[Federal Register Volume 73, Number 187 (Thursday, September 25, 2008)]
[Notices]
[Pages 55546-55549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22528]
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NUCLEAR REGULATORY COMMISSION
Notice of Availability of Memorandum of Understanding Between
U.S. Army Corps of Engineers and U.S. Nuclear Regulatory Commission on
Environmental Reviews Related to the Issuance of Authorizations To
Construct and Operate Nuclear Power Plants
SUMMARY: On September 12, 2008, the U.S. Nuclear Regulatory Commission
(NRC) and the U.S. Army Corps of Engineers (Corps) signed a Memorandum
of Understanding (MOU) which establishes a framework for early
coordination and participation among the agencies. The MOU is an effort
to facilitate the timely review of proposed nuclear power plant
applications and it establishes a commitment to early agency
involvement; proactive participation and informal communication
throughout the review process; sharing of information gathered,
considered and relied upon by each agency; and, if requested,
interagency participation in public hearings. Interagency cooperation
under the MOU will facilitate each agency's compliance with its review
responsibilities under the National Environmental Policy Act and other
related statutes with respect to the authorizations required to
construct and operate nuclear power plants licensed by the NRC. It is
anticipated that the Corps will act as a cooperating agency in most
circumstances; however, the MOU does not preclude different forms of
coordination (e.g., Corps participation as a consulting agency).
FOR FURTHER INFORMATION CONTACT: Richard Emch, Environmental Technical
Support Branch, Division of Site and Environmental Reviews, Office of
New Reactors, U.S. Nuclear Regulatory Commission, Rockville, MD 20854,
301-415-1590, or Paul Michalak, Environmental Projects Branch 2,
Division of Site and Environmental Reviews, Office of New Reactors,
U.S. Nuclear Regulatory Commission, Rockville, MD 20854, 301-415-7612.
[[Page 55547]]
The MOU between the NRC and the Corps is entitled ``Memorandum of
Understanding between U.S. Army Corps of Engineers and U.S. Nuclear
Regulatory Commission on Environmental Reviews Related to the Issuance
of Authorizations to Construct and Operate Nuclear Power Plants'' and
is attached to this notice. The MOU was signed by the Assistant
Secretary of the Army (Civil Works) of the U.S. Army Corps of
Engineers, and by the Executive Director for Operations for the U.S.
Nuclear Regulatory Commission on September 12, 2008.
Dated at Rockville, Maryland, this 19th day of September, 2008.
For the Nuclear Regulatory Commission.
Scott C. Flanders,
Director, Division of Site and Environmental Reviews, Office of New
Reactors.
Memorandum of Understanding Between U.S. Army Corps of Engineers and
U.S. Nuclear Regulatory Commission on Environmental Reviews Related to
the Issuance of Authorizations to Construct and Operate Nuclear Power
Plants
The U.S. Army Corps of Engineers (Corps) and the U.S. Nuclear
Regulatory Commission (NRC), as parties to this Memorandum of
Understanding (MOU), hereby acknowledge and declare as follows:
I. Introduction
The Corps and the NRC developed this MOU to streamline the
respective regulatory processes associated with the authorizations
required to construct and operate nuclear power plants.
II. Purpose
The purpose of this MOU is to establish a framework for early
coordination and participation among the signatories to this
agreement to ensure the timely review of proposed nuclear power
plant applications. Cooperation among the MOU signatories will
ensure each agency's review responsibilities under the National
Environmental Policy Act (NEPA) and other related statutes are met
in connection with the authorizations required to construct and
operate nuclear power plants licensed by the NRC. Both parties
anticipate that the Corps will act as a cooperating agency in most
circumstances. However, there may be some circumstances where both
agencies will be better served by a different form of coordination.
This MOU does not preclude such arrangements.
III. Statutory Background
A. National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) requires all agencies of the Federal Government to use a
systematic, interdisciplinary approach that will ensure the
integrated use of the natural and social sciences in planning and
decisionmaking that may have an impact on man's environment. Prior
to making any detailed statement, the responsible Federal official
shall consult with and obtain the comments of any Federal agency
that has jurisdiction by law or special expertise with respect to
any environmental impact involved.
B. Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C.
403) requires authorization from the Secretary of the Army, acting
through the Corps, for the construction of any structure in or over
any navigable water of the United States. Structures or work outside
the limits defined for navigable waters of the United States require
a Section 10 permit if the structure or work affects the course,
location, or condition of the water body. The law applies to any
dredging or disposal of dredged materials, excavation, filling, re-
channelization, or any other modification of a navigable water of
the United States, and it applies to all structures, from the
smallest floating dock to the largest commercial undertaking. It
further includes, without limitation, any wharf, dolphin, weir, boom
breakwater, jetty, groin, bank protection (e.g., riprap, revetment,
bulkhead), mooring structure such as a piling, aerial or sub-aqueous
power transmission line, intake or outfall pipe, permanently moored
floating vessel, tunnel, artificial canal, boat ramp, aid to
navigation, and any other permanent or semipermanent obstacle or
obstruction.
C. Section 404 Clean Water Act (CWA) (33 U.S.C. 1344) requires
authorization from the Secretary of the Army, acting through the
Corps, for the discharge of dredged or fill material into all waters
of the United States, including wetlands. Discharges of fill
material generally include, without limitation, placement of fill
that is necessary for the construction of any structure or
impoundment requiring rock, sand, dirt, or other material for its
construction; site-development fills for recreational, industrial,
commercial, residential, and other uses; causeways or road fills;
dams and dikes; artificial islands; property protection or
reclamation devices such as riprap, groins, seawalls, breakwaters,
and revetments; beach nourishment; levees; fill for intake and
outfall pipes and sub-aqueous utility lines; fill associated with
the creation of ponds; and any other work involving the discharge of
fill or dredged material. A Corps permit is required whether the
work is permanent or temporary. Examples of temporary discharges
include dewatering of dredged material prior to final disposal, and
temporary fills for access roadways, cofferdams, and storage and
work areas.
D. Section 103 of the Marine Protection, Research, and
Sanctuaries Act of 1972 (33 U.S.C. 1413), as amended, requires
authorization from the Secretary of the Army, acting through the
Corps, for the transportation of dredged material for the purpose of
dumping it in ocean waters. Discharges of dredged or fill materials
into territorial seas also require authorization under Section 404
of the CWA.
E. Outer Continental Shelf Lands Act (43 U.S.C. 1333) extends
the authority of the Secretary of the Army, acting through the
Corps, to the prevention of obstruction to navigation in the
navigable waters of the United States due to the construction of
artificial islands and fixed structures on the outer continental
shelf beyond the territorial sea.
F. Energy Reorganization Act of 1974 (Pub. L. 93-438 (88 Stat.
1233)) abolished the Atomic Energy Commission, and Section 201 of
that Act created the NRC and transferred to the NRC all the
licensing and related regulatory functions of the Atomic Energy
Commission. Pursuant to the Energy Reorganization Act of 1974;
Chapters 6, 7, 8, 10, and 16 of the Atomic Energy Act of 1954, as
amended, 42 U.S.C. 2011 et seq.; and the rules and regulations
issued pursuant thereto, the NRC is authorized to license and
regulate the construction and operation of, among other things,
nuclear power plants from the standpoint of the common defense and
security and public health and safety.
Roles and Responsibilities
NRC. The NRC licenses nuclear power plants in accordance with
its regulations such that the utilization of special nuclear
material will be in accord with the common defense and security and
will provide adequate protection to the health and safety of the
public.
Corps. The Corps administers a regulatory program to protect the
Nation's aquatic resources, including wetlands, under Section 10 of
the Rivers and Harbors Act of 1899 and Section 404 of the CWA.
Proposed nuclear power plants may require one or more permits from
the Corps under these statutes.
NEPA Lead Federal Agency. NEPA is the overarching environmental
statute requiring the identification of impacts to the quality of
the human environment, consideration of alternatives, and public
involvement in the process. A primary objective of NEPA is to ensure
that environmental information is available to public officials and
citizens before irretrievable commitments of resources are made.
This agreement supports these principles, and the signatory Federal
agencies acknowledge their respective responsibilities for complying
with the requirements of NEPA. To prevent the duplication of efforts
by Federal agencies and to encourage information sharing and
integration of agency processes, NEPA allows for the designation of
a lead Federal agency for the preparation of environmental impact
statements (EISs) when EISs are required. Other agencies that have
an action on the same project may serve as cooperating agencies on
the EIS.\1\
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\1\ 10 CFR Part 51, ``Environmental Protection Regulations for
Domestic Licensing and Related Regulatory Functions--Scope''; 40 CFR
1501.5 ``NEPA and Agency Planning--Lead Agencies''; 40 CFR 1501.6,
``NEPA and Agency Planning--Cooperating Agencies.''
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The issuance by the NRC of a license to construct and operate a
nuclear power plant is an action that normally requires the
preparation of an EIS.\2\ As the agency with the approval/
disapproval authority for the licensing of nuclear power plants, the
NRC shall serve as the lead agency for the preparation of the EIS.
This MOU encourages early involvement between the NRC and the Corps
and with the public and other government agencies during the NEPA
evaluation process.
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\2\ 10 CFR 51.20, ``Criteria for and Identification of Licensing
and Regulatory Actions Requiring Environmental Impact Statements.''
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This MOU acknowledges that it is critically important that the
NRC receive project-
[[Page 55548]]
specific information on waters of the United States, including
wetlands, from the Corps at key stages of project development to
foster an efficient procedure to develop documentation to meet both
agencies' disclosure and decisionmaking requirements. This Agreement
establishes a process to facilitate the timely licensing and
permitting of nuclear power plants, whereby both agencies will do
the following:
Work together and with applicants and other
stakeholders, as appropriate, including before complete applications
for the necessary authorizations are filed.
Identify and resolve issues as quickly as possible.
Attempt to build a consensus among governmental
agencies and their stakeholders.
Provide for the effective and efficient environmental
review for nuclear power plants.
Project purpose and need coordination. As the lead agency under
NEPA responsible for the preparation of the analysis and decisions
for the approval of new and expanded nuclear power plants, the NRC
is responsible for determining the purpose and need of the energy
project for purposes of the NRC's NEPA document and the NRC
licensing process.\3\ The NRC should coordinate early on the scope
of the NEPA analysis for all activities under Federal purview and
ensure that the purpose and need, the suite of alternatives, and the
evaluation presented in the NEPA document consider the views of the
Corps (e.g., defining project purpose per Section 404 of the CWA
[''basic'' for water dependency and ``overall'' for geographic scope
of alternative analysis], conducting the Corps'' public interest
review, determining the least environmentally damaging practicable
alternative under the CWA Section 404(b)(1) Guidelines). The Corps
will complete an independent permit decision in carrying out its
regulatory responsibilities.
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\3\ 10 CFR Part 51, ``Environmental Protection Regulations for
Domestic Licensing and Related Regulatory Functions,'' Subpart A,
``National Environmental Policy Act--Regulations Implementing
Section 102(2).''
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The signatory agencies may develop additional guidance to ensure
that the Corps' permit documentation is prepared concurrently with
the NEPA process to the maximum extent practicable. When the NRC
provides to the Corps its preliminary draft NEPA documents, the
Corps shall review and provide written comments on the relevant
portions of those documents, as appropriate, in accordance with the
timelines established under this MOU. Preliminary draft NRC NEPA
documents include advance copies of the purpose, need, and
alternatives sections of the NRC NEPA documents, as well as advance
copies of the draft and final NEPA documents. Corps reviews of NRC
NEPA documents will be completed and coordinated with the NRC as
stated in the NRC EIS schedule for that project.
The Corps and the NRC hereby agree to work with each other and
with other participating agencies or entities, as appropriate, to
ensure that timely decisions are made and that the responsibilities
of each agency are met. Specifically, each agency agrees to do the
following:
A. Commit to Early Involvement:
1. Conduct an early initial review. As soon as practicable when
a prospective applicant or an agency makes a request for involvement
in connection with a project under development, each agency will
assess its role in the review and issuance of approvals for the
project.
a. Identify agency contacts for the proposed project. If a
prospective applicant or agency needs assistance in determining
regional, local, or project specific contacts, then the identified
contacts will assist in identifying additional contacts. The initial
agency contacts are the following:
Department of the Army
Office of the Assistant Secretary of the Army (Civil Works),
108 Army Pentagon 2E641,
Washington, DC 20310-0108;
Regulatory Branch,
Headquarters, U.S. Army Corps of Engineers,
441 G Street, NW.,
Washington, DC 20314;
Nuclear Regulatory Commission,
Office of New Reactors,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001;
Division of Site and Environmental Reviews,
Office of New Reactors,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001.
b. Meet with prospective applicants and other agencies, when
requested by the prospective applicant, the lead agency, or at its
own initiative, to identify areas of potential concern to other
agencies and to assess the need for and availability of agency
resources to address issues related to the proposed project.
c. Consult with the NRC, as the lead agency, in establishing a
schedule. The NRC will notify the Corps as early as possible of
upcoming applications for the construction and operation of nuclear
power plants and identify those projects that will be subject to
this agreement. The lead agency will then, taking into consideration
the relative priorities of other projects subject to this agreement,
establish a commensurate schedule for the project review process. In
establishing this schedule, the NRC and the Corps will strive to
ensure that the individual permitting processes and related permit
review activities occur on a concurrent, rather than sequential,
basis, with the objective of avoiding unnecessary delays in the
process and the schedule established by the NRC. If at any point
during the consultation process the Corps or the NRC anticipates an
inability to comply with the agreed-upon schedule, it will
communicate the reason for this inability as soon as possible. The
agencies will then work together to help avoid the anticipated delay
when appropriate. The NRC will include in any Notice of Intent to
Prepare an EIS guidance to the public regarding the process set
forth in this Agreement.
B. Proactive participation. After an application is submitted to
the NRC, the Corps will do the following:
1. Identify and inform the NRC and the applicant which statutes,
regulations, and policies apply to each permit evaluation.
2. Identify the issues and concerns related to the proposed
project that need to be addressed in order for the Corps to meet its
obligations.
3. Provide the prospective applicant, the applicant, and/or
other agency with relevant studies, data (such as maps showing
features over which the agency may have jurisdiction), and any other
information concerning the status of matters the agency considers
relevant (including matters that may be under consideration, such as
the results of threatened and endangered species consultation, or
essential fish habitat consultation).
4. Identify issues and concerns and attempt to resolve them
while draft documentation is being developed.
C. Sharing of data. The agencies will share the information
gathered, considered, and relied upon by each of them with all other
relevant agencies. Specifically, the NRC and the Corps agree to do
the following:
1. Cooperate in the preparation of requests for additional
studies or data to avoid duplicative requests and to compile a
consistent set of information on which all of the agencies will
rely.
2. Cooperate in identifying and developing the information at
the level of detail required to complete environmental and cultural
resources project review.
The NRC will be responsible for drafting sections and requesting
additional information to the extent that the NRC believes the
analysis is needed and would normally be required by the NRC if the
Corps were not involved. If the Corps believes that additional
analysis is needed, but the NRC does not agree that such analysis
would be required under the regulatory procedures of the NRC, such
analysis will be the responsibility of the Corps.
D. Communicate informally. The agencies agree to informally
communicate with each other and other relevant agencies throughout
the process to ensure that issues are raised as soon as possible and
shared among all agencies. The lead agency will coordinate and share
information with all relevant participating agencies.
E. Hearings. On request, each agency will participate in any
public hearings 4 5 held by the other agency.
Particularly in the case of NRC hearings, the Corps may provide
expert testimony, as required, in those areas or sections covered in
the NRC EIS in whose preparation the Corps participated and in those
areas of special Corps expertise. The Corps' participation in the
NRC hearing process will be consistent with all relevant laws and
regulations and coordinated with appropriate District and Division
Commanders or their representatives.
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\4\ 33 CFR 327.3(a)--Public hearing means a public proceeding
conducted for the purpose of acquiring information or evidence which
will be considered in evaluating a proposed Department of the Army
permit action, or Federal project, and which affords the public an
opportunity to present their views, opinions, and information on
such permit actions or Federal projects.
\5\ The Atomic Energy Act requires that a public hearing be held
before a construction permit is issued for a nuclear power plant.
The hearing will be conducted by the Commission or by a presiding
officer designated by the Commission pursuant to 10 CFR 2.313,
``Designation of Presiding Officer, Disqualification,
Unavailability, and Substitution.''
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[[Page 55549]]
V. Administration of the MOU
A. While retaining ultimate responsibility for making
determinations and exercising their individual responsibilities in
accordance with existing statutory responsibilities, the NRC and the
Corps will consult with one another to resolve disputes using
existing dispute resolution methods and in accordance with this
agreement. If no agreement can be reached, either agency may refer
the matter to the Council on Environmental Quality in accordance
with 40 CFR 1504, ``Predecision Referrals to the Council of Proposed
Federal Actions Determined To Be Environmentally Unsatisfactory.''
Notwithstanding any such referral, the NRC reserves the right to
make a final decision on any matter within the NRC's regulatory
authority.
B. This MOU may be modified, amended, or terminated upon written
request of any party hereto and the subsequent written concurrence
of all other participating agencies. Participation in this agreement
may be terminated 60 days after providing written notice of such
termination to other participating agencies.
C. Acknowledgement that the authority and responsibilities of
the parties under their respective jurisdictions are not altered by
the MOU.
1. This MOU is intended only to improve the working
relationships of the participating agencies in connection with
expeditious decisions with regard to nuclear power plant
authorizations and is not intended to, nor does it create, any
right, benefit, or trust responsibility, substantive or procedural,
enforceable at law or equity by any person or party against the
United States, its agencies, its officers, or any other person.
2. This MOU is to be construed in a manner consistent with all
effective existing laws and regulations.
3. The MOU neither expands nor is in derogation of those powers
and authorities vested in the participating agencies by applicable
laws, statutes, or regulations.
4. The terms of this MOU are not intended to be enforceable by
any party other than the signatories hereto.
5. The participating agencies intend to fully carry out the
terms of this MOU. All provisions in this MOU, however, are subject
to available resources. In addition, this MOU does not limit the
ability of any of the participating agencies to review and respond
to final applications.
6. If an applicant, prospective applicant, or other person
requests a correction of information disseminated pursuant to this
MOU, as authorized by Section 515 of the Treasury and General
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-
554), the process by which such request will be addressed will be
that established by the agency that disseminated the information.
7. This MOU cannot be used to obligate or commit funds or as the
basis for the transfer of funds.
8. Nothing in this MOU, in and of itself, requires any signatory
agency to enter into any contract, grant, or interagency agreement.
9. All provisions in this MOU are subject to the availability of
funds.
Accordingly, the parties have signed this MOU on the dates set
forth below, to be effective for all purposes as of the date last
signed. The signatures may be executed using counterpart original
documents.
September 12, 2008.
John Paul Woodley, Jr.,
Assistant Secretary of the Army (Civil Works).
September 12, 2008.
R. W. Borchardt,
Executive Director for Operations, U.S. Nuclear Regulatory
Commission.
[FR Doc. E8-22528 Filed 9-24-08; 8:45 am]
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