[Federal Register Volume 75, Number 50 (Tuesday, March 16, 2010)]
[Pages 12581-12583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5677]



[Docket No. 70-7015; NRC-2009-0187]

Notice of Availability of Environmental Assessment and Finding of 
No Significant Impact for Exemption From 10 CFR 30, 40, and 70; 
Commencement of Construction Requirements; AREVA Enrichment Services, 
Eagle Rock Enrichment Facility, Bonneville County, ID

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of availability of Environmental Assessment and Finding 
of No Significant Impact for Exemption from Commencement of 
Construction Requirements.


FOR FURTHER INFORMATION CONTACT: Mary Adams, Senior Project Manager, 
Fuel Manufacturing Branch, Division of Fuel Cycle Safety and 
Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. 
Nuclear Regulatory Commission, Rockville, Maryland 20852. Telephone: 
(301) 492-3113; Fax: (301) 492-3363; e-mail: [email protected].


I. Introduction

    By letter dated June 17, 2009, Byproduct, Source, and Special 
Nuclear Materials License applicant AREVA Enrichment Services, LLC, 
(the Applicant) submitted a request to exempt certain activities 
described in the license application from the ``commencement of 
construction'' provisions of Title 10 of the Code of Federal 
Regulations (10 CFR) 70.4, 70.23(a)(7), 30.4, 30.33, 40.4, and 
40.32(e). The U.S. Nuclear Regulatory Commission (NRC) staff is 
considering issuing an exemption to the Applicant from provisions in 10 
CFR 70.4, 70.23(a)(7), 30.4, 30.33, 40.4, and 40.32(e). The exemption 
would authorize the Applicant to undertake certain site preparation 
activities at its proposed uranium enrichment facility in Bonneville 
County, Idaho. Granting this exemption is not a guarantee 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. NRC has 
prepared an Environmental Assessment (EA) in support of this exemption 
in accordance with the requirements of 10 CFR 51.21 and 51.33. Based on 
this EA, the NRC has reached a Finding of No Significant Impact.

II. Summary of the Environmental Assessment


    The commencement of construction provisions of 10 CFR 30.33, 
40.32(e), and 70.23(a)(7) date back to 1972, when they were initially 
codified by the NRC as part of a comprehensive rulemaking pertaining to 
all facilities licensed under Parts 30, 40, 50 and 70. These regulatory 
provisions remained unchanged until the NRC in 1980 amended its 
regulations in 10 CFR part 40. These revisions required that the NRC's 
NEPA review be completed prior to authorizing any uranium milling

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activities. NRC also amended 10 CFR parts 30 and 70 to conform to the 
amendment of Part 40.
    Subsequently, in 2007, the NRC completed a rulemaking amending the 
regulations applicable to limited work authorizations (LWAs) for 
nuclear power plants (LWA rulemaking), which included a consideration 
of issues pertaining to preconstruction and site preparation work 
performed by Part 50 (and Part 52) licensees and applicants. As part of 
that rulemaking, the NRC modified the scope of activities that are 
considered construction and for which a construction permit, combined 
license, or LWA is necessary. After noting that the Atomic Energy Act 
of 1954, as amended (AEA) does not require an applicant to obtain 
permission before undertaking site preparation activities that do not 
implicate radiological health and safety or common defense and 
security, the NRC developed a revised definition of construction that 
excluded certain preparatory activities.
    In doing so, the NRC determined that its NEPA obligations and 
responsibilities arise only when the NRC undertakes a ``Federal'' 
action, and that NEPA, a purely procedural statute, does not expand the 
NRC's jurisdiction beyond the scope of the AEA. Regarding the site 
preparation activities excluded from the LWA definition of 
construction, the NRC noted that such activities do not have a 
reasonable nexus to radiological health and safety or the common 
defense and security, and as such, were ``non-Federal actions.'' 
Accordingly, these site preparation activities are not subject to the 
requirements of NEPA because they are not within the scope of the NRC's 
AEA authority. The NRC, therefore, amended its 10 CFR part 51 NEPA 
regulations to include a definition of construction that was consistent 
with the definition added to 10 CFR 50.10. 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.
    The NRC's determination that certain site preparation activities 
did not constitute ``construction'' impacted the scope of the agency's 
NEPA review of such activities. The NRC clarified that because these 
site preparation activities lacked a reasonable radiological nexus to 
radiological health and safety and/or common defense and security--and 
thus did not require NRC approval or oversight--these activities were 
not Federal actions within the context of NEPA. Consequently, these 
activities would only be considered in the agency's environmental 
review to that extent necessary to establish an environmental baseline 
against which the incremental effect of the NRC's subsequent major 
Federal action (i.e., issuance of a license) would be measured.
    While the NRC had previously recognized the need for uniformity in 
carefully approving conforming amendments when it modified the 
``commencement of construction'' provisions in 1980, no conforming 
amendments were made in Parts 30, 40 and 70 when the LWA rulemaking was 
finalized in 2007. Ever since, the NRC's ``commencement of 
construction'' provisions in Parts 30, 40 and 70 have been inconsistent 
with the Part 51 ``construction'' definition. Activities that do not 
constitute construction under 10 CFR parts 50, 51, and 52, are viewed 
as construction under 10 CFR parts 30, 40 and 70. Site preparation 
actions that a materials license applicant or licensee cannot engage 
in--absent an exemption--are the same actions that the NRC determined 
in the LWA rulemaking were not within the scope of the agency's 
licensing review under the AEA. In short, while 10 CFR 30.33, 40.32(e), 
and 70.23(a)(7) specifically cite the need to perform a Part 51 
environmental analysis, the terms of 10 CFR 30.4, 30.33, 40.4, 
40.32(e), 70.4 and 70.23(a)(7) are now inconsistent with 10 CFR part 51 
as modified by the LWA rulemaking.

Identification of the Proposed Action

    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 provisions of 10 CFR 
30.33(a)(5), 40.32(e) and 70.23(a)(7). The scope of the Applicant's 
June 17, 2009, exemption request includes the following nine items. NRC 
staff, as part of its safety review of the request, is considering 
approving each item on the list as an exempted activity.
     Clearing the site.
     Site grading and erosion control.
     Excavating the site including rock blasting and removal.
     Installing parking areas.
     Constructing the storm water detention pond.
     Constructing highway access roadways and site roads.
     Installing utilities (e.g., temporary and permanent power) 
and storage tanks.
     Installing fences for investment protection (not used to 
implement the Physical Security Plan).
     Installing construction buildings, offices (including 
construction trailers), warehouses and guard houses.
    In response to a request for additional information dated September 
14, 2009, the Applicant clarified that the storage tanks would be used 
strictly for construction purposes; the guardhouses are not part of the 
physical security plan; and the construction buildings, offices, and 
warehouses are not part of the Standard Practice Procedure Plan for the 
Protection of Classified Matter.
    This EA has been 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 Sec.  51.22. Exemptions 
are not currently covered by any categorical exclusion, and, therefore, 
an EA is required here.

Need for the Proposed Action

    As indicated by the above list, the Applicant seeks permission to 
engage in certain site preparation work before it is authorized to 
conduct uranium enrichment operations. This action is needed to allow 
the Applicant to complete certain on-site activities in parallel with 
the licensing and hearing processes, so that it can begin construction 
promptly upon issuance of the license. The NRC staff proposes to grant 
the exemption request and allow the Applicant to begin site preparation 

Alternatives to the Proposed Action

    An 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 to engage in the preconstruction 

Environmental Impacts of the Proposed Action

    The NRC staff reviewed the Applicant's exemption request in the 
context of whether or not the requested activities fall within one of 
the categories of site preparation activities considered not 
construction under Sec.  51.4. The staff intends to exempt only those 
activities that fall within this definition. Therefore, the impacts of 
those activities are excluded from this EA. The impacts of site 
preparation activities will be addressed in the

[[Page 12583]]

environmental impact statement being prepared in conjunction with the 
NRC's review of the license application.
    As discussed in Section 2 of the EA, the site preparation 
activities will only be considered in the NRC's environmental review of 
the subsequent major Federal action (i.e., issuance of a license) to 
the extent necessary to establish an environmental baseline. Thus, 
these preparatory activities will be considered in the environmental 
impact statement (EIS) the NRC staff is preparing to support a 
licensing decision on the proposed Eagle Rock Enrichment Facility.

Environmental Impacts of the No-Action Alternative

    There are no environmental impacts of not granting the exemption.

Agencies and Persons Consulted

    The NRC staff consulted with the Idaho State Historic Preservation 
Office, the U.S. Fish and Wildlife Service, and the Idaho Department of 
Environmental Quality regarding the site preparation activities 
addressed in this EA.

III. Finding of No Significant Impact

    The NRC staff has prepared this EA in support of the proposed 
action. On the basis of this EA, the NRC finds that there are no 
significant environmental impacts from the proposed action, because 
none of the activities approved by the action are considered 
``construction'' for the purposes of Part 51 environmental analyses, 
and that preparation of an environmental impact statement is not 
warranted. Accordingly, the NRC has determined that a Finding of No 
Significant Impact is appropriate.

IV. Further Information

    The Applicant's exemption request is available electronically at 
the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, you can access the NRC's Agencywide 
Documents Access and Management System (ADAMS), which provides text and 
image files of NRC's public documents. The ADAMS accession number for 
the June 17, 2009, exemption request is ML091770390, and the October 
15, 2009, reply to NRC's request for additional information is 
ML092920169. The ADAMS accession number for the NRC staff's September 
14, 2009, request for additional information is ML092180375. The ADAMS 
Accession number for the complete EA is ML093220528.
    If you do not have access to ADAMS or if there are problems in 
accessing the documents located in ADAMS, contact the NRC Public 
Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or 
via e-mail to [email protected].
    These documents may also be viewed electronically on the public 
computers located at the NRC's PDR, O1 F21, One White Flint North, 
11555 Rockville Pike, Rockville, Maryland 20852. The PDR reproduction 
contractor will copy documents for a fee.

    Dated at Rockville, Maryland this 8th day of March 2010.

    For the U.S. Nuclear Regulatory Commission.
Marissa G. Bailey,
Deputy Director, Special Projects and Technical, Support Directorate, 
Division of Fuel Cycle Safety and Safeguards, Office of Nuclear 
Material Safety and Safeguards.
[FR Doc. 2010-5677 Filed 3-15-10; 8:45 am]