of actions (emphasis added).'' The NRC believes that 
the LWA is a stage in the overall Federal action of issuing a license 
for construction (and, in the case of a combined license under part 52, 
operation) of a nuclear power plant. It is logical to evaluate the 
environmental impacts of the activities that occur first (i.e., LWA 
activities), followed by evaluation of the impacts of activities that 
occur thereafter (i.e., main construction and operation). The

[[Page 57422]]

potential for segmentation of the Federal impacts is minimized, as 
discussed previously, by various provisions of the rule which, inter 
alia, prohibit NRC consideration of sunk costs, require consideration 
of all environmental impacts and benefits attributable to LWA 
activities in the supplemental EIS prepared for the underlying combined 
license or construction permit application, and require the applicant/
licensee to develop and, if necessary, implement a redress plan. 
Second, the CEQ regulations also encourage agencies to incorporate by 
reference material into an EIS to cut down on bulk without impeding 
agency and public review of the action. Nothing in the CEQ regulations 
suggests that incorporation by reference is precluded where the 
material being incorporated is smaller in bulk than the EIS into which 
the material is being incorporated. The NRC believes the purpose of 
incorporation by reference is served by incorporating the LWA EIS into 
the supplemental EIS prepared at the combined license or construction 
permit stage.
    Comment: The commenter states the LWA EIS will only be looking at 
the impacts of digging the big hole and pouring the foundation. At what 
point does the NRC staff evaluate the impacts of construction and 
operation to determine whether the site is SUITABLE for the 
construction and operation of a nuclear power plant? Is that done 
later? Does that mean that NRC could authorize digging the hole at a 
site that could later be determined by NRC to be unsuitable? (Kugler 4)
    NRC Response: The NRC has decided that excavation should not be 
considered ``construction,'' and that NRC permission is not required to 
undertake excavation activities. Accordingly, a response to this 
comment, to the extent that it is focused on NRC consideration of the 
impacts of excavation as an impact of the issuance of the LWA, 
construction permit, or combined license, is unnecessary. As discussed 
elsewhere in this document, the impacts of preconstruction activities 
performed by the ESP holder, construction permit, or combined license 
applicant must be described by the applicant in its environmental 
report, and must be considered in the cumulative impacts analysis.
    Under the final LWA rule, the NRC's evaluation of site suitability 
must be made when it issues a construction permit or combined license, 
unless the applicant seeks, either as part of an LWA or in advance of 
the issuance of the construction permit or combined license under 
subpart F of part 2, an early decision on site suitability and/or the 
environmental impacts of construction and operation.
    Comment: Has the NRC discussed these changes with key stakeholders 
like EPA, CEQ, and FERC? What do they think of this change? The 
commenter states that this is a major shift by the NRC away from its 
NEPA responsibilities, and believes that other agencies may have real 
problems with it beyond the basic NEPA issues. For example, will FERC 
commence a review for transmission lines if the power company hasn't 
submitted an application to the NRC to build the plant for which it's 
needed? Similarly, will the Corps of Engineers issue Section 404 
permits to damage wetlands and dredge if there's no request to build a 
plant yet? Has anybody talked to them? (Kugler 5)
    NRC Response: The NRC sought comments on the proposed rule from 
four Federal agencies who have historically been interested in NRC 
construction licensing from an environmental standpoint. Advance copies 
of the proposed rule as approved by the Commission were provided to the 
CEQ, the EPA, FERC, and the U.S. Department of the Interior, FWS, and 
copies of the proposed rule as published in the Federal Register were 
electronically transmitted to cognizant individuals in these agencies 
on the date of publication of the proposed rule in the Federal Register 
(ADAMS Accession Nos. ML062840445, ML062910051, and ML062910049). 
Additional telephone calls were made to describe the proposed rule and 
to answer any questions from these agency officials. As discussed 
earlier in this document, the NRC has received comments from the EPA, 
which has no objection to the change. NRC was advised by telephone that 
CEQ had no objection to the supplemental proposed LWA rule. The NRC has 
been advised by FERC that it ordinarily would not review transmission 
line routings for lines commencing at nuclear power facilities. The NRC 
believes that it has made reasonable efforts to obtain input from other 
cognizant Federal agencies, and none appear to share the concerns of 
the commenter. No change from the supplemental proposed LWA rule has 
been made as the result of this comment.
    Comment: How does this change affect the current early site permit 
applicants? The commenter states that, for example, Exelon and Dominion 
submitted redress plans for all of the impacts of construction they'd 
be allowed to carry out before receiving a license to build and operate 
a plant. The petitioner also believes Southern submitted redress plans. 
Future applicants won't have to do this. What happens to the Exelon and 
Dominion redress plans? Do they get out of them now? If so, how does 
NRC explain that to all of the folks involved in those reviews who 
relied on the NRC's representations that a redress plan was required 
(e.g., the public, Federal and State environmental regulatory 
agencies)? What happens to Southern, which is early in its review? 
(Kugler 6)
    NRC Response: The final rule does not affect the NRC staff's 
approval of a full-scope redress plan to support LWA activities under 
the former LWA provisions in Sec. Sec.  50.10 and 52.17. The three 
applicants for ESP which are currently before the NRC are required to 
meet the NRC's requirements in effect at the time of the application, 
with respect to the content of the application. If the final rule is 
adopted before ESPs are issued to the current ESP applicants, then the 
applicant may (but is not required to seek to revise its redress plan 
and seek NRC approval of a (narrowed) redress plan that meets the 
requirements of the final LWA rule. In such a case, the NRC would 
advise other Federal and State agencies of the change in NRC's 
regulatory requirements and any change in the scope of the approved 
redress plan which may be requested by the ESP applicant. 
Alternatively, upon issuance of the ESP, the ESP holder may request an 
amendment to its ESP, consistent with the recently-adopted revisions to 
10 CFR part 52, to seek NRC approval of a (narrowed) redress plan which 
is consistent with the requirements of the final LWA rule. In such an 
event, the NRC would--as part of its routine procedures--consult with 
relevant Federal agencies. No change from the supplemental proposed LWA 
rule was made as a result of this comment.
    Comment: Section 51.49(a)(2) should be revised to delete the 
requirement for an LWA applicant to state the need for an LWA. 
(Progress Energy 5)
    NRC Response: The NRC disagrees with the commenter's proposal. An 
EIS should state the purpose and need for a proposed action. 10 CFR 
part 51, appendix A, paragraph 4; 40 CFR 1502.13. Inasmuch as the NRC 
is acting on a private entity's request in a licensing action, the 
purpose and need should be, in the first instance, determined by the 
applicant and be adopted by the NRC. No change was made to the final 
rule as a result of this comment.
    Comment: Sections 51.20(b)(1) and (5), and 51.76(b) and (e) should 
be revised to allow the NRC staff the option of preparing and issuing 
an

[[Page 57423]]

environmental assessment (EA) if the environmental report shows no 
significant environmental impacts associated with LWA activities. 
(Progress Energy 6, 7, 8)
    NRC Response: The NRC disagrees with the commenter's proposal. In 
preparing the supplementary proposed rule, the NRC considered the 
approach recommended by the commenter. However, the NRC rejected 
proposing such an approach because it would increase the perception of 
Federal segmentation, without any significant countervailing benefits, 
in terms of resources or time necessary to complete the NEPA process. 
Furthermore, the tiering concept, under CEQ regulations, involves 
sequential EISs rather than an EA followed by an EIS. The NRC believes 
that it would not be prudent to pursue a new approach to NEPA 
compliance, which may result in legal instability in an area of 
critical interest to industry stakeholders. The commenter presented no 
information in favor of its proposal. Accordingly, in the absence of 
new information suggesting that the Commission's initial determination 
should be revisited, the Commission declines to adopt the commenter's 
proposal. No change was made to the final rule as a result of this 
comment.
6. LWA Application Process
    Comment: The commenter states that the NRC expects over 15 
applications for COLs in the next 3 years or so. Perhaps it can staff 
up to meet the challenge of preparing those 15 EISs. But can it 
possibly handle 30? If most or all of the COL applicants choose to 
submit an LWA application too, which would seem likely, the NRC staff 
will have to prepare two EISs for each site. Has the NRC considered the 
resource implications? (And if an applicant chooses to go the ESP route 
for some reason, there will be three EISs.) (Kugler 7)
    NRC Response: The commenter appears to believe that, under a 
revised LWA rule, the overall resources expended by the NRC in 
preparing EISs would increase over the current regulatory regime in a 
time frame that would exacerbate any problems that may be caused by 
limited NRC staff resources. The NRC disagrees with the commenter. The 
final LWA rule merely governs the timing of the NRC's environmental 
review of the overall action of licensing the construction and 
operation of a nuclear power plant, consistent with NEPA.
    Taking the specific example identified by the commenter of a 
combined license applicant, who both seeks an LWA and references an 
ESP, it is possible--as the commenter correctly points out--that three 
EISs may be prepared in the worst case of a less than complete ESP EIS. 
However, the final LWA rule does not require the NRC staff to prepare 
entirely new, full-scope EISs at either the LWA or the combined license 
issuance stages. Instead, the EIS at the LWA stage would be limited to 
considering the environmental impacts of LWA activities only (assuming 
that the LWA ER is limited to providing information on the 
environmental impacts of LWA activities). This is consistent with NRC 
and CEQ regulations that allow incorporation by reference. Preparation 
of an LWA EIS limited to those subjects would not be redundant of the 
ESP EIS, inasmuch as the impacts of construction under this scenario 
were not addressed in the ESP EIS. Accordingly, there is no unnecessary 
expenditure of NRC resources attributable to anything in the LWA rule. 
When the combined license supplemental EIS is prepared, that EIS will 
be limited to considering new and significant information related to 
matters concerning construction and operation of the facility which was 
not addressed in the ESP EIS, unless the matter was discussed in the 
LWA EIS. In that limited case, the nature and description of the LWA 
construction impacts are deemed to be resolved, and these impacts would 
be considered in the overall balancing and decisionmaking on issuance 
of a combined license without the need to re-examine the nature and 
description of those LWA impacts. Again, the final LWA rule avoids 
redundant NRC review to the maximum extent practicable, inasmuch as the 
combined license EIS relies upon the determinations regarding the 
nature and impacts of construction and operation which were made at 
both the ESP and LWA stages. The overall scope of the NRC environmental 
review is not changed; it is merely the timing of the review for 
individual issues that is affected by the final LWA rule.
    In sum, the NRC does not agree with the commenter that the LWA rule 
will, as the consequence of its provisions, result in an adverse impact 
upon the amount and timing of expenditure of NRC resources that cannot 
be managed in an effective manner. No change from the supplemental 
proposed LWA rule was made in response to this comment.
    Comment: One commenter states that it appears that this new process 
will require major changes to NRC guidance documents such as RGs and 
the environmental standard review plan. Almost everything related to 
the impacts of construction will have to be completely rewritten. Can 
this be done before the first applicant uses the new rule? (Kugler 8)
    NRC Response: The NRC agrees with the commenter that changes to the 
NRC RGs and the environmental standard review plan will be necessary to 
provide complete guidance to potential applicants and the NRC review 
staff with respect to implementation of the new LWA process in the 
final LWA rule. However, the NRC does not agree with the commenter's 
implicit assertion that the guidance must be finalized before the first 
applicant (or several applicants) can use the new LWA process in an 
effective manner. The NRC has, in many other instances, adopted rules 
containing substantial changes to its technical and regulatory 
requirements applicable to nuclear power reactors. Although the NRC 
does not wish to understate the challenge of implementing new rules, it 
is confident that the NRC working level technical staff, under careful 
and timely oversight by NRC staff management, will be able to implement 
the final LWA rule in a timely, consistent, and effective manner.
    Comment: One commenter states that the supplemental proposed rule 
does not appear to allow an applicant to use both a phased LWA process 
and the hearing process for early partial decision on site suitability 
issues, thereby allowing an applicant who wishes to apply for an LWA to 
also submit the environmental information under Sec.  2.101(a)(5) and 
proceed with an accelerated hearing on the full scope of environmental 
matters. The Commission should adopt changes in Sec. Sec.  50.10(c)(2) 
and 2.101(a)(5) to allow an applicant to use both processes 
simultaneously. (NEI 5; Unistar 1)
    NRC Response: The NRC believes that the commenter misunderstood the 
provisions of the supplemental proposed rule. The NRC's intent is that:
     Applicants may submit a two-part (phased) application for 
an LWA in advance of the application for the underlying combined 
license or construction permit, see Sec.  2.101(a)(9).
     The environmental information submitted in the LWA portion 
of the application may either be limited to the LWA activities 
requested, or the full scope of construction and operation impacts, see 
Sec.  51.49(b) and (f).
     An LWA applicant may seek an early decision on siting and 
environmental matters. If the LWA is submitted in advance of the 
underlying construction permit or combined license application, the 
procedures in 10 CFR part 2, subpart F, Sec. Sec.  2.641 through 2.649 
apply. If the LWA is submitted as part of (or after) the construction 
permit or

[[Page 57424]]

combined license application, then the procedures in subpart F, 
Sec. Sec.  2.601 through 2.629 would apply because this is the ordinary 
procedure for obtaining an early decision on siting and environmental 
matters under the existing provisions of subpart F.
    The NRC does not believe the specific language changes to the 
proposed rule described by the commenter are necessary to accomplish 
these three objectives. Accordingly, the Commission declines to adopt 
the changes proposed by the commenter, and no change from the 
supplemental proposed LWA rule was made in response to this comment.
    Comment: One commenter proposed that the timing provisions in 10 
CFR 2.101(a)(5), requiring that each part of a two-part combined 
license application be submitted within 6 months of each other, should 
be revised to be consistent with 10 CFR 2.101(a)(9) of the supplemental 
proposed rule, which permits the LWA application to be submitted up to 
12 months in advance of the underlying combined license or construction 
permit. The commenter believes that additional conforming changes 
should be made to implement this concept, including changes in Sec.  
50.10(c)(2). (Unistar 2) Another commenter made the same proposal, but 
separately suggested that the overall time between parts of 
applications be lengthened to 18 months. (NEI 6)
    NRC Response: The NRC agrees with the commenters that the timing 
provisions should be consistent. Furthermore, the NRC agrees with the 
second commenter (NEI) that the overall time between parts of 
applications may be lengthened to 18 months. The 6 month limitation in 
former Sec.  2.101(a)(5) for two-part applications was set many years 
ago and reflected internal NRC administrative considerations, including 
maximizing efficiency and ensuring continuity of review oversight. The 
12-month limitation between submission of the LWA application and the 
underlying combined license or construction permit application, as 
proposed in the supplemental proposed LWA rule, was based upon the same 
considerations, as well as environmental/NEPA considerations. The NRC 
did not want the time between the initial submission of LWA 
environmental information and the subsequent consideration of the 
overall environmental impacts to be lengthened to the point that there 
would be a substantial likelihood of new and significant information 
that would require updating. A 12-month limitation was established as a 
reasonable limitation. No consideration was given to having a 
consistent limitation in both existing paragraph (a)(5) and proposed 
paragraph (a)(9).
    However, after further consideration based upon public comments, 
the NRC concludes that the 6-month limitation in paragraph (a)(5) and 
the proposed 12-month limitation in paragraph (a)(9) are unduly 
restrictive. The NRC believes that administrative efficiency can be 
maintained with longer time periods between parts of applications, in 
view of modern information technology, NRC's restructuring of the 
licensing process in part 52, the NRC's recent adoption of changes to 
part 2, subpart D and part 52, appendix N, and the NRC's projected use 
of design-centered reviews. In addition, the NRC understands, in 
response to informal inquiries with EPA, that 18 months is well within 
the time period considered by EPA to be acceptable for referencing a 
previously-prepared EIS without updating. For these reasons, the 
Commission is adopting an 18-month limitation in paragraphs (a)(5) and 
(a)(9) of Sec.  2.101.
7. Other Topics
    Comment: The NRC should include a ``grandfathering'' provision in 
the final rule to make clear that the final rule does not require any 
change to ESP applications filed before the effective date of the rule, 
such as supplementing the application to require a showing of technical 
qualifications. The NRC should also clarify that the final rule would 
not reduce or limit the authority that such applicants would be 
entitled to receive upon issuance of their ESPs under the current 
regulations (e.g., perform construction of non-safety-related SSCs). 
(NEI 4, Dominion 1)
    NRC Response: The NRC agrees with the commenters that the final LWA 
rule does not require any change to ESP applications filed before the 
effective date of the rule. Upon further consideration, the NRC has 
decided to include a ``grandfathering'' provision in the final rule 
which will provide that ESP applications which are under consideration 
as of the effective date of the final LWA rule, which include a request 
to conduct Sec.  50.10(e)(1) activities, need not comply with the 
``content of application'' requirements in the final rule.
    The NRC does not agree with the commenter's view that the final 
rule and/or the SOC for the final rule should clarify that the current 
ESP applicants should be provided with the authority to conduct LWA 
activities under the former provisions of Sec.  50.10(e)(1), that is, 
not be bound by the final LWA rule's provisions. The final LWA rule 
does allow excavation without an LWA. However, the NRC continues to 
believe that pile driving and other subsurface preparation should be 
considered construction, inasmuch as none of the comments received 
addressed this matter or brought information to the NRC's attention 
that suggests that the NRC's regulatory basis for its position should 
be reconsidered (the public comments received only addressed excavation 
per se, and did not mention pile driving or other subsurface 
preparation). In addition, as discussed elsewhere in this SOC, the NRC 
has redefined and limited the SSCs whose construction requires an LWA, 
construction permit, or combined license. Thus, the NRC believes that 
the current ESP applicants will have sufficient authority and 
flexibility under the final rule, without any grandfathering of the LWA 
provisions. Furthermore, regulatory stability from the standpoint of 
backfitting is not relevant, inasmuch as it has been the Commission's 
longstanding position that backfitting does not protect an applicant 
from changes to regulatory requirements.
    Comment: The commenter states that proposed Sec.  50.10(c)(3)(i) 
requires the LWA application to: (1) Describe the design and 
construction information otherwise required to be submitted for a 
combined license, but limited to the portions of the facility that are 
within the scope of the limited work authorization; and (2) Demonstrate 
compliance with ``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, is unduly 
vague. If specific technical requirements are deemed applicable, they 
should be justified and identified in the rule. (Dominion 3)
    NRC Response: The NRC disagrees with the commenter that the 
language of Sec.  50.10(c)(3)(i) (Sec.  50.10(d)(3)(i) in the final LWA 
rule) is unnecessarily vague, or that it would be practical for the 
rule language to specify the technical requirements which are deemed 
applicable. The technical requirements that are applicable will depend 
upon the scope and nature of LWA activities requested. Furthermore, 
this regulatory requirement is modeled on the provisions of former 
Sec. Sec.  50.10(e)(2), (e)(3)(i), and (e)(3)(ii), for which the NRC 
and the nuclear power industry has had decades of experience. The 
commenter did not present either alternative language that would 
address its concern with vagueness, or otherwise present a list of NRC 
technical requirements that should be specified as applicable. The 
original commenter whose submission led to this

[[Page 57425]]

rulemaking did not identify this aspect of the former rule as 
presenting a problem which should be addressed as part of the 
reformulated rule. To modify the rule language to include a list of 
technically relevant requirements would likely require renoticing of 
this aspect of the rule for public comment, which would delay issuance 
of the rule with little benefit, given the 30+ years of experience in 
implementing analogous rule language in the former versions of Sec.  
50.10. Accordingly, the Commission declines to adopt the commenter's 
proposal, and no change from the supplemental proposed LWA rule was 
made in response to this comment.
    Comment: The commenter states that the finding of technical 
qualifications should be limited to LWA activities applicable to 
safety-related activities, because there are no design, construction, 
or technical requirements in the NRC's rules applicable to non-safety-
related construction work. (Dominion 4)
    NRC Response: The NRC disagrees with the commenter's proposal, 
inasmuch as it is based on the longstanding industry misconception that 
the NRC's regulations in part 50 apply only to ``safety-related'' SSCs 
and activities relevant to those SSCs, as that term is defined in 10 
CFR 50.2. This is not a correct understanding. For example, the general 
design criteria in 10 CFR part 50, appendix A, apply to SSCs 
``important to safety; that is, structures, systems, and components 
that provide reasonable assurance that the facility can be operated 
without undue risk to the health and safety of the public.''  Id. 
(first introductory paragraph). There are numerous other regulations 
applicable to the design, construction, and operation of a nuclear 
power facility whose applicability extends beyond ``safety-related'' 
SSCs. It is consistent with Section 182.a of the AEA and the NRC's past 
practice that a technical qualifications finding be made as part of the 
finding necessary for NRC issuance of an LWA. Accordingly, the NRC 
declines to adopt the commenter's proposal, and no change from the 
supplemental proposed LWA rule was made in response to this comment.
    Comment: The commenter states that the reference in Sec.  
50.10(d)(2) to Sec.  52.17(c) should be changed to Sec.  
50.10(c)(3)(iii), inasmuch as the requirement for a redress plan has 
been removed from Sec.  52.17(c) and relocated in Sec.  
50.19(c)(3)(iii). (Progress Energy 3)
    NRC Response: The NRC agrees with the substance of this comment. 
Inasmuch as the proposed rule has been reorganized in the final rule, 
the final rule refers to the appropriate paragraph.
    Comment: The commenter states that an LWA is not the functional 
equivalent of an ESP. There are significant differences between them, 
and the time and level of NRC staff effort necessary to conduct an LWA 
review should not be as great as for an ESP review. The NRC should 
clarify the differences between an LWA and ESP in the SOC for the final 
rule. (Areva 4)
    NRC Response: NRC agrees with the commenter that there are some 
significant differences between an LWA review and an ESP. In 
particular, issuance of an LWA does not require the NRC to make a 
finding with respect to site suitability from either a safety or 
environmental standpoint (although the LWA applicant may, under 
Sec. Sec.  2.101(a)(9), 52.17, and 51.49 of the final rule, submit an 
environmental report addressing the issues of alternative, obviously 
superior sites, and the impacts of construction and operation of the 
nuclear power plant, in which case the NRC would make a finding on all 
environmental matters, including alternative, obviously superior 
sites). The NRC has modified the section-by-section discussion of the 
SOC to make clearer the requirements for obtaining an LWA.
    Comment: The commenter states that proposed Sec. Sec.  51.76(e) and 
51.49(e) are slightly inconsistent, in that the former refers to the 
LWA applicant's authority to incorporate by reference an earlier EIS 
prepared for the same site if a construction permit was issued but 
construction never commenced. By contrast, Sec.  51.49(e) refers to the 
LWA applicant's environmental report to reference an earlier EIS 
prepared for the same site if a construction permit was issued but 
construction was never completed. The commenter also states that 
inasmuch as the NRC intended to adopt the more expansive concept 
embodied in Sec.  51.49(e), the final rule should modify Sec.  51.76(e) 
to be consistent to refer to construction not being ``completed.'' (NEI 
3)
    NRC Response: The NRC agrees, and the language of Sec.  51.76(e) 
has been conformed in the final rule. In addition, conforming changes 
were made in the subtitles of Sec. Sec.  51.49(e) and 51.76(e), and the 
relevant SOC discussion.

III. Discussion

A. History of the NRC's Concept of Construction and the LWA

    Section 101 of the 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 NRC. While construction of a nuclear power reactor is not mentioned 
in Section 101, Section 185 of the AEA requires that the NRC 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 NRC. However, the term construction is 
not defined anywhere in the AEA or in the legislative history of the 
AEA.
    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 turbogenerators 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

[[Page 57426]]

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 NEPA, as amended, the NRC 
adopted a major amendment to the definition of construction in Sec.  
50.10 (37 FR 5745; March 21, 1972). In that rulemaking, the NRC 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 the 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 non-nuclear 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; March 21, 1972)

    The NRC 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 NEPA, 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; March 21, 1972)

    Thus, the NRC's interpretation of its responsibilities under NEPA, 
not the AEA, was the driving factor leading to its adoption of Sec.  
50.10(c).\3\
---------------------------------------------------------------------------

    \3\ See 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 (January 12, 
1977) (explaining that NEPA led the AEC to amend its regulations in 
several respects, including the changes to Sec.  50.10(c)).
---------------------------------------------------------------------------

    The NRC issued Sec.  50.10(e) two (2) years after the expansion of 
the NRC's permitting authority resulting from the issuance of Sec.  
50.10(c) (39 FR 14506; April 24, 1974). This provision created the 
current LWA process, which was added to allow site preparation, 
excavation, and certain other onsite activities to proceed before 
issuance of a construction permit. Before the issuance 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. Section 50.10(e) allowed the NRC to 
authorize the commencement of both safety-related (known as ``LWA-2'' 
activities) and non-safety-related (known as ``LWA-1'' activities) 
onsite construction activities before issuance of a construction 
permit, if the NRC had completed a site suitability report and 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 site suitability, 
environmental and, in the case of an LWA-2, safety-related findings.

B. NRC's Concept of Construction and the AEA

    Industry stakeholders have stated that the business environment, 
today and in the foreseeable future, requires that new plant applicants 
minimize the time interval between a decision to proceed with the 
construction of a nuclear power plant and the start of commercial 
operation. To achieve that goal, these stakeholders have indicated that 
non-safety-related ``LWA-1'' activities would need to be initiated up 
to 2 years before the activities currently defined as ``construction'' 
in Sec.  50.10(b). NEI believes that the current LWA approval process 
would constrain the nuclear industry's ability to use modern 
construction/management practices and needlessly add 18 months to 
estimated construction schedules for new plants that did not reference 
an early site permit with LWA authority.
    Based upon the representations of the industry, the NRC agrees that 
the agency's regulatory processes should be revised and optimized to 
ensure that these stakeholder's needs are met, consistent with the 
NRC's statutory obligations and in a manner that is fair to all 
stakeholders. Accordingly, the NRC is adopting this LWA final rule 
which revises 10 CFR 50.10, and makes conforming changes in 10 CFR 
parts 2, 51, and 52. The LWA final rule narrows the scope of activities 
requiring permission from the NRC in the form of an LWA by eliminating 
the concept of ``commencement of construction'' formerly described in 
Sec.  50.10(c) and the authorization formerly described in Sec.  
50.10(e)(1). Instead, under the final LWA 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 for which regulatory oversight is necessary and/or most 
effective in ensuring reasonable assurance of adequate protection to 
public health and safety or common defense and security. While the 
NRC's redefinition of ``construction'' will result in fewer activities 
requiring NRC permission in the form of an LWA, construction permit, or 
combined license, it will also define 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 such NRC review and approval.
    The LWA final rule also provides an optional, phased application 
and approval procedure for construction permit and combined license 
applicants to obtain LWAs. An applicant may either submit its LWA 
application jointly with a complete construction permit or combined 
license application, or submit it in two parts, with the information 
relevant to issuance of an LWA submitted up to 18 months in advance of 
the remainder of the application addressing the underlying construction 
permit or combined license. Furthermore, under the LWA final rule, the 
NRC need not address the suitability of the site for the operation of a 
nuclear power plant before issuing an LWA. Site suitability will be 
addressed as part of the NRC's consideration of the underlying 
construction permit or combined license. Moreover, under the LWA final 
rule the applicant could seek a separate determination on site 
suitability issues under subpart F of 10 CFR part 2.
    The phased approach in the final LWA rule also provides for an 
environmental review and approval

[[Page 57427]]

process for LWA requests which allows the NRC to grant an applicant 
permission to engage in LWA activities after completion of a limited 
EIS addressing those activities, but before completion of the 
comprehensive EIS addressing the underlying request for a construction 
permit or combined license. The final LWA rule also delineates the 
environmental review required in situations where the LWA activities 
are to be conducted at sites for which the NRC has previously prepared 
an EIS 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.
    The NRC concludes that the LWA final rule is fully consistent with 
the NRC's radiological health and safety and common defense and 
security responsibilities under the AEA.\4\ As previously mentioned, 
the term ``construction'' is not defined in the AEA or in the 
legislative history of the AEA. Instead of expressly defining the term 
in the AEA, Congress entrusted the agency with the responsibility of 
determining what activities constitute construction.\5\ The NRC 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. Accordingly, the NRC concludes that its 
definition of the term, ``construction,'' is reasonable and complies 
with the AEA.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    The NRC also concludes that issuance of the LWA in advance of a 
consideration of site suitability is reasonable and complies with the 
AEA. Any work under the LWA is done at the risk of the LWA holder.

C. NRC's LWA Rule Complies With NEPA

1. NRC's Concept of Construction is Consistent With the Legal Effect of 
NEPA
    The definition of construction in the LWA final rule is 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 given 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 NRC'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.
---------------------------------------------------------------------------

    \6\ See,e.g., Robertson v. Methow Valley Citizens Council, 490 
US 332, 350-52 (1989); Natural Resources Defense Counsel v. U.S. 
Environmental Protection Agency, 822 F.2d 104, 129 (D.C. Cir 1987); 
Kitchen v. Federal Communications Commission, 464 F.2d 801, 802 
(D.C. Cir. 1972).
---------------------------------------------------------------------------

2. NRC's Concept of the ``Major Federal Action'' Is Consistent With 
NEPA Law
    The AEA does not authorize the 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 NRC considers these activities to 
involve ``non-Federal action'' for the purposes of implementing its 
NEPA responsibilities. Generally, non-Federal actions are not subject 
to the requirements of NEPA.\7\ Further, the NRC believes that these 
non-Federal site preparation activities would not generally be 
``federalized'' if the NRC were to ultimately grant a combined license 
or construction permit. The grant of a construction permit or combined 
license by the NRC is not a legal condition precedent to these non-
Federal, site preparation activities. While the NRC 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\
---------------------------------------------------------------------------

    \7\ Save the Bay, Inc., v. U.S. Army Corps of Engineers, 610 
F.2d 322, 326 (5th Cir. 1980).
    \8\ See Landmark West! v. U.S. Postal Service, 840 F. Supp. 994, 
1006 (S.D.N.Y. 1993) (citing cases).
---------------------------------------------------------------------------

    In addition, under the narrowed definition of construction in the 
LWA final rule, the NRC concludes that it does not have the 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 NRC 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 NRC 
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, 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 NRC'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 will be 
considered in order to establish a baseline against which the 
incremental effect of the NRC's major Federal action (i.e., issuing an 
LWA, construction permit, or combined license) would be measured. These 
incremental impacts may be additive or synergistic. To ensure that the 
NRC has sufficient information to perform the cumulative impacts 
analysis in a timely fashion, the final LWA rule includes a 
requirement, in Sec.  51.45(c), for the environmental report submitted 
by an applicant for an ESP, construction permit, or combined license to 
include a description of impacts of the applicant's preconstruction 
activities at the proposed site (i.e., the activities listed in 
paragraph (b)(1) through (8) in the definition of construction 
contained in Sec.  51.4) that are necessary to support the construction 
and operation of the facility which is the subject of the LWA, 
construction permit, or combined license application, and an analysis 
of the cumulative impacts of the activities to be authorized by the 
LWA, construction permit, or combined license in light of the 
preconstruction impacts.
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

[[Page 57428]]

problem arises when the environmental impacts of projects are evaluated 
in a piecemeal fashion and, as a result, the comprehensive 
environmental impacts of the entire Federal action are never considered 
or are only considered after the agency has committed itself to 
continuation of the project. Another associated segmentation problem 
arises when pieces of a Federal action are evaluated separately and, as 
a result, none of the individual pieces are considered ``major Federal 
actions'' requiring an EIS.\9\
---------------------------------------------------------------------------

    \9\ Daniel R. Mandelker, NEPA Law and Litigation, 9-25 (2nd ed. 
2004).
---------------------------------------------------------------------------

    Neither of these segmentation concerns are presented by the 
approach embodied in the LWA final rule. First, under both LWA 
application options in the LWA final rule, 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 NRC's previously expressed position that NEPA does 
not, as a general matter, prohibit an agency from undertaking part of a 
project without a complete environmental analysis of the whole 
project.\10\ The key factors used to support the Commission's position 
in Clinch River were: (1) That the site preparation activities in that 
case would not result in irreversible or irretrievable commitments to 
the remaining portions of the project, and (2) The environmental 
impacts of the site preparation activities allowed in that case were 
substantially redressable.\11\
---------------------------------------------------------------------------

    \10\ See Tennessee Valley Authority (Clinch River Breeder 
Reactor Plant), 16 NRC 412, 424 (August 17, 1982) (hereinafter 
Clinch River).
    \11\ Id.
---------------------------------------------------------------------------

    These considerations are reflected in the provisions of the LWA 
final rule. Specifically, Sec.  50.10(f) states that any activity 
undertaken pursuant to an 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 
EIS associated with the underlying request will not consider the sunk 
costs associated with the LWA activities. In addition, Sec.  
50.10(d)(3) requires an applicant requesting an LWA to submit a plan 
for redress of the activities permitted by the LWA, which would to be 
implemented in the event that the LWA holder is ultimately not issued a 
construction permit or combined license. The redress plan would achieve 
this objective by addressing impacts resulting from LWA activities 
(e.g., pile driving, placement of permanent retaining walls in 
excavations, and construction of foundations for SSCs within the scope 
of the LWA final rule). Impacts associated with pre-LWA activities 
would not be addressed in the redress plan. Further, Sec.  50.10(f) 
requires that the site redress plan be implemented within a reasonable 
time and that the redress of the site occur within 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 used for a permissible, non-
nuclear alternative use. In this way, the redress plan helps to 
preserve the NRC'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.
    In sum, the LWA final rule does not constitute unlawful 
segmentation in view of the provisions ensuring that the issuance of an 
LWA does not predispose or bias the NRC's decision on the underlying 
construction permit or combined license application.

D. Consideration of Activities as ``Construction''

1. Driving of Piles
    A significant change proposed in the LWA supplemental proposed rule 
is the inclusion of the driving of piles for certain SSCs 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 1967 proposed rule suggested that the driving of piles be 
expressly excluded from the definition of construction because that 
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 non-
inclusion of pile driving (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. See 32 FR 11278; August 3, 
1967.
---------------------------------------------------------------------------

    \12\ The proposed rule language was issued without modification 
in the final rule. (33 FR 2381; January 31, 1968.)
---------------------------------------------------------------------------

    The NRC does not believe that the exclusion of pile driving from 
the definition of construction should hinge on these factors. The 
Commission believes that the driving of piles for certain SSCs (as 
discussed separately below) has a reasonable nexus to radiological 
health and safety, and/or common defense and security and, therefore, 
is properly considered ``construction'' as that term is used in Section 
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. 
Accordingly, the final rule's definition of construction includes the 
driving of piles for certain SSCs.

[[Page 57429]]

2. Excavation
    The LWA supplemental proposed rule would have included excavation 
within the definition of construction. The inclusion of excavation 
within the ambit of construction was based upon two factors: (1) 
Excavation activities in the past have uncovered potentially adverse 
geologic, soil, and hydrological conditions not anticipated by the 
construction permit applicant, which have resulted in design changes; 
and (2) Excavation activities in the past have caused unanticipated 
damage to surrounding native rock, which had to be corrected by the 
construction permit holder. The NRC believed that, in these situations, 
these considerations provided the ``reasonable nexus to radiological 
health and safety and/or common defense and security'' necessary to 
include excavation in the definition of construction.
    Upon consideration of stakeholder comments and further evaluation, 
the NRC has determined that it is not necessary to include excavation 
within the definition of construction, thus requiring some kind of NRC 
review and approval before undertaking excavation, to ensure public 
health and safety or common defense and security in the situations 
noted previously. With respect to geologic, soils, and hydrological 
matters, prior NRC review and approval of excavation is not necessary 
to ensure that any adverse geologic, soil, or hydrological conditions 
that result in the need for design changes or some other form of 
mitigation are considered in NRC's review of the associated LWA, 
construction permit, or combined license application. In the situation 
where a potential applicant performs excavation activities before 
submitting its LWA, construction permit, or combined license 
application, 10 CFR 52.6(a) requires that information provided to the 
Commission by an applicant for a license be complete and accurate in 
all material respects. In the situation where an applicant performs 
excavation activities after submitting its LWA, construction permit, or 
combined license application, 10 CFR 52.6(b) requires the applicant to 
notify the Commission of information identified by the applicant as 
having, for the regulated activity, a significant implication for 
public health and safety or common defense and security. The staff 
believes that 10 CFR 52.6 provides an equally-acceptable way of 
ensuring public health and safety if excavation is eliminated from the 
definition of construction for those limited situations where 
excavation activities uncover potentially adverse geologic, soil, and 
hydrological conditions not anticipated by the applicant, or if 
excavation activities cause unanticipated damage to the surrounding 
native rock. The LWA, construction permit, and combined license 
applicant, as applicable, would be responsible--as is currently the 
case--for adequately describing the geologic, soil, and hydrologic 
conditions of the site. The difference with the approach in this final 
rule is that the approved site description will, in many cases, be 
based upon actual knowledge of the conditions as revealed or confirmed 
by the excavation activities, and not only on reasonable assumptions 
based upon extrapolations from test borings and other indirect 
information. Therefore, in many cases, the actual foundation and 
structural design to be approved at the construction permit or combined 
license stage would be based upon actual geologic, soils, and 
hydrological information as revealed or confirmed by the excavation.
    For these reasons, the Commission concludes that existing 
regulatory mechanisms provide reasonable assurance of public health and 
safety and common defense and security without imposition of the 
regulatory mechanism of prior NRC review and approval of excavation 
activities. Accordingly, the LWA final rule does not define excavation 
as being within the ambit of construction.
3. Temporary Structures and Activities in the Excavation
    Construction, under the LWA final rule, includes the placement/
installation of backfill, concrete, or permanent retaining walls within 
an excavation. These activities involve the placement/installation of 
permanent parts of the overall facility, and therefore are properly 
considered ``construction.'' By contrast, the placement/installation of 
temporary SSCs which will not become part of the final facility, and 
therefore are removed, should not be treated as ``construction,'' 
inasmuch as they have no ongoing nexus to radiological health and 
safety or common defense and security. Accordingly, activities in the 
excavation for SSCs within the scope of construction, such as the 
placement/installation of temporary drainage, erosion control, 
retaining walls, environmental mitigation, are not considered to be 
within the purview of ``construction,'' so long as these temporary 
items are removed from the excavation before fuel load. The NRC chose 
fuel loading as a convenient, well understood and clear event for 
delineating the time by which temporary SSCs must be removed from the 
excavation, in order for those temporary SSCs to be excluded from the 
definition of construction.
4. Construction SSCs
    The LWA supplemental proposed rule revised the former definition of 
construction in 10 CFR 50.10(c) to include the onsite, in-place 
fabrication, erection, integration, or testing of any SSC 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. This definition of construction included 
basically all SSCs of a facility, except for those SSCs that were 
specifically excluded by the proposed definition (e.g., potable water 
systems). However, as stated in the supplemental proposed rule, the 
Commission has determined that construction should include all of the 
activities that have a reasonable nexus to radiological health and 
safety, or common defense and security.
    Upon consideration of stakeholder comments and further evaluation, 
the NRC has determined that there may be some SSCs of a facility which 
are required to be described in the FSAR, but which do not have a 
reasonable nexus to radiological health and safety or the common 
defense and security. These SSCs are those which are required to be 
described in the FSAR to provide contextual information for 
understanding the overall design and operation of the facility, but 
which do not actually directly affect the radiological health and 
safety of the public or the common defense and security, and their 
indirect effect on such health and safety or common defense and 
security is so low as to be considered negligible. The determination of 
SSCs which do not have a reasonable nexus to radiological health and 
safety or common defense and security depends on the design of the 
facility. An example SSC is the administration building. However, an 
administration building that includes the technical support center 
would fall within the scope of SSCs covered by the definition of 
construction. In sum, the NRC has clarified and narrowed the scope of 
SSCs falling within the scope of construction to exclude those SSCs 
which have no reasonable nexus to radiological health and safety or 
common defense and security.
    For the LWA final rule, the scope of SSCs falling within the 
definition of construction was derived from the scope of SSCs that are 
included in the program for monitoring the effectiveness of maintenance 
at nuclear power plants, as

[[Page 57430]]

defined in 10 CFR 50.65(b). This definition is well understood and 
there is good agreement on its implementation. The NRC has supplemented 
the definition in Sec.  50.65(b) to include the SSCs that are necessary 
to comply with 10 CFR 50.48 and criterion 3 of 10 CFR part 50, appendix 
A, and the onsite emergency facilities, that is, technical support and 
operations support centers, that are necessary to comply with 10 CFR 
50.47 and 10 CFR part 50, appendix E. These SSCs were added because 
they have a reasonable nexus to radiological health and safety. The 
SSCs that are necessary to comply with 10 CFR part 73 were added 
because they are required for the common defense and security.

E. Phased Application and Approval Process

    Another significant change in this final rule is the modification 
of the procedure for obtaining LWA approval by implementing an optional 
phased application and approval process. Specifically, Sec.  
2.101(a)(9) allows 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 final rule 
allows the NRC to consider the environmental impacts attributable to 
the requested LWA activities separately, either as part of a 
comprehensive 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 may 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 and approval process 
is more efficient because it prevents unnecessary delay in nuclear 
power plant construction schedules. This delay would result if issuance 
of an LWA for safety-related activities were delayed until the final 
EIS and adjudicatory hearing on the entire underlying license 
application were complete. In addition, the final rule's application 
and approval process should 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.

F. EIS Prepared, but Facility Construction Was Not Completed

    The LWA final rule also 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 final rule allows 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 final rule provides that the NRC will 
incorporate by reference the previous EIS when preparing its draft EIS 
on the LWA activities. The draft EIS on the LWA request is limited to 
the consideration of any new and significant 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 is limited to determining 
whether there is new and significant 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 new and significant 
information in determining whether an LWA should be issued as proposed 
by either the Director of the Office of New Reactors or the Director of 
the Office of Nuclear Reactor Regulation, as applicable.
    This provision is designed to gain efficiency by using existing 
EISs to evaluate the environmental impacts of 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 an 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 these 
differences 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. Therefore, these 
differences should be addressed in the applicant's environmental 
report, analyzed by the NRC staff in a supplement to the existing FEIS, 
and considered by the presiding officer.
    Further, for the reasons previously discussed in Section C.3 of 
this document, the Commission does not believe that authorizing LWA 
activities before completion of the FEIS on the combined license or 
construction permit will have the effect of prejudging the license/
permit, or foreclosing reasonable alternatives.

G. Commission Action on PRM-50-82

    As discussed previously, the Commission is treating the May 25, 
2006, comments of NEI on the March 2006 proposed part 52 rule as a 
petition for rulemaking, which has been designated PRM-50-82. The 
petition was effectively granted when the supplemental proposed LWA 
rule was published (71 FR 61330; October 17, 2006). With the adoption 
of this final LWA rule, the Commission has completed action on PRM-50-
82.

IV. Section-by-Section Analysis

Part 2--Rules of Practice for Domestic Licensing Proceedings and 
Issuance of Orders

Section 2.101, Filing of Application
    Section 2.101 is revised by adding a new paragraph (a)(9), which 
provides 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 
combined license application, the application must include the 
information required by Sec.  50.10(d)(3).
    If the application is a phased LWA application, the first part must 
contain the information required by Sec.  50.10(d)(3) 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 must

[[Page 57431]]

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 18 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 than 18 months after submission of part one of the 
application.
    An applicant for an ESP may not submit its LWA application in 
advance of the underlying ESP application, and therefore is not 
permitted to use the procedures of subpart F of part 2, or submit its 
application in two parts under Sec.  2.101(a)(9). Similarly, the holder 
of an ESP is not permitted to use the procedures of subpart F of part 
2, nor to submit its ESP amendment application for LWA authority in two 
parts under Sec.  2.101(a)(9).
Section 2.102, Administrative Review of Application
    Paragraph (a) of Sec.  2.102 is revised by adding an LWA to the 
list of docketed applications for which the NRC staff must establish a 
schedule for review of the application.
Section 2.104, Notice of Hearing
    The introductory text of paragraph (a) is revised to add LWAs to 
the list of application types for which the Commission must issue a 
hearing notice. In addition, paragraph (c)(1) is revised to require the 
relevant NRC Staff Director to transmit a copy of the notice of hearing 
for an application for an LWA to state and local officials. In many 
cases, this is a formality, inasmuch as pre-application interactions 
between the NRC and the potential LWA applicant will result in informal 
contacts with those state and local officials.

Subpart F

    The title of subpart F is 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 is revised to reflect the new 
set of procedures for phased LWA applications in proposed Sec. Sec.  
2.641 through 2.649. A new paragraph (d) is added to refer to 
Sec. Sec.  2.641 through 2.649 as containing the applicable procedures 
for phased construction permit and combined license applications which 
also request LWA authority.
Section 2.606, Partial Decision on Site Suitability Issues
    Paragraph (a) of Sec.  2.606, which provides that an LWA may not be 
issued without completion of the ``full review'' required by NEPA, is 
revised to remove the reference to an LWA, because LWAs are now 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 must 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 relevant 
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 will 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 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 is required to publish a 
second notice of docketing in the Federal Register 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 NRC notes that nothing in Sec.  2.101(a)(9), or any part of 
subpart F of part 2, 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.
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 LWA 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 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) addresses continued participation in a phased 
application involving a request for advance consideration for an LWA. 
The provisions of paragraph (c) differ somewhat from the existing 
procedures in Sec.  2.604 applicable to phased applications which do 
not involve LWAs, in that the Commission has decided 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. The petition

[[Page 57432]]

need not, however, address the interest and standing requirements in 
Sec.  2.309(d). The petition must be filed within the time provided by 
the supplementary notice of hearing published in the Federal Register 
for part two of the application.
    Paragraph (d) makes clear that a non-timely petition for 
intervention filed under paragraph (b) (incorrectly referred to as 
paragraph (c) in the supplemental proposed rule) must meet the factors 
in both 2.309(c)(1)(i) through (iv), as well as 2.309(d). This is no 
different than non-timely petitions for intervention filed in ordinary, 
non-phased proceedings.
    As noted in the Section-by-Section Analysis in this document for 
Sec.  2.643, nothing in Sec.  2.101(a)(9) or subpart F of part 2 
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 to part 2 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 an 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 for 
the Commission to exercise its review and sua sponte authority is the 
same time provided for in part 2 with respect to a final decision on 
issuance of a construction permit or combined license.

Part 50--Domestic Licensing of Production and Utilization Facilities

50.10, License Required; Limited Work Authorization
    Paragraph (a), which is derived from former Sec.  50.10(b), sets 
forth a new definition of ``construction'' for purposes of this section 
(the same definition is also used in part 51, see 10 CFR 51.4). The 
definition of construction has been substantially modified from the 
definition in former Sec.  50.10(b) in both structure and content, and 
supersedes the definition of construction in former Sec.  50.10(c). The 
new definition is divided into two parts, with the first specifying the 
activities deemed to constitute ``construction,'' and the second part 
specifying activities which are excluded from the definition.
    Under the new definition, excavation is excluded from construction. 
Excavation includes the removal of any soil, rock, gravel, or other 
material below the final ground elevation to the final parent material. 
Thus, all these excavation activities may be conducted without an LWA, 
construction permit, or combined license. However, the placement of 
permanent, non-structural dewatering materials, mudmats and/or 
engineered backfill which are placed in advance of the placement of the 
foundation and associated permanent retaining walls for SSCs within the 
scope of the definition of construction are not excavation activities, 
but instead fall within the scope of construction. Any person or entity 
that conducts excavation, however, should be aware that the NRC expects 
any subsequent LWA, construction permit, or combined license 
application to accurately document and address the conditions exposed 
by excavation, to ensure that the NRC will have an adequate basis for 
evaluating the relevant portions of the LWA, construction permit, or 
combined license application.
    Whereas former Sec.  50.10(b) allowed the driving of piles for the 
facility without NRC approval, the LWA final rule does not permit 
driving of piles for SSCs described in the definition of construction, 
unless NRC permission is obtained in the form of an LWA, construction 
permit, or combined license. The ``driving of piles'' not related to 
ensuring the structural stability or integrity of any SSC within the 
scope of the definition of construction does not fall within the 
definition of construction in this paragraph, and therefore may be 
accomplished without an LWA, construction permit, or combined license. 
For example, 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 an 
LWA, construction permit, or combined license.
    The SSCs which are within the scope of the definition of 
construction, and which have a reasonable nexus to radiological health 
and safety or common defense and security are set forth in paragraph 
(a)(1). This definition was derived from the scope of SSCs that are 
included in the program for monitoring the effectiveness of maintenance 
at nuclear power plants under 10 CFR 50.65, and supplemented with SSCs 
that are needed for fire protection, security, and onsite emergency 
facilities. There may be some SSCs of a facility which do not have a 
reasonable nexus to radiological health and safety or common defense 
and security. The determination of the SSCs that do not have a 
reasonable nexus to radiological health and safety or common defense 
and security will be dependent upon the design of the facility. An 
example SSC that would not be within the scope of construction is a 
cooling tower that is used to cool the turbine condenser. However, a 
cooling system that is used for both safety and non-safety functions 
would fall within the definition of construction.
    Construction, as defined in this paragraph includes installation of 
the foundation, including soil compaction; the installation of 
permanent drainage systems and geofabric; the placement of backfill, 
concrete (e.g., ``mudmats'') or other materials which will not be 
removed before 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 SSC within scope 
of the definition of construction. Foundation installation activities 
will require an LWA, construction permit, or combined license. The term 
``permanent'' in this context, includes anything that will exist in its 
final, in-place plant location after fuel load. By contrast, the term, 
``temporary,'' means anything that will be removed from the excavation 
before fuel load.
    Construction also includes the ``onsite, in-place,'' fabrication, 
erection, integration, or testing activities for any in-scope SSC. The 
term, ``onsite, in place, fabrication, erection, integration or 
testing'' is intended to describe the historical process of 
constructing a nuclear power plant in its final, onsite plant location, 
where components or modules are integrated into the final, in-plant 
location. The definition is intended to exclude persons from

[[Page 57433]]

having to obtain an LWA, construction permit, or combined license, to 
fabricate, assemble, and test components and modules in a shop 
building, warehouse, or laydown area located onsite. However, the 
installation or integration of that SSC into its final plant location 
would require either a construction permit or combined license. The NRC 
notes that under Sec.  50.10(a)(2)(ix), construction does not include 
manufacturing of a nuclear power reactor under subpart F of part 52, 
even if the manufacturing is accomplished onsite, so long as the 
manufacturing is not done in-place, at the final (permanent) plant 
location on the site.
    Paragraph (b), which is derived from former Sec.  50.10(a), 
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 (c), which is substantially modified from the former 
Sec.  50.10(b), 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 an LWA 
under paragraph (d) of this section.
    Paragraph (d), which is substantially modified from the former 
Sec.  50.10(e), addresses the need for, nature and contents of an 
application for an LWA. Paragraph (d)(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 (d)(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 ESP under Sec.  2.101(a)(1) 
through (4).
--An amendment to an already issued ESP.

    Paragraph (d)(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 
FSAR, 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 in this document 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 address the 
placement of piles and ensure removal of the foundation, which are the 
only activities which may be accomplished under an LWA. Redress of site 
impacts resulting from pre-LWA activities will not be required under 
the redress plan. In addition, while redress of LWA 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 (e) generally addresses the requirements associated with 
issuance of an LWA. Paragraph (e)(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: (1) 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; (2) 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; (3) NRC staff issuance of a final EIS on the 
LWA in accordance with the applicable requirements of part 51; and (4) 
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 (e)(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, ESP, or combined license.
    Paragraph (f), which is also derived from former Sec.  50.10(e), 
addresses the legal effect of an issued LWA. Paragraph (f)(1) provides 
that any activities undertaken under an LWA shall be entirely at the 
risk of the applicant and, with exception of the matters determined 
under paragraph (d)(3)(ii) and (iii), the issuance of the LWA shall 
have no bearing on the issuance of a construction permit or combined 
license with respect to the requirements of the AEA, and rules, 
regulations, or orders issued under the AEA. Thus, this paragraph 
states that the EIS for a construction permit or combined license 
application for which an LWA was previously issued will not address, 
and the presiding officer will not consider, the sunk costs of the 
holder of the LWA in determining the proposed action (i.e., issuance of 
the construction permit or combined license).
    New paragraph (g) requires the LWA holder to begin implementation 
of the redress plan in a reasonable time, and complete the redress no 
later than 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 construction permit or the combined license application, as 
applicable.

Part 51--Environmental Protection Regulations for Domestic Licensing 
and Related Regulatory Functions

Section 51.4, Definitions
    Section 51.4 is revised by adding a new definition of 
``construction.'' This makes applicable throughout part 51 the 
definition of construction in proposed Sec.  50.10(a), and has the 
effect of excluding from an EIS for any ESP, construction permit, 
combined license,

[[Page 57434]]

or an LWA, any discussion, evaluation or consideration of the 
environmental impacts or benefits associated with non-construction 
activities as set forth in Sec.  50.10(a). This also removes 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) is revised 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, this will not 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 these applicants 
as part of a complete environmental report for the underlying ESP, 
construction permit or combined license under Sec.  51.50. The primary 
effect of this final rule would be to allow delayed 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, in most cases, be limited in scope 
to address environmental impacts of LWA activities only.
Section 51.45, Environmental Report
    Paragraph (c) is revised by adding a new requirement requiring 
environmental reports for ESP, construction permits, and combined 
licenses to include a description of impacts of the applicant's pre-
construction activities at the proposed site (i.e., the activities 
listed in paragraph (b)(1) through (8) in the definition of 
construction contained in Sec.  51.4) that are necessary to support the 
construction and operation of the facility which is the subject of the 
LWA, construction permit, or combined license application, and an 
analysis of the cumulative impacts of the activities to be authorized 
by the LWA, construction permit, or combined license in light of the 
preconstruction impacts.
Section 51.49, Environmental Report-Limited Work Authorization
    A new Sec.  51.49 is added to part 51. This new section requires 
the applicant for an LWA to submit an environmental report containing 
certain specified information. Both paragraph (a), which applies to an 
applicant requesting an 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), requires the applicant to submit 
an environmental report which describes: (1) The activities proposed to 
be conducted under the LWA; (2) The need to conduct those LWA 
activities in advance of the main action; (3) A description of the 
environmental impacts that may reasonably be expected to result from 
the conduct of the requested LWA activities; (4) The mitigation 
measures to be implemented to achieve the level of environmental 
impacts described; and (5) A discussion of the reasons for rejecting 
other mitigation measures that could be used to further reduce 
environmental impacts. Regardless of whether an LWA applicant submits 
an application in two parts, or seeks early consideration and decision 
on site suitability and environmental siting matters, the environmental 
report for the LWA should address any impacts attributable to 
activities for which NRC approval is not required (i.e., the activities 
excluded from the definition of construction in Sec.  50.12(a)).
    Paragraph (c) describes the contents of the environmental report 
when the request for the LWA is submitted as part of an ESP 
application. There is no opportunity for an ESP holder to submit its 
application in two parts, with the LWA information submitted in advance 
of the main ESP application.
    Paragraph (d) describes the contents of the environmental report 
when the LWA request is submitted by an ESP 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 
for which the Commission previously prepared an EIS for the 
construction and operation of a nuclear power plant, the construction 
permit was issued, but the construction of the plant was never 
completed, then the applicant's environmental report may incorporate by 
reference the earlier EIS. However, in the event of incorporation by 
reference, 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). In addition, analogous to the requirement in Sec.  
51.50(c)(1)(iv) of the 2007 final part 52 rule, the environmental 
report must include a description of the process for identifying new 
and significant information. The applicant should have a reasonable 
process for identifying new and significant information that may have a 
bearing on the earlier NRC conclusion, and should document the results 
of this process in an auditable form. Documentation related to the 
applicant's search for new information and its determination about the 
significance of that new information should be maintained in an 
auditable form by the applicant. The NRC staff will verify that the 
applicant's process for identifying new and significant information is 
effective.
    Paragraph (f) requires, for any application containing an LWA 
request, that the environmental report must separately evaluate the 
environmental impacts and proposed alternatives to the activities 
proposed to be conducted under the LWA. 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 51.71, Draft Environmental Impact Statement--Contents
    Section 51.71 is revised by redesignating the current paragraph (e) 
as paragraph (f), and a new paragraph (e) is added to re-emphasize that 
the draft EIS 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.  50.10(f) and new Sec.  
51.103(a)(6).
Section 51.76, Draft Environmental Impact Statement--Limited Work 
Authorization
    Section 51.76 is a new section governing the NRC's preparation of a 
draft EIS to support a decision on an LWA. The internal organization of 
Sec.  51.76 parallels that of Sec.  51.49.

[[Page 57435]]

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 at the time of the LWA 
application 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 NRC 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 an 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 Sec.  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 at the LWA 
phase 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 ESP 
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 ESP holder (as 
opposed to an applicant) requests an LWA. 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 referencing a 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 and a construction 
permit issued, but construction of the nuclear power plant was not 
completed. In these 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 
this type of 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, 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. However, this paragraph also makes clear that if the 
applicant's environmental report contains the comprehensive information 
necessary to address construction and operation impacts for the 
proposed facility, as is allowed under 10 CFR 2.101, then the EIS must 
similarly address those impacts, including the costs and benefits of 
the underlying proposed action.
Section 51.103, Record of Decision--General
    Section 51.103 is 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(f) 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, and thereby avoid NEPA segmentation claims.
Section 51.104, NRC Proceeding Using Public Hearings; Consideration of 
Environmental Impact Statement
    Section 51.104 is 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 also specifies that, in the LWA phase of the 
proceeding, the presiding officer will decide the matters in 
controversy among the parties, viz., the contentions related to the 
adequacy of the EIS prepared for the LWA. The scope of the EIS will, in 
turn, depend upon whether the LWA applicant chooses to submit an 
environmental report limited to LWA impacts, or whether the LWA 
applicant chooses to submit a more comprehensive environmental report 
as permitted under 10 CFR 2.101 and seeks an early decision on siting 
matters under subpart F of 10 CFR part 2.
Section 51.105, Public Hearings In Proceedings for Issuance of 
Construction Permits or Early Site Permits; Limited Work Authorizations
    The title of this section is revised to add a reference to LWAs, 
reflecting the expanded scope of matters addressed in this section. 
Second, a new paragraph (c) is 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.
--Determine whether the applicant's proposed redress plan is reasonably 
expected, from a technical standpoint, to redress activities conducted 
under the LWA, should LWA activities be terminated by the holder or the 
LWA be revoked by the NRC, or upon effectiveness of the Commission's 
final decision denying the associated construction permit or combined 
license application, as applicable.
--In an uncontested proceeding, determine whether the NRC's NEPA review 
has been adequate.
--In a contested proceeding, determine whether the LWA should be issued 
in

[[Page 57436]]

accordance with the regulations in part 51.
Section 51.107, Public hearings in proceedings for issuance of combined 
licenses; limited work authorizations
    Section 51.107 is revised in two respects. The title of this 
section is revised to add a reference to LWAs, reflecting the expanded 
scope of matters addressed in this section. Finally, a new paragraph 
(d) is also 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--Licenses, Certifications, and Approvals for Nuclear Power 
Plants

Section 52.1, Definitions
    A new definition of LWA is added which would be defined as the 
authorization provided under Sec.  50.10(d). The NRC notes that an 
applicant of an ESP who requests authority to perform the activities 
permitted by Sec.  50.10(d), would not, if the request were granted, 
receive an LWA separate from its ESP. Instead, the ESP itself would 
authorize the activities permitted by Sec.  50.10(d). This regulatory 
approach is consistent with the current language of Sec. Sec.  52.17(c) 
and 52.25(b). However once an ESP is issued, the holder could apply for 
permission to conduct LWA activities under Sec.  52.27 in the form of 
an amendment to the ESP.
Section 52.17, Contents of Applications; Technical Information
    Paragraph (c) of Sec.  52.17 is revised by removing the proposed 
language with respect to LWAs, and specifying that if the applicant 
wishes to obtain an LWA, then the information required by Sec.  
50.10(d)(3) must be included in the site safety analysis report. This 
paragraph also makes clear that for early site applications which were 
submitted before the effective date of the final LWA rule, the new 
requirements in Sec.  52.17(c) do not apply and their applications need 
only meet the requirements in former Sec.  52.17(c).
Section 52.24, Issuance of Early Site Permit
    Paragraph (c) is revised to state that an ESP must specify the 
activities under Sec.  50.10 that the permit holder is authorized to 
perform.
Section 52.27, Limited Work Authorization After Issuance of Early Site 
Permit
    Section 52.27 is redesignated as Sec.  52.26, and a new Sec.  52.27 
is added. The new Sec.  52.27 allows an ESP holder to request an LWA in 
accordance with Sec.  50.10--a matter which was not clear under the 
former provisions of part 52.
Section 52.80, Content of Applications; Additional Technical 
Information
    Paragraph (b) is revised to state that a combined license 
application that does not request an LWA must include an environmental 
report prepared in accordance with Sec.  51.50(c), and that a combined 
license application that does request an LWA must include an 
environmental report prepared in accordance with Sec. Sec.  51.49 and 
51.50(c).
    Paragraph (c) is revised to require that a combined license 
application containing a request for an LWA must contain the 
information otherwise required by 10 CFR 50.10.
Section 52.91, Authorization To Conduct Limited Work Authorization 
Activities
    The heading for Sec.  52.91 is revised. Section 52.91 is revised to 
reflect the elimination of ``LWA-1'' and ``LWA-2'' in former Sec.  
50.10(e). Under paragraph (a) of Sec.  52.91, an applicant for a 
combined license may undertake LWA activities only if it: (1) 
References an ESP which includes LWA authority; or (2) the combined 
license applicant applies for and is granted LWA authority under Sec.  
50.10. Paragraph (b) requires the combined license applicant who begins 
construction under an LWA, to implement the LWA redress plan if the 
underlying combined license application is withdrawn by the applicant 
or denied by the NRC.
Section 52.99, Inspection During Construction
    Paragraph (a) is revised to replace the reference to 10 CFR 
50.10(b) with a reference to 10 CFR 50.10(a).

Part 100--Reactor Site Criteria

Section 100.23, Geologic and Seismic Siting Criteria
    Paragraph (b) is revised to reflect the revisions in 10 CFR 50.10 
that redefine what is considered ``construction.'' This paragraph 
formerly stated that the investigations required in 10 CFR 100.23(c) 
are within the scope of investigations permitted by former 10 CFR 
50.10(c)(1). This sentence has been revised to state that the 
investigations required in 10 CFR 100.23(c) are not considered 
``construction'' as defined in 10 CFR 50.10(a).

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 PDR is located at 11555 
Rockville Pike, Rockville, Maryland. http://www.nrc.gov/reading-rm/contact-pdr.html.
    The NRC staff contact. Geary Mizuno, Mail Stop O-15D21, Washington, 
DC 20555-0001; telephone number 301-415-1639.

----------------------------------------------------------------------------------------------------------------
                                                                                                           NRC
                    Document                       PDR      Web                  ADAMS No.                staff
----------------------------------------------------------------------------------------------------------------
2006/05/25--Comment (4) submitted by Nuclear          X        X   ML061510471                           .......
 Energy Institute, Adrian P. Heymer on Proposed
 Rules.
SECY-98-282, Part 52 Rulemaking Plan...........  .......  .......  ML032801416                           .......
Staff Requirements--SECY-98-282--Part 52         .......  .......  ML032801439                           .......
 Rulemaking Plan.
Draft Regulatory Analysis......................       X        X   ML062750434                                X
Final Regulatory Analysis......................       X        X   ML071870012                                X
Regulatory History Index for October 17, 2006    .......       X   ML070240575                                X
 Supplemental Proposed Rule.
----------------------------------------------------------------------------------------------------------------

VI. Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement States Programs,'' approved 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

[[Page 57437]]

procedure laws, but does not confer regulatory authority on the State.

VII. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, Pub. 
L. 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: (1) Redefining the 
scope of activities constituting ``construction'' for which NRC 
approval is required; (2) redefining the scope of activities 
constituting construction which the NRC may approve in an LWA granted 
in advance of the issuance of a construction permit or combined 
license, or which may be conducted by a holder of an ESP; and (3) 
revising the NRC's procedures for granting LWAs. This rulemaking does 
not establish standards or substantive requirements with which all 
applicants and licensees must comply. For these reasons, the Commission 
concludes that this action does not constitute the establishment that 
contains generally applicable standards.

VIII. 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 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 LWAs qualify for the categorical exclusion described in Sec.  
51.22(c)(3)(i). All other changes qualify for the categorical exclusion 
described in Sec.  51.22(c)(3)(iv).\13\ Therefore, neither an EIS nor 
an EA has been prepared for this rule.
---------------------------------------------------------------------------

    \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) 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 published a supplemental 
proposed rule for public comment. The NRC determined that Comment 4 
meets the sufficiency requirements described in 10 CFR 2.802(c), and 
that it was appropriate to seek public comment on the petition by 
publishing the supplemental proposed rule developed in response to 
the petition, as allowed under 10 CFR 2.802(e).
---------------------------------------------------------------------------

IX. Paperwork Reduction Act Statement

    This final rule amends information collection requirements 
contained in (10 CFR parts 50, 51, and 52 that are subject to the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). These 
requirements were approved by the Office of Management and Budget, 
approval numbers 3150-0011, 3150-0021, and 3150-0151 and the changes 
contain new or amended information collection requirements. Existing 
requirements were approved by the Office of Management and Budget, 
approval number(s) 3150-0011, 3150-0021, and 3150-0151.
    The net burden to the public for the information collections in 10 
CFR parts 50, 51, and 52 is estimated to average zero hours per 
response, as burden is being shifted from part 52 to part 50, and 
within sections of part 51. The burden to the public for the 
information collections in 10 CFR part 50 is estimated to average 1,900 
hours per response and the burden for the information collections in 10 
CFR part 52 is estimated to average a reduction of 1,900 hours per 
response, resulting in no change in burden. The burden to the public 
for the information collections in 10 CFR part 51 is estimated to 
result in no change in burden, as information collection requirements 
are shifted from one section to another. This includes the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
information collection. Send comments on any aspect of these 
information collections, including suggestions for reducing the burden, 
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, 
Office of Information and Regulatory Affairs, NEOB-10202, (3150-0011, 
3150-0021, 3150-0151; 10 CFR parts 50, 51, and 52), Office of 
Management and Budget, Washington, DC 20503.

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.

X. Regulatory Analysis

    The NRC has prepared a regulatory analysis for this rule. The 
analysis examines the costs and benefits of the alternatives considered 
by the Commission. Availability of the regulatory analysis is provided 
in Section V of this document.

XI. 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 have a 
significant economic impact on a substantial number of small entities. 
This 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 in this 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).

XII. Backfit Analysis

    The NRC has determined that the backfit rule does not require the 
NRC to prepare a backfit analysis for this rulemaking, because the 
rulemaking 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 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 
rulemaking revises the LWA requirements for future ESPs, construction 
permits, or combined licenses for nuclear power plants, these revisions 
do 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. With 
respect to the ESPs issued by the NRC prior to adoption of the final 
LWA rule, the rule does not represent backfitting for several reasons. 
The ESPs issued prior to the effective date of the final rule were 
granted authority to conduct activities identified in former Sec.  
50.10(e)(1), commonly referred to as an LWA-1 activities. Under the 
final rule, NRC review and approval is not required before applicants 
can commence these activities. In practical effect, the final rule 
moots the LWA authority granted in the applicable ESPs. Therefore, the 
final LWA rule has no applicability to these ESP holders with respect 
to their already-complete ESP application

[[Page 57438]]

process. Finally, the ESP holders are free to seek additional authority 
under their ESP in accordance with the final LWA rules provisions; in 
this respect, the current LWA holders are treated no differently than 
future ESP holders who do not seek LWA authority in their initial ESP 
application. For these reasons, the NRC concludes that the final LWA 
rule does not constitute backfitting.

XIII. Congressional Review Act

    Under the Congressional Review Act of 1996, the NRC has determined 
that this action is not a major rule and has verified this 
determination with the Office of Information and Regulatory Affairs of 
OMB.

List of Subjects

10 CFR Part 2

    Administrative practice and procedure, 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, 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.

10 CFR Part 100

    Nuclear power plants and reactors, Reactor siting criteria.

0
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, 52 and 100.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
ISSUANCE OF ORDERS

0
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. 161b, 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 2.390 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. 91-550, 84 Stat. 1473 (42 U.S.C. 2135).


0
2. In Sec.  2.101, paragraphs (a)(1), (a)(2), (a)(3) introductory text, 
(a)(4), and (a)(5) are revised, paragraphs (a)(6) through (a)(8) are 
reserved, and paragraph (a)(9) is added to read as follows:


Sec.  2.101  Filing of application.

    (a)(1) An application for a limited work authorization (LWA), a 
permit, a license, a license transfer, a license amendment, a license 
renewal, or a standard design approval, shall be filed with the 
Director of New Reactors, 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 limited work authorization, 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 inspection at the NRC Web 
site, http://www.nrc.gov, and/or at the NRC PDR. 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 New Reactors, Director of Nuclear Reactor 
Regulation, or Director of Nuclear Material Safety and Safeguards, as 
appropriate, determines that a tendered application for a limited work 
authorization, 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), (a)(9), 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

[[Page 57439]]

is acceptable for docketing, the applicant will be requested to:
* * * * *
    (4) The tendered application for a limited work authorization, 
construction permit, operating license, early site permit, standard 
design approval, combined license, or manufacturing license for a 
production or utilization facility will be formally docketed upon 
receipt by the Director of New Reactors, 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 New Reactors, 
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 New Reactors, 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 New 
Reactors, 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 New 
Reactors, 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.
    (5) An applicant for a construction permit under part 50 of this 
chapter or a combined license under part 52 of this chapter for a 
production or 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 may submit 
the information required of applicants by part 50 or part 52 of this 
chapter in two parts. One part shall be accompanied by the information 
required by Sec.  50.30(f) of this chapter, or Sec.  52.80(b) of this 
chapter, as applicable. The other part shall include any information 
required by Sec.  50.34(a) and, if applicable, Sec.  50.34a of this 
chapter, or Sec. Sec.  52.79 and 52.80(a), as applicable. One part may 
precede or follow other parts by no longer than 18 months. If it is 
determined that either of the parts as described previously is 
incomplete and not acceptable for processing, the Director of New 
Reactors, Director of Nuclear Reactor Regulation, or Director of 
Nuclear Material Safety and Safeguards, as appropriate, 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 30 days. Whichever part is filed first shall also 
include the fee required by Sec. Sec.  50.30(e) and 170.21 of this 
chapter and the information required by Sec. Sec.  50.33, 50.34(a)(1) 
or 52.79(a)(1), as applicable, and Sec.  50.37 of this chapter. The 
Director of New Reactors, Director Nuclear Reactor Regulation, or 
Director of Nuclear Material Safety and Safeguards, as appropriate, 
will accept for docketing an application for a construction permit 
under part 50 of this chapter or a combined license under part 52 of 
this chapter for a production or 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 where one part of the application as described previously is 
complete and conforms to the requirements of part 50 or part 52 of this 
chapter, as applicable. The additional part will be docketed upon a 
determination that it is complete, by the Director of New Reactors, 
Director of Nuclear Reactor Regulation, or Director of Nuclear Material 
Safety and Safeguards, as appropriate.
    (6)-(8) [Reserved]
    (9) 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 (b)(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(d) of this chapter may submit a complete application 
under paragraphs (a)(1) through (a)(4) of this section which includes 
the information required by Sec.  50.10(d) of this chapter. 
Alternatively, the applicant (other than an applicant for or 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(d)(2) and (d)(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)(5) of this 
section, or, for a construction permit applicant, paragraph (a)(1) of 
this section. Part two of the application must be submitted no later 
than 18 months after submission of part one.
* * * * *

0
3. In Sec.  2.102, paragraph (a) is revised to read as follows:


Sec.  2.102  Administrative review of application.

    (a) During review of an application by the NRC staff, an applicant 
may be required to supply additional information. The staff may request 
any one party to the proceeding to confer with the NRC staff 
informally. In the case of docketed application for a limited work 
authorization, construction permit, operating license, early site 
permit, standard design approval, combined license, or manufacturing 
license under this chapter, the NRC staff shall establish a schedule 
for its review of the application, specifying the key intermediate 
steps from the time of docketing until the completion of its review.
* * * * *

0
4. In Sec.  2.104, paragraph (a) and paragraph (c)(1) are 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. The notice 
must be published at least 15 days, and in the case of an application 
concerning a limited work authorization, construction permit, early 
site permit, or combined license for a facility of the type described 
in Sec. Sec.  50.21(b) or 50.22 of this chapter or a testing facility, 
at least 30 days, before

[[Page 57440]]

the date set for hearing in the notice.\1\ In addition, in the case of 
an application for a limited work authorization, construction permit, 
early site permit, or combined license for a facility of the type 
described in Sec.  50.22 of this chapter, or a testing facility, the 
notice must be issued as soon as practicable after the NRC has docketed 
the application. If the Commission decides, under Sec.  2.101(a)(2), 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.
---------------------------------------------------------------------------

    \1\ If the notice of hearing concerning an application for a 
limited work authorization, construction permit, early site permit, 
or combined license for a facility of the type described in 
Sec. Sec.  50.21(b) or 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.
---------------------------------------------------------------------------

* * * * *
    (c)(1) The Secretary will transmit a notice of hearing on an 
application for a license for a production or utilization facility, 
including a limited work authorization, 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 high-
level waste 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).
* * * * *

0
5. The heading of subpart F is revised to read as follows:

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

0
6. In Sec.  2.600, the introductory text is revised, and a new 
paragraph (d) is added 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 proceedings for a combined license under part 52 of this 
chapter, either of which includes a request to conduct the activities 
authorized under Sec.  50.10(d) 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).
* * * * *
    (d) The procedures in Sec. Sec.  2.641 through 2.649 apply to 
phased applications for construction permits or combined licenses which 
request limited work authorizations to be issued in advance of issuance 
of the construction permit or combined license (i.e., a phased 
application).

0
7. 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 or combined license may be issued without 
completion of the full review required by Section 102(2) of the NEPA, 
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 as in the case of a full 
decision relating to the issuance of a construction permit or combined 
license.
* * * * *

0
8. Following Sec.  2.629, an undesignated center heading and Sec. Sec.  
2.641, 2.643, 2.645, and 2.649 are added and Sec.  2.647 is reserved to 
read as follows:

Phased Applications Involving Limited Work Authorizations

Sec.
2.641 Filing fees.
2.643 Acceptance and docketing of application 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 New Reactors or 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 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(d)(3) 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.

[[Page 57441]]

    (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.


Sec.  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 this part, including Sec.  2.309. 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 this part, 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 
paragraph (b) 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 under 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(d) 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 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

0
9. 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).


0
10. Section 50.10 is revised to read as follows:


Sec.  50.10  License required; limited work authorization.

    (a) Definitions. As used in this section, construction means the 
activities in paragraph (a)(1) of this section, and does not mean the 
activities in paragraph (a)(2) of this section.
    (1) Activities constituting construction are the driving of piles, 
subsurface preparation, placement of backfill, concrete, or permanent 
retaining walls within an excavation, installation of foundations, or 
in-place assembly, erection, fabrication, or testing, which are for:
    (i) Safety-related structures, systems, or components (SSCs) of a 
facility, as defined in 10 CFR 50.2;
    (ii) SSCs relied upon to mitigate accidents or transients or used 
in plant emergency operating procedures;
    (iii) SSCs whose failure could prevent safety-related SSCs from 
fulfilling their safety-related function;
    (iv) SSCs whose failure could cause a reactor scram or actuation of 
a safety-related system;

[[Page 57442]]

    (v) SSCs necessary to comply with 10 CFR part 73;
    (vi) SSCs necessary to comply with 10 CFR 50.48 and criterion 3 of 
10 CFR part 50, appendix A; and
    (vii) Onsite emergency facilities, that is, technical support and 
operations support centers, necessary to comply with 10 CFR 50.47 and 
10 CFR part 50, appendix E.
    (2) Construction does not include:
    (i) Changes for temporary use of the land for public recreational 
purposes;
    (ii) 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;
    (iii) Preparation of a 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;
    (iv) Erection of fences and other access control measures;
    (v) Excavation;
    (vi) Erection of support buildings (such as, construction equipment 
storage sheds, warehouse and shop facilities, utilities, concrete 
mixing plants, docking and unloading facilities, and office buildings) 
for use in connection with the construction of the facility;
    (vii) Building of service facilities, such as paved roads, parking 
lots, railroad spurs, exterior utility and lighting systems, potable 
water systems, sanitary sewerage treatment facilities, and transmission 
lines;
    (viii) Procurement or fabrication of components or portions of the 
proposed facility occurring at other than the final, in-place location 
at the facility;
    (ix) Manufacture of a nuclear power reactor under a manufacturing 
license under subpart F of part 52 of this chapter to be installed at 
the proposed site and to be part of the proposed facility; or
    (x) With respect to production or utilization facilities, other 
than testing facilities and nuclear power plants, required to be 
licensed under Section 104.a or Section 104.c of the Act, the erection 
of buildings which will be used for activities other than operation of 
a facility and which may also be used to house a facility (e.g., the 
construction of a college laboratory building with space for 
installation of a training reactor).
    (b) Requirement for license. Except as provided in Sec.  50.11 of 
this chapter, 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.
    (c) Requirement for construction permit, early site permit 
authorizing limited work authorization activities, 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, a combined license under part 52 of this 
chapter, an early site permit authorizing the activities under 
paragraph (d) of this section, or a limited work authorization under 
paragraph (d) of this section.
    (d) Request for limited work authorization. (1) Any person to whom 
the Commission may otherwise issue either a license or permit under 
Sections 103, 104.b, or 185 of the Act for a facility of the type 
specified in Sec. Sec.  50.21(b)(2), (b)(3), or 50.22 of this chapter, 
or a testing facility, may request a limited work authorization 
allowing that person to perform the driving of piles, subsurface 
preparation, placement of backfill, concrete, or permanent retaining 
walls within an excavation, installation of the foundation, including 
placement of concrete, any of which are for an SSC of the facility for 
which either a construction permit or combined license is otherwise 
required under paragraph (c) of this section.
    (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 
(a)(5), 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 
(a)(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 of this chapter, 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 activities performed under the limited 
work authorization, should limited work activities be terminated by the 
holder or the limited work authorization be revoked by the NRC, or upon 
effectiveness of the Commission's final decision denying the associated 
construction permit or combined license application, as applicable.
    (e) Issuance of limited work authorization. (1) The Director of New 
Reactors or the Director 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. 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.
    (f) 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 
(e)(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 issued under the Act. The environmental impact 
statement for a

[[Page 57443]]

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).
    (g) 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 limited work authorization is revoked by 
the NRC, then the holder must begin implementation of the redress plan 
in a reasonable time. The holder must also complete the redress of the 
site no later than 18 months after termination of construction, 
revocation of the limited work authorization, or upon effectiveness of 
the Commission's final decision denying the associated construction 
permit application or the underlying combined license application, as 
applicable.

PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC 
LICENSING AND RELATED REGULATORY FUNCTIONS

0
11. 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)).


0
12. In Sec.  51.4, a new definition of ``construction'' is added to 
read as follows:


Sec.  51.4  Definitions.

* * * * *
    Construction means the activities in paragraph (1) of this 
definition, and does not mean the activities in paragraph (2) of this 
definition.
    (1) Activities constituting construction are the driving of piles, 
subsurface preparation, placement of backfill, concrete, or permanent 
retaining walls within an excavation, installation of foundations, or 
in-place assembly, erection, fabrication, or testing, which are for:
    (i) Safety-related structures, systems, or components (SSCs) of a 
facility, as defined in 10 CFR 50.2;
    (ii) SSCs relied upon to mitigate accidents or transients or used 
in plant emergency operating procedures;
    (iii) SSCs whose failure could prevent safety-related SSCs from 
fulfilling their safety-related function;
    (iv) SSCs whose failure could cause a reactor scram or actuation of 
a safety-related system;
    (v) SSCs necessary to comply with 10 CFR part 73;
    (vi) SSCs necessary to comply with 10 CFR 50.48 and criterion 3 of 
10 CFR part 50, appendix A; and
    (vii) Onsite emergency facilities (i.e., technical support and 
operations support centers), necessary to comply with 10 CFR 50.47 and 
10 CFR part 50, appendix E.
    (2) Construction does not include:
    (i) Changes for temporary use of the land for public recreational 
purposes;
    (ii) 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;
    (iii) Preparation of a 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;
    (iv) Erection of fences and other access control measures;
    (v) Excavation;
    (vi) Erection of support buildings (such as, construction equipment 
storage sheds, warehouse and shop facilities, utilities, concrete 
mixing plants, docking and unloading facilities, and office buildings) 
for use in connection with the construction of the facility;
    (vii) Building of service facilities, such as paved roads, parking 
lots, railroad spurs, exterior utility and lighting systems, potable 
water systems, sanitary sewerage treatment facilities, transmission 
lines;
    (viii) Procurement or fabrication of components or portions of the 
proposed facility occurring at other than the final, in-place location 
at the facility;
    (ix) Manufacture of a nuclear power reactor under a manufacturing 
license under subpart F of part 52 of this chapter to be installed at 
the proposed site and to be part of the proposed facility; or
    (x) With respect to production or utilization facilities, other 
than testing facilities and nuclear power plants, required to be 
licensed under Section 104.a or Section 104.c of the Act, the erection 
of buildings which will be used for activities other than operation of 
a facility and which may also be used to house a facility (e.g., the 
construction of a college laboratory building with space for 
installation of a training reactor).
* * * * *

0
13. 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, 51.55, 51.58, 51.60, 51.61, 51.62, 51.66, 51.68, 
and 51.69.

0
14. In Sec.  51.45, paragraph (c) is revised to read as follows:


Sec.  51.45  Environmental report.

* * * * *
    (c) Analysis. The environmental report must include an analysis 
that considers and balances 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. An environmental report prepared at the early 
site permit stage under Sec.  51.50(b), construction permit stage under 
Sec.  51.50(a), or combined license stage under Sec.  51.50(c) must 
include a description of impacts of the preconstruction activities 
performed by the applicant (i.e., those activities listed in paragraph 
(b)(1) through (b)(8) in the definition of construction contained in 
Sec.  51.4) necessary to support the construction and operation of the 
facility which is the subject of the limited work authorization, 
construction permit, or combined license application. The environmental 
report must also contain an analysis of the cumulative impacts of the 
activities to be authorized by the limited work authorization, 
construction permit, or combined license in light of the 
preconstruction impacts described in the environmental report. Except 
for an environmental report prepared at the early site permit stage, or 
an environmental report prepared at the

[[Page 57444]]

license renewal stage under Sec.  51.53(c), the analysis in the 
environmental report should also include consideration of the economic, 
technical, and other benefits and costs of the proposed action and its 
alternatives. Environmental reports prepared at the license renewal 
stage under Sec.  51.53(c) need not discuss the economic or technical 
benefits and costs of either the proposed action or alternatives except 
if these 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, environmental 
reports prepared under Sec.  51.53(c) need not discuss issues not 
related to the environmental effects of the proposed action and its 
alternatives. The analyses for environmental reports shall, 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, those considerations or factors 
shall be discussed in qualitative terms. The environmental report 
should contain sufficient data to aid the Commission in its development 
of an independent analysis.
* * * * *

0
15. 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 
a construction permit or combined license applying for a limited work 
authorization under Sec.  50.10(d) of this chapter in a complete 
application under 10 CFR 2.101(a)(1) through (a)(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 
part. Each environmental 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 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. 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 an early site 
permit application. Each applicant for an early site permit under 
subpart A of part 52 of this chapter requesting a limited work 
authorization shall submit with its application the environmental 
report required by Sec.  51.50(b). Each environmental report 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 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 requesting a limited 
work authorization shall submit with its application a document 
entitled, ``Applicant's Environmental Report--Limited Work 
Authorization under Early Site Permit,'' 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 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) Any new and significant information for issues related to the 
impacts of construction of the facility that were resolved in the early 
site permit proceeding with respect to the environmental impacts of the 
activities to be conducted under the limited work authorization.
    (5) A description of the process used to identify new and 
significant information regarding NRC's conclusions in the early site 
permit environmental impact statement. The process must be a reasonable 
methodology for identifying this new and significant information.
    (e) Limited work authorization for a site where an environmental 
impact statement was prepared, but the facility construction was not 
completed. 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 incorporate by reference the earlier 
environmental impact statement. In the event of such referencing, the 
environmental report must identify:
    (1) Any new and significant information material to issues related 
to the impacts of construction of the facility that were resolved in 
the construction permit proceeding for the matters required to be 
addressed in paragraph (a) of this section; and
    (2) A description of the process used to identify new and 
significant information regarding the NRC's conclusions in the 
construction permit environmental impact statement. The process must 
use a reasonable methodology for identifying this new and significant 
information.
    (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

[[Page 57445]]

discusses the overall costs and benefits balancing for the proposed 
action.

0
16. In Sec.  51.71, 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.

* * * * *
    (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.
* * * * *

0
17. Section 51.76 is added 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. The analysis 
called for by Sec.  51.71(d) must 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 a draft environmental impact statement must 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, 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 impact 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 an 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 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 new and significant information identified with respect to 
issues related to the impacts of construction of the facility that were 
resolved in the early site permit proceeding 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 impact statement prepared for the 
early site permit is required.
    (e) Limited work authorization for a site where an environmental 
impact statement was prepared, but the facility construction was not 
completed. 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 not completed, then the draft 
environmental impact statement shall incorporate by reference the 
earlier environmental impact statement. The draft environmental impact 
statement must 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, so 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) Draft environmental impact statement. 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.

0
18. 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 a 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.
* * * * *

0
19. In Sec.  51.104, a new paragraph (c) is added to read as follows:


Sec.  51.104  NRC proceeding using public hearings; consideration of 
environmental impact statement.

* * * * *

[[Page 57446]]

    (c) 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 all matters in 
controversy among the parties.

0
20. The heading of Sec.  51.105 is revised, and a new paragraph (c) is 
added to read as follows:


Sec.  51.105  Public hearings in proceedings for issuance of 
construction permits or early site permits; limited work 
authorizations.

* * * * *
    (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(d) 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) Determine whether the redress plan will adequately redress 
the activities performed under the limited work authorization, should 
limited work activities be terminated by the holder or the limited work 
authorization be revoked by the NRC, or upon effectiveness of the 
Commission's final decision denying the associated construction permit 
or early site permit, as applicable;
    (iv) In an uncontested proceeding, determine whether the NEPA 
review conducted by the NRC staff for the limited work authorization 
has been adequate; and
    (v) 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, new and significant 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.

0
21. In Sec.  51.107, the heading is revised, and a new paragraph (d) is 
added to read as follows:


Sec.  51.107  Public hearings in proceedings for issuance of combined 
licenses; limited work authorizations.

* * * * *
    (d)(1) In any proceeding for the issuance of a combined license 
where the applicant requests a limited work authorization under Sec.  
50.10(d) of this chapter, the presiding officer, in addition to 
complying with any applicable provision of Sec.  51.104, shall:
    (i) Determine whether the requirements of Section 102(2)(A), (C), 
and (E) of NEPA and the regulations in this 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) Determine whether the redress plan will adequately redress 
the activities performed under the limited work authorization, should 
limited work activities be terminated by the holder or the limited work 
authorization be revoked by the NRC, or upon effectiveness of the 
Commission's final decision denying the combined license application;
    (iv) In an uncontested proceeding, determine whether the NEPA 
review conducted by the NRC staff for the limited work authorization 
has been adequate; and
    (v) 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 Director of New Reactors or the 
Director of Nuclear Reactor Regulation, as applicable.
    (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, new and significant information 
on the environmental impacts of those activities, so that the limited 
work authorization should not be issued as proposed by the Director of 
New Reactors or the Director of Nuclear Reactor Regulation, as 
applicable.
    (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--LICENSES, CERTIFICATIONS, AND APPROVALS FOR NUCLEAR POWER 
PLANTS

0
22. The authority citation for part 52 continues to read as follows:

    Authority: Secs. 103, 104, 161, 182, 183, 185, 186, 189, 68 
Stat. 936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 
444, as amended (42 U.S.C. 2133, 2201, 2232, 2233, 2235, 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).


0
23. In Sec.  52.1(a), the definition for ``Limited work authorization'' 
is added to read as follows:


Sec.  52.1  Definitions.

    (a) * * *

[[Page 57447]]

    Limited work authorization means the authorization provided by the 
Director of New Reactors or the Director of Nuclear Reactor Regulation 
under Sec.  50.10 of this chapter.
* * * * *

0
24. In Sec.  52.17, paragraph (c) is revised to read as follows:


Sec.  52.17  Contents of applications; technical information.

* * * * *
    (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)(3). Applications submitted before, and pending as of 
November 8, 2007, must include the information required by Sec.  
52.17(c) effective on the date of docketing.

0
25. In Sec.  52.24, paragraph (c) is revised to read as follows:


Sec.  52.24  Issuance of early site permit.

* * * * *
    (c) The early site permit shall specify those 10 CFR 50.10 
activities requested under Sec.  52.17(c) that the permit holder is 
authorized to perform.

0
26. Section 52.27 is redesignated as Sec.  52.26, and a new Sec.  52.27 
is added to read as follows:


Sec.  52.27  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 Sec.  50.10 of this chapter.

0
27. In Sec.  52.80, paragraphs (b) and (c) are revised to read as 
follows:


Sec.  52.80  Contents of applications; additional technical 
information.

* * * * *
    (b) An environmental report, either 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.
    (c) If the applicant wishes to request that a limited work 
authorization under 10 CFR 50.10 be issued before 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 (a)(4), or 10 CFR 2.101(a)(9).

0
28. Section 52.91 is revised to read as follows:


Sec.  52.91  Authorization to conduct limited work authorization 
activities.

    (a) If the application does not reference an early site permit 
which authorizes the holder to perform the activities under 10 CFR 
50.10(d), the applicant may not perform those activities without 
obtaining the separate authorization required by 10 CFR 50.10(d). 
Authorization may be granted only after the presiding officer in the 
proceeding on the application has made the findings and determination 
required by 10 CFR 50.10(e), and the Director of New Reactors or the 
Director of Nuclear Reactor Regulation makes the determination required 
by 10 CFR 50.10(e).
    (b) If, after an applicant has performed the activities permitted 
by paragraph (a) of this section, the application for the combined 
license is withdrawn or denied, then the applicant shall implement the 
approved site redress plan.

0
29. In Sec.  52.99, paragraph (a) is revised to read as follows:


Sec.  52.99  Inspection during construction.

    (a) The licensee shall submit to the NRC, no later that 1 year 
after issuance of the combined license or at the start of construction 
as defined in 10 CFR 50.10(a), whichever is later, its schedule for 
completing the inspections, tests, or analyses in the ITAAC. The 
licensee shall submit updates to the ITAAC schedules every 6 months 
thereafter and, within 1 year of its scheduled date for initial loading 
of fuel, the licensee shall submit updates to the ITAAC schedule every 
30 days until the final notification is provided to the NRC under 
paragraph (c)(1) of this section.
* * * * *

PART 100--REACTOR SITE CRITERIA

0
30. The authority citation for part 100 continues to read as follows:

    Authority: Secs. 103, 104, 161, 182, 68 Stat. 936, 937, 948, 
953, as amended (42 U.S.C. 2133, 2134, 2201, 2232); 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).


0
31. In Sec.  100.23, paragraph (b) is revised to read as follows:


Sec.  100.23  Geologic and seismic siting criteria.

* * * * *
    (b) Commencement of construction. The investigations required in 
paragraph (c) of this section are not considered ``construction'' as 
defined in 10 CFR 50.10(a).
* * * * *

    Dated at Rockville, Maryland, this 25th day of September 2007.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E7-19312 Filed 10-5-07; 8:45 am]
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