[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Proposed Rules]
[Pages 43865-43876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18344]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 /
Proposed Rules
[[Page 43865]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 30, 36, 39, 40, 51, 70, and 150
[NRC-2010-0075]
RIN 3150-AI79
Licenses, Certifications, and Approvals for Material Licensees
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
its regulations by revising the provisions applicable to the licensing
and approval processes for byproduct, source and special nuclear
material licenses, and irradiators. The proposed changes would clarify
the definitions of ``construction'' and ``commencement of
construction'' with respect to materials licensing actions instituted
under the NRC's regulations. In addition, this action also contains a
correction to a typographical error. The NRC is undertaking this
rulemaking action to conform its regulations to the scope of its
regulatory authority under the Atomic Energy Act of 1954, as amended
(AEA), to improve the effectiveness and efficiency of the licensing and
approval processes for future applications, as well as resolve certain
inconsistencies that currently exist within the NRC's regulations with
respect to the use and definition of the terms ``construction'' or
``commencement of construction'' for certain materials licensees.
DATES: Submit comments by September 27, 2010. Comments received after
this date will be considered if it is practical to do so, but the NRC
is able to assure consideration only for comments received on or before
this date.
ADDRESSES: Please include Docket ID NRC-2010-0075 in the subject line
of your comments. For instructions on submitting comments see Section I
of this document, for accessing documents related to this action, see
Section V in the SUPPLEMENTARY INFORMATION section of this document.
You may submit comments by any one of the following methods.
Federal Rulemaking Web Site: Go to http://www.regulations.gov and
search for documents filed under Docket ID NRC-2010-0075. Address
questions about NRC dockets to Carol Gallagher, telephone 301-492-3668;
e-mail [email protected].
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to: [email protected]. If you do not
receive a reply e-mail confirming that we have received your comments,
contact us directly at 301-415-1966.
Hand Deliver comments to: 11555 Rockville Pike, Rockville, Maryland
20852 between 7:30 a.m. and 4:15 p.m. during Federal workdays
(Telephone 301-415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
301-415-1101.
FOR FURTHER INFORMATION CONTACT: Ms. Tracey Stokes, Office of the
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001; telephone: 301-415-1064; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Submitting Comments
II. Background
III. Discussion
IV. Discussion of Proposed Amendments by Section
V. Availability of Documents
VI. Agreement State Compatibility
VII. Plain Language
VIII. Voluntary Consensus Standards
IX. Environmental Impact--Categorical Exclusion
X. Paperwork Reduction Act Statement
XI. Regulatory Analysis
XII. Regulatory Flexibility Certification
XIII. Backfit Analysis
I. Submitting Comments
Comments submitted in writing or in electronic form will be posted
on the NRC Web site and on the Federal rulemaking Web site http://www.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.
II. Background
On December 11, 2008, following a briefing on uranium recovery
activities by the NRC staff and representatives from the U.S.
Environmental Protection Agency, the U.S. Department of the Interior,
Bureau of Land Management, the Navajo Nation, Acoma Pueblo, Wyoming
Department of Environmental Quality, New Mexico Environment Department,
Navajo Allottees, National Mining Association, International Forum on
Sustainable Options for Uranium Production, and the Natural Resources
Defense Council, the Commission issued a January 8, 2009, Staff
Requirements Memorandum (ADAMS Accession No. ML090080206) directing
staff to provide the Commission with a proposed rulemaking to revise 10
CFR 40.32, ``General requirements for issuance of specific licenses,''
to determine whether limited work authorization (LWA) provisions are
appropriate for uranium in-situ recovery facilities.
During the briefing, a concern was noted regarding the inability of
part 40 licensees and applicants to engage in site preparation
activities (e.g., clearing land, site grading and erosion control, and
construction of main access roadways, non-security related guardhouses,
utilities, parking lots, or administrative buildings not used to
process, handle or store classified information) given the broad
prohibition against construction in Sec. 40.32(e). Currently, 10 CFR
40.32(e) prohibits an applicant for a license for a uranium enrichment
facility or for a license to possess and use source and byproduct
materials for uranium milling, production of uranium hexafluoride, or
for any other activity requiring NRC authorization from commencing
construction of the plant or facility in which the activity will be
conducted before the NRC's decision to issue the proposed license. For
the purposes of this section, the term ``commencement of construction''
is defined generally as
[[Page 43866]]
meaning any clearing of land, excavation, or other substantial action
that would adversely affect the environment of a site. Section 40.32(e)
clarifies that ``commencement of construction'' is not intended to mean
site exploration, construction of roads necessary for site exploration,
borings to determine foundation conditions, or other pre-construction
monitoring or testing to establish background information related to
the suitability of the site or the protection of environmental values.
Similar prohibitions on construction exist with respect to 10 CFR parts
30, 36, and 70.
Currently, a part 40 licensee or applicant may only engage in site
preparation activities beyond site exploration if the applicant or
licensee requests, and is granted, either a specific license to conduct
such activities under part 40, or an exemption from Sec. 40.32(e).
Although the staff indicated that exemptions from 10 CFR 40.32(e) have
been utilized in the past to allow site preparation activities prior to
licensing, and that appropriate exemptions continue to be an available
alternative for applicants, the Commission noted during the December
11, 2008, briefing that this manner of regulation was inappropriate for
long-term resolution of the issue. Following the briefing, the
Commission received a letter from the Nuclear Energy Institute (NEI)
dated March 3, 2009, in which NEI expressed its support of the
Commission's memorandum directing staff to initiate a rulemaking
regarding 10 CFR 40.32 (ADAMS Accession No. ML090710372).
III. Discussion
On October 9, 2007 (72 FR 57416; corrected at 73 FR 22786 (April
28, 2008)), the NRC issued a final rule amending the regulation
defining ``construction'' for utilization and production facilities and
amending the requirements applicable to limited work authorizations
(LWAs) for nuclear power plants (LWA rulemaking). (ADAMS Accession Nos.
ML071210205 and ML081050554). As part of that rulemaking, the
Commission revised the scope of activities that are considered
construction for which a construction permit, combined license, or LWA
is necessary; specified the scope of construction activities that may
be performed under an LWA; and changed the review and approval process
for LWA requests. The NRC's revised definition for ``construction''
expressly excludes site exploration; preparation of the site for
construction of a facility (e.g., 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; excavations;
erection of support buildings for use in connection with the
construction of the facility; building of service facilities;
procurement or fabrication of components or portions of the proposed
facility occurring at other than the final, in-place location at the
facility; as well as some activities that are nuclear power reactor
specific. In undertaking the LWA rulemaking (October 9, 2007; 72 FR
57416), the NRC recognized that the AEA does not authorize the NRC to
require an applicant to obtain permission before undertaking site
preparation activities, of the type listed above, that do not implicate
radiological health and safety or common defense and security
considerations.
The Atomic Energy Commission (AEC) (the NRC's predecessor agency)
prohibited pre-licensing construction of nuclear power plants in the
agency's initial 1960 definition of construction for production and
utilization facilities (25 FR 8712; September 9, 1960). On March 21,
1972 (37 FR 5745), the AEC expanded its definition of construction and
developed the LWA process, whereby applicants for nuclear power plant
licenses were permitted to engage in site preparation activities,
including excavation and other on-site activities before a construction
permit was issued. The AEC's 1972 rulemaking was a direct result of the
enactment of the National Environmental Policy Act of 1969 (NEPA), and
the Commission's implementation of that statute.\1\ The LWA process
remained largely unchanged until the 2007 LWA rulemaking.
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\1\ See Carolina Power and Light Co. (Shearon Harris Nuclear
Power Plant, Units 1, 2, 3 & 4), CLI-74-22, 7 AEC 939, 943 (1974).
See also Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating
Station, Unit 1), CLI-77-1, 5 NRC 1, 5 (1977).
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The NRC's regulations for materials licenses do not provide for
pre-licensing construction activities of the type allowed parts 50 and
52 applicants. Prior to 1971, the AEC prohibited the construction of
materials facilities prior to the agency's decision to issue a license.
Initially the AEC required that any application for a Part 70 plutonium
processing and fuel fabrication plant be filed at least six months
prior to the beginning of plant construction. (36 FR 17573; September
2, 1971). The intent behind this requirement was to allow the AEC an
opportunity to conduct a pre-construction review to determine whether
the applicant's design basis for the principal structures, systems and
components, and its quality assurance program provided reasonable
assurance of protection against natural phenomena and the consequences
of potential accidents. (36 FR 9786; May 28, 1971). This regulation was
only applicable to plutonium processing and fuel fabrication
applicants.
Thereafter, on December 1, 1971 (36 FR 22848), the AEC published
notice of its intent to redefine the term ``commencement of
construction'' as that term was then applied to part 50 production and
utilization facilities subject to then Appendix D of part 50. By the
same notice, the AEC indicated that it was also considering the
adoption of similar amendments to parts 30, 40, and 70 that would
provide for NRC environmental review prior to commencement of
construction of materials licensee plants and facilities. The proposed
amendments introduced to parts 30, 40, and 70 a new definition of
``commencement of construction;'' required that applications for
materials licenses under these parts be filed at least 9 months prior
to commencement of construction of plants or facilities in which the
licensed activates will be conducted; and added as a condition of
issuance of the requested license that the AEC staff had made a
favorable environmental review determination prior to commencement of
construction of such plants or facilities. The AEC subsequently revised
these regulations (38 FR 5745; March 21, 1972) and provided a mechanism
for AEC exemptions to allow the continuation of site preparation and
construction activities begun prior to the effective date of the
proposed amendments, provided that such activities were conducted so as
to minimize their environmental impact, and to conform the time for
filing applications for plutonium process and fuel fabrication plants
to 9 months prior to commencement of construction.
In response to the requirements imposed by the Uranium Mill
Tailings Radiation Control Act of 1978 (UMTRCA), the NRC again amended
part 40 to require that a final environmental assessment be completed
by the NRC prior to commencement of construction of a mill that
produces byproduct material (45 FR 65521; October 3, 1980). In reaching
this decision, the NRC noted that,
[M]illing results in the production of large quantities of
byproduct material as tailings per year. When construction of a mill
commences, nearly irrevocable commitments are made regarding
tailings disposal. Given that each mill tailings pile constitutes a
low-level waste burial site containing long-lived radioactive
materials, the Commission believes that prudence requires that
specific
[[Page 43867]]
methods of tailings disposal, mill decontamination, site
reclamation, surety arrangements, and arrangements to allow for
transfer of site and tailings ownership be worked out and approved
before a license is granted.
Id. at 65529. The NRC concluded that commencement of construction of
other types of plants and facilities in which byproduct, source, and
special nuclear materials are used and possessed would also result in
similar commitments of resources, and accordingly, the NRC amended
parts 30 and 70 to conform to the amendments effectuated in part 40.
The October 9, 2007 (72 FR 57416, 57427) LWA rulemaking examined
the nature and extent of the NRC's responsibilities under NEPA, and
based upon that evaluation the NRC revised the definition of
construction in 10 CFR 50.10 to expressly exclude certain activities.
The NRC determined that its NEPA obligations and responsibilities arise
only when the Commission undertakes a Federal action within the
agency's statutory responsibility. Specifically, the NRC noted that
NEPA, a procedural statute, does not expand the NRC's jurisdiction
beyond the scope of the AEA. Id. The NRC further determined that,
[W]hile 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 * * * 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 Commission's * * * authority under the AEA,
the elimination of the blanket inclusion of site preparation
activities in the [then existing] definition of construction does
not violate NEPA.
71 FR 61330, 61332; (October 17, 2006); see also 72 FR 57416, 57427
(October 9, 2007). In light of the foregoing, the NRC amended its
definition of construction in Sec. 50.10 and its NEPA regulations in
10 CFR part 51 to include a definition of construction that was
consistent with the Sec. 50.10 definition and the NRC's authority
under the AEA. Given the NRC's determination that site preparation
activities did not constitute construction, the NRC provided that the
effects of these activities would only be considered in order to
establish a baseline against which the incremental effect of the
subsequent major Federal action (i.e., the Commission's issuance of a
license) would be measured.
Since the completion of the LWA rulemaking, which added to part 51
a definition of ``construction,'' the NRC's definition of what
constitutes construction for material licenses in Parts 30, 36, 40, 70,
and 150 has been inconsistent with the definition the NRC established
in parts 50, 51, and 52. Activities that do not constitute construction
under 10 CFR parts 50, 51, and 52, are currently classified as
construction under 10 CFR parts 30, 36, 40, 70, and 150. Accordingly,
the site preparation activity from which a materials license applicant
or licensee is currently prohibited from engaging, are the same
activities that the NRC determined in the LWA rulemaking were not
within the scope of the agency's licensing review. As was indicated
during the Commission's December 2008 briefing, materials applicants
and licensees, as well as the NRC's staff, have struggled with the
inconsistency that currently exists within the NRC's regulations.
Staff and materials license applicants have been reconciling the
contrary regulatory definitions through the exemption process. But
given the agency's position on the scope of its AEA authority, the NRC
believes that the regulatory provisions themselves should be
reconciled, furthering regulatory efficiency and economy. Accordingly,
the NRC proposes to implement conforming amendments in 10 CFR parts 30,
36, 40, and 70 that would establish a consistent definition of
``construction'' or ``commencement of construction.'' Within the
proposed definition of commencement of construction for 10 CFR parts
30, 36, 40, and 70, the NRC has included any activity that has a
reasonable nexus to the radiological health and safety or the common
defense and security with the purpose of ensuring that the types of
site preparation activities instituted pursuant to the revised
regulation do not consist of activities that are related to
radiological safety, radiological controls, physical protection or
information security. For example, in Sec. 51.4, the exclusion of
fences and other access control measures from the definition of
construction does not pertain to those fences and controls intended to
secure and protect radiological materials, but rather to those fences
and controls intended to protect the integrity of the site during the
preparation activities. The NRC requests comments on its proposal to
align the terms ``construction'' and ``commencement of construction''
within major licensing parts of its regulations.
The NRC is aware that some interested entities have suggested that
an LWA process, similar to that promulgated for 10 CFR parts 50 and 52
licensees, should be developed for materials applicants and licensees.
However, upon review, it is not clear at this time that an LWA process
applicable to materials licenses is appropriate, or even necessary. A
review of recent requests for exemption from the construction
prohibition shows that most requests would have been rendered
unnecessary by a materials construction definition that conforms to
Part 51. It is unclear whether the licensing process for materials
licenses would be enhanced by an LWA process that allows some safety or
security-related construction to occur in advance of the license, or
whether an LWA process might be more appropriate for larger materials
facilities, such as uranium in situ recovery facilities or uranium
enrichment facilities.
Furthermore, given the NRC's explicit statement in 1980 of the
breadth of issues that should be resolved prior to constructing parts
30, 40, and 70 facilities,\2\ there is some question as to whether an
LWA process is appropriate in the context of materials licensing, which
would permit safety or security-related construction to occur prior to
a conclusion that a license should be issued. In the UMTRCA-related
rulemaking, the NRC found that construction activities at plants and
facilities in which source or byproduct materials are possessed and
used for the production of uranium hexafluoride and commercial waste
disposal by land burial should not precede the environmental review as
they ``are likely to result in [irrevocable and/or irretrievable]
environmental impacts, the propriety of which cannot be ascertained
until [the Part 51] environmental appraisals are completed and
documented.'' (45 FR 65521, 65529; October 3, 1980). Accordingly, the
NRC is not including in the proposed rule language an LWA process for
10 CFR parts 30, 36, 40, or 70 licensees and applicants, and to the
extent that an applicant for a 10 CFR parts 30, 36, 40, or 70 license
wishes to perform site activities that are related to radiological
health and safety or preservation of the common defense and security,
the applicant would be prohibited from doing so under the proposed rule
until the NRC has completed its environmental review and concluded that
a license should be issued. Nevertheless, the NRC invites comments on
the utility of an LWA process for 10 CFR parts 30, 36, 40, and 70,
including whether such a process would be appropriate for all, or
merely some, materials licenses.
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\2\ See UMTRCA Rulemaking, 45 FR 65521, 65529 (October 3, 1980).
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The revisions proposed in this rulemaking would have the effect of
[[Page 43868]]
providing a definition of ``construction'' that is consistent
throughout the NRC's regulations and within the scope of the NRC's
environmental review conducted under the part 51 definition of
``construction.'' Exemptions would no longer be necessary for certain
site preparation activities currently undertaken by materials license
applicants. Currently, the NRC's regulations in part 51 require that an
applicant for a materials license, license amendment, or license
renewal submit an environmental report with its application. The NRC's
regulations further dictate the nature and scope of the NRC's
environmental assessment. Those provisions are not being revised by
this rulemaking. The instructive provisions in part 51 would continue
to remain applicable.
Currently, to the extent that a potential applicant, an applicant,
or a licensee engages in activities that the NRC has indicated do not
constitute construction subject to NRC regulation, the entity does so
at its own risk, as such activity does not presume that the NRC will
conclude that a license should be issued upon completion of its review.
This is consistent with the underlying concept that these site
preparation activities do not result from Federal approval of
activities within the responsibility of the NRC under the AEA and,
therefore, they will have relevance to the NRC action only to the
extent that the impacts of those activities influence an analysis of
any subsequent licensing action's cumulative environmental impacts.
The NRC is also proposing a typographical correction to the
regulations in 10 CFR 39.13(a). Part 39 was issued March 17, 1987 (52
FR 8225), by the NRC to specify radiation safety requirements for the
use of licensed material in well-logging operations. Section 39.13(a)
directs applicants for a specific license for well logging to satisfy
the general requirements in Sec. 30.33 for byproduct material, Sec.
40.32 for source material, and Sec. 70.33 for special nuclear
material. However, Sec. 70.33 pertains to renewal of licenses and not
to general requirements for special nuclear material licensing. The
general requirements regulation for special nuclear material licenses
is in Sec. 70.23. The reference to Sec. 70.33 in the current version
of Sec. 39.13(a) is the result of a typographical error, and the NRC
is proposing to correct Sec. 39.13(a) so that the reference for the
general requirements for special nuclear material licenses will refer
to Sec. 70.23.
IV. Discussion of Proposed Amendments by Section
Section 30.4 Definitions.
In 2007, the NRC added a definition for the term ``construction''
in 10 CFR part 51, ``Environmental protection regulations for domestic
licensing and related regulatory functions,'' to exclude certain site
preparation activities from the definition. The NRC's decision to
exclude these site preparation activities from the definition of
construction was based upon the NRC's determination that these
activities lacked a reasonable nexus to radiological health and safety
or common defense and security considerations. This determination is
equally applicable to the licensing actions in part 30, which are
subject to the NEPA implementing regulations in part 51, including the
part 51 definition for ``construction.'' Accordingly, this section
would be revised to add a definition for ``construction'' and conform
the definition for ``commencement of construction'' to be consistent
with the concepts used to define ``construction'' in 10 CFR 51.4,
recognizing those activities the Commission has already determined do
not affect, as a general matter, radiological health and safety or
common defense and security.
Section 30.33 General requirements for issuance of specific licenses.
In this section, paragraph (a)(5) would be revised to delete the
definition of ``commencement of construction'' contained in the last
two sentences of the paragraph.
Section 36.2 Definitions.
In 2007, the NRC revised the definition for the term ``commencement
of construction'' in 10 CFR part 51, ``Environmental protection
regulations for domestic licensing and related regulatory functions,''
to exclude certain site preparation activities from the definition. The
NRC's decision to exclude these activities from the definition of
construction was based upon the NRC's determination that these
activities lacked a reasonable nexus to radiological health and safety
or common defense and security considerations. This section would be
revised to add definitions for ``construction'' and ``commencement of
construction'' to be consistent with the definition adopted by the NRC
in 10 CFR 51.4.
Section 36.13 Specific licenses for irradiators.
In this section, paragraph (a) would be revised to exclude Sec.
30.33(a)(5) as a requirement for an applicant to receive a specific
license under this part. Currently Sec. 36.13(a) provides that an
applicant for a part 36 license shall satisfy both the general
requirements in Sec. 30.33 and the requirements in part 36. Section
30.33(a)(5) contains the provision regarding commencement of
construction. Section 36.15 of the existing regulations also addresses
a part 36 applicant's or licensee's obligations with respect to the
commencement of construction. The prohibition on the commencement of
construction imposed by Sec. 36.15 varies from that required by Sec.
30.33(a)(5), so that the current language in Sec. 36.13(a) creates a
conflict. The proposed amendment would resolve the matter to make it
clear that the part 36 requirements are applicable to the part 36
licensee.
Section 36.15 Commencement of construction.
This section would be revised to modify references from ``start of
construction'' to ``commencement of construction'' to create
consistency in the terminology used in the NRC's regulations.
Additionally, given the proposed insertion of a revised definition for
``commencement of construction'' in Sec. 36.2, the definition of
``construction'' in this section would be deleted.
Section 39.13 Specific licenses for well-logging.
In this section, paragraph (a) would be revised to correct a
typographical error. The reference to Sec. 70.33 would be revised to
read Sec. 70.23.
Section 40.4 Definitions.
In 2007, the NRC added a definition for the term ``construction''
in 10 CFR part 51, ``Environmental protection regulations for domestic
licensing and related regulatory functions,'' to exclude certain site
preparation activities from the definition. The NRC's decision to
exclude these activities from the definition of construction was based
upon the NRC's determination that these activities lacked a reasonable
nexus to radiological health and safety or common defense and security
considerations. This determination is equally applicable to the
licensing actions in part 40, which are subject to the NEPA
implementing regulations in part 51, including the part 51 definition
for ``construction.'' Accordingly, this section would be revised to add
a definition for ``construction'' and conform the definition for
``commencement of construction'' to be
[[Page 43869]]
consistent with the definition of ``construction'' in 10 CFR 51.4.
Section 40.32 General requirements for issuance of specific licenses.
In this section, paragraph (e) would be revised to delete the
definition of ``commencement of construction'' contained in the last
two sentences of the paragraph.
Section 51.4 Definitions.
The existing definition in this section for the term
``construction'' was added to address part 50 nuclear power reactor
licenses, and allows for possible pre-license construction through a
limited work authorization that is available to part 50 applicants, but
contains language that is not, by its terms, limited to part 50
licensees. A comparable limited work authorization is not being
proposed for materials licenses. The result is that commencement of
construction provisions in parts 30, 40, and 70 refer the staff to part
51 for an environmental review based on activities not included in the
part 51 definition of construction. To resolve these inconsistencies,
the definition of ``construction'' would be revised to distinguish
between a part 50 licensing action and a materials licensing action.
This section would be revised to add a paragraph defining
``construction'' for materials licenses.
Section 70.4 Definitions.
In 2007, the NRC added a definition for the term ``construction''
in 10 CFR part 51, ``Environmental protection regulations for domestic
licensing and related regulatory functions,'' to exclude certain site
preparation activities from the definition. The NRC's decision to
exclude these activities from the definition of construction was based
upon the NRC's determination that these activities lacked a reasonable
nexus to radiological health and safety or common defense and security
considerations. This determination is equally applicable to the
licensing actions in Part 70, which are subject to the NEPA
implementing regulations in Part 51, including the Part 51 definition
for ``construction.'' Accordingly, this section would be revised to add
a definition for ``construction'' and conform the definition for
``commencement of construction'' to be consistent with the definition
of ``construction'' in 10 CFR 51.4.
Section 70.23 Requirements for the approval of applications.
In this section, paragraph (a)(7) would be revised to delete the
definition of ``commencement of construction'' contained in the last
two sentences of the paragraph.
Section 150.31 Requirements for Agreement State regulation of byproduct
material.
In this section, paragraph (b)(3)(iv) would be revised to modify
and conform the definition for ``commencement of construction'' to that
proposed in parts 30, 40, and 70, such that the Agreement State meaning
is consistent with that of the NRC.
V. Availability of Documents
You can access publicly available documents related to this
document, including the following documents, using the following
methods:
NRC's Public Document Room (PDR): The public may examine and have
copied for a fee publicly available documents at the NRC's PDR, Room O-
1F21, 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, or 301-415-4737, or by e-mail to
[email protected].
Federal Rulemaking Web Site: Public comments and supporting
materials related to this proposed rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2010-0075.
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Document PDR Web ADAMS NRC Staff
----------------------------------------------------------------------------------------------------------------
Staff Requirements Memorandum--Briefing on Uranium Recovery, X X ML090080206 X
January 9, 2009...............................................
Letter from the Nuclear Energy Institute dated March 3, 2009... X X ML090710372 X
Limited Work Authorizations for Nuclear Power Plants; Final X X ML081050554 X
Rule; Correction, April 28, 2008 (73 FR 22786) (Docket ID NRC-
2008-0222)....................................................
Limited Work Authorizations for Nuclear Power Plants; Final X X ML071210205 X
Rule, October 9, 2007 (72 FR 57416) (Docket ID NRC-2008-0222).
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VI. Agreement State Compatibility
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs'' which became effective on September 3, 1997
(62 FR 46517), NRC program elements (including regulations) are placed
into compatibility categories A, B, C, D, NRC, or adequacy category,
Health and Safety (H&S). Category A includes program elements that are
basic radiation protection standards or related definitions, signs,
labels, or terms necessary for a common understanding of radiation
protection principles and should be essentially identical to those of
NRC. Category B includes program elements that have significant direct
transboundary implications and should be essentially identical to those
of the NRC.
Compatibility Category C are those program elements that do not
meet the criteria of Category A or B, but the essential objectives of
which an Agreement State should adopt to avoid conflict, duplication,
gaps, or other conditions that would jeopardize an orderly pattern in
the regulation of agreement material on a nationwide basis.
Compatibility Category D are those program elements that do not meet
any of the criteria of Category A, B, or C, and do not need to be
adopted by Agreement States. Compatibility Category NRC are those
program elements that address areas of regulation that cannot be
relinquished to Agreement States pursuant to the AEA or provisions of
Title 10 of the Code of Federal Regulations and should not be adopted
by Agreement States. Category H&S are program elements that are not
required for compatibility, but have a particular health and safety
role (e.g., adequacy) in the regulation of agreement material and the
State should adopt the essential objectives of the NRC program
elements.
The NRC has analyzed the proposed rule in accordance with the
procedure established within Part III, ``Categorization Process for NRC
Program Elements,'' of Handbook 5.9 to
[[Page 43870]]
Management Directive 5.9, ``Adequacy and Compatibility of Agreement
State Programs'' (a copy of which may be viewed at http://www.nrc.gov/reading-rm/doc-collections/management-directives/). The proposed
revisions are categorized as follows:
Draft Compatibility Table for Proposed Rule
----------------------------------------------------------------------------------------------------------------
Compatibility category
NRC Regulation section Change Section title -------------------------------------
Existing New
----------------------------------------------------------------------------------------------------------------
30.4........................... Amend............ Definition--Commenceme D................ D.
nt of Construction--
paragraph 1.
30.4........................... New.............. Definition--Commenceme ................. NRC.
nt of Construction--
paragraph 2.
30.4........................... New.............. Definition--Constructi ................. D.
on--paragraphs 1-8
and 9(i).
30.4........................... New.............. Definition--Constructi ................. NRC.
on--paragraph 9(ii).
30.33(a)(5).................... Amend............ General requirements D................ D.
for issuance of
specific licenses.
36.2........................... New.............. Definition--Commenceme ................. D.
nt of Construction--
paragraph 1.
36.2........................... New.............. Definition--Commenceme ................. NRC.
nt of Construction--
paragraph 2.
36.2........................... New.............. Definition--Constructi ................. D.
on--paragraphs 1-8
and 9(i).
36.2........................... New.............. Definition--Constructi ................. NRC.
on--paragraph 9(ii).
36.13(a)....................... Amend............ Specific licenses for H&S.............. H&S.
irradiators.
36.15.......................... Amend............ Commencement of D................ D.
construction.
39.13(a)....................... Amend............ Specific licenses for H&S.............. H&S.
well-logging.
40.4........................... Amend............ Definition--Commenceme C--States with C--States with
nt of Construction-- authority to authority to
paragraph 1. regulate uranium regulate uranium
mill activities mill activities
(11e.(2) (11e.(2)
byproduct byproduct
material). material).
D--States without D--States without
authority. authority.
40.4........................... New.............. Definition--Commenceme ................. NRC.
nt of Construction--
paragraph 2.
40.4........................... New.............. Definition--Constructi ................. C--States with
on--paragraphs 1-8 authority to
and 9(i). regulate uranium
mill activities
(11e.(2)
byproduct
material).
D--States without
authority.
40.4........................... New.............. Definition--Constructi ................. NRC.
on--paragraph 9(ii).
40.32(e)....................... Amend............ General requirements H&S--States with H&S--States with
for issuance of authority to authority to
specific licenses. regulate uranium regulate uranium
mill activities mill activities
(11e.(2) (11e.(2)
byproduct byproduct
material). material).
NRC--States NRC--States
without without
authority. authority.
51.4........................... Amend............ Definitions........... NRC.............. NRC.
70.4........................... Amend............ Definition--Commenceme D................ D.
nt of Construction--
paragraph 1.
70.4........................... New.............. Definition--Commenceme ................. NRC.
nt of Construction--
paragraph 2.
70.4........................... New.............. Definition--Constructi ................. D.
on--paragraphs 1-8
and 9(i).
70.4........................... New.............. Definition--Constructi ................. NRC.
on--paragraph 9(ii).
70.23(a)(7).................... Amend............ Requirements for the NRC.............. NRC.
approval of
applications.
150.31(b)(3)(iv)............... Amend............ Requirements for C--States with C--States with
Agreement State authority to authority to
regulation of regulate uranium regulate uranium
byproduct material. mill activities mill activities
(11e.(2) (11e.(2)
byproduct byproduct
material). material).
D--States without D--States without
authority. authority.
150.31(b)(3)(iv)(A)............ New.............. Requirements for ................. C--States with
Agreement State authority to
regulation of regulate uranium
byproduct material. mill activities
(11e.(2)
byproduct
material).
D--States without
authority.
[[Page 43871]]
150.31(b)(3)(iv)(B)............ New.............. Requirements for ................. C--States with
Agreement State authority to
regulation of regulate uranium
byproduct material. mill activities
(11e.(2)
byproduct
material).
D--States without
authority.
----------------------------------------------------------------------------------------------------------------
VII. Plain Language
The Presidential memorandum dated June 1, 1998, entitled ``Plain
Language in Government Writing'' directed that the Government's writing
be in plain language. This memorandum was published on June 10, 1998
(63 FR 31883). In complying with this directive, the NRC made editorial
changes to improve the organization and readability of the existing
language of the paragraphs being revised. These types of changes are
not discussed further in this document. The NRC requests comments on
this proposed rule specifically with respect to the clarity and
effectiveness of the language used. Comments should be sent to the
address listed under the ADDRESSES heading of the preamble to this
proposed rule.
VIII. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed or adopted by voluntary consensus
standards bodies unless the use of such a standard is inconsistent with
applicable law or otherwise impractical. The NRC is proposing to
redefine the scope of activities constituting ``construction'' for
materials licenses. The NRC is not aware of any voluntary consensus
standards that address the proposed subject matter of this proposed
rule. The NRC will consider using a voluntary consensus standard if an
appropriate standard is identified. If a voluntary consensus standard
is identified for consideration, the submittal should explain why the
standard should be used.
IX. Environmental Impact--Categorical Exclusion
The NRC has determined that the changes made in this rule to parts
30, 36, 39, 40, 51, 70, and 150 fall within the types of actions
described in categorical exclusions 10 CFR 51.22(c)(1), (c)(2), and
(c)(3)(i). Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared for this regulation.
X. Paperwork Reduction Act Statement
This proposed rule does not contain new or amended information
collection requirements subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Existing information collection requirements
were approved by the Office of Management and Budget, control numbers
3150-0017, 3150-0158, 3150-0130, 3150-0020, 3150-0021, 3150-0009, and
3150-0032.
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.
XI. Regulatory Analysis
A draft regulatory analysis has not been prepared for this
regulation. This rule amends the NRC's regulations to conform the
definitions of ``construction'' and ``commencement of construction'' as
they appear in parts 30, 36, 40, 70, and 150, to the parts 50, 51, and
52 definitions implemented by the LWA rulemaking, revised to reference
non-nuclear power plant licensees. This amendment does not impose any
new burden or reporting requirements on the licensee or NRC for
compliance. Also, this rule does not involve an exercise of NRC
discretion, and therefore does not necessitate preparation of a
regulatory analysis.
XII. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the NRC certifies that this rule will not, if promulgated,
have a significant economic impact on a substantial number of small
entities. This proposed rule affects only material licensees. The
companies that apply for a license in accordance with the regulations
affected by this proposed 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).
XIII. Backfit Analysis
The NRC's backfit provisions are found in the regulations at
Sec. Sec. 50.109, 52.39, 52.63, 52.83, 52.98, 52.145, 52.171, 70.76,
72.62, and 76.76. The requirements contained in this proposed rule do
not involve any provisions that would impose backfits on nuclear power
plant licensees as defined in 10 CFR parts 50 or 52, or on licensees
for gaseous diffusion plants, independent spent fuel storage
installations or special nuclear material as defined in 10 CFR parts
70, 72 and 76, respectively, and as such a backfit analysis is not
required. Therefore, a backfit analysis need not be prepared for this
proposed rule to address these classes of entities. With respect to
parts 30, 36, 39, and 40 licensees, the NRC has determined that there
are no provisions for backfit in these parts, and as such, a backfit
analysis need not be prepared for this proposed rule to address these
licensees.
List of Subjects
10 CFR Part 30
Byproduct material, Criminal penalties, Government contracts,
Intergovernmental relations, Isotopes, Nuclear materials, Radiation
protection, Reporting and recordkeeping requirements.
10 CFR Part 36
Byproduct material, Criminal penalties, Nuclear materials,
Reporting and recordkeeping requirements, Scientific equipment,
Security measures.
10 CFR Part 39
Byproduct material, Criminal penalties, Nuclear materials, Oil and
gas exploration--well logging, Reporting and recordkeeping
requirements, Scientific equipment, Security
[[Page 43872]]
measures, Source material, Special nuclear material.
10 CFR Part 40
Criminal penalties, Government contracts, Hazardous materials
transportation, Nuclear materials, Reporting and recordkeeping
requirements, Source material, Uranium.
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 70
Criminal penalties, Hazardous materials transportation, Material
accounting and control, Nuclear materials, Packaging and containers,
Radiation protection, Reporting and recordkeeping requirements,
Scientific equipment, Security measures, Special nuclear material.
10 CFR Part 150
Criminal penalties, Hazardous materials transportation,
Intergovernmental relations, Nuclear materials, Reporting and
recordkeeping requirements, Security measures, Source material, Special
nuclear material.
For the reasons set out 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. 553; the NRC is proposing to
adopt the following amendments to 10 CFR parts 30, 36, 39, 40, 51, 70,
and 150.
PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF
BYPRODUCT MATERIAL
1. The authority citation for Part 30 continues to read as follows:
Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948,
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 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);
Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 549 (2005).
Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat.
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
2. In Sec. 30.4, the definition for the term ``Commencement of
construction'' is revised, and the term ``Construction'' is added in
alphabetical order to read as follows:
* * * * *
Sec. 30.4 Definitions.
* * * * *
Commencement of construction means taking any action defined as
``construction'' or any site-preparation activity at the site of a
facility subject to the regulations in this part that has a reasonable
nexus to:
(1) Radiological health and safety; or
(2) Common defense and security.
* * * * *
Construction means the installation of foundations, or in-place
assembly, erection, fabrication, or testing for any structure, system,
or component of a facility or activity subject to the regulations in
this part that are related to radiological safety or security. The term
``construction'' does not include:
(1) Changes for temporary use of the land for public recreational
purposes;
(2) 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;
(3) Preparation of the site for construction of the facility,
including clearing of the site, grading, installation of drainage,
erosion and other environmental mitigation measures, and construction
of temporary roads and borrow areas;
(4) Erection of fences and other access control measures that are
not related to the safe use of, or security of, radiological materials
subject to this part;
(5) Excavation;
(6) Erection of support buildings (e.g., 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;
(7) Building of service facilities (e.g., paved roads, parking
lots, railroad spurs, exterior utility and lighting systems, potable
water systems, sanitary sewerage treatment facilities, and transmission
lines);
(8) Procurement or fabrication of components or portions of the
proposed facility occurring at other than the final, in-place location
at the facility; or
(9) Taking any other action that has no reasonable nexus to:
(i) Radiological health and safety, or
(ii) Common defense and security.
* * * * *
3. In Sec. 30.33, paragraph (a)(5) is revised to read as follows:
Sec. 30.33 General requirements for issuance of specific licenses.
(a) * * *
(5) In the case of an application for a license to receive and
possess byproduct material for the conduct of any activity which the
NRC determines will significantly affect the quality of the
environment, the Director, Office of Federal and State Materials and
Environmental Management Program or his designee, before commencement
of construction of the plant or facility in which the activity will be
conducted, on the basis of information filed and evaluations made
pursuant to subpart A of part 51 of this chapter, has concluded, after
weighing the environmental, economic, technical, and other benefits
against environmental costs and considering available alternatives,
that the action called for is the issuance of the proposed license,
with any appropriate conditions to protect environmental values.
Commencement of construction prior to such conclusion shall be grounds
for denial of a license to receive and possess byproduct material in
such plant or facility.
* * * * *
PART 36--LICENSES AND RADIATION SAFETY REQUIREMENTS FOR IRRADIATORS
4. The authority citation for part 36 continues to read as follows:
Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948,
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846).
5. In Sec. 36.2, definitions for the terms ``Commencement of
construction''and ``Construction'' are added in alphabetical order to
read as follows:
Sec. 36.2 Definitions.
* * * * *
Commencement of construction means taking any action defined as
``construction'' or any site-preparation activity at the site of a
facility subject to the regulations in this part that has a reasonable
nexus to:
(1) Radiological health and safety; or
(2) Common defense and security.
Construction means the installation of foundations, or in-place
assembly, erection, fabrication, or testing for any structure, system,
or component of a facility or activity subject to the regulations in
this part that are related
[[Page 43873]]
to radiological safety or security. The term ``construction''does not
include:
(1) Changes for temporary use of the land for public recreational
purposes;
(2) 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;
(3) Preparation of the site for construction of the facility,
including clearing of the site, grading, installation of drainage,
erosion and other environmental mitigation measures, and construction
of temporary roads and borrow areas;
(4) Erection of fences and other access control measures that are
not related to the safe use of, or security of, radiological materials
subject to this part;
(5) Excavation;
(6) Erection of support buildings (e.g., 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;
(7) Building of service facilities (e.g., paved roads, parking
lots, railroad spurs, exterior utility and lighting systems, potable
water systems, sanitary sewerage treatment facilities, and transmission
lines);
(8) Procurement or fabrication of components or portions of the
proposed facility occurring at other than the final, in-place location
at the facility; or
(9) Taking any other action that has no reasonable nexus to:
(i) Radiological health and safety, or
(ii) Common defense and security.
* * * * *
6. In Sec. 36.13, paragraph (a) is revised to read as follows:
Sec. 36.13 Specific licenses for irradiators.
* * * * *
(a) The applicant shall satisfy the general requirements specified
in Sec. Sec. 30.33(a)(1)-(4) and 30.33(b) of this chapter and the
requirements contained in this part.
* * * * *
7. Section 36.15 is revised to read as follows:
Sec. 36.15 Commencement of construction.
Commencement of construction of a new irradiator may not occur
prior to the submission to NRC of both an application for a license for
the irradiator and the fee required by Sec. 170.31 of this chapter.
Any activities undertaken prior to the issuance of a license are
entirely at the risk of the applicant and have no bearing on the
issuance of a license with respect to the requirements of the Atomic
Energy Act of 1954 (Act), as amended, and rules, regulations, and
orders issued under the Act.
PART 39--LICENSES AND RADIATION SAFETY REQUIREMENTS FOR WELL
LOGGING
8. The authority citation for part 39 continues to read as follows:
Authority: Secs. 53, 57, 62, 63, 65, 69, 81, 82, 161, 182, 183,
186, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as
amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2073, 2077,
2092, 2093, 2095, 2099, 2111, 2112, 2201, 2232, 2233, 2236, 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).
9. In Sec. 39.13, paragraph (a) is revised to read as follows:
Sec. 39.13 Specific licenses for well logging.
* * * * *
(a) The applicant shall satisfy the general requirements specified
in Sec. 30.33 of this chapter for byproduct material, in Sec. 40.32
of this chapter for source material, and in Sec. 70.23 of this chapter
for special nuclear material, as appropriate, and any special
requirements contained in this part.
* * * * *
PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL
10. The authority citation for part 40 continues to read as
follows:
Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2),
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234,
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094,
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274,
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L.
97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as
amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C.
2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy
Policy Act of 2005, Pub. L. No. 109-59, 119 Stat. 594 (2005).
Section 40.7 also issued under Pub. L. 95- 601, sec. 10, 92
Stat. 2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec.
122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under
sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71
also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
11. In Sec. 40.4, the definition for the term ``Commencement of
construction'' is revised, and the term ``Construction'' is added in
alphabetical order to read as follows:
Sec. 40.4 Definitions.
* * * * *
Commencement of construction means taking any action defined as
``construction'' or any site preparation activity at the site of a
facility subject to the regulations in this part that has a reasonable
nexus to:
(1) Radiological health and safety; or
(2) Common defense and security.
* * * * *
Construction means the installation of production wells, the
installation of foundations, or in-place assembly, erection,
fabrication, or testing for any structure, system, or component of a
facility or activity subject to the regulations in this part that are
related to radiological safety or security. The term ``construction''
does not include:
(1) Changes for temporary use of the land for public recreational
purposes;
(2) 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;
(3) Preparation of the site for construction of the facility,
including clearing of the site, grading, installation of drainage,
erosion and other environmental mitigation measures, and construction
of temporary roads and borrow areas;
(4) Erection of fences and other access control measures that are
not related to the safe use of, or security of, radiological materials
subject to this part;
(5) Excavation;
(6) Erection of support buildings (e.g., 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;
(7) Building of service facilities (e.g., paved roads, parking
lots, railroad spurs, exterior utility and lighting systems, potable
water systems, sanitary sewerage treatment facilities, and transmission
lines);
(8) Procurement or fabrication of components or portions of the
proposed facility occurring at other than the final, in-place location
at the facility; or
(9) Taking any other action that has no reasonable nexus to:
(i) Radiological health and safety, or
(ii) Common defense and security.
* * * * *
[[Page 43874]]
12. Section 40.32, paragraph (e) is revised to read as follows:
Sec. 40.32 General requirements for issuance of specific licenses.
* * * * *
(e) In the case of an application for a license for a uranium
enrichment facility, or for a license to possess and use source and
byproduct material for uranium milling, production of uranium
hexafluoride, or for the conduct of any other activity which the NRC
determines will significantly affect the quality of the environment,
the Director, Office of Federal and State Materials and Environmental
Management Programs or his designee, before commencement of
construction, on the basis of information filed and evaluations made
pursuant to subpart A of part 51 of this chapter, has concluded, after
weighing the environmental, economic, technical and other benefits
against environmental costs and considering available alternatives,
that the action called for is the issuance of the proposed license,
with any appropriate conditions to protect environmental values.
Commencement of construction prior to this conclusion is grounds for
denial of a license to possess and use source and byproduct material in
the plant or facility.
* * * * *
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
13. 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)).
14. In Sec. 51.4, the definition for the term ``Construction'' is
revised to read as follows:
Sec. 51.4 Definitions.
* * * * *
Construction means:
(1) For production and utilization facilities, the activities in
paragraph (i) of this definition, and does not mean the activities in
paragraph (ii) of this definition.
(i) 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:
(A) Safety-related structures, systems, or components (SSCs) of a
facility, as defined in 10 CFR 50.2;
(B) SSCs relied upon to mitigate accidents or transients or used in
plant emergency operating procedures;
(C) SSCs whose failure could prevent safety-related SSCs from
fulfilling their safety-related function;
(D) SSCs whose failure could cause a reactor scram or actuation of
a safety-related system;
(E) SSCs necessary to comply with 10 CFR part 73;
(F) SSCs necessary to comply with 10 CFR 50.48 and criterion 3 of
10 CFR part 50, appendix A; and
(G) 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.
(ii) Construction does not include:
(A) Changes for temporary use of the land for public recreational
purposes;
(B) 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;
(C) 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;
(D) Erection of fences and other access control measures that are
not safety or security related, and do not pertain to radiological
controls;
(E) Excavation;
(F) Erection of support buildings (e.g., 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;
(G) Building of service facilities (e.g., paved roads, parking
lots, railroad spurs, exterior utility and lighting systems, potable
water systems, sanitary sewerage treatment facilities, and transmission
lines);
(H) Procurement or fabrication of components or portions of the
proposed facility occurring at other than the final, in-place location
at the facility;
(I) 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
(J) 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).
(2) For materials licenses, taking any site-preparation activity at
the site of a facility subject to the regulations in 10 CFR parts 30,
36, 40, and 70, that has a reasonable nexus to radiological health and
safety or the common defense and security; provided, however, that
construction does not mean:
(i) Those actions or activities listed in paragraphs (1)(ii)(A)--
(H) of this definition; or
(ii) Taking any other action that has no reasonable nexus to
radiological health and safety or the common defense and security.
* * * * *
PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL
15. The authority citation for part 70 continues to read as
follows:
Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended, (42 U.S.C.
2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended,
202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42
U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 Stat. 2835 as amended
by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).
Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 as amended by
[[Page 43875]]
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section
70.21(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).
Section 70.31 also issued under sec. 57d, Pub. L. 93-377, 88 Stat.
475 (42 U.S.C. 2077). Sections 70.36 and 70.44 also issued under
sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 70.81
also issued under secs. 186, 187, 68 Stat. 955 (42 U.S.C. 2236,
2237). Section 70.82 also issued under sec. 108, 68 Stat. 939, as
amended (42 U.S.C. 2138).
16. In Sec. 70.4 the definition for the term ``Commencement of
construction'' is revised and the term ``Construction'' is added in
alphabetical order to read as follows:
Sec. 70.4 Definitions.
* * * * *
Commencement of construction means taking any action defined as
``construction'' or any site-preparation activity at the site of a
facility subject to the regulations in this part that has a reasonable
nexus to:
(1) Radiological health and safety; or
(2) Common defense and security.
* * * * *
Construction means the installation of foundations, or in-place
assembly, erection, fabrication, or testing for any structure, system,
or component of a facility or activity subject to the regulations in
this part that are related to radiological safety or security. The term
``construction'' does not include:
(1) Changes for temporary use of the land for public recreational
purposes;
(2) 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;
(3) Preparation of the site for construction of the facility,
including clearing of the site, grading, installation of drainage,
erosion and other environmental mitigation measures, and construction
of temporary roads and borrow areas;
(4) Erection of fences and other access control that are not
related to the safe use of, or security of, radiological materials
subject to this part;
(5) Excavation;
(6) Erection of support buildings (e.g., 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;
(7) Building of service facilities (e.g., paved roads, parking
lots, railroad spurs, exterior utility and lighting systems, potable
water systems, sanitary sewerage treatment facilities, and transmission
lines);
(8) Procurement or fabrication of components or portions of the
proposed facility occurring at other than the final, in-place location
at the facility; or
(9) Taking any other action that has no reasonable nexus to:
(i) Radiological health and safety, or
(ii) Common defense and security.
* * * * *
17. In Sec. 70.23, paragraph (a)(7) is revised to read as follows:
Sec. 70.23 Requirements for the approval of applications.
(a) * * *
(7) Where the proposed activity is processing and fuel fabrication,
scrap recovery, conversion of uranium hexafluoride, uranium enrichment
facility construction and operation, or any other activity which the
NRC determines will significantly affect the quality of the
environment, the Director of Nuclear Material Safety and Safeguards or
his designee, before commencement of construction of the plant or
facility in which the activity will be conducted, on the basis of
information filed and evaluations made pursuant to subpart A of part 51
of this chapter, has concluded, after weighing the environmental,
economic, technical, and other benefits against environmental costs and
considering available alternatives, that the action called for is the
issuance of the proposed license, with any appropriate conditions to
protect environmental values. Commencement of construction prior to
this conclusion is grounds for denial to possess and use special
nuclear material in the plant or facility.
* * * * *
PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274
18. The authority citation for part 150 continues to read as
follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594
(2005).
Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued
under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84,
92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section
150.14 also issued under sec. 53, 68 Stat. 930, as amended (42
U.S.C. 2073).
Section 150.15 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 150.17a also
issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30
also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 2282).
19. In Sec. 150.31, paragraph (b)(3)(iv) is revised to read as
follows:
Sec. 150.31 Requirements for Agreement State regulation of byproduct
material.
* * * * *
(b) * * *
(3) * * *
(iv) Prohibit commencement of construction with respect to such
material prior to complying with the provisions of paragraph (b)(3)(i)
through (iii) of this section. As used in this paragraph:
(A) The term commencement of construction means taking any action
defined as ``construction'' or any site-preparation activity at the
site of a facility subject to the regulations in this part that has a
reasonable nexus to radiological health and safety.
(B) The term construction means the installation of foundations, or
in-place assembly, erection, fabrication, or testing for any structure,
system, or component of a facility or activity subject to the
regulations in this part that are related to radiological safety or
security. The term ``construction'' does not include:
(1) Changes for temporary use of the land for public recreational
purposes;
(2) 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;
(3) Preparation of the site for construction of the facility,
including clearing of the site, grading, installation of drainage,
erosion and other environmental mitigation measures, and construction
of temporary roads and borrow areas;
(4) Erection of fences and other access control measures that are
not related to the safe use of or security of radiological materials
subject to this part;
(5) Excavation;
(6) Erection of support buildings (e.g., 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;
(7) Building of service facilities (e.g., as paved roads, parking
lots, railroad spurs, exterior utility and lighting systems, potable
water systems, sanitary sewerage treatment facilities, and transmission
lines);
[[Page 43876]]
(8) Procurement or fabrication of components or portions of the
proposed facility occurring at other than the final, in-place location
at the facility; or
(9) Taking any other action which has no reasonable nexus to
radiological health and safety.
* * * * *
Dated at Rockville, Maryland, this 21st day of July 2010.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2010-18344 Filed 7-26-10; 8:45 am]
BILLING CODE 7590-01-P