[Federal Register Volume 76, Number 179 (Thursday, September 15, 2011)]
[Rules and Regulations]
[Pages 56951-56966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23628]
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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 Materials Licensees
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is amending its regulations by revising the provisions applicable to
the licensing and approval processes for byproduct, source and special
nuclear materials licenses, and irradiators. The changes will clarify
the definitions of ``construction'' and ``commencement of
construction'' with respect to materials licensing actions conducted
under the NRC's regulations. The NRC is adopting these changes to
further improve the effectiveness and efficiency of the licensing and
approval processes for future materials license applications, as well
as to eliminate 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 for purposes of its environmental reviews.
DATES: This final rule is effective on November 14, 2011.
ADDRESSES: You can access publicly available documents related to this
document 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 O1-F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland 20852.
NRC's Agencywide Documents Access and Management System
(ADAMS): Publicly available documents created or received at the NRC
are available electronically at the NRC Public Library 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 the 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].
Federal Rulemaking Web Site: Public comments and
supporting materials related to this final rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2010-0075. Address
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; e-mail: [email protected].
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. Background
II. Summary and Analysis of Public Comments on the Proposed Rule
III. Discussion
IV. Section-by-Section Analysis
V. Agreement State Compatibility
VI. Voluntary Consensus Standards
VII. Environmental Impact--Categorical Exclusion
VIII. Paperwork Reduction Act Statement
IX. Regulatory Analysis
X. Regulatory Flexibility Certification
XI. Backfit Analysis
XII. Congressional Review Act
I. Background
On July 27, 2010 (75 FR 43865), the NRC published a proposed rule,
``Licenses, Certifications, and Approvals for Materials Licenses.'' The
rule proposed to amend the NRC's regulations to clarify the definitions
of ``construction'' and ``commencement of construction'' applicable to
the licensing and approval processes for byproduct, source and special
nuclear materials licenses, and irradiators. The
[[Page 56952]]
proposed rule sought to eliminate the differences that exist between
the NRC's definition of construction and its use for nuclear power
reactor licensing, materials licensing, and for purposes of
environmental reviews.
The inconsistencies that exist arose after the NRC modified the
definition of ``construction'' applicable to nuclear power reactors and
to the NRC environmental review regulations, but did not make
comparable changes to its materials licensing regulations. On October
9, 2007 (72 FR 57416; corrected at 73 FR 22786 (April 28, 2008)), the
NRC had amended the definition of ``construction'' for utilization and
production facilities and amended the limited work authorization (LWA)
procedures for nuclear power plants (LWA Rulemaking). As part of that
rulemaking, the Commission revised the scope of activities that are
considered construction and for which a construction permit, combined
license, or LWA is necessary; specified the scope of construction
activities that may be performed under an LWA; changed the review and
approval process for LWA requests; and clarified the environmental
review process for these activities.
Since the completion of the LWA Rulemaking, activities that do not
constitute construction under Title 10 of the Code of Federal
Regulations (10 CFR) Parts 50, 51, and 52, are currently classified as
construction under 10 CFR parts 30, 36, 40, 70, and 150. As such, the
site preparation activity from which a materials license applicant,
including a licensee applying for an amendment to an existing license,
is currently prohibited from engaging are the same activities that the
NRC determined in the LWA Rulemaking were not within the scope of the
NRC's licensing authority. Materials license applicants and licensees,
as well as the NRC's staff, have struggled with this inconsistency. The
rules adopted herein eliminate this inconsistency.
II. Summary and Analysis of Public Comments on the Proposed Rule
A. Summary of Public Comments
The proposed rule was published on July 27, 2010 (75 FR 43865),
with a 60-day comment period, which ended on September 27, 2010. The
comment period was subsequently reopened and extended to November 29,
2010 (75 FR 60341; September 30, 2010). The NRC received 12 public
comments on the proposed rule. The commenters include four members of
the public, three industry organizations, two public interest and
consumer advocacy groups,\1\ one company which indicated an intent to
apply for a materials license, one law school environmental law clinic,
and one anonymous commenter.
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\1\ One of the comments referenced was a joint submission on
behalf of seven consumer advocacy organizations.
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Two of the comments received generally supported the NRC's decision
to issue the proposed rule. Three of the comments, while critical of
the proposed rule or its applicability to certain materials licenses at
all, provided specific comment with respect to the proposed language.
Seven of the comments received were opposed to the proposed rule,
stating as their main objection their belief that the proposed rule is
contrary to, and would negatively impact the NRC's implementation of
the National Environmental Policy Act of 1969, as amended (NEPA), and
other Federal environmental or conservancy statutes such as, the Bald
Eagle Protection Act of 1940, the Endangered Species Act of 1973, the
Fish and Wildlife Coordination Act of 1934, the Migratory Bird
Conservation Act, and the National Historic Preservation Act of 1966,
as amended.
The proposed rule also solicited comments on the utility of an LWA
process specific to materials licenses. Four of the twelve commenters
addressed this issue, and of the four, one was opposed, claiming that
such a process would violate NEPA, and the remaining three indicated
that there was some merit in the endeavor, and provided comments on the
potential designs of such a process.
B. NRC Response to Public Comments
The NRC has carefully considered the public comments received. The
comments have been organized by topic (e.g., Compliance with NEPA)
followed by the NRC response. As will be further discussed, the NRC has
decided to adopt a final rule substantially similar to that included in
the proposed rule. As is also discussed, the NRC has decided not to
adopt a specific LWA process for materials licenses, at this time.
1. Compliance With NEPA
Comment: Several of the commenters state that the proposed changes
in the definitions of ``construction'' and ``commencement of
construction'' would violate NEPA, as it would allow materials license
applicants to take action that would have significant environmental
impacts with no NRC oversight or environmental review. The commenters
state that the proposed rule would allow the framework for an entire
materials license facility to be prepared and significant environmental
impacts to occur without undergoing any meaningful environmental or
safety oversight, review or analysis. The commenters maintain that if
the contemplated site preparation activities are permitted, the NRC
would miss out on the opportunity to catch possible environmental
damage early and to require mitigative measures necessary to lessen
this damage. The commenters stress that the proposed rule would result
in the impermissible segmentation of the licensing action, which could
result in the NRC not considering the full effect of the Federal action
upon the environment.
Response: As explained in more detail in Section III, Discussion,
the NRC disagrees with the commenters. The rule being adopted by the
NRC is not intended to thwart or avoid the environmental review
requirements of NEPA. The NRC will continue to implement NEPA on the
totality of its licensing action. Site preparation activities, which
are private actions, will be considered by the NRC in accordance with
its regulations in 10 CFR part 51 as part of the agency's cumulative
impacts analysis.
The NRC, through this rulemaking, is not authorizing any individual
to engage in specific site preparation activities. Rather, the NRC is
identifying those specific activities that are not subject to its
regulatory authority. The private site preparation activities that
occur, while not subject to NRC authority, in all likelihood are
subject to regulatory authority of another Federal, State or local
agency, through either a permitting or licensing process. Such Federal,
State or local authority with permitting or licensing jurisdiction over
private site preparation activities would be the proper entity to
consider concerns pertaining to the activities, including the potential
triggering of NEPA or State environmental review requirements as
appropriate. The NRC would consider any request from another Federal,
State or local agency with authority over the private action for the
NRC to be a cooperating agency on a case-by-case basis within the scope
of the NRC's jurisdictional authority and any applicable Memorandum of
Understanding.
Comment: Several of the commenters state that the NRC's proposed
rule does not fall within the categorical exclusions described in Sec.
51.22(c)(1), (c)(2), and (c)(3)(1), as it is more than administrative
in nature. Instead, the commenters stated that the proposed rule would
have the effect of
[[Page 56953]]
deregulating a substantial amount of construction activity related to
materials licensing, and as such, is itself a major action that
requires an NEPA environmental review.
Response: The NRC disagrees with this comment. The NRC's
determination with respect to the definition of ``construction''
originally occurred in the 2007 LWA Rulemaking. This rule merely
conforms the definitions in Parts 30, 36, 40, 70 and 150 to the
definitions that have been present in Part 51 for several years through
the LWA Rulemaking. The NRC is making no new determinations regarding
the definition of construction for purposes of Part 51 through this
rule, but rather is assuring Part 51's definition clearly applies
consistently across NRC licensing activities. Accordingly, this rule
meets the categorical exclusions described in Sec. 51.22(c)(1) which
expressly excludes amendments to Part 150; Sec. 51.22(c)(2) which
excludes amendments to the NRC regulations that are corrective or of a
minor or nonpolicy nature; and Sec. 51.22(3)(i) which excludes
amendments to the NRC regulations that relate to procedures for filing
and reviewing applications for licenses or other forms of permission.
Comment: Several commenters question whether the NRC has consulted
with and obtained comments from other Federal agencies, including the
Council on Environmental Quality, State Historic Preservation Officers,
or Native American Tribes.
Response: This rule was available for public comment for four
months, and any interested government or private agency or entity could
have provided comments during that time. The NRC did not separately
invite other Federal agencies, State Historic Preservation Officers, or
Native American Tribes to comment on this rule. While the NRC did not
separately invite these entities to comment on this rule, we note that
in the LWA Rulemaking through which the amended ``construction''
definition was originally implemented with respect to some of the NRC's
licensees, the NRC did informally contact several Federal agencies for
the purpose of seeking their comments on the supplemental proposed LWA
rule. These Federal agencies were the Council on Environmental Quality,
the U.S. Environmental Protection Agency (EPA), the Federal Energy
Regulatory Commission, and the U.S. Department of the Interior, Fish,
and Wildlife Service.
Comment: One commenter states that the proposed rule change is
based on a false premise; i.e., that NEPA is a purely procedural
statute.
Response: As discussed in more detail in Section III, Discussion,
the Federal judiciary has consistently held that NEPA is a procedural
statute, and as such it cannot expand the statutory authority of the
NRC to regulate non-radiological hazards.
2. LWA Process for Materials Licenses
Four commenters provided comments in response to the NRC's question
regarding whether an LWA process is appropriate. One commenter opposed
such a process, claiming that an LWA process for materials licenses
would result in segmentation of the major Federal action and would
violate NEPA. The remaining three commenters were supportive of an LWA
process.
One commenter states that an LWA process would permit only limited
construction activities and the environmental impacts associated with
activities would be evaluated in an Environmental Impact Statement
(EIS) before the LWAs would be issued. However, that commenter also
suggests that the NRC lacks the statutory authority to restrict the
construction activities of some materials licensees, although the
commenter did not identify which materials licensees were affected.
This commenter offered suggested changes to the proposed rule. As an
initial matter, the commenter suggests that the NRC revise the proposed
rule to eliminate the concept of ``commencement of construction.'' This
particular proposal is based, in part, on the commenter's belief that
the NRC lacks the statutory authority necessary to prohibit a materials
license applicant from engaging in construction. As is discussed
further in Section III, Discussion, the NRC disagrees with this
proposition. The Atomic Energy Act of 1954, as amended (AEA), confers
on the NRC the authority to establish by rule and regulation such
standards as the NRC ``deems necessary or desirable'' to ensure the
public health and safety from radiological hazards, including
limitations on an applicant's or licensee's ability to engage in
construction. See Sec. 161.b of the AEA. The NRC also disagrees with
the commenter's claim that the term ``commencement of construction'' is
no longer necessary for materials licenses. The term ``commencement of
construction'' operates to place the materials license applicant on
notice that a site preparation activity may also be considered as
construction requiring prior NRC approval if it has a reasonable nexus
to radiological health and safety or common defense and security.
Accordingly, this final rule language will retain the definition for
``commencement of construction.'' Finally, this commenter also
suggested other minor textual changes to the proposed rule that the NRC
does not believe necessary for the purposes of this rule.
The remaining two commenters address an LWA-like process that would
be applicable primarily to in situ uranium recovery (ISR) licensees.
The commenters state as an initial proposition that Sec. 40.32(e) is
not applicable to ISR licensees and is only applicable to conventional
uranium mill operations which produce byproduct material as tailings.
According to the commenters, ISRs do not produce large quantities of
uranium mill tailings and do not require any tailings disposal areas
because liquid waste can be disposed of using a Class I underground-
injection-control (UIC) deep-disposal well or evaporation ponds. The
NRC disagrees with this rationale. The ISRs require a Part 40 license
in order to operate a facility to process radioactive source material.
The ISR process produces radioactive waste, in particular 11e.(2)
byproduct material. As is discussed further in Section III of this
Statement of Considerations (SOC), the NRC's prohibition against
construction is applicable to all materials licenses issued under Parts
30, 40, and 70. There is no exception for ISR licensees.
With respect to the proposed rule, the commenters stated that the
proposed rule is too narrowly interpreted to meet the needs of ISR
licensees. The commenters propose that the list of items that are not
construction be modified to include: Wellfields (injection, production/
extraction, and monitor well networks); administrative and other
buildings and site roads and infrastructure intended to handle or
process AEA material; and the central processing plant. The NRC is not
adopting the commenters' proposal. Most of the listed construction
activities when complete would be utilized to handle, use, process, or
store radioactive material; therefore, such activities would be viewed
as having a reasonable nexus to radiological health and safety or
common defense and security, and hence would be considered
construction. The only exception would be with respect to
administrative and other buildings, and site roads and infrastructure.
The commenter indicates that this category of actions would include not
only construction of buildings that would eventually be used to handle
AEA materials, but also construction of buildings and facilities that
are not specific to the NRC license or radioactive materials. This
latter
[[Page 56954]]
category of buildings and facilities may fall within the definition of
site preparation activity, but ultimately the determining factor will
be whether the proposed activity has a reasonable nexus to radiological
health and safety or the common defense and security. Objectively, the
NRC can indicate that construction of a building or facility intended
to house or handle radioactive material would be considered a
construction activity subject to the prohibition in Sec. 40.32(3).
With respect to their proposed LWA-like process, these commenters
also suggest a three-tier process that permits certain pre-licensing
construction activities. Tier 1 would identify those construction
activities that could occur prior to licensing without staff approval.
Tier 2 would identify those construction activities that could occur
prior to licensing with staff's approval. Tier 3 would identify those
construction activities that could only occur after licensing.
Given the diverse nature of materials licensees, the NRC would need
to develop a thorough and comprehensive LWA program that would be
available to all materials licensees to the extent practicable and
adequate to ensure that the radiological health and safety of the
public and common defense and security is protected. There is
insufficient information on the record of this rulemaking from which
the NRC can develop such a process or even determine whether such a
process is feasible. Thus, the NRC is not establishing an LWA process
for materials licenses at this time. The NRC may consider this issue in
more detail in a future rulemaking.
3. Scope of NRC Authority
Comment: One commenter states that a company clears land and drives
piles for the specific purpose of constructing a materials processing
facility; therefore, site preparation activities have a nexus to
construction, and the activities fall within the NRC's jurisdiction
under the AEA.
Response: As discussed in Section III, Discussion, the NRC
statutory authority is limited to ensuring protection of the
radiological public health and safety and common defense and security.
Certain activities identified as site preparation activities are
outside of the scope of the NRC's authority. This rule makes clear that
any activity related to the radiological public health and safety or
common defense and security is subject to NRC review and regulations.
Driving of piles is not specifically identified as a site preparation
activity that can be conducted without an NRC license. The SOC on the
LWA Rulemaking clarifies that the driving of piles for reactor
licensees has a reasonable nexus to radiological health and safety,
and/or common defense and security; and therefore would be considered
construction subject to NRC authority for reactor licensees. (72 FR at
57428; October 9, 2007). Whether the driving of piles is a site
preparation activity for materials licensees (that is, whether the
driving of piles has a reasonable nexus to radiological health and
safety or common defense and security) would have to be determined on a
case-by-case basis with consideration of which activities would be
subject to the materials license.
Comment: One commenter states that the NRC should exert
jurisdiction over site preparation activities. The commenter concludes
that if the NRC does not monitor and evaluate these actions, then no
one will.
Response: The NRC is unable to extend its jurisdiction beyond the
authority granted in the AEA. As discussed in Section III, Discussion,
the AEA expressly limits the NRC's authority to matters concerning the
radiological public health and safety and common defense and security
and non-radiological hazards to the extent such hazards result from the
actual processing or possession of by-product material, and the
Commission has determined that this authority does not extend to site
preparation activities having no nexus to radiological health and
safety or common defense and security. As previously stated, the
private site preparation activities that occur, while not subject to
NRC authority, may be subject to the regulatory authority of another
Federal, State or local agency through either a permitting or licensing
process. It is during these other processes that concerns pertaining to
the site preparation activities undertaken by potential materials
license applicants could be considered by other Federal, State or local
entities, including the potential triggering of NEPA or state
environmental review requirements as appropriate (for example, a Class
III underground injection control permit may require State or EPA
approval, and a stormwater discharge permit may require State
approval).
Comment: One commenter states that without NRC regulation and
approval of site preparation activities to ensure nuclear projects are
conducted conscientiously, materials license applicants will be free to
engage in activities that have a reasonable nexus to radiological
health and safety at will.
Response: The commenter's assumption is at odds with the proposed
rule and this final rule. This final rule expressly prohibits materials
license applicants from taking any action, including site preparation
activities, if the action has a reasonable nexus to radiological health
and safety or the common defense and security.
Comment: One commenter states that just over a year ago, the NRC
staff was not in agreement with the ISR industry, yet now the NRC is
proposing a rule which largely concedes industry's position; i.e., that
it should be free of the constraints of Sec. 40.32(e).
Response: The NRC disagrees. As discussed, ISRs are subject to the
constraints of Sec. 40.32(e). This rule assures application of the
Part 51 definition of construction consistently across NRC licensing
actions and identifies certain site preparation activities that are not
construction. The prohibition against construction of the licensed
facility prior to the conclusion of the environmental review process
remains applicable to all Part 40 materials licensees, including ISRs.
Comment: One commenter states that the AEA includes responsibility
for environmental impacts from construction activities at the facility
and environmental impacts associated with non-radiological
contaminates; therefore, the NRC regulations must not only be
protective of the public health and safety and the environment but also
include responsibilities for the impacts of non-radiological
constituents, protection of cultural resources, and mitigation of any
environmental impacts associated with the facility, not just those
associated with radiological health and safety or the common defense
and security.
Response: The NRC acknowledges that NEPA provides a Federal mandate
to evaluate environmental impacts associated with licensing actions.
The NRC remains committed to fulfilling these responsibilities. This
final rule does not change this commitment. Rather, this final rule
identifies certain actions that are outside of the scope of the NRC's
licensing authority and for which prior approval from the NRC is not
required. Those actions that are beyond the scope of the NRC's
authority may later be considered as part of the cumulative impact
analysis for purposes of the NRC's NEPA review, if, at a later date,
the NRC receives an application for an NRC license for a facility at
the site or an amendment to modify an existing materials license.
Comment: Several commenters state that Sec. 40.32(e) does not
apply to ISR facilities, as these facilities do not
[[Page 56955]]
require the tailings management and disposal facilities required by
conventional uranium milling facilities for operations and post-
operational long-term control of Sec. 11e.(2) byproduct material
onsite.
Response: The NRC disagrees with these comments. As is more fully
discussed in subsection (2) of this section and in Section III,
Discussion, ISR facilities are subject to the requirements of Sec.
40.32(e).
Comment: Several commenters question whether the NRC has statutory
authority to license construction of materials and fuel cycle
facilities.
Response: As is more fully discussed in Section III, Discussion,
the NRC has authority under the AEA to regulate construction activities
of materials and fuel cycle facilities when those activities have a
reasonable nexus to radiological health and safety or the common
defense and security.
Comment: One commenter asks that the NRC reconcile its decision in
Nuclear Fuel Services, Inc. (Erwin, Tennessee), CLI-03-03, 57 NRC 239
(2003) (Nuclear Fuel Services or NFS), with its regulations imposing
prohibitions on construction contained in Sec. Sec. 30.33, 40.32, and
70.23.
Response: In Nuclear Fuel Services, an existing licensee, NFS,
requested NRC authority to amend its license to permit the production
of low enriched uranium (LEU) oxide, receipt and storage of LEU
nitrate, downblending of high enriched uranium to LEU, and conversion
of LEU nitrate to LEU oxide. The license amendment(s) resulted in the
creation of an additional complex (three new buildings) on the
licensee's site. The applicable regulation, Sec. 70.23(e), prohibits
construction at the facility prior to conclusion of the environmental
review. Violation of this prohibition could result in denial of the
license amendments. The NRC staff had completed the environmental
review for the first of the three license amendments. Several
organizations jointly petitioned the NRC to enjoin all construction
activities that had begun on the building associated with the first
amendment, as well as enjoin NFS from commencing construction on the
buildings associated with the remaining two license amendments. The
Petitioners acknowledged that some of the activities for which it was
seeking the injunction did not require NRC approval. The Commission
treated the Petitioners' request as a petition for enforcement under 10
CFR 2.206, the end result of which would be an enforcement action
against the licensee--suspension of construction activities. Id. at
245. The Commission, after finding it unnecessary to order NFS to cease
all construction activities associated with the overall project, denied
the Petitioners' request. In reaching this decision, the Commission
questioned whether, in the circumstances of that case, it had the
authority to halt NFS' pre-licensing construction. Id. at 246--250. The
Commission further went on to opine:
We, too, do not understand applicable NRC regulations or
statutes to prohibit outright NFS's construction activities. But the
Petitioners undoubtedly are correct that our rules ``contemplate
that construction * * * should not begin until the NRC has completed
its environmental review.'' To that effect, both 10 C.F.R. Sec.
51.101(s) and 10 C.F.R. Sec. 70.23(a)(7) discourage construction
activities until the Staff has completed an environmental review. *
* * Thus, while not absolutely barring prelicensing construction,
NRC rules provide a disincentive to early construction by raising
the possibility of ultimate denial of the license application should
an applicant move forward precipitously, despite open environment
issues.
In short, NFS proceeds at its own risk with construction
activities. If NFS begins or continues to construct buildings
associated with license amendments for which the Staff's
environmental review is incomplete, NFS's construction may prove
grounds for denial of one or more of the license amendments.
Id. at 246--247 (footnotes omitted).
The decision in NFS is not contrary to the determinations in this
rule, nor does this rule purport to amend the NRC's regulations to
impose an outright prohibition on construction activities at the
facilities of materials licensees and applicants. Rather, by this rule,
the NRC is clarifying that, consistent with 10 CFR part 51, certain
site preparation activities undertaken by materials license applicants
do not constitute construction. With respect to those activities that
could be considered construction, the same regulatory provisions that
were applicable in NFS remain applicable today. As the Commission
indicated in NFS, the NRC's regulations discourage materials license
applicants and licensees applying for an amendment to an existing
license from engaging in construction activities until after the NRC
staff has completed its environmental review, and caution that should
an applicant or licensee chose to act prior to that time, that action
could result in denial of the license application. Nothing in this rule
proposes to change or modify this ``discouragement.'' Although the
industry and the NRC frequently refer to the discouraging provisions in
Sec. Sec. 30.33(a)(5), 40.32(e), and 70.23(a)(7) as a prohibition for
ease of reference, it is more of an admonition of the potential
consequence of certain actions.
As is discussed in more detail in Section III, Discussion, NEPA is
largely a procedural statute, which requires that the NRC undertake
environmental review of its licensing actions. In implementing the
requirements of NEPA, the NRC has determined in Sec. 51.101(a)(2) that
taking action that would have an adverse environmental impact, or would
limit the choice of reasonable alternatives may be grounds for denial
of a license, and includes within these designations the provisions in
Sec. Sec. 30.33(a)(5), 40.32(e), and 70.23(a)(7). Furthermore, as is
also discussed further in Section III, Discussion, Sec. 161.b of the
AEA confers on the NRC the authority to establish by rule and
regulation such standards as the NRC ``deems necessary or desirable''
to ensure the public health and safety from radiological hazards,
including limitations on an applicant's or licensee's ability to engage
in construction, which it did when it initially promulgated Sec. Sec.
30.33(a)(5), 40.32(e), and 70.23(a)(7). See Sec. 161.b of the AEA.
Although the AEA expressly grants the NRC the authority to license
power reactors in separate construction and operational phases, this
bi-furcated process is not contemplated within the AEA for materials
licenses. Instead, licensing of materials users and their facilities is
presumed to be an all-in-one action resulting in a single license
authorizing both construction and operations. For example, with respect
to enrichment facilities, the AEA indicates that the license being
issued is one for construction and operation of a facility. See Sec.
193 of the AEA. Therefore, while neither NEPA nor the AEA, on their
face, specifically require that the NRC establish regulations regarding
the timing of the commencement of construction activities by materials
applicants and licensees, neither do they prohibit such regulations.
Instead, the NRC has been given the authority to promulgate those rules
and regulations which it finds necessary or desirable to fulfill its
statutory obligation of ensuring the public health and safety from
radiological hazards and conducting its regulatory licensing in a
manner receptive to environmental concerns. See Sec. 51.10(b).
It is also important to note that the Commission limited its
finding in Nuclear Fuel Services to the circumstances of that case.
Those circumstances consisted of a licensee that had submitted three
amendments, NRC staff that had completed its
[[Page 56956]]
environmental review of the first amendment, and a licensee that had
commenced construction on the building contemplated in the first
amendment. In accordance with Sec. 70.23(e), this licensee waited
until after the staff's environmental review to commence construction
on the building covered by the license amendment. The petition to
enjoin the construction activities was directed not only towards this
activity, but any future construction activity related to the remaining
two amendments. The Commission questioned the extent and nature of the
prohibition of construction in the materials license context, but did
not negate the intent or the effect of its regulations on such
activity. The NRC's regulations today continue to contain a
``prohibition'' against construction activity by materials licensees
and applicants prior to the conclusion of the NRC staff's environmental
review. This ``prohibition'' is unaffected by this final rule, as is
the potential penalty for its violation. As previously indicated, this
rule is primarily aimed at clarifying in the materials context when
``construction'' will be considered to have commenced to determine
which activities, if taken prior to the completion of the NRC's
environmental review, could be grounds for denial of a license. As the
Commission indicated in NFS, ``[i]t obviously makes sense for NRC
licensees not to proceed with construction that, after a NEPA and
licensing review, might prove fruitless. That is the purpose underlying
Sec. Sec. 51.101 and 70.23(a)(7), which seek to discourage premature
construction.'' Id. 250. These considerations continue to be equally
applicable to the NRC's regulations as provided for in this rule.
4. Site Preparation Activities
Comment: One commenter states that the proposed regulations will
cause regulatory confusion. By way of example, the commenter indicates
that the new regulations exempt ``excavation'' from the definition of
``construction''; however, the excavation of an area for the creation
of a uranium mill tailings impoundment must take place in an approved
location and under specific construction and quality assurance
requirements.
Response: The answer to this comment depends upon the nature and
purpose of the excavation. For example, if the materials license
applicant is planning to excavate for the purpose of laying a
foundation for a building that will be used to enrich uranium or for
the purpose of creating a mill tailings impoundment, an evaporation
pond, a tailings impoundments, a central processing plant, a satellite
plant, or a pipeline that will be used to transport radioactive
material where such excavation directly impacts the functions or the
NRC's safety evaluation of these structures as related to radiological
health and safety or the common defense and security, then these
actions would be prohibited by virtue of the ``commencement of
construction'' definition, which precludes site preparation activities
that have a reasonable nexus to radiological health and safety or the
common defense and security. The varied nature of materials facilities
requires that the rules establishing the criteria for permitted site
preparation activities be applied to the specific activity being taken
by the materials license applicant so as to determine whether that
specific activity impacts radiological health and safety or common
defense and security. The scenario presented by the commenter may
involve excavation activities that require prior approval. The scenario
presented by the commenter may also involve excavation in an
inappropriate location or in accordance with specifications that could
ultimately result in the NRC's non-approval of the license application.
Comment: One commenter states that pre-licensing activities should
be limited and only occur when an applicant for a materials license has
applied for and received specific permission to conduct such
activities.
Response: The current requirements arguably are inconsistent with
Commission pronouncements on the limits of its AEA authority. Moreover,
the NRC has in place inconsistent regulations regarding the definition
of construction. It is inappropriate to leave in place inconsistent
regulatory approaches.
By identifying those site preparation activities that are not
considered construction, the NRC avoids piecemeal regulation and
licensing actions and brings more uniformity to the application of the
NRC's regulatory authority to matters of construction. The NRC cannot
``choose'' to extend its authority beyond the limits of the AEA and
require applicants to get prior permission to perform activities that
are not within our statutory authority.
Comment: One commenter notes that although the proposed rule
identifies specific activities that would not constitute construction
under Parts 30, 40, and 70, it does not apply the reasonable nexus
standard to affirmatively identify those construction activities that
have a reasonable nexus to protecting the public.
Response: The NRC agrees with the commenter that it did not
affirmatively identify those construction activities that have a
reasonable nexus to protecting the public. Radiological materials have
the potential to be used in a number of different ways in
manufacturing, construction, oil exploration, and medical uses, just to
name a few. Because the nature of materials licenses and facilities has
the potential to vary greatly, the NRC believes that it would be
impractical and inadvisable to attempt to enumerate all activities that
constitute construction for every possible materials licensee. Instead,
the more prudent course adopted in this rule is to enumerate the
attributes for determining those activities that are not construction
and to establish criteria that may be used by materials license
applicants to determine whether a contemplated action would constitute
construction; i.e., if the contemplated action has a rational and
direct link to the radiological use of the proposed facility.
5. Miscellaneous
Comment: Several commenters state that the proposed rule would
allow for significant financial and structural investment on the part
of the industry that would prejudice any subsequent licensing
challenges or licensing conditions that the agency might deem
appropriate.
Response: Any site preparation activities that an applicant chooses
to engage in are done so at the applicant's own risk. The NRC retains
complete discretion to deny a license application or to impose
licensing conditions, as needed. Previously expended resources do not
enter into the NRC's decision as to whether or not a license
application meets regulatory requirements.
Comment: One commenter states that the proposed regulations fail to
state whether the installation of monitoring wells, a significant
component of uranium recovery facilities, including in situ leach
facilities, is a ``construction'' activity or is exempted from the
definition of ``construction.''
Response: Installation of monitoring wells that are only intended
to be used to collect background data or perform background aquifer
testing would be permissible. However, monitoring wells that are part
of an ISR wellfield monitoring network would not be permissible because
such facilities are necessary to ensure the radiological health and
safety of the public and that the licensed facility is operating within
standards determined by the NRC; therefore, these wells have a
reasonable nexus to radiological health and safety
[[Page 56957]]
and do not qualify as a site preparation activity.
By virtue of the exemption process that exists in Part 40, the NRC
has had the opportunity to identify some activities that have a
reasonable nexus to radiological health and safety and would therefore
constitute construction. For instance, most recently in response to an
exemption request submitted by Lost Creek ISR, LLC (ADAMS Accession No.
ML091940438) the NRC has previously determined that certain activities
are ``construction,'' including construction of the processing plant,
which serves to concentrate, precipitate, and dry yellowcake; and
construction of any structure or system to manage waste, such as deep
disposal wells (ADAMS Accession No. ML093350365).
Comment: One commenter states that the term ``reasonable nexus'' is
vague and will lead to regulatory conflict and confusion.
Response: The NRC disagrees. An activity or action has a
``reasonable nexus'' to radiological health and safety or the common
defense and security if that activity or action has a rational, direct
link to ensuring that a licensed materials facility is operating in
accordance with the NRC's regulations and in a manner that protects the
public health and safety or the common defense and security from
radiological hazards. Given the varied nature of activities involving
materials licensing, the appropriate method of determining the
application of this rule is to apply these standards to the specific
proposed action rather than to attempt to list activities that are
universally defined as falling within or outside of the definition of
construction.
Comment: Several commenters ask how the proposed rule will affect
the NRC compliance with other Federal laws such as the Bald Eagle
Protection Act of 1940, the Endangered Species Act of 1973, the Fish
and Wildlife Coordination Act of 1934, the Migratory Bird Conservation
Act, and the National Historic Preservation Act of 1966, as amended
(NHPA).
Response: The NRC will remain in compliance with other Federal
laws. As required by those laws, the NRC will evaluate its licensing
action to ensure that the action is appropriate within the confines of
the NRC's responsibilities under applicable statutes. As previously
explained, the NRC's licensing actions, consistent with the limitations
of the AEA, do not include site preparation activities that are not
related to the radiological health and safety of the public or the
common defense and security.
Comment: One commenter asks whether site preparation activities are
part of the Federal undertaking that is subject to the NHPA.
Response: The NRC views site preparation activities with no nexus
to radiological health and safety or common defense and security as
private actions and would not be subject to NHPA through the NRC. Under
the NHPA, an undertaking is ``a project, activity, or program funded in
whole or in part under the direct or indirect jurisdiction of a Federal
agency, including: (A) Those carried out by or on behalf of the agency;
(B) those carried out with Federal financial assistance; (C) those
requiring a Federal permit or license, or approval; and (D) those
subject to State or local regulation administered pursuant to a
delegation or approval by a Federal agency.'' The site preparation
activities identified in the rule do not fall within this definition
and would therefore not be considered a Federal undertaking subject to
NHPA. It may be possible that the site preparation activities require
other Federal approvals. For instance, if the site preparation
activities occur on Bureau of Land Management land, this could trigger
NHPA responsibilities or responsibilities under other statutes through
approvals by other Federal agencies.
It would, however, be prudent of a materials license applicant that
is engaging in site preparation activities to be mindful of the NRC's
obligations under the NHPA, including the requirements to identify any
historic properties within the area of potential effects, to consult
with the State Historic Preservation Officer (SHPO) and any other
relevant stakeholders (such as Native American Tribes), and to attempt
to resolve any adverse effects upon such historic properties. These
procedural requirements must be satisfied by the NRC before it can
approve the subject application (assuming all radiological health and
safety and common defense and security requirements are met). For
example, Sec. 110k. of the NHPA requires that before granting a
license the NRC ensure that an applicant has not ``intentionally
significantly adversely affected a historic property to which the
[license] would relate, or having legal power to prevent it, allowed
such significant adverse effect to occur * * *'' with the intent of
avoiding NRC review of the effect of the proposed licensing action on
``any district, site, building, structure, or object that is included
in or eligible for inclusion in the National Register.'' Section 106 of
the NHPA. Accordingly, a materials license applicant should proceed
carefully when engaging site preparation activities undertaken lest the
outcome impacts the NRC's ability to issue a license.
In order to facilitate and expedite the NRC's NHPA process,
materials license applicants are encouraged to contact any potential
stakeholders who may have an interest in any historic properties on or
near the site and to take steps to prevent or minimize any disturbance
to such historic properties. In this regard, materials license
applicants are also encouraged, upon the discovery of previously
unknown historic properties, archeological resources or other cultural
artifacts, to cease any such activities that may disturb or damage such
resources and, inventory and evaluate the discovery in accordance with
accepted historic preservation and archeological practices (see the
U.S. Secretary of the Interior's Standards and Guidelines for
Identification at http://www.nps.gov/history/local-law/arch_stnds_2.htm).
Comment: One commenter asks whether the NRC will consider the
effect of site preparation activities on minority or low income people
before the activities and damage occur.
Response: Under this rule, site preparation activities that fall
outside the NRC's scope of authority would not be subject to prior
review by the NRC. However, these site preparation activities might be
subject to review by other State or Federal authorities. However, if
there is an application for an NRC license following site preparation
activities that requires that an EIS be prepared, then the NRC will
evaluate environmental justice issues in the EIS in accordance with the
guidance provided in the NRC's ``Policy Statement on the Treatment of
Environmental Justice Matters in NRC Regulatory and Licensing
Actions.'' (69 FR 52040; August 24, 2004). Under this scenario, when
evaluating environmental justice issues in the EIS, the NRC would then
consider the environmental impacts of the proposed project activities
on low-income or minority populations. The NRC would conduct any such
evaluation in a manner consistent with the NRC's normal consideration
of these impacts in licensing actions.
Comment: One commenter asks whether the NRC will provide guidance
regarding the definitions contained in the proposed rule.
Response: The NRC will provide guidance on the definitions in the
final rule.
[[Page 56958]]
III. Discussion
A. NRC Authority Pursuant to the AEA
Comments received on this rule have questioned whether the NRC is
unnecessarily limiting its authority to matters concerning
``radiological'' health and safety or common defense and security
considerations. The majority of the commenters opposed to this rule
believe that the AEA confers much broader authority to the NRC to
consider a broader range of health and safety or common defense and
security concerns.
As indicated in the proposed rule, the NRC has determined that the
AEA does not authorize the NRC to require an applicant for an NRC
license to obtain the NRC's permission before undertaking site
preparation activities that do not implicate radiological health and
safety or common defense and security considerations. This
interpretation is not new and has been reviewed and upheld repeatedly
by the Courts. In 1969, the U.S. Court of Appeals for the First Circuit
reviewed this issue in New Hampshire v. the Atomic Energy Commission
[AEC], 406 F.2d 170 (1st Cir. 1969), cert. denied, 395 U.S. 962 (1969).
The First Circuit, after noting that the scope of the term ``public
health and safety'' was not specifically defined in the statute,
reviewed the legislative history. Based upon its review, the First
Circuit concluded that the AEC's (the NRC's predecessor agency)
regulatory authority was limited to the scrutiny of and protection
against radiation hazards. More recently, the U.S. Court of Appeals for
the District of Columbia Circuit similarly agreed that the AEA limits
the NRC's consideration of health and safety to the special hazards of
radioactivity. People Against Nuclear Energy v. Nuclear Regulatory
Commission, 678 F.2d 222 (D.C. Cir. 1982), rev'd on other grounds,
Metropolitan Edison Company v. People Against Nuclear Energy, 460 U.S.
766 (1983).
It is important to note that while the Uranium Mill Tailings
Radiation Control Act of 1978 (UMTRCA) amended the AEA to give the NRC
the authority necessary ``to protect the public health and safety and
the environment from radiological and non-radiological hazards
associated with the processing and with the possession of such material
* * *'' with respect to certain byproduct material (Sec. 84.a.(1) of
the AEA), the NRC's authority over non-radiological hazards is limited
to those hazards specifically associated with the processing and
possession of byproduct material. Contrary to some of the commenters
assertions, UMTRCA did not operate to expand the NRC's jurisdiction to
private actions not specifically associated with the processing or
possession of radioactive material.
A second set of commenters also questions whether the NRC has
authority to impose a prohibition against construction on materials
licensees. While the NRC's authority to protect the public health and
safety may be limited to radiological hazards, its primary authority
under the AEA is grounded in its authority to grant, deny and condition
licenses for certain nuclear materials and facilities. With respect to
materials licenses, the NRC has authority over the manufacture,
production, transfer, possession, use, ownership, import and export of
radioactive material. See AEA Sec. Sec. 51, 53, 61, 62, 63, and 81.
Section 161.b authorizes the NRC to--
Establish by rule, regulation, or order, such standards and
instructions to govern the possession and use of special nuclear
material, source material, and byproduct material as the Commission
may deem necessary or desirable to promote the common defense and
security or to protect [the radiological] health or to minimize
danger to life or property [from radiological hazards].
It is this grant of authority that allows the NRC to establish as a
condition of licensing that materials license applicants not engage in
construction impacting common defense and security or public health and
safety with respect to radiological hazards prior to the completion of
the environmental review for the licensed facility.
B. NRC Compliance With NEPA and Other Environmental Statutes
As previously indicated, the AEA does not authorize the NRC to
require an applicant to obtain permission before undertaking site
preparation activities that do not implicate radiological health and
safety or common defense and security. These activities, being outside
of the scope of the NRC's jurisdiction are, therefore, considered to be
non-Federal actions, at least with respect to the NRC's licensing
actions. Such activities might trigger other Federal authority if, for
example, they were to take place on Federal lands in accordance with a
Bureau of Land Management lease. As set forth in the Statement of
Consideration for the proposed rule, the NRC believes that this rule is
fully compliant with the requirements of NEPA. The NEPA obligations and
responsibilities arise only when the Commission undertakes a Federal
action within the NRC's statutory responsibility. See Department of
Transportation, et al. v. Public Citizen, et al., 541 U.S. 752, 771
(2004) (``[A]n agency has no ability to prevent a certain effect due to
its limited statutory authority over the relevant action.'')
Contrary to the statements of some commenters, the courts have
consistently determined that NEPA is a procedural statute, and as such
it cannot and does not expand the NRC's jurisdiction beyond the scope
of the AEA; i.e., to give the NRC authority to decide non-radiological
public health and safety issues. See Vermont Yankee Nuclear Power Corp
v. Natural Resources Defense Council, 435 U.S. 519, 558 (1978) (``NEPA
does set forth significant substantive goals for the Nation, but its
mandate to the agencies is essentially procedural.''); see also Natural
Resources Defense Council v. Environmental Protection Agency, 822 F.2d
104, 129 (D.C. Cir 1987) (``NEPA, as a procedural device, does not work
a broadening of the agency's substantive powers''). This determination
was also explained in the LWA Rulemaking, in which the NRC stated the
following in its statements of consideration:
[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.
(72 FR 57416, 57427; October 9, 2007).
The commenters also claim that the NRC is inappropriately
segmenting the site preparation activities from the licensed facility
construction activities at the site to avoid NEPA. This is not the
case. Generally, the NEPA segmentation problem arises when the
environmental impacts of Federal actions are evaluated in a piecemeal
fashion and, as a result, the comprehensive environmental impacts of
the entire Federal action are never considered or are only considered
after the agency has committed itself to continuation of the project.
Another associated segmentation problem arises when pieces of a Federal
action are evaluated separately and, as a result, none of the
individual pieces are considered ``major Federal actions'' requiring an
EIS.
The site preparation activities identified in the rule are
activities that any private entity can undertake on
[[Page 56959]]
property that they own or to which they have legal rights. Site
preparation activities are separate and independent from construction
of any aspect of the proposed facility that would be directly related
to the manufacture, production, use, transfer, or ownership of an NRC-
licensed material. The question of whether site preparation activities
are impermissibly segmented from the facility construction turns on
whether these activities are viewed as ``connected actions.'' The
courts have determined that ``projects which have ``independent
utility'' are not ``connected actions.'' Utahns for Better
Transportation, et al. v. U.S. Dep't of Transp., et al., 305 F.3d 1152,
1183 (10th Cir. 2002). Whether two actions have independent utility
depends on ``whether each of two projects would have taken place with
or without the other * * *'' Wilderness Workshop, et al. v. U.S. Bureau
of Land Mgmt., et al., 531 F.3d 1220, 1229 (10th Cir. 2008). In this
rule, site preparation activities are independent of facility
construction. As such, site preparation activities do not violate
NEPA's prohibition against segmentation.
While the effects of any non-Federal site preparation activities
undertaken by a materials license applicant will not be considered
effects of the NRC's licensing action, the effects of the site
preparation activities would be considered as part of the NRC's
cumulative impact analysis performed during the environmental review of
the licensing action. Cumulative impacts are defined as the ``impact on
the environment that results from the incremental impact of the action
when added to other past, present, and reasonably foreseeable future
actions.'' 40 CFR 1508.7. In accordance with its guidance on this
issue, the NRC staff's cumulative impacts analysis will identify and
describe effects of past, proposed, and reasonably foreseeable future
actions to the extent that they are relevant and useful in determining
the magnitude and significance of the effects of the proposed NRC
licensing action. See NUREG-1748, ``Environmental Review Guidance for
Licensing Actions Associated with NMSS Programs.'' Similar to the LWA
Rulemaking, the NRC is revising Sec. 51.60 to require that the
environmental report submitted with an application for a materials
license or an amendment to a materials license include a description of
the site preparation activities undertaken at the proposed site; a
description of the impacts of such site preparation activities; and an
analysis of the cumulative impacts of the site preparation activities
on the proposed licensing action.
With respect to the comments regarding other environmental
protection statutes, the NRC remains committed to fulfilling its
obligations under these statutes during its review of any license
action. It is important to note, however, that each of the statutes
applies specifically to the NRC only to the extent that an activity
comes within the NRC's licensing authority or is a ``Federal
undertaking'' by the NRC. For the same reasons previously stated, site
preparation activities are not part of the NRC licensing action process
and as such do not constitute either a ``major Federal action,'' or a
``Federal undertaking'' by the NRC.
IV. Section-by-Section Analysis
Section 30.4, Definitions
Section 30.4 is amended by adding definitions for the terms
``construction'' and ``commencement of construction.''
Section 30.33, General Requirements for Issuance of Specific Licenses
The amendment to Sec. 30.33(a)(5) deletes the definition of
``commencement of construction'' contained in the last two sentences of
the paragraph. ``Commencement of construction'' is now defined in Sec.
30.4.
Section 36.2, Definitions
Section 36.2 is amended by adding definitions for the terms
``construction'' and ``commencement of construction.''
Section 36.13, Specific Licenses for Irradiators
Section 36.13(a) is amended to exclude Sec. 30.33(a)(5) as a
requirement for an applicant to receive a specific license under this
part. The provision in Sec. 30.33(a)(5) pertains to ``commencement of
construction.'' ``Commencement of construction'' provisions for Part 36
licenses are already contained in Sec. 36.15.
Section 36.15, Start of Construction
The amendment in Sec. 36.15 revises the section title ``Start of
construction'' to ``Commencement of construction'' and deletes the
definition of ``construction.'' The definitions of ``commencement of
construction'' and ``construction'' are now defined in Sec. 36.2.
Section 39.13, Specific Licenses for Well-Logging
Section 39.13 is amended to change the reference to Sec. 70.33 to
Sec. 70.23.
Section 40.4, Definitions
Section 40.4 is amended by adding definitions for the terms
``construction'' and ``commencement of construction.''
Section 40.32, General Requirements for Issuance of Specific Licenses
The amendment to Sec. 40.32(e) deletes the definition of
``commencement of construction'' contained in the last two sentences of
the paragraph. ``Commencement of construction'' is now defined in Sec.
40.4.
Section 51.4, Definitions
The amendment to Sec. 51.4 clarifies that the definition of
``construction'' applies to materials licenses.
Section 51.45, Environmental Report
The amendment to Sec. 51.45(c) corrects the reference to Sec.
51.4, and describes additional information that the environmental
report for materials licenses should contain.
Section 70.4, Definitions
Section 70.4 is amended by adding definitions for the terms
``construction'' and ``commencement of construction.''
Section 70.23, Requirements for the Approval of Applications
The amendment to Sec. 70.23(a)(7) deletes the definition of
``commencement of construction'' contained in the last two sentences of
the paragraph. ``Commencement of construction'' is now defined in Sec.
70.4.
Section 150.31, Requirements for Agreement State Regulation of
Byproduct Material
Section 150.31(b)(3)(iv) is revised to include definitions for
``commencement of construction'' and ``construction.''
V. 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), this final rule is a matter of compatibility between the
NRC and Agreement States, thereby providing consistency among the
Agreement States and the NRC's requirements. The 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 the NRC. Category B includes
[[Page 56960]]
program elements that have significant direct transboundary
implications and should be essentially identical to those of the NRC.
Compatibility Category C includes those program elements that do
not meet the criteria of Categories A or B but nonetheless are
consistent with an Agreement State's efforts to avoid conflict,
duplication, gaps, or other conditions that would jeopardize an orderly
pattern in the regulation of agreement material on a nationwide basis.
Therefore, the program elements in Compatibility Category C should be
adopted by Agreement States.
Compatibility Category D includes 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 consists of 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 consist of 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 this final rule in accordance with the
procedure established within Part III, ``Categorization Process for NRC
Program Elements,'' of Handbook 5.9 to 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 amendments are categorized in Table 1.
Table 1--Compatibility for Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compatibility category
NRC Regulation section Change Section title ----------------------------------------------------------------------------
Existing New
--------------------------------------------------------------------------------------------------------------------------------------------------------
30.4............................ Amend............... Definition--Commenc D.................................... D.
ement of
Construction--Para
graph 1.
30.4............................ New................. Definition--Commenc ..................................... NRC.
ement of
Construction--Para
graph 2.
30.4............................ New................. Definition--Constru ..................................... D.
ction--Paragraphs
1-8 and 9(i).
30.4............................ New................. Definition--Constru ..................................... NRC.
ction--Paragraph
9(ii).
30.33(a)(5)..................... Amend............... General D.................................... D.
requirements for
issuance of
specific licenses.
36.2............................ New................. Definition--Commenc ..................................... D.
ement of
Construction--Para
graph 1.
36.2............................ New................. Definition--Commenc ..................................... NRC.
ement of
Construction--Para
graph 2.
36.2............................ New................. Definition--Constru ..................................... D.
ction--Paragraphs
1-8 and 9(i).
36.2............................ New................. Definition--Constru ..................................... NRC.
ction--Paragraph
9(ii).
36.13(a)........................ Amend............... Specific licenses H&S.................................. H&S.
for irradiators.
36.15........................... Amend............... Commencement of D.................................... D.
construction.
39.13(a)........................ Amend............... Specific licenses H&S.................................. H&S.
for well-logging.
40.4............................ Amend............... Definition--Commenc C--States with authority to regulate C--States with authority to regulate
ement of uranium mill activities (11e.(2) uranium mill activities (11e.(2)
Construction--Para byproduct material). byproduct material).
graph 1.
D--States without authority.......... D--States without authority.
40.4............................ New................. Definition--Commenc ..................................... NRC.
ement of
Construction--Para
graph 2.
40.4............................ New................. Definition--Constru ..................................... C--States with authority to regulate
ction--Paragraphs uranium mill activities (11e.(2)
1-8 and 9(i). byproduct material).
D--States without authority..........
40.4............................ New................. Definition--Constru ..................................... NRC.
ction--Paragraph
9(ii).
40.32(e)........................ Amend............... General H&S--States with authority to H&S--States with authority to
requirements for regulate uranium mill activities regulate uranium mill activities
issuance of (11e.(2) byproduct material). (11e.(2) byproduct material).
specific licenses.
NRC--States without authority........ NRC--States without authority.
51.4............................ Amend............... Definitions........ NRC.................................. NRC.
51.45........................... Amend............... Environmental NRC.................................. NRC.
Report--Paragraph
(c).
70.4............................ Amend............... Definition--Commenc D.................................... D.
ement of
Construction--Para
graph 1.
70.4............................ New................. Definition--Commenc ..................................... NRC.
ement of
Construction--Para
graph 2.
70.4............................ New................. Definition--Constru ..................................... D.
ction--Paragraphs
1-8 and 9(i).
70.4............................ New................. Definition--Constru ..................................... NRC.
ction--Paragraph
9(ii).
70.23(a)(7)..................... Amend............... Requirements for NRC.................................. NRC.
the approval of
applications.
[[Page 56961]]
150.31(b)(3)(iv)................ Amend............... Requirements for C--States with authority to regulate C--States with authority to regulate
Agreement State uranium mill activities (11e.(2) uranium mill activities (11e.(2)
regulation of byproduct material). byproduct material).
byproduct material.
D--States without authority.......... D--States without authority.
150.31(b)(3)(iv)(A)............. New................. Requirements for ..................................... C--States with authority to regulate
Agreement State uranium mill activities (11e.(2)
regulation of byproduct material).
byproduct material.
D--States without authority.
150.31(b)(3)(iv)(B)............. New................. Requirements for ..................................... C--States with authority to regulate
Agreement State uranium mill activities (11e.(2)
regulation of byproduct material).
byproduct material.
D--States without authority.
--------------------------------------------------------------------------------------------------------------------------------------------------------
VI. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995 (Pub.
L. 104-113), requires that Federal agencies use technical standards
that are developed or adopted by voluntary consensus standards bodies,
unless the use of such a standard is inconsistent with applicable law
or otherwise impractical. In this final rule, the NRC is clarifying
those activities that constitute ``construction'' for materials
licenses. This action does not constitute the establishment of a
standard that contains generally applicable requirements.
VII. Environmental Impact--Categorical Exclusion
The NRC has determined that this final rule is the type of action
described as a categorical exclusion in 10 CFR 51.22(c)(1), (c)(2), and
(c)(3)(i). Section 51.22(c)(1) provides a categorical exclusion for
amendments to various parts of the NRC's regulations, including Part
150. Section 51.22(c)(2) provides a categorical exclusion for
amendments to the NRC's regulations which are of a corrective or minor
or nonpolicy nature and do not substantially modify existing
regulations. Section 51.22(c)(3)(i) provides a categorical exclusion
for amendments to any part of the NRC's regulations which relate to
procedures for filing and reviewing applications, amendments, or
renewals for licenses or other forms of permission. In this final rule,
the amendments to Parts 30, 40, 36, and 70 relate to the procedures for
reviewing applications, amendments, and renewals of materials licenses
subject to these parts. The amendments to Part 39 correct a
typographical error, and the remaining amendments are to Part 150.
Because these amendments belong to a category of actions which the NRC
has previously found do not individually or cumulatively have a
significant effect on the human environment, neither an environmental
impact statement nor an environmental assessment has been prepared for
this rule.
VIII. Paperwork Reduction Act Statement
This final 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 (OMB), 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.
IX. Regulatory Analysis
A 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 the NRC for compliance. Also,
this rule does not involve an exercise of NRC discretion and therefore
does not necessitate preparation of a regulatory analysis.
X. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the NRC certifies that this rule will not have a significant
economic impact on a substantial number of small entities. This rule
affects only materials licensees. The companies that apply for a
license in accordance with the regulations affected by this rule do not
fall within the scope of the definition of ``small entities'' set forth
in the Regulatory Flexibility Act or the size standards established by
the NRC (10 CFR 2.810).
XI. Backfit Analysis
The NRC has determined that this final rule is not subject to any
of the backfitting provisions in 10 CFR 50.109, 70.76, 72.62, 76.76, or
the finality provision of 10 CFR part 52. The amendments in this 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; therefore, a backfit analysis is not
required. With respect to Parts 30, 36, 39, and 40 licensees, the NRC
has determined that there are no provisions for backfit in these parts;
therefore, the NRC has not prepared a backfit analysis or any other
documentation for this final rule.
XII. Congressional Review Act
In accordance with the Congressional Review Act of 1996, the NRC
has determined that this action is not a major rule and has verified
this
[[Page 56962]]
determination with the Office of Information and Regulatory Affairs of
OMB.
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 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
control and accounting, 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. 552 and 553; the NRC is adopting
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
0
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. 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).
0
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 other 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.
* * * * *
0
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 Programs or his/her 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. Commencement of
construction as defined in Sec. 30.4 may include non-construction
activities if the activity has a reasonable nexus to radiological
safety and security.
* * * * *
[[Page 56963]]
PART 36--LICENSES AND RADIATION SAFETY REQUIREMENTS FOR IRRADIATORS
0
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).
0
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 other 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.
* * * * *
0
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.
* * * * *
0
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 the 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. Commencement of construction as defined in
Sec. 36.2 may include non-construction activities if the activity has
a reasonable nexus to radiological safety and security.
PART 39--LICENSES AND RADIATION SAFETY REQUIREMENTS FOR WELL
LOGGING
0
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).
0
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
0
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. 109-59, 119 Stat. 594 (2005).
Section 40.7 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 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).
0
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 other 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 wells associated with
radiological operations (e.g., production, injection, or monitoring
well networks associated with in-situ recovery or other facilities),
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:
[[Page 56964]]
(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.
* * * * *
0
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/her 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. Commencement of construction as defined in Sec.
40.4 may include non-construction activities if the activity has a
reasonable nexus to radiological safety and security.
* * * * *
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
0
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)).
0
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 (1)(i) of this definition, and does not mean the activities
in paragraph (1)(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
[[Page 56965]]
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.
* * * * *
0
15. Section 51.45, paragraph (c) is revised to read as follows:
Sec. 51.45 Environmental report.
* * * * *
(c) Analysis. The environmental report must include an analysis
that considers and balances the environmental effects of the proposed
action, the environmental impacts of alternatives to the proposed
action, and alternatives available for reducing or avoiding adverse
environmental effects. An environmental report required for materials
licenses under Sec. 51.60 must also include a description of those
site preparation activities excluded from the definition of
construction under Sec. 51.4 which have been or will be undertaken at
the proposed site (i.e., those activities listed in paragraphs (2)(i)
and (2)(ii) in the definition of construction contained in Sec. 51.4);
a description of the impacts of such excluded site preparation
activities; and an analysis of the cumulative impacts of the proposed
action when added to the impacts of such excluded site preparation
activities on the human environment. An environmental report prepared
at the early site permit stage under Sec. 51.50(b), limited work
authorization stage under Sec. 51.49, construction permit stage under
Sec. 51.50(a), or combined license stage under Sec. 51.50(c) must
include a description of impacts of the preconstruction activities
performed by the applicant at the proposed site (i.e., those activities
listed in paragraph (1)(ii) in the definition of ``construction''
contained in Sec. 51.4), necessary to support the construction and
operation of the facility which is the subject of the early site
permit, limited work authorization, construction permit, or combined
license application. The environmental report must also contain an
analysis of the cumulative impacts of the activities to be authorized
by the limited work authorization, construction permit, or combined
license in light of the preconstruction impacts described in the
environmental report. Except for an environmental report prepared at
the early site permit stage, or an environmental report prepared at the
license renewal stage under Sec. 51.53(c), the analysis in the
environmental report should also include consideration of the economic,
technical, and other benefits and costs of the proposed action and its
alternatives. Environmental reports prepared at the license renewal
stage under Sec. 51.53(c) need not discuss the economic or technical
benefits and costs of either the proposed action or alternatives except
if these benefits and costs are either essential for a determination
regarding the inclusion of an alternative in the range of alternatives
considered or relevant to mitigation. In addition, environmental
reports prepared under Sec. 51.53(c) need not discuss issues not
related to the environmental effects of the proposed action and its
alternatives. The analyses for environmental reports shall, to the
fullest extent practicable, quantify the various factors considered. To
the extent that there are important qualitative considerations or
factors that cannot be quantified, those considerations or factors
shall be discussed in qualitative terms. The environmental report
should contain sufficient data to aid the Commission in its development
of an independent analysis.
* * * * *
PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL
0
16. 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. 109-58, 119 Stat. 194 (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 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).
0
17. 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 other 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
[[Page 56966]]
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.
* * * * *
0
18. 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/her 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. Commencement of construction
as defined in section 70.4 may include non-construction activities if
the activity has a reasonable nexus to radiological safety and
security.
* * * * *
PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274
0
19. 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).
0
20. 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)(iii) of this section. As used in this paragraph:
(A) The term commencement of construction means taking any action
defined as ``construction'' or any other 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 have a reasonable nexus 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 which has no reasonable nexus to
radiological health and safety.
* * * * *
Dated at Rockville, Maryland, this 9th day of September 2011.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011-23628 Filed 9-14-11; 8:45 am]
BILLING CODE 7590-01-P