[Federal Register Volume 74, Number 215 (Monday, November 9, 2009)]
[Pages 57712-57715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26908]



[Docket No. 40-9068; NRC-2009-0391]

Notice of Availability of Draft Environmental Assessment and 
Opportunity To Provide Comments for Exemption Request for Lost Creek 
ISR, LLC, Sweetwater County, WY

AGENCY: U.S. Nuclear Regulatory Commission.

ACTION: Notice of availability.


DATES: Comments regarding this draft Environmental Assessment must be 
received by December 9, 2009.

FOR FURTHER INFORMATION CONTACT: Stephen J. Cohen, Team Leader, Uranium 
Recovery Licensing Branch, Division of Waste Management and 
Environmental Protection, Office of Federal and State Materials and 
Environmental Management Programs, U.S. Nuclear Regulatory Commission, 
Washington, DC, 20555. Telephone: (301) 401-7182; fax number: (301) 
415-5369; e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The U.S. Nuclear Regulatory Commission (NRC) 
staff, pursuant to 10 CFR 51.33, is publishing a draft environmental 
assessment (EA) for public review and comment. The draft EA pertains to 
the planned issuance of an exemption from the commencement of 
construction requirements in 10 CFR 40.32(e) to Lost Creek ISR, LLC. 
The request for this exemption was submitted to the NRC staff on July 
2, 2009. Also pending before the NRC is Lost Creek's earlier license 
application for authorization to operate an in situ recovery (ISR) 
uranium milling facility in Sweetwater County, Wyoming. Issuance of the

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requested exemption would authorize Lost Creek ISR, LLC to conduct 
certain site preparation activities at, and in, the vicinity of its 
proposed ISR site. Based on the draft EA, presented below, the NRC 
staff proposes to make a Finding of No Significant Impact (FONSI) 
regarding the requested exemption.

Draft Environmental Assessment

1.0 Introduction

    By letter dated July 2, 2009, Lost Creek ISR, LLC (the Applicant) 
submitted an exemption request (LCI, 2009) to the NRC. The Applicant 
seeks an exemption from the ``commencement of construction'' provisions 
of 10 CFR 40.32(e) for certain activities described in its exemption 
request. The Applicant had initially submitted an application for a new 
source material license on October 30, 2007 (LCI, 2007), for a proposed 
in situ recovery (ISR) facility in Sweetwater County, Wyoming. After 
being withdrawn, the application for authorization to conduct uranium 
milling operations was resubmitted on March 28, 2008, and is still 
under NRC review (LCI, 2008).
    The NRC staff is considering issuing an exemption to the Applicant 
that would grant the July 2, 2009, request, in part. The exemption 
would authorize the Applicant to undertake certain site preparation 
activities for its proposed Lost Creek ISR operations before a decision 
is made on whether to authorize uranium milling. Granting this 
exemption would not mean that the NRC has decided to issue an operating 
license to the Applicant. The Applicant would be undertaking these site 
preparation activities with the risk that its license application may 
later be denied. The NRC has prepared a draft EA in support of this 
exemption in accordance with the requirements of 10 CFR 51.21. The EA 
contains the information required by 10 CFR 51.30(a). Based on this EA, 
the NRC is proposing to make a FONSI regarding the exemption request.

2.0 Background

    On October 9, 2007, the NRC published its limited work 
authorization (LWA) regulations for nuclear power plants (72 FR 57416). 
As part of this final rule, a definition of construction was added to 
10 CFR 51.4. Site preparation activities that were deemed not to have a 
direct nexus to radiological health and safety were listed in 10 CFR 
51.4 as activities not included within the ``construction'' definition. 
On this point, 10 CFR 51.4 states, in relevant part, that 
``construction'' does not include:
     Site exploration, including necessary borings to determine 
foundation conditions or other reconstruction 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;
     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;
     Erection of fences and other access control measures;
     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;
     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;
    However, the LWA rule did not make a corresponding change to 10 CFR 
Part 40. Thus, in contrast to the above portions of 10 CFR 51.4, 10 CFR 
40.32(e) states that, with some limited exceptions, ``commencement of 
construction'' prior to license issuance is grounds for license denial. 
Section 40.32(e) states, in relevant part, as follows:

    The term ``commencement of construction'' means any clearing of 
land, excavation, or other substantial action that would adversely 
affect the environment of a site. The term does not mean site 
exploration, roads necessary for site exploration, borings to 
determine foundation conditions, or other preconstruction monitoring 
or testing to establish background information related to the 
suitability of the site or the protection of environmental values.

    While this inconsistency in the regulations exists, the NRC staff 
will review exemption requests to consider whether site preparation 
activities will be permitted before an operating license is issued.

3.0 Proposed Action

    The NRC proposes to grant an exemption that will allow the 
Applicant to conduct certain site preparation activities that are 
currently allowed under 10 CFR 51.4, notwithstanding the 10 CFR 
40.32(e) provisions discussed above. The scope of the Applicant's July 
2 exemption request includes the following 10 items. The NRC staff, as 
part of its safety review of the request, is considering approving each 
item on the list as an exempted activity, except for part of Item 2 and 
all of Item 9.
    1. Leveling and surfacing of the area around the plant and 
maintenance building.
    2. Construction of the plant and maintenance buildings--maintenance 
building construction as approved by the NRC staff. Construction of the 
plant would not be approved because this activity does not meet the 
definition of any activity not considered ``construction'' under 10 CFR 
    3. Install household septic systems for the plant and maintenance 
    4. Install fence around the plant and maintenance building area.
    5. Upgrade existing road access from the west to the plant.
    6. Upgrade existing road access from the east to the plant.
    7. Install fence for early wellfield area.
    8. Install power line to the plant and maintenance buildings and 
drillers shed.
    9. Drill and vase up to four deep wells--This activity would not be 
approved by NRC staff because this activity has a direct nexus to 
radiological safety and is, therefore, considered ``construction'' 
under 10 CFR 51.4.
    10. Construct a drillers shed and staging area.

4.0 Purpose and Need for the Proposed Action

    As indicated by the above list, the Applicant seeks permission to 
engage in certain site preparation activities before it is authorized 
to conduct uranium milling operations. The NRC staff proposes to grant 
the exemption request, in part, and allow the Applicant to begin site 
preparation activities.

5.0 Scope of Review

    This EA is being prepared pursuant to 10 CFR 51.21, which states, 
``[a]ll licensing and regulatory actions subject to this subpart 
require an environmental assessment * * *.'' The only two exceptions to 
this rule are those actions requiring environmental impact statements, 
and those that are categorically excluded or identified as otherwise 
not requiring environmental review pursuant to 10 CFR 51.22. Exemptions 
are not currently covered by any categorical exclusion, and, therefore, 
an EA is required for this action.

6.0 Alternatives

    The staff considered two alternatives in this EA, granting the 
request (the proposed action) and not granting the

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request (the no action alternative). The no action alternative is to 
not grant the exemption and not allow the Applicant to engage in any 
site preparation activities before an operating license is issued. If 
the NRC does not grant the exemption, the Applicant would need to wait 
until a decision is made on its license application request.

7.0 Impacts of the No-Action Alternative

    There are no environmental impacts of not granting the exemption.

8.0 Impacts of the Proposed Action

    In preparing this EA, the NRC staff reviewed the Applicant's 
exemption request to determine if the requested activities fall within 
one of the categories of site preparation activities that are not 
``construction'' under 10 CFR 51.4. As indicated in Sections 2.0 and 
3.0, the staff intends to exempt only those activities that, pursuant 
to 10 CFR 51.4, are not ``construction.'' The impacts of those 
activities allowed by this exemption, which are not considered to be 
``construction'' under 10 CFR 51.4, are not evaluated in this EA. 
However, as reflected in Section 12 below, the staff plans to condition 
any exemption approval so as to protect endangered species and cultural 
and historic resources from the effects of site preparation activities.
    The impacts of all site preparation activities will be evaluated as 
cumulative impacts in the supplemental environmental impact statement 
(SEIS) being prepared for this site. The NRC staff expects to issue the 
draft SEIS for comment in December 2009.

9.0 Other Federal and State Agencies

    Several regulatory agencies will be directly involved with the 
review and approval of site preparation activities at the proposed Lost 
Creek project, as well as later construction activities. The U.S. 
Bureau of Land Management (BLM) will require that a Plan of Operations 
and associated EA be submitted and approved before allowing any 
disturbance greater than five (5) acres. Part of this process entails a 
bond estimate to be submitted to BLM for approval. BLM currently 
oversees the protection of cultural resources and will continue to do 
so under all future construction and operation activities.
    The Wyoming Department of Environmental Quality (WDEQ) will also 
have significant oversight of the construction activities through its 
mine permit process. The Permit to Mine application submitted to WDEQ 
in December 2007, describes the facility as it is intended to be 
constructed. The site preparation activities described in the July 2 
exemption request will not commence until the Permit to Mine is issued 
by WDEQ, or unless such activities are approved as part of a Drill 
Notification or other authorization. The Applicant expects the Permit 
to Mine to be issued by the WDEQ in November of 2009.

10.0 Agencies Consulted

    The NRC staff is currently consulting with the Wyoming State 
Historic Preservation Office, the U.S. Fish and Wildlife Service (FWS), 
the BLM, and the WDEQ regarding the site preparation activities 
discussed in this EA.

11.0 Conclusions

    This EA meets the requirements of 10 CFR 51.21. The purpose of this 
review was to describe the proposed action and alternatives to the 
proposed action. Impacts associated with the site preparation 
activities not considered to be part of ``construction'' per 10 CFR 
51.4 have not been evaluated for the reasons discussed above. The NRC 
staff concludes there will be no significant NEPA impacts caused by the 
action considered in this EA, because none of the activities approved 
by this action are considered ``construction'' under 10 CFR 51.4 for 
purposes of Part 51 environmental analyses. Additionally, as reflected 
below, the staff's approval will be conditioned to ensure that 
endangered species and cultural and historic resources are protected.

12.0 Protective Conditions

    As part of its safety review of the July 2 exemption request, the 
NRC staff plans to condition any exemption approval to ensure that 
endangered species and cultural and historic resources are protected. 
As drafted, these conditions include the following:
    1. All construction associated with the proposed development will 
be completed in compliance with the National Historic Preservation Act 
of 1966 (as amended) and its implementing regulations (36 CFR Part 
800), and the Archaeological Resources Protection Act of 1979 (as 
amended) and its implementing regulations (43 CFR Part 7). In order to 
ensure that no unapproved disturbance of cultural resources occurs, any 
work resulting in the discovery of previously unknown cultural 
artifacts shall cease. The artifacts shall be inventoried and evaluated 
in accordance with 36 CFR Part 800, and no disturbance shall occur 
until the Applicant has received authorization from NRC to proceed.
    2. The Applicant will adhere to all construction restrictions 
required by the WDEQ, BLM, and FWS regarding disturbances to endangered 
species habitat.

13.0 References

Lost Creek ISR, LLC; Application for a Source Materials License; 
October 30, 2007; (ADAMS Accession No. ML073190539).
Lost Creek ISR, LLC; Resubmitted Application for a Source Materials 
License; March 20, 2008; (ADAMS Accession No. ML081060525).
Lost Creek ISR, LLC; Exemption Request to Allow Pre-Licensing 
Activities; (ADAMS Accession No. ML091940438).

End of Draft Environmental Assessment

ADDRESSES: The NRC is requesting comments regarding this draft EA. 
Comments must be submitted or postmarked by December 9, 2009. Please 
include Docket ID NRC-2009-0040-9068 in the subject line of your 
comments. Comments submitted in writing or in electronic form will be 
posted on the NRC Web site and on the Federal rulemaking Web site 
Regulations.gov. Because your comments will not be edited to remove any 
identifying or contact information, the NRC cautions you against 
including any information in your submission that you do not want to be 
publicly disclosed.
    The NRC requests that any party soliciting or aggregating comments 
received from other persons for submission to the NRC inform those 
persons that the NRC will not edit their comments to remove any 
identifying or contact information, and therefore, they should not 
include any information in their comments that they do not want 
publicly disclosed. You may submit comments in the following manner:
    Electronic Filing through Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for documents filed under Docket ID 
NRC-2009-0391. Address questions about NRC dockets to Carol Gallagher 
301-492-3668; e-mail [email protected].
    Mail comments to: Michael T. Lesar, Chief, Rulemaking and 
Directives Branch (RDB), Division of Administrative Services, Office of 
Administration, Mail Stop: TWB-05-B01M, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, or by fax to RDB at (301) 492-
    You can access publicly available documents related to this notice 
using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have

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copied for a fee publicly available documents at the NRC's PDR, Public 
File Area 01 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to 
[email protected]. The Lost Creek ISR, LLC exemption request is 
available electronically under ADAMS Accession Number ML091940438.
    Federal Rulemaking Web Site: Go to http://www.regulations.gov and 
search for documents filed under Docket ID NRC-2009-0391. Address 
questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail 
[email protected].

    Dated at Rockville, Maryland, this 2nd day of November 2009.

    For the U.S. Nuclear Regulatory Commission.
Keith I. McConnell,
Deputy Director, Decommissioning and Uranium Recovery Licensing 
Directorate, Division of Waste Management and Environmental Protection, 
Office of Federal and State Materials and Environmental Management 
[FR Doc. E9-26908 Filed 11-6-09; 8:45 am]