[Federal Register Volume 91, Number 60 (Monday, March 30, 2026)]
[Rules and Regulations]
[Pages 15519-15534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-06049]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 91, No. 60 / Monday, March 30, 2026 / Rules
and Regulations
[[Page 15519]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 51
[NRC-2018-0300]
RIN 3150-AK54
Categorical Exclusions From Environmental Review
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its
regulations for categorical exclusions for licensing, regulatory, and
administrative actions that do not significantly affect the quality of
the human environment. This final rule eliminates the need to prepare
environmental assessments for such NRC actions. The final rule will not
change any requirements for applicants or licensees.
DATES: This final rule is effective on April 29, 2026.
ADDRESSES: Please refer to Docket ID NRC-2018-0300 when contacting the
NRC about the availability of information for this action. You may
obtain publicly available information related to this action by any of
the following methods:
Federal Rulemaking Website: Electronically at https://www.regulations.gov and search for Docket ID NRC-2018-0300. Address
questions about NRC dockets to Helen Chang; telephone: 301-415-3228;
email: [email protected]. For technical questions, contact the
individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly available documents online in the
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin ADAMS Public Search.''
For problems with ADAMS, please contact the NRC's Public Document Room
(PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by email
to [email protected]. For the convenience of the reader,
instructions about obtaining materials referenced in this document are
provided in the ``Availability of Documents'' section.
NRC's PDR: The PDR, where you may examine and order copies
of publicly available documents, is open by appointment. To make an
appointment to visit the PDR, please send an email to
[email protected] or call 1-800-397-4209 or 301-415-4737, between 8
a.m. and 4 p.m. eastern time, Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Nancy Martinez, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001; telephone: 630-829-9734; email:
[email protected].
SUPPLEMENTARY INFORMATION: This rulemaking is separate from NRC's
comprehensive review and reform of its regulations in accordance with
Executive Order (E.O.) 14300, ``Ordering the Reform of the Nuclear
Regulatory Commission'' (90 FR 22587; May 29, 2025). The rulemakings
associated with that effort will comprehensively reexamine NRC
requirements. While there could be additional revisions as a result of
these future rulemakings, the NRC is moving forward with publication of
this final rule at this time because it is a deregulatory action of
high interest for stakeholders that was in progress before the issuance
of E.O. 14300.
Table of Contents
I. Background
A. General Overview of Categorical Exclusions
B. July 2024 Proposed Rule
C. Changes From Proposed Rule
II. Discussion of Changes
A. What action is the NRC taking?
B. How are categorical exclusions established and applied?
C. Who will this action affect?
D. Why is the NRC taking this action now?
E. How did the NRC determine which categorical exclusions to
modify or add?
F. What are the revisions to address inefficiencies and
inconsistencies?
G. What is the basis for the new categorical exclusions?
H. What is the basis for the revisions to existing categorical
exclusions?
I. Why is the NRC removing categorical exclusions?
J. Why is the NRC defining the term previously disturbed areas?
III. Opportunities for Public Participation
IV. Public Comment Analysis
A. Comments and NRC Responses to Specific Questions on the
Proposed Rule
B. General Comments and NRC Responses on the Proposed Rule
V. Discussion of Amendments by Section
VI. Regulatory Flexibility Certification
VII. Regulatory Analysis
VIII. Backfitting and Issue Finality
IX. Cumulative Effects of Regulation
X. Plain Writing
XI. Paperwork Reduction Act Statement
XII. Executive Orders
XIII. Congressional Review Act
XIV. Compatibility of Agreement State Regulations
XV. Voluntary Consensus Standards
XVI. Availability of Guidance
XVII. Availability of Documents
I. Background
The National Environmental Policy Act of 1969, as amended, (NEPA)
requires Federal agencies to undertake an assessment of the
environmental effects of certain of their proposed Federal actions
prior to deciding whether to approve or disapprove the proposed
actions. The Fiscal Responsibility Act of 2023 (FRA) amended NEPA to,
among other things, expressly incorporate categorical exclusions,
previously a matter of longstanding Council on Environmental Quality
and agency practice, into the NEPA environmental review process. The
NRC's NEPA implementing regulations are contained in part 51 of title
10 of the Code of Federal Regulations (10 CFR), ``Environmental
Protection Regulations for Domestic Licensing and Related Regulatory
Functions.''
A. General Overview of Categorical Exclusions
NEPA establishes three levels of environmental review for Federal
proposed actions: categorical exclusions, environmental assessments
(EAs), and environmental impact statements (EISs). If a Federal agency
believes that the environmental impacts of a proposed action are not
likely to be significant, or if the significance of the impacts are
unknown, the agency may prepare an EA. An EA is a concise document that
provides sufficient
[[Page 15520]]
evidence and analysis for determining whether to make a finding of no
significant impact (FONSI) or to prepare an EIS. If a Federal agency
believes that the environmental impacts of a proposed action may be
significant (for example, because an EA did not result in a FONSI), the
agency will prepare an EIS. An EIS is a detailed written statement of
the environmental impacts of a proposed action and alternatives to the
proposed action.
As defined by NEPA, a categorical exclusion is a category of
actions that a Federal agency has determined normally does not
significantly affect the quality of the human environment within the
meaning of section 102(2)(C) of NEPA. Under the NRC's NEPA implementing
regulations, see 10 CFR 51.14(a), 51.22(a), if the NRC finds that
actions in a given category have no significant effect on the human
environment, either individually or cumulatively then the NRC may
establish a categorical exclusion for that category of actions. Once it
has established a categorical exclusion, the NRC is not required to
prepare an EA or EIS for any action that falls within the scope of the
categorical exclusion unless the NRC finds, for any particular action,
special circumstances, see 10 CFR 51.22(b), that would preclude use of
the categorical exclusion. Categorical exclusions facilitate efficient
and effective reviews in accordance with Congress's intent. The
determination that special circumstances are not present does not
require the preparation of any specific or additional documentation
beyond the documentation normally prepared indicating that the
categorical exclusion is being invoked for the proposed action.
On March 12, 1984 (49 FR 9352), the NRC published 10 CFR part 51,
including Sec. 51.22, ``Criterion for categorical exclusion:
identification of licensing and regulatory actions eligible for
categorical exclusion or otherwise not requiring environmental
review.'' The regulation included the NRC's first list of 18
categorical exclusions in Sec. 51.22(c). Since 1984, the NRC has made
18 amendments to the categorical exclusions in Sec. 51.22(c). The
NRC's categorical exclusions include administrative, organizational,
and procedural amendments to certain types of NRC regulations,
licenses, and certificates; minor changes related to application filing
procedures; certain personnel and procurement activities; and
activities for which environmental review by the NRC is excluded by
statute. The NRC last amended its categorical exclusion regulations on
April 29, 2010 (75 FR 20248).
The NRC published an advance notice of proposed rulemaking (ANPR)
on May 7, 2021 (86 FR 24514), after a review of the NRC's environmental
programs and organization identified potential opportunities to enhance
the NRC's environmental review process for more efficient and effective
reviews. In the ANPR the staff raised the possibility of reorganizing
the existing categorical exclusions and adding new categorical
exclusions. The NRC received more than 2,300 comment submittals on the
ANPR; most were identical comments on topics that the NRC determined
were out of scope. The NRC evaluated approximately 20 unique comment
submittals and considered them during the development of the proposed
rule. Some of the comments supported reorganizing the list of
categorical exclusions to eliminate redundancy and add clarity.
Additionally, some comments supported revisions to eliminate
distinctions in categorical exclusions between license amendments,
exemptions, rulemaking, and other forms of NRC actions to ensure that
categorical exclusions are based on the activities that would be
authorized rather than the administrative and legal differences between
the different forms of NRC approvals.
The NRC received comments that did not support some of the
categories considered in the ANPR. Based on these comments, the NRC
modified some of the changes under consideration; for example, the NRC
did not pursue categorical exclusions for the four following categories
of actions considered in the ANPR: (1) the issuance of exemptions to
low-level waste disposal sites for the storage and disposal of special
nuclear material regulated by Agreement States; (2) approvals for
alternative waste disposal procedures for reactor and materials
licenses in accordance with 10 CFR 20.2002, ``Method for obtaining
approval of proposed disposal procedures''; (3) the NRC's concurrence,
under the Atomic Energy Act of 1954, as amended (AEA), section 274c.,
on termination by an Agreement State of licenses for AEA section
11e.(2) byproduct material where all decommissioning activities have
been completed; and (4) approvals of long-term surveillance plans for
decommissioned uranium mills.
In addition, based on a comment received on the ANPR, the NRC
evaluated categorical exclusions by other Federal agencies for
potential adoption by the NRC. This evaluation did not identify any
categorical exclusions for incorporation in the proposed rule. Comments
submitted on the ANPR can be found on https://www.regulations.gov by
searching for ``Docket ID NRC-2018-0300.''
B. July 2024 Proposed Rule
The NRC published a proposed rule in the Federal Register on July
2, 2024 (89 FR 54727). The proposed rule identified the NRC's proposed
changes to its list of categorical exclusions to clarify the scope of
existing categories, to improve consistency in their application, and
to add new categories of actions that have no significant effect on the
human environment. The proposed amendments would ensure resources are
directed to activities that have the potential to significantly affect
the environment.
The amendments do not impose any new requirements on NRC applicants
or licensees but ensure that NRC actions (including decisions on
licensing requests) are completed in a more consistent, efficient, and
effective manner and result in cost savings to the NRC and applicants
and licensees, when applicable. The amendments eliminate the NRC's
preparation of EA/FONSIs for many routine actions and actions that have
no significant effect on the human environment (e.g., licensee requests
for approval of minor administrative, procedural, or organizational
changes).
The NRC held a public meeting on July 31, 2024, to provide an
overview of these changes and to help facilitate comments on the
proposed rule. The NRC received nine comment submittals on the proposed
rule, resulting in approximately 37 unique comments that the staff
considered in the development of the final rule.
C. Changes From Proposed Rule
In the proposed rule, the NRC explained that it was considering
defining the phrase ``previously disturbed areas'' and requested input
from the public on a possible definition. That definition was based on
the definition of ``previously disturbed or developed'' in the
Department of Energy's NEPA implementing regulations in 10 CFR
1021.410(g)(1). In the final rule, the NRC included the definition of
previously disturbed areas with revisions to enable its application to
a broader range of NRC actions than DOE's definition is used for, to
focus on important habitats and habitat to important species of
concern, to provide clarity about the extent of previous disturbances
to address comments received about historical and cultural
[[Page 15521]]
resources, and for plain language. The NRC is defining the phrase
``previously disturbed areas'' to refer to areas that have been changed
by development of the facility and remain altered by human activity
such that they do not support important habitat or habitat to important
species and no longer have the potential to yield historic and cultural
resources. This includes the lateral and vertical extent of alteration
from natural cover to a managed state. Important habitat includes
wetlands, large contiguous tracts of habitat, scrub shrub habitat, and
critical habitat as defined under the Endangered Species Act. Important
species include State-listed species and species listed under the
Endangered Species Act.
The focus on important habitats and important species is based on
previous NRC environmental reviews. NRC staff reviewed previous
environmental reviews to determine when ground disturbance has resulted
in a significance level of MODERATE (the effect is sufficient to alter
noticeably, but not destabilize, important attributes of the resource)
or greater. NRC environmental reviews indicate that MODERATE or greater
impacts occurred when there were significant impacts to habitat for
State- or Endangered Species Act-listed species or to habitats that are
considered particularly important for other reasons, such as wetlands,
large contiguous tracts of habitat, and scrub shrub habitats, which may
be sensitive to disturbance or important to preserve (e.g., because
there are no or few other large contiguous tracts of habitat remaining
in the area). No further substantial changes were made between the
proposed rule and this final rule.
II. Discussion of Changes
A. What action is the NRC taking?
The NRC is changing its list of categorical exclusions to enhance
the efficiency of its environmental reviews by clarifying the scope of
existing categories, to improve consistency in their application, and
adding new categories of actions that have no significant effect on the
human environment. For example, the NRC is eliminating distinctions in
categorical exclusions between license amendments, exemptions,
rulemaking, and other forms of NRC actions to ensure that categorical
exclusions are based on the activities that would be authorized (e.g.,
certain maintenance activities) rather than on the different forms of
the NRC approvals. The amendments will ensure resources are directed to
activities that have the potential to significantly affect the
environment. In addition, the NRC is updating references to paragraphs
of NEPA that were renumbered by recent amendments in the FRA; the NRC
finds for good cause pursuant to the Administrative Procedure Act at 5
U.S.C. 553(b)(B) that an opportunity for comment on these updates is
unnecessary because they are mere technical amendments to correct
existing references to statutory requirements.
B. How are categorical exclusions established and applied?
If the NRC finds that actions in a given category have no
significant effect on the human environment, either individually or
cumulatively, see 10 CFR 51.14(a), 51.22(a), then the NRC may establish
a categorical exclusion for that category of action. Once established,
categorical exclusions are an efficient level of the NEPA environmental
review process for actions that do not require an environmental
assessment or environmental impact statement. The NRC establishes and
revises categorical exclusions pursuant to a rulemaking, for defined
classes of actions that the NRC determines are supported by a record
showing that the actions do not have significant environmental impacts,
individually or cumulatively, see 10 CFR 51.14(a), 51.22(a). Once it
has established a categorical exclusion, the NRC is not required to
prepare an EA or EIS for any action that falls within the scope of the
categorical exclusion unless the NRC finds, for any particular action,
that there are special circumstances that indicate the action may have
a significant effect on the human environment. If such special
circumstances are present or are likely to be present, the NRC may
prepare an EA (which may result in a FONSI) or, if necessary, an EIS.
See 10 CFR 51.20(b)(14), 51.22(b). If special circumstances are not
present, the categorical exclusion may be applied, and the NRC will
have satisfied its NEPA obligation for that proposed action.
Under 10 CFR 51.22, the determination of whether special
circumstances are present is a matter of agency discretion. The
determination that special circumstances are not present does not
require the preparation of any specific or additional documentation
beyond the documentation normally prepared to indicate that the
proposed action falls under a categorical exclusion.
C. Who will this action affect?
The amendments will not impose any new requirements on NRC
applicants or licensees but will ensure that NRC actions (including
decisions on licensing requests) are completed in a more consistent,
efficient, and effective manner and will result in cost savings to the
NRC and applicants and licensees. The amendments will eliminate the
NRC's preparation of EA/FONSIs for actions that the NRC knows from
staff expertise or experience have no significant effect on the human
environment (e.g., licensee requests for approval of minor
administrative, procedural, or organizational changes).
D. Why is the NRC taking this action now?
This rule is based upon a review of NRC regulatory actions that
identified potential revisions to the NRC's categorical exclusions that
could ensure resources are directed to activities that have the
potential to significantly affect the environment.
E. How did the NRC determine which categorical exclusions to modify or
add?
The NRC reviewed and analyzed past actions, including their
supporting NEPA documentation, to develop initial candidates for
potential changes to categorical exclusion regulations. The NRC
considered available information and agency experience to determine
whether the candidates for categorical exclusion and revisions to the
existing categorical exclusions could be substantiated. The NRC then
solicited input from internal stakeholders and from the public.
The NRC ultimately used two methods to substantiate the proposed
changes. The methods used in the NRC's proposal are based on (1) data
from implementing comparable past actions and the expert judgment of
the NRC staff who conducted the past actions, and (2) professional
opinions and information from other NRC staff. Based on its review of
all the information collected, the NRC determined that actions covered
by the changes will not individually or cumulatively have significant
effects on the human environment. See 10 CFR 51.14(a), 51.22(a).
F. What are the revisions to address inefficiencies and
inconsistencies?
The NRC is reorganizing the list of categorical exclusions to
eliminate redundancy, add clarity, and improve consistency and
efficiency. The former regulations contained 25 separate paragraphs,
several of which contained multiple categorical exclusions. The
[[Page 15522]]
NRC identified several actions where staff have cited different,
potentially overlapping, categorical exclusions for similar or even
identical actions. The reorganization eliminates distinctions in
categorical exclusions among license amendments, exemptions,
rulemaking, and other forms of NRC actions to ensure that categorical
exclusions are based on the activities that will be authorized rather
than the administrative and legal differences among the different forms
of NRC approvals. The reorganization removes the overlapping actions
and consolidates similar actions into one categorical exclusion.
The reorganization lists the categorical exclusions in paragraphs
(a) through (d), based on threshold criteria used to more clearly and
consistently identify the categories of actions being excluded.
The NRC is removing the ``no significant hazards consideration''
criterion. The ``no significant hazards consideration'' criterion is a
procedural standard from Sec. 50.92, ``Issuance of amendment,'' that
governs whether an opportunity for a hearing must be provided before a
license amendment action is taken by the NRC for a production and
utilization facility under part 50 (51 FR 7746; March 6, 1986). It is
not related to NEPA and not applicable to exemptions that do not
include license amendments or actions related to materials licenses
(e.g., 10 CFR part 30, ``Rules of General Applicability to Domestic
Licensing of Byproduct Material,'' or 10 CFR part 40, ``Domestic
Licensing of Source Material,'' licenses).
In addition, the ``no significant construction impact'' criterion
is revised in the new Sec. 51.22(b) and (d) to ``provide that any
ground disturbance is limited to previously disturbed areas.'' The
purpose of this change is to provide clarification. The regulatory
history indicates that the ``no significant construction impact''
criterion was intended to preclude actions that would result in ground
disturbing activities in undisturbed areas, which would have the
potential to alter, modify, or destroy important attributes of
environmental resource areas (e.g., land use, terrestrial ecology,
historic and cultural resources). Based on experience with the use of
these categorical exclusions, the NRC's view is that it will be clearer
to explicitly state the relevant consideration in the regulations. The
``any ground disturbance is limited to previously disturbed areas''
criterion can be demonstrated by determining that the proposed action
will not consist of ground disturbing activities at all or
documentation (e.g., surveys) confirming that there are no important
habitats, important species, or historic and cultural resources in the
areas where ground disturbance will occur.
G. What is the basis for the new categorical exclusions?
The NRC is adding the following categorical exclusions.
Issuance of amendments to Sec. 72.214 for new, amended, revised,
or renewed certificates of compliance for cask designs used for spent
fuel storage. The codification of certificates of compliance for cask
designs is accomplished by rulemaking to amend 10 CFR part 72. The NRC
conducts a safety review for each rulemaking action to issue, amend, or
renew a certificate of compliance. As background, on July 18,1990 (55
FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for
the storage of spent fuel under a general license in cask designs
approved by the NRC. The potential environmental impact of using NRC-
approved storage casks was initially analyzed in the EA for the 1990
final rule. Currently, the NRC prepares EAs for new, amended, revised,
and renewed certificates of compliance for cask designs used for spent
fuel storage. Between the 2010 rulemaking and 2021 the NRC completed
approximately 125 EAs for amendments to Sec. 72.214 for new, amended,
revised, or renewed certificates of compliance for cask designs, all
resulting in FONSIs. No amendments to Sec. 72.214 resulted in the need
to prepare an EIS. Accordingly, the NRC determined that certificate of
compliance cask design changes do not result in any radiological or
non-radiological environmental impacts that differ substantially from
the environmental impacts evaluated in the EA and FONSI supporting the
1990 final rule. Therefore, the NRC concluded that codifying
certificates of compliance for cask designs do not individually or
cumulatively affect the human environment, see 10 CFR 51.14(a),
51.22(a). This categorical exclusion is Sec. 51.22(a)(12).
Actions under Sec. 50.55a, ``Codes and standards.'' Section 50.55a
establishes minimum quality standards for the design, fabrication,
erection, construction, testing, and inspection of certain systems,
structures, and components of boiling and pressurized water-cooled
nuclear power plants. Under Sec. 50.55a, the NRC can authorize
proposed alternatives to these standards (Sec. 50.55a(z)), grant
relief from or impose augments to requirements for in service
inspection and testing of components due to impracticality (Sec.
50.55a(f)(6)(i) and (g)(6)(i)), or approve the early use of later code
editions for inservice inspection and testing of components (Sec.
50.55a(f)(4)(iv) and (g)(4)(iv)). Categorically excluding these actions
will provide clarity and surety for future actions of this type. For
the following reasons, these approvals under Sec. 50.55a do not
individually or cumulatively have a significant effect on the human
environment, which makes these actions eligible for categorical
exclusion. Approvals under Sec. 50.55a do not authorize new ground
disturbance or the installation of new systems, structures, or
components; rather, they relate to requirements for the design,
construction, and maintenance of systems, structures and components
authorized for use by other actions (i.e., licensing). These approvals
also do not increase the probability or consequences of accidents, do
not result in changes to the types or amounts of effluents released
offsite, do not result in an increase to occupational or public dose,
and do not result in other radiological or nonradiological
environmental impacts. Therefore, the NRC concludes that actions under
Sec. 50.55a do not individually or cumulatively affect the human
environment. This categorical exclusion is Sec. 51.22(a)(16).
Changes to requirements for fire protection, emergency planning,
physical security, cybersecurity, or quality assurance. Between the
2010 rulemaking and 2021, the NRC completed approximately 51 EAs/FONSIs
associated with the approval of exemptions or license amendments
related to fire protection, emergency planning, or physical security
requirements. The EAs concluded that these license amendments or
exemptions will not significantly increase the probability or
consequences of accidents and do not result in significant changes to
the types or amounts of effluents released offsite, increases to
occupational or public dose, or any other radiological or non-
radiological environmental impacts. Although some of these actions
include ground disturbing activities, such as construction of security
fences, because the ground disturbing activities were limited to
previously disturbed areas (as defined in this rule), none of the
actions resulted in significant environmental effects under NEPA.
Therefore, the NRC concluded that these changes to requirements for
fire protection, emergency planning, or physical security do not
individually or cumulatively have a significant effect on the human
environment, provided that
[[Page 15523]]
any associated ground disturbance is limited to previously disturbed
areas.
Quality assurance programs are intended to provide adequate
confidence that a structure, system, or component will perform
satisfactorily in service. Elements of a quality assurance program
include procedures, recordkeeping, inspections, corrective actions, and
audits. Cybersecurity programs protect computer and digital
communication systems and networks against cyber-attacks. These
programs ensure that actions associated with structures, systems, and
components will satisfy stated performance criteria. Changes to quality
assurance programs or cybersecurity programs could affect activities
that occur inside buildings. These changes do not significantly
increase the probability or consequences of accidents and do not result
in significant changes to the types or amounts of effluents released
offsite, increases to occupational or public dose, or any other
radiological or non-radiological impacts and do not involve ground
disturbance in undisturbed areas. Therefore, changes to requirements
for quality assurance or cybersecurity do not have the potential to
individually or cumulatively affect the human environment. These
actions will be categorically excluded by Sec. 51.22(d)(4).
Changes to extend implementation dates for activities previously
found to not have a significant environmental impact. These revisions
will categorically exclude actions authorizing licensees to delay
implementation of certain new NRC requirements. This categorical
exclusion only applies to implementation date delays for activities
previously found to have no significant environmental impact and where
the delay will result in no significant increase in the potential for
or consequences from radiological accidents, no ground disturbance in
undisturbed areas, no changes in effluents released offsite, and no
additional doses to individuals. The categorical exclusion does not
apply to authorizations for other date extensions, such as license term
extensions. Between the 2010 rulemaking and 2021, the NRC completed
approximately 44 EAs to extend implementation dates, all resulting in
FONSIs. Therefore, the NRC determined that implementation date
extensions do not have the potential to individually or cumulatively
have a significant effect on the human environment. These actions will
be categorically excluded by Sec. 51.22(d)(6).
In addition, and as discussed in more detail below relating to a
reorganization of categorical exclusions, the NRC is establishing a new
categorical exclusion for actions that are administrative, procedural,
or solely financial in nature and has identified the following two
examples of actions that are included in this category that will be
specifically stated in the rule for the first time:
Termination of licenses that were issued but for which no
construction activities have begun or where all decommissioning
activities have been completed and approved and license termination is
a final administrative step. First, the termination of licenses that
were issued but for which no construction has begun removes
authorization for activities that could affect the environment. Second,
when all site decommissioning activities have been approved and
completed, license termination is an NRC administrative action. To be
eligible for license termination, facilities must complete necessary
dismantlement and decontamination activities and have met radiological
criteria in 10 CFR part 20, ``Standards for Protection Against
Radiation,'' for site release and demonstrated that public health and
safety and the environment will be protected. Therefore, the action of
terminating a license after all site decommissioning activities have
been approved and completed is administrative in nature and does not
have the potential to individually or cumulatively have a significant
effect on the human environment. The NRC has historically cited various
other categorical exclusions or prepared an EA for these activities.
The inclusion of this example in Sec. 51.22(a)(1)(xiii) will provide
clarity and consistency for future license terminations. This
categorical exclusion will not include the NRC's concurrence on
termination of an Agreement State license for AEA Sec. 11e.(2)
byproduct material. It will also not include partial site releases or
license termination plans.
Actions on or changes to requirements for decommissioning funding.
Decommissioning funding actions only relate to changes in the
management of funds allowed for managing decommissioning activities.
They do not authorize new land-disturbing activities that could affect
land use, soils and geology, water resources, ecological resources,
historic and cultural resources, air quality, traffic and
transportation, socioeconomics, or accidents. Categorically excluding
decommissioning funding actions will provide clarity and surety for
future actions and eliminate inconsistencies in the decommissioning
funding approval process. Licensees will continue to comply with all
appropriate NRC regulations related to occupational and public
radiation exposure and therefore decommissioning funding actions will
not result in an increase to occupational or public doses. Finally,
licensees are required to maintain adequate funding for radiological
decommissioning and to provide information regarding this funding to
the NRC. Between 2010 and 2021 the NRC completed approximately 30 EAs
for decommissioning funding actions, all resulting in FONSIs.
Therefore, the NRC determined that decommissioning funding actions are
strictly financial in nature and do not have the potential to
individually or cumulatively have a significant effect on the human
environment. These actions are listed in Sec. 51.22(a)(1)(xii) as
examples of actions that are administrative, procedural, or solely
financial in nature.
H. What is the basis for the revisions to existing categorical
exclusions?
The NRC is reorganizing the list of categorical exclusions to
eliminate redundancy, add clarity, and improve consistency. The
reorganization will eliminate distinctions in categorical exclusions
among license amendments, exemptions, rulemaking, and other forms of
NRC actions, to ensure that categorical exclusions are based on the
activities that will be authorized rather than the administrative and
legal differences among the different forms of NRC approvals. The
reorganization will consolidate similar actions into one categorical
exclusion. In some instances, the revisions will expand or clarify
language used in the existing categorical exclusions (e.g., focusing on
ground disturbance rather than on whether there will be a ``significant
construction impact''). In these cases, the rulemaking analyzes these
newly included actions for suitability for categorical exclusion but
does not revisit the suitability of the existing categorical exclusion.
The NRC also made a small number of editorial revisions. This section
provides the basis for the revisions.
The new categorical exclusion in Sec. 51.22(a)(1) applies to all
NRC actions that are administrative, procedural, or solely financial in
nature including exemptions and orders pertaining to these actions. The
list of activities in Sec. Sec. 51.22(a)(1)(i) through (xi)
consolidates all existing categorical exclusions that fit into the new
category, but the list is not exclusive; rather it provides examples of
actions that are included in the category for clarity. The actions
included in Sec. 51.22(a)(1) are limited to those that are
administrative, procedural, or solely financial in nature. The NRC
notes that actions that are
[[Page 15524]]
``solely financial in nature'' do not include, for example, grants or
contracts that enable activities that could have environmental effects
where NRC ``exercise[s] sufficient control and responsibility over the
subsequent use of such financial assistance or the effect of the
action,'' NEPA Sec. 111(10)(B)(iii). Instead, this refers to
activities that relate only to sources or means of funding or verifying
that adequate funding is available for approved activities. Actions
that are solely financial in nature affect the financial arrangements
of the licensees, but do not have environmental impacts. Accordingly,
the NRC concluded that these actions will not individually or
cumulatively have a significant effect on the human environment.
The new Sec. 51.22(a)(8) will expand the categorical exclusion for
issuance, amendment, or renewal of operators' licenses under 10 CFR
part 55, ``Operators' Licenses'' to include all forms of related NRC
actions, including exemptions and orders. Part 55 of 10 CFR prohibits
persons from performing the functions of an operator or a senior
operator at a licensed facility unless authorized to do so by a license
issued by the Commission. Although issuance or denial of an operator's
license may have an economic effect on the individual applicant, the
action of the Commission in issuing, amending, or renewing an
operator's license in accordance with the procedures of 10 CFR part 55
does not have a significant environmental effect. The environmental
impact of the operation of a licensed facility by a licensed operator
is considered in the EIS or EA prepared in connection with the
licensing action authorizing operation of the facility. The formal
action of certifying an operator does not authorize facility operation.
Accordingly, the NRC finds that issuance, amendment, or renewal of
operators' licenses under 10 CFR part 55 comprises a category of
actions that do not individually or cumulatively have a significant
effect on the human environment, see 10 CFR 51.14(a), 51.22(a). For the
same reasons, the NRC concluded that neither exemptions nor orders
relating to these requirements will have significant effects on the
human environment.
The new Sec. 51.22(a)(10) will expand an existing categorical
exclusion to include all forms of related NRC actions, including
exemptions and orders, but not rulemakings. Specifically, it will
expand the categorical exclusions for issuance, amendment, or renewal
of materials licenses issued under 10 CFR parts 30, 31, 32, 33, 34, 35,
36, 39, 40, or 70 authorizing the types of activities listed in the
former Sec. 51.22(c)(14). It has been the NRC's experience that
additional NRC actions such as exemptions and orders involve
insignificant amounts of source, byproduct, or special nuclear material
in quantities and form similar to those categorically excluded in Sec.
51.22(c)(14) and, therefore, have no significant individual or
cumulative environmental impact. For the same reasons, the NRC
concluded that neither exemptions nor orders relating to these
requirements will not individually or cumulatively have significant
effects on the human environment.
The new Sec. 51.22(b) and (d) include a criterion stating that the
actions will not result in disturbances to previously undisturbed
areas. This wording replaces the previous wording of ``no significant
construction impact.'' The purpose of this new wording is to clarify
that ground disturbance in areas that are already disturbed can be a
factor in determining whether an action will have potential impacts.
Actions that involve ground disturbance in areas not already disturbed
will be reviewed for potential environmental impacts. The new Sec.
51.22(b) is otherwise substantively unchanged from the former Sec.
51.22(c)(6).
The new Sec. 51.22(d)(1) through (3), and (5) will expand the
following categorical exclusions to include rulemaking, orders, and
license amendments, provided the actions will not disturb previously
undisturbed areas, will not result in a significant change in the types
or amounts of effluents released offsite, will not significantly
increase public or occupational radiation exposure, and will not
increase the potential for or consequences from radiological accidents:
Changes to inspection or surveillance requirements (new
Sec. 51.22(d)(1)): this will also be expanded to apply to facilities
other than reactors (i.e., will eliminate reference to 10 CFR part 50
or 52). Expanding this categorical exclusion to include facilities
other than reactors improves the consistency of the categorical
exclusion. The NRC expects that the application of this categorical
exclusion to non-reactor facilities will not be materially different
from the former application to reactor facilities because the
activities are substantially similar at all NRC licensed facilities;
Changes to equipment servicing or maintenance requirements
(new Sec. 51.22(d)(2));
Changes to safeguards plans or material control and
accounting inventory requirements, including modifications to systems
used for security and/or materials accountability (new Sec.
51.22(d)(3)); and
Changes to scheduling requirements (new Sec.
51.22(d)(5)).
In addition to exemptions, the NRC conveys its regulatory decisions
using other forms, such as rulemaking, orders, and license amendments.
The NRC previously found that requests for exemptions from requirements
for inspection and surveillance, equipment servicing and maintenance,
safeguards plans and material control and accounting, and scheduling
requirements will not lead to significant environmental impacts on the
human environment. Similarly, the NRC concluded that changes to these
requirements resulting from rulemakings, orders, and license
amendments, assuming the changes meet the criteria in the new Sec.
51.22(d), will not have significant individual or cumulative effects on
the human environment.
The new Sec. 51.22(d)(7) will expand an existing categorical
exclusion, former Sec. 51.22(c)(11), to include exemptions, orders,
and rulemaking. Specifically, former Sec. 51.22(c)(11) is a
categorical exclusion for amendments to licenses for fuel cycle plants
and radioactive waste disposal sites and amendments to materials
licenses identified in Sec. 51.60(b)(1) that are administrative,
organizational, or procedural in nature, or that result in a change in
process operations or equipment, provided that there is no significant
change in the types or significant increase in the amounts of any
effluents released offsite, no significant increase in individual or
cumulative public or occupational radiation exposure, no significant
construction impact, and no significant increase in the potential for
or consequences from radiological accidents. In the NRC's experience,
these actions also do not result in any significant adverse impacts to
the environment. Implementation of these minor and routine types of
changes do not substantially alter the previously evaluated
environmental impacts associated with the licensed activity,
considering the potential for ground disturbance, types and amounts of
effluents released by the operation, occupational exposure to
employees, or potential accidents. The actions that will be
categorically excluded do not affect the scope or nature of the
licensed activity. Therefore, the issuance of exemptions and orders
relating to these matters in and of themselves will not cause any
significant individual or cumulative environmental effects.
The new Sec. 51.22(d)(7) relating to authorizations that result in
changes in
[[Page 15525]]
process operations or equipment under certain licenses, will be subject
to the criterion in Sec. 51.22(d) stating that the actions will not
result in disturbances to previously undisturbed ground. This wording
replaces the limitation in the former categorical exclusion (at Sec.
51.22(c)(11)) to activities that involve ``no significant construction
impact.'' The purpose of this new wording is to clarify that ground
disturbance is a factor in determining whether an action will have
potential impacts. The NRC has found that ground disturbance actions in
undisturbed areas could have potential impacts that should be evaluated
in an environmental assessment. These environmental assessments can
vary, as some undisturbed areas can be environmentally sensitive to
even small actions.
The new Sec. 51.22(d)(8), relating to certain authorizations under
10 CFR part 50 or 52, will expand the existing categorical exclusion in
the former Sec. 51.22(c)(9) to include rulemakings and orders.
Specifically, it will expand the existing categorical exclusion for the
issuance of an amendment to a permit or license for a reactor under 10
CFR part 50 or 52 that changes a requirement or issuance of an
exemption from a requirement with respect to installation or use of a
facility component. The rule will also expand this categorical
exclusion to include installation or use of a facility component
outside the restricted area under certain circumstances.
The new Sec. 51.22(d)(8) will be subject to the criterion in Sec.
51.22(d) stating that the actions will not result in disturbances to
previously undisturbed areas. This criterion will replace the
restriction of the former categorical exclusion (at Sec. 51.22(c)(9))
to facility components located within the restricted area. Restricting
this categorical exclusion to components in the restricted area ensured
that ground disturbance was limited to previously disturbed areas,
which was part of the basis for the former categorical exclusion. Thus,
this revision will continue to ensure that the categorical exclusion
does not apply to activities that include ground disturbance in areas
not already disturbed. As a result, this categorical exclusion will
apply whether a facility component is located inside or outside the
restricted area but only so long as installation or use of the
component will not disturb previously undisturbed areas (and meets the
other criteria in Sec. 51.22(d)).
I. Why is the NRC removing categorical exclusions?
The NRC evaluated all categorical exclusions to determine if any
are no longer necessary or have proven to no longer meet the criteria
for categorical exclusion. The NRC determined that two categorical
exclusions are no longer necessary because they are obsolete. The
remaining categorical exclusions continue to be valid. The NRC is
removing the former Sec. 51.22(c)(17), ``Issuance of an amendment to a
permit or license under 10 CFR part 30, 40, 50, 52, or 70, which
removes any limiting condition of operation or monitoring requirement
based on or applicable to any matter subject to the provisions of the
Federal Water Pollution Control Act.'' The NRC concluded its activity
to amend applicable NRC licenses and permits to remove limiting
conditions of operation or monitoring requirements pertaining to
nonradiological discharge pollutants under the Federal Water Pollution
Control Act and no longer includes such conditions in NRC permits and
licenses (49 FR 9380; March 12, 1984). Therefore, the NRC has
determined that this categorical exclusion is no longer necessary.
The NRC is also removing former Sec. 51.22(c)(18), ``Issuance of
amendments or orders authorizing licensees of production or utilization
facilities to resume operation, provided the basis for the
authorization rests solely on a determination or redetermination by the
Commission that applicable emergency planning requirements are met.''
This categorical exclusion was established in 1984 (49 FR 9352; March
12, 1984) to support the implementation of a 1980 emergency planning
rule (45 FR 55402; August 19, 1980). That emergency planning rule has
been fully implemented; therefore, the NRC has determined that this
categorical exclusion is no longer applicable and should be removed.
J. Why is the NRC defining the term previously disturbed areas?
The NRC is defining the phrase ``previously disturbed areas'' to
refer to areas that have been changed by development of the facility
and remain altered by human activity such that they do not support
important habitat or habitat to important species and no longer have
the potential to yield historic and cultural resources. This includes
the lateral and vertical extent of alteration from natural cover to a
managed state. This definition is based on the definition of
``previously disturbed or developed'' in the Department of Energy's
(DOE's) NEPA implementing regulations in 10 CFR 1021. The definition
includes modifications to enable its application to a broader range of
NRC actions than DOE's definition is used for, for plain language, and
to provide clarity about the extent of previous disturbances to address
comments received about historical and cultural resources. Important
habitats include wetlands, large contiguous tracts of habitat, scrub
shrub habitat, and critical habitat as defined under the Endangered
Species Act. Important species include State-listed species and species
listed under the Endangered Species Act.
The NRC's reassessment of the previous language of ``no significant
construction impact'' concluded that the new wording ``any ground
disturbance is limited to previously disturbed areas'' clarifies that
ground disturbance can be a factor in determining whether an action
would have potential impacts. The criterion ``any ground disturbance is
limited to previously disturbed areas'' is appropriate in a categorical
exclusion because it clearly and explicitly states the relevant
consideration in the regulations.
III. Opportunities for Public Participation
The NRC published an advance notice of proposed rulemaking (ANPR)
in the Federal Register on May 7, 2021 (86 FR 24514). The NRC held a
meeting on June 16, 2021, to help facilitate comments on the ANPR. The
ANPR identified potential new categorical exclusions, areas where
existing categories could be clarified, and inconsistencies among
existing excluded categories. Comments received as a result of the ANPR
can be found at https://www.regulations.gov, under Docket ID NRC-2018-
0300.
The NRC published a proposed rule in the Federal Register on July
2, 2024 (89 FR 54727). The NRC held a public meeting on July 31, 2024,
where the NRC provided background on the proposed changes. Comments
received on the proposed rule can be found at https://www.regulations.gov, under Docket ID NRC-2018-0300.
IV. Public Comment Analysis
The public comment period for the proposed rule closed on September
16, 2024. In the proposed rule, the NRC requested comments regarding
the proposed requirements. The NRC received nine comment submittals
which included 37 unique comments. The public comment submissions are
available from the Federal e-Rulemaking website at https://www.regulations.gov under Docket ID NRC-2018-0300.
[[Page 15526]]
This analysis addresses the three specific questions included in
the request for comment on the proposed rule. This analysis also
addresses general comments, which have been binned into four categories
based on their relevance to particular topics.
A. Comments and NRC Responses To Specific Questions on the Proposed
Rule
In Section IV of the Supplementary Information for the proposed
rule, the NRC solicited comments on three specific questions. In the
next paragraphs, these questions are restated, comments received from
stakeholders are summarized, and the NRC's responses to the public
comments are presented.
Question 1: The categorical exclusions in proposed Sec. 51.22(b)
(related to confirmatory research and review and approval of
transportation routes under Sec. 73.3) and (d) (addressing nine
different types of actions) will require the application of threshold
criteria to determine whether the actions listed in those sections may
be categorically excluded. The threshold criteria used in current Sec.
51.22 include ``no significant construction impact.'' The NRC is
proposing to substitute the phrase ``any ground disturbance is limited
to previously disturbed areas'' for ``no significant construction
impact.'' The purpose of this change is to prevent the categorical
exclusion of actions that would disturb previously undisturbed land,
which have the potential to affect historic or cultural resources, and
actions that would disturb areas that are in or have been allowed to
return to a natural state, which have the potential to affect
functioning ecologies. The NRC requested input on the proposed phrase
``any ground disturbance is limited to previously disturbed areas.''
Comments Summary: Commenters indicated that changing the rule
language from ``no significant construction impact'' to the new
criterion of ``any ground disturbance is limited to previously
disturbed areas'' may be overly restrictive or reduce agency
efficiency. One commenter indicated that the proposed language change
represents a shift from a more performance-based standard, which
evaluated the actual environmental impact of the project, to one that
focuses more on the history of the land's disturbance. That commenter
stated that the language ``no significant construction impact'' should
not be removed strictly due to interpretation concerns and that
projects in undisturbed areas may have minimal or no environmental
impacts and should still qualify for a categorical exclusion. Another
commenter indicated that the rule should include language that permits
use of context-specific, performance-based language rather than
prescriptively limiting all potential ground disturbance to
``previously disturbed areas.''
One commenter suggested that the NRC should retain the flexibility
to apply categorical exclusions to actions that may involve limited
ground-disturbing or other physical activities on undisturbed or
undeveloped sites, provided those activities do not destabilize or
noticeably alter any important attribute of the relevant environmental
resources.
Several commenters indicated a preference for including both the
previous language of ``no significant construction impact'' in addition
to the proposed language of ``any ground disturbance is limited to
previously disturbed areas'' in the rule language because such
inclusion can ensure that low-risk, low-impact projects are not
unnecessarily delayed while safeguarding against potential harm to both
previously disturbed and undisturbed lands, allowing for a more nuanced
assessment of categorical exclusions and project impacts.
One commenter suggested using the new criterion ``any ground
disturbance is limited to previously disturbed areas'' with ``or the
effects of any ground disturbances are not detectable or so minor that
they will neither destabilize nor noticeably alter any important
attribute of an environmental resource.''
Response: The NRC disagrees with these comments. The purpose for
this change is to provide clarification. This new wording clarifies
that ground disturbance is a factor in determining whether an action
would have potential impacts. The regulatory history indicates that the
``no significant construction'' impact criterion was intended to
preclude actions that would result in ground disturbing activities in
undisturbed areas because the actions would have the potential to
alter, modify, or destroy important attributes of environmental
resource areas (e.g., land use, terrestrial ecology, historic and
cultural resources). The NRC believes this change would explicitly
state the relevant consideration in the regulations.
In contrast, the NRC has found that ground disturbance actions in
previously undisturbed areas could have potential impacts that should
be evaluated in an environmental assessment. These environmental
assessments can vary, as some undisturbed areas can be environmentally
sensitive to even small actions. The extent of construction impacts on
undisturbed areas needs to be assessed through either an environmental
assessment or an environmental impact statement. Although the
assessments may in many cases be brief, because these potential impacts
require individual assessment, ground disturbance actions in
undisturbed areas are not appropriate for a categorical exclusion.
The use of a ``performance-based approach'' or use of a
noticeability criteria is not appropriate for categorical exclusions
because the NRC's regulations require that categories for exclusion
have no significant environmental impact.
The NRC has defined SMALL in environmental impact statements to
indicate environmental effects that are not detectable or are so minor
that they will neither destabilize nor noticeably alter any important
attribute of a resource. The NRC has proposed to use a performance-
based approach to address the NRC licensing of the building and
operation of new nuclear reactors in the United States by codifying the
findings of the Generic Environmental Impact Statement for Licensing of
New Nuclear Reactors, Draft NUREG-2249. This approach reflects
minimization of potential environmental impacts by the applicant when
choosing a plant design and site prior to submitting an application.
The performance-based values and assumptions in the Generic
Environmental Impact Statement (GEIS) describe the bounding
environmental conditions for the generic analysis to confidently
conclude that environmental impacts would be SMALL for any location
within the United States. Applicants and NRC staff may rely on the
generic analysis for each Category 1 issue provided that the relevant
values and assumptions are met and there is no new and significant
information that changes the conclusions in the GEIS.\1\ A minimization
of potential environmental impacts or an impact finding of SMALL in the
GEIS does not necessarily mean that a specific action would not
individually or cumulatively have a significant effect on the human
environment. Therefore, the NRC cannot generically substitute those
conclusions to support a categorical exclusion criterion without
assessing the specific actions to be excluded. In contrast,
[[Page 15527]]
excluding ground disturbance of previously undisturbed areas allows the
NRC to generically conclude that impacts to certain environmental
resource areas will not occur. Combined with other threshold criteria
and knowledge and experience of the listed categories of actions, this
allows the NRC to conclude that the listed actions will not result in
significant effects on the human environment.
---------------------------------------------------------------------------
\1\ Category 1 issues are those issues determined to be common,
or generic, to all nuclear reactors, as discussed in NUREG-1437. The
NRC staff determined that the vast majority of Category 1 issues
were of SMALL significance level.
---------------------------------------------------------------------------
Finally, the previously disturbed areas criterion provides a clear
and objective standard that will more readily and transparently allow
applicants, the NRC staff, and members of the public to determine
whether a proposed action meets the categorical exclusion. In contrast,
the version of the ``no significant construction impacts'' standard
proposed by commenters would require a subjective, EA-like evaluation
of the significance of the construction impacts before the categorical
exclusion could be applied. No changes to the rule language were made
as a result of these comments.
Question 2: The NRC is considering defining the phrase ``previously
disturbed areas'' to refer to areas that have been changed such that
its functioning ecological processes have been and remain altered by
human activity. The phrase encompasses areas that have been transformed
from natural cover to non-native species or a managed state, including,
but not limited to, utility and electric power transmission corridors
and rights-of-way, and other areas where active utilities and currently
used roads are readily available. The NRC requested input on the
proposed definition.
Comments Summary: Commenters noted that the NRC's proposed
definition is identical to DOE's definition of ``previously disturbed
or developed'' land in 10 CFR 1021. Commenters did not object to the
NRC's proposed definition, or its consideration of the concept, of
``previously disturbed areas'' applying to certain categorical
exclusions. Additionally, commenters stated that the ``previously
disturbed area'' criterion could be beneficial insofar as it serves as
a rebuttable presumption that, when a proposed action affects only a
previously disturbed area, that action can be categorically excluded
from environmental review. This assumes that the NRC determines that
any other applicable criteria in Sec. 51.22 (e.g., no significant
increase in individual or cumulative public or occupational radiation
exposure) are met and no special circumstances are present. This could
simplify the analysis of whether a particular categorical exclusion
applies to a proposed action, thereby enhancing efficiency. However,
one comment asserted that the proposed ``limited to previously
disturbed areas'' criterion may be more restrictive than the current
``no significant construction impact'' criterion.
Response: The NRC disagrees with the comment expressing concern
that the new criterion may be more restrictive. The previous language
of ``no significant construction impact'' was intended to reflect that
ground disturbance can be a factor in determining whether an action
would have potential impacts. The NRC considers this revision to more
clearly capture this intent and anticipates that the additional
clarification may result in application of the affected categorical
exclusions to actions that may not previously have been considered to
qualify (e.g., an action that includes construction but is limited to
previously disturbed areas). The criterion ``any ground disturbance is
limited to previously disturbed areas'' is appropriate in a categorical
exclusion because it clearly and explicitly states the relevant
consideration in the regulations. Based in part on these comments, and
as discussed under Section II.J of this document, the NRC is defining
the phrase ``previously disturbed areas,'' but has revised the
definition from that presented in the draft rule FRN to reflect a plain
writing approach. The NRC is defining the phrase ``previously disturbed
areas'' to refer to areas that have been changed by development of the
facility and remain altered by human activity such that they do not
support important habitat or habitat to important species and no longer
have the potential to yield historic and cultural resources. This
includes the lateral and vertical extent of alteration from natural
cover to a managed state.
Question 3: As discussed in Section II.F, of this document, the NRC
is proposing to remove the ``no significant hazards consideration''
determination in Sec. Sec. 51.22(c)(9) and (c)(25)(i) and (v), which
is related to a process for issuance of license amendments for nuclear
power reactor and testing facility licenses, but is not related to
environmental impacts and not relevant to materials licenses. The ``no
significant hazards consideration'' is a procedural standard that
governs whether an opportunity for a hearing must be provided before an
action is taken by the NRC. The NRC requested input on the removal of
the ``no significant hazards consideration'' determination in
Sec. Sec. 51.22(c)(9) and (c)(25)(i) and (v).
Comments Summary: Several commenters support the removal of the
``no significant hazards consideration.''
Response: The NRC agrees with these comments, which support the
proposed change in the rule. No changes to the rule language were made
as a result of these comments.
B. General Comments and NRC Responses on the Proposed Rule
The NRC received additional public comments on the proposed rule.
The NRC separated these comments into five categories based on their
relevance to particular topics.
1. Comments on the Broader Use of Categorical Exclusions
Comments Summary: Commenters recommended that the final categorical
exclusion rule should allow the use of mitigated categorical
exclusions, analogous to the NRC allowing the use of a mitigated
finding of no significant impact. Commenters stated that ``[m]itigated
CATEXs would allow the NRC to promulgate a broader scope of CATEXs for
new reactors.''
Commenters indicated that the NRC staff should continue to consider
how performance-based regulations can be applied to the promulgation of
categorical exclusions and identify opportunities to develop additional
categorical exclusions beyond those contained in the current Sec.
51.22 and the proposed rule in accordance with the FRA and the
Accelerating Deployment of Versatile Advanced Nuclear for Clean Energy
Act of 2024 (ADVANCE Act). Commenters recognized that the NRC's
proposed rule is intended to clarify the scope of existing categories,
improve the consistency of their application, and add some limited new
categories of actions that have no significant impact on the human
environment.
Commenters suggested several broad areas, such as new nuclear power
plant licensing, where additional categorical exclusions might be
appropriate.
Response: The NRC disagrees with these comments. To support this
rulemaking, the NRC conducted a broad review of NRC actions, including
prior NEPA reviews resulting in FONSIs since the NRC's last categorical
exclusion rulemaking. The proposed rule included categorical exclusions
for each category of actions the NRC's review identified as eligible.
The comments do not provide sufficient new information to support
additional categorical exclusions.
With respect to the use of mitigated categorical exclusions, the
NRC agrees that mitigation can be relevant in determining whether an
action or category of actions have no significant
[[Page 15528]]
effect on the human environment either individually or cumulatively,
and thus whether the NRC can establish a categorical exclusion. As
traditionally used in environmental assessments, ``mitigation'' refers
to enforceable measures that ensure the impacts of the proposed action
will not be significant, allowing the agency to reach a FONSI. In this
final rule, the threshold criteria in new paragraphs Sec. 51.22(b)-(d)
could be viewed as acknowledging aspects of a proposed action that
ensure environmental impacts will not be significant without specifying
that particular mitigation measures be used to achieve that outcome.
For example, a licensee could make design or location choices for a
facility modification to ensure there will be no significant increase
in effluents that may be released offsite to qualify for a categorical
exclusion. The NRC recognizes that there may be additional actions that
could qualify for categorical exclusion with appropriate threshold
criteria or by specifying the inclusion of specific mitigation
measures, however, the NRC has not identified such additional
categorical exclusions at this time.
In addition, for any particular action, there may be extraordinary
circumstances (special circumstances in the NRC's regulations) that
could result in an action having a significant effect on the human
environment and thus preclude the use of a categorical exclusion. The
NRC recognizes that mitigation to avoid significant effects on the
human environment can factor into the NRC's determination of whether
special circumstances are indeed present.
With respect to developing additional categorical exclusions beyond
those contained in the current Sec. 51.22 and the proposed rule, in
accordance with the FRA and the ADVANCE Act, NRC will continue to
evaluate opportunities for establishing or adopting additional use of
categorical exclusions beyond those that are part of this rulemaking.
This rulemaking was in development before the FRA and the ADVANCE Act
were enacted. For instance, the FRA NEPA amendments codified a process
through which an agency can adopt a categorical exclusion issued by
another agency. Furthermore, that rulemaking plan will revise the NRC's
NEPA implementing regulations to reflect NEPA's revised definition of
categorical exclusion. In the development of a proposed rule, NRC staff
will explore whether the change in definition results in any additional
categories of actions being eligible for categorical exclusion.
Promulgating a broader scope of new categorical exclusions for new
reactors was outside the scope of this final rule. No changes to the
rule language were made as a result of these comments.
2. Comments on Government-to-Government Consultations
Comments Summary: A federally recognized Indian Tribe indicated
that the NRC has a responsibility to conduct government-to-government
consultations with Tribes concerning the proposed revisions to the
categorical exclusions.
A commenter recommends that the proposed categorical exclusions
rulemaking should include a provision allowing affected Tribal
governments and interested parties the ability to challenge a
categorical exclusion with or without the presence of new and
significant information.
Response: The NRC agrees in part and disagrees in part with these
comments. The NRC recognizes the Federal Trust Relationship and is
committed to a government-to-government relationship with federally
recognized Indian Tribes. On August 14, 2024, the NRC issued a State
and Tribal Communication (STC) letter STC-24-047 informing all
federally recognized Tribes of the opportunity to request formal
consultation on the proposed rule in accordance with its Tribal Policy
Statement.
The NRC disagrees that this rulemaking should include a provision
allowing these entities to challenge the application of a categorical
exclusion. The NRC has found that the kinds of actions in this
rulemaking covered by the NRC's categorical exclusions have no
significant effect on the human environment. The NRC has made this
determination based on an in-depth review of past NRC regulatory
actions, professional opinions and information from NRC staff, and
input from stakeholders and the public received in a variety of ways
throughout the rulemaking process, including through an ANPR, public
meetings, and written comments.
Accordingly, the NRC did not revise the rule in response to these
comments.
3. Comments Concerning Cultural and Historical Resources
Comments Summary: A federally recognized Indian Tribe also added
that while categorical exclusions add to agency flexibility to
undertake necessary actions, it undermines Tribal Sovereignty, ignores
Traditional Cultural Landscapes, and works to ignore cultural concerns.
A commenter indicated that the NRC is required to provide
additional information relating to proposed rule criterion and
justification that ensures NRC actions will not result in disturbances
or inadvertent discoveries within previously undisturbed areas
consistent with Federal law and trust responsibility.
Response: The NRC agrees that this final rule will add to the
agency's flexibility to undertake necessary actions. However, the NRC
disagrees that this final rule undermines Tribal Sovereignty, ignores
Traditional Cultural Landscapes, and works to ignore cultural concerns.
To establish a categorical exclusion, the NRC determines whether a
proposed activity is one that, on the basis of knowledge or experience,
does not individually or cumulatively have a significant effect on the
environment, see 10 CFR 51.14(a), 51.22(a), including historic and
cultural resources. In determining if one or more categorical
exclusions applies to a proposed action, the NRC considers if special
circumstances are present, in which a normally excluded action may have
a significant environmental effect and therefore requires preparation
of an EA or EIS. Furthermore, the categorical exclusions in the new
Sec. Sec. 51.22(b) and (d) are limited to ground disturbance on
previously disturbed areas, where there is no potential to affect
cultural or historic resources. If ground disturbance is not restricted
to previously disturbed areas, as defined in the final rule, then the
categorical exclusion would not apply. No changes were made to the rule
as a result of these comments.
4. Comments of General Concern
Comment Summary: A commenter indicated that the term ``no
significant impacts'' is arbitrary, that impacts from nuclear and
fossil fuel projects can be delayed or hidden for years and recommends
that categorical exclusions should not be allowed for nuclear or fossil
fuel projects.
Response: The NRC disagrees with this comment. The comment does not
provide substantive information related to the potential environmental
effects of the category of actions to which a categorical exclusion can
apply. If the NRC finds that actions in a given category does not
individually or cumulatively have a significant effect on the human
environment, then the NRC may establish a categorical exclusion for
that category of actions. See 10 CFR 51.14(a), 51.22(a). The NRC
conducted an in-depth review of the NRC activities that identified
several recurring categories of regulatory actions that are not
addressed in Sec. 51.22 and have no significant effect on the human
environment, either individually or
[[Page 15529]]
cumulatively, see 10 CFR 51.14(a), 51.22(a). These categories of
actions were considered in developing this rule.
The NRC strives to be open and transparent and provide stakeholders
the opportunity to express their opinions on matters related to the
NRC's regulatory functions. The NRC published an ANPR in May of 2021,
seeking stakeholder input on identified potential changes to
categorical exclusions to inform the rulemaking. A public meeting
associated with the ANPR was held on June 16, 2021, to facilitate
comments. On July 2, 2024, the NRC published the proposed Categorical
Exclusions from Environmental Review rule in the Federal Register (89
FR 54727). The notice contained a solicitation for comments on the
proposed rule language. A public meeting was held on July 31, 2024, to
discuss the proposed rule and to answer questions to facilitate
meaningful comments on the proposed rule. No changes to the rule
language were made as a result of these comments.
Comment Summary: A commenter expressed the opinion that categorical
exclusions should be very limited in scope and applied only to life
threatening or contamination events with critical effects to the human
population or physical environmental/natural world. A commenter
believes the proposed rule must clearly state why particular exemptions
may leave environmental, public health, safety, and cultural effects
unevaluated.
Response: The NRC disagrees with this comment. Emergency conditions
are not a factor in determining whether an action is eligible for a
categorical exclusion; categorical exclusions are a type of
environmental document the agency prepares before an action is
implemented, not an exemption from NEPA. In addition, the NRC's
regulations on the use of categorical exclusions include consideration
of whether special circumstances (also known as extraordinary
circumstances) are present and, if so, whether those special
circumstances merit preparation of an EA or EIS. With respect to
limiting the scope of categorical exclusions, the NRC's categorical
exclusions are inherently ``limited in scope'' in that they only apply
to actions that do not have significant effects based on the NRC's
expertise and experience in evaluating the environmental effects of its
actions. The rule does not ``leave public health and safety
unevaluated.'' Categorical exclusions are developed and implemented for
specific categories of actions that the NRC has previously determined
will not individually or cumulatively have a significant effect on the
human environment, see 10 CFR 51.14(a), 51.22(a), including public
health and safety and cultural effects. The categorical exclusion
specifically does not include actions involving ground disturbance in
previously undisturbed areas. No changes to the rule language were made
as a result of these comments.
5. General Comments in Support of the Rulemaking
Comment Summary: Commenters supported the reorganization of
categories in Sec. 51.22, noting that the changes are consistent with
NRC's Principles of Good Regulation, and with NEPA.
Response: The NRC acknowledges the comments. The comments are
general in nature and in support of the rulemaking. No changes to the
rule language were made as a result of these comments.
Comment Summary: The comment supports the NRC's proposed new
categorical exclusions, noting that the rule provided a reasoned basis
for each new categorical exclusion. Namely, none of the specified
actions increases the probability or consequences of accidents; results
in significant changes to the types or amounts of effluents released
offsite, increases to occupational or public dose, or any other
radiological or non-radiological impacts.
Response: The NRC acknowledges the comments. The comments are
general in nature and in support of the rulemaking. No changes to the
rule language were made as a result of these comments.
V. Discussion of Amendments by Section
The following paragraphs describe the specific changes in this
final rule.
Section 51.4 Definitions
The NRC is revising Sec. 51.4 to add the definition of
``previously disturbed areas.''
Section 51.21 Criteria for and Identification of Licensing and
Regulatory Actions Requiring Environmental Assessments
The NRC is revising Sec. 51.21 to update the references for those
categorical exclusions and other actions identified as not requiring
further environmental review.
Section 51.22 Criterion for Categorical Exclusion; Identification of
Licensing and Regulatory Actions Eligible for Categorical Exclusion or
Otherwise Not Requiring Further Environmental Review
The NRC is revising the section heading to more accurately reflect
the section. The rule also adds introductory text, redesignates
paragraph (d) as paragraph (e), adds a new paragraph (d), and revises
paragraphs (a) through (c) to add, clarify, and eliminate categorical
exclusions.
Section 51.25 Determination To Prepare Environmental Impact Statement
or Environmental Assessment; Eligibility for Categorical Exclusion
The NRC is amending section Sec. 51.25 to update the reference for
the location of categorical exclusions to Sec. 51.22 (a) through (d).
Subparagraphs (E) and (F) of section 102(2) of NEPA referred to in
Sec. 51.22 (d) are now designated as subparagraphs (H) and (I).
Appendix A to Subpart A of 10 CFR Part 51 Format for Presentation of
Material in Environmental Impact Statements
This rule would revise footnote 4 to remove the reference to Sec.
51.22(c)(17).
VI. Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
VII. Regulatory Analysis
The NRC has prepared a regulatory analysis to quantify the costs
and benefits of this final rule, as well as to examine the qualitative
factors to be considered in the NRC's rulemaking decision. The
conclusion from the analysis is that this final rule results in a
benefit to the NRC of $815,600 using a 7-percent discount rate. The
regulatory analysis indicates the final rule is cost-beneficial and
provides non-quantified benefits in the area of regulatory clarity. The
NRC did not receive any public comments on the draft regulatory
analysis. The regulatory analysis is available as indicated in the
``Availability of Documents'' section of this document.
VIII. Backfitting and Issue Finality
This rule revises the requirements for information under 10 CFR
part 51 provided by applicants and petitioners for rulemaking.
Applicants and petitioners are not, with certain
[[Page 15530]]
exceptions, within the scope of either the backfitting rules
(Sec. Sec. 50.109, 70.76, 72.62, or 76.76) or any issue finality
provisions in 10 CFR part 52. The backfitting and issue finality
regulations include language delineating when those provisions begin;
in general, they begin after the issuance of a license, permit, or
other approval (e.g., Sec. 50.109(a)(1)(iii) and Sec. 52.98(a)).
Neither the backfitting provisions nor the issue finality provisions,
with certain exceptions, are intended to apply to NRC actions that
substantially change the expectations of current and future applicants.
These applicants cannot reasonably expect that future requirements will
not change.
This rule eliminates the NRC's requirement to prepare environmental
assessments or environmental impact statements for certain categories
of actions. Although the rule does not alter requirements for
applicants or petitioners for rulemaking to provide environmental
reports under Sec. Sec. 51.40-51.68, it may reduce the information an
applicant or petitioner for rulemaking would be obligated to provide in
an environmental report. Reductions in the information required to be
included in applications and petitions for rulemaking constitutes a
voluntary reduction in requirements and therefore is not a backfit
under the backfitting rules (Sec. Sec. 50.109, 70.76, 72.62, or 76.76)
nor a violation of any issue finality provisions in 10 CFR part 52.
Therefore, this rule does not constitute backfitting under the
backfitting rules (10 CFR 50.109, 70.76, 72.62, or 76.76) nor affect
the issue finality of an approval issued under 10 CFR part 52.
Accordingly, the NRC did not prepare a backfit or forward fit analysis
for this rule.
IX. Cumulative Effects of Regulation
Cumulative Effects of Regulation (CER) consists of the challenges
applicants and licensees may face in addressing the implementation of
new regulatory positions, programs, and requirements (e.g., rulemaking,
guidance, generic letters, backfits, inspections). The CER may manifest
in several ways, including the total burden imposed on applicants and
licensees by the NRC from simultaneous or consecutive regulatory
actions that can adversely affect the applicant's or licensee's
capability to implement those requirements, while continuing to operate
or construct its facility in a safe and secure manner.
The goals of the NRC's CER effort were met throughout the
development of this final rule. The NRC engaged external stakeholders
at public meetings and by soliciting public comments on the proposed
rule and associated draft guidance document. The proposed rule (89 FR
54727) was issued on July 2, 2024, for public comment. A public meeting
was held on July 31, 2024, to discuss the proposed rule. The feedback
from the public meeting informed the development of the NRC's final
rule.
X. Plain Writing
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal
agencies to write documents in a clear, concise, and well-organized
manner. The NRC has written this document to be consistent with the
Plain Writing Act as well as the Presidential Memorandum, ``Plain
Language in Government Writing,'' published June 10, 1998 (63 FR
31885).
XI. Paperwork Reduction Act Statement
This rule does not contain any new or amended collections of
information subject to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.). Existing collections of information were approved by the
Office of Management and Budget, approval number 3150-0021.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to a collection of information unless the document requesting
or requiring the collection displays a currently valid OMB control
number.
XII. Executive Orders
Executive Order (E.O.) 12866
The Office of Information and Regulatory Affairs (OIRA) has
determined that this final rule is a significant regulatory action
under E.O. 12866, ``Regulatory Planning and Review.'' Accordingly, the
NRC submitted this final rule to OIRA for review. The NRC is required
to conduct an economic analysis in accordance with section 6(a)(3)(B)
of E.O. 12866. More can be found in Section VII of this document,
``Regulatory Analysis.''
Review Under E.O.s 14154, 14192, 14215, and 14300
The NRC has examined this final rule and has determined that it is
consistent with the policies and directives outlined in E.O. 14154,
``Unleashing American Energy,'' E.O. 14192, ``Unleashing Prosperity
Through Deregulation,'' E.O. 14215 ``Ensuring Accountability for All
Agencies,'' and E.O. 14300, ``Ordering the Reform of the Nuclear
Regulatory Commission.'' This final rule is considered an E.O. 14192
deregulatory action. Details on the estimated costs of this final rule
can be found in Section VII of this document.
Review Under E.O. 14270
Executive Order 14270, ``Zero-Based Regulatory Budgeting to Unleash
American Energy,'' requires the NRC to insert a conditional sunset date
into all new or amended NRC regulations provided the regulations are
(1) promulgated under the Atomic Energy Act of 1954, as amended (AEA),
the Energy Reorganization Act of 1974, as amended (ERA), and the
Nuclear Waste Policy Act of 1982, as amended (NWPA); (2) not
statutorily required; and (3) not part of the NRC's permitting regime.
The NRC determined that the regulatory changes adopted in this rule are
for processes that are required by statute and are part of the NRC's
regulatory permitting scheme authorized by the AEA, ERA, or NWPA.
Therefore, the NRC views this rulemaking to be outside the scope of
Executive Order 14270 and did not insert conditional sunset dates for
the regulatory changes in this final rule.
XIII. Congressional Review Act
This final rule is a rule as defined in the Congressional Review
Act (5 U.S.C. 801 808). However, the Office of Management and Budget
has found that it does not meet the criteria at 5 U.S.C. 804(2).
XIV. Compatibility of Agreement State Regulations
Under the ``Agreement State Program Policy Statement'' approved by
the Commission on October 2, 2017, and published in the Federal
Register (82 FR 48535; October 18, 2017), this rule is classified as
compatibility ``NRC.'' Category NRC consists of program elements over
which the NRC cannot discontinue its regulatory authority pursuant to
the Atomic Energy Act of 1954 (AEA), as amended, or provisions of title
10 of the Code of Federal Regulations.
Under the Policy Statement, a program element means any component
or function of a radiation control regulatory program, including
regulations and other legally binding requirements imposed on regulated
persons, which contributes to the implementation of that program. The
NRC maintains regulatory authority over program elements classified as
category NRC and the Agreement States must not adopt these NRC program
elements. However, an Agreement State may inform its licensees of these
NRC requirements through a mechanism under the State's administrative
procedure laws, as long as the State
[[Page 15531]]
adopts these provisions solely for the purposes of notification, and
does not exercise any regulatory authority as a result.
XV. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed or adopted by voluntary consensus
standards bodies unless the use of such a standard is inconsistent with
applicable law or otherwise impractical. The NRC is amending Sec.
51.22, the NRC's list of categories of actions that the NRC has
determined to have no significant individual or cumulative effect on
the human environment. This action does not constitute the
establishment of a standard that contains generally applicable
requirements.
XVI. Availability of Guidance
There is no licensee or applicant implementation or compliance
required by this rulemaking. The NRC staff plans to update guidance
documents that contain references to Sec. 51.22 (e.g., standard review
plans). The NRC will publish notice in the Federal Register announcing
the availability of the revised guidance documents. The final guidance
documents will be available on the NRC website and at https://www.regulations.gov by searching on Docket ID NRC-2018-0300.
XVII. Availability of Documents
The documents identified in the following table are available to
interested persons through one or more of the following methods, as
indicated.
------------------------------------------------------------------------
ADAMS accession No./web
Document link/Federal Register
citation
------------------------------------------------------------------------
Regulatory Analysis for the Final Rule: ML26064A136.
Categorical Exclusions from Further
Environmental Review, March 2026.
Proposed Rule--Categorical Exclusions from 89 FR 54727.
Environmental Review, July 2, 2024.
SRM-SECY-22-0100, ``Staff Requirements-- ML24162A116.
SECY-22-0100--Proposed Rule: Categorical
Exclusions From Environmental Review (3150-
AK54; NRC-2018-0300),'' June 10, 2024.
SECY-22-0100, Proposed Rule: Categorical ML22136A315.
Exclusions From Environmental Review (3150-
AK54; NRC-2018-0300), November 14, 2022.
Advance Notice of Proposed Rulemaking-- 86 FR 24514.
Categorical Exclusions From Environmental
Review, May 7, 2021.
SECY-20-0065, ``Rulemaking Plan-- ML20021A160 (paper)
Categorical Exclusions From Environmental ML20021A158 (package).
Review,'' July 20, 2020.
NUREG-2249, ``Generic Environmental Impact ML24176A220.
Statement for Licensing of New Nuclear
Reactors,'' September 2024.
State and Tribal Communication (STC) ML24222A633.
Letter, STC-24-047, ``Invitation to
Request Consultation on Proposed Rule
`Categorical Exclusions From Environmental
Review,' '' August 14, 2024.
July 31, 2024, Public Meeting Summary-- ML24218A084.
Public Meeting to Discuss the Categorical
Exclusions from Environmental Review
Proposed Rulemaking.
Rulemaking Plan--SECY-24-0046, ML24078A006 (plan)
``Implementation of the Fiscal ML24078A013 (package).
Responsibility Act of 2023 National
Environmental Policy Act Amendments,'' May
30, 2024.
Public Law (Pub. L.) 118-67, Accelerating https://www.congress.gov/
Deployment of Versatile, Advanced Nuclear 118/plaws/publ67/PLAW-
for Clean Energy of 2024 (ADVANCE Act of 118publ67.pdf.
2024).
Memo to Commission from M. Doane, EDO, RE: ML20288A251.
Response to Staff requirements--SECY-20-
0032--``Rulemaking Plan on Risk-Informed,
Technology-Inclusive Regulatory Framework
for Advanced Reactors,'' November 2, 2020.
Agreement State Program Policy Statement, 82 FR 48535.
October 18, 2017.
Final Rule--Categorical Exclusions from 75 FR 20248.
Environmental Review, April 29, 2010.
Final Rule--Storage of Spent Fuel in NRC- 55 FR 29181.
Approved Storage Casks at Power Reactor
Sites, July 18,1990.
Final Rule--Final Procedures and Standards 51 FR 7744; 51 FR 7746.
on No Significant Hazards Considerations,
March 6, 1986.
Final Rule--Environmental Protection 49 FR 9352; 49 FR 9380.
Regulations for Domestic Licensing and
Related Regulatory Functions and Related
Conforming Amendments, March 12, 1984.
Final Rule--Emergency Planning, August 19, 45 FR 55402.
1980.
Presidential Memorandum, ``Plain Language 63 FR 31885.
in Government Writing,'' June 10, 1998.
NRC's Principles of Good Regulation........ ML14135A076.
National Environmental Policy Act of 1969.. https://www.govinfo.gov/content/pkg/COMPS-10352/pdf/COMPS-10352.pdf.
------------------------------------------------------------------------
Public Comments
------------------------------------------------------------------------
Comment (001) from the Fort Independence ML24201A077.
Indian Reservation THPO on PR-51--
Categorical Exclusions from Environmental
Review.
Comment (002) from Anonymous on PR-51-- ML24218A194.
Categorical Exclusions from Environmental
Review.
Comment (003) from Stephen Monarque on PR- ML24225A081.
51--Categorical Exclusions from
Environmental Review Comment.
Comment (004) from the Yocha Dehe Wintun ML24256A208.
Nation on PR-51--Categorical Exclusions
from Environmental Review.
Comment (005) from Nicholas McMurray on ML24262A251.
behalf of ClearPath on PR-51--Categorical
Exclusions from Environmental Review.
Comment (006) from Spencer Toohill on ML24262A253.
behalf of the Breakthrough Institute on PR-
51--Categorical Exclusions from
Environmental Review.
Comment (007) from the Nuclear Energy ML24262A252.
Tribal Working Group on PR-51--Categorical
Exclusions from Environmental Review.
Comment (008) from Martin J. O'Neill on ML24264A112.
Behalf of the Nuclear Energy Institute on
PR-51--Categorical Exclusions from
Environmental Review.
[[Page 15532]]
Comment (009) from Peter Hastings on Behalf ML24267A035.
of Kairos Power, LLC on PR-51--Categorical
Exclusions from Environmental Review.
------------------------------------------------------------------------
Executive Orders
------------------------------------------------------------------------
Executive Order 12866, ``Regulatory 58 FR 51735.
Planning and Review,'' October 4, 1993.
Executive Order 14154, ``Unleashing 90 FR 8353.
American Energy,'' January 29, 2025.
Executive Order 14192, ``Unleashing 90 FR 9065.
Prosperity Through Deregulation,''
February 6, 2025.
Executive Order 14215, ``Ensuring 90 FR 10447.
Accountability for All Agencies,''
February 24, 2025.
Executive Order 14270, ``Zero-Based 90 FR 15643.
Regulatory Budgeting to Unleash American
Energy,'' April 15, 2025.
Executive Order 14300, ``Ordering the 90 FR 22587.
Reform of the Nuclear Regulatory
Commission,'' May 29, 2025.
------------------------------------------------------------------------
The NRC may post materials related to this document, including
public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-NRC-2018-0300. In addition, the
Federal rulemaking website allows members of the public to receive
alerts when changes or additions occur in a docket folder. To
subscribe: (1) navigate to the docket folder (NRC-2018-0300); (2) click
the ``Subscribe'' button; and (3) enter an email address and click on
the ``Subscribe'' button.
List of Subjects in 10 CFR Part 51
Administrative practice and procedure, Environmental impact
statements, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear
power plants and reactors, Reporting and recordkeeping requirements.
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 amending
10 CFR part 51 as follows:
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
0
1. The authority citation for part 51 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 161, 193 (42 U.S.C.
2201, 2243); Energy Reorganization Act of 1974, secs. 201, 202 (42
U.S.C. 5841, 5842); National Environmental Policy Act of 1969 (42
U.S.C. 4332, 4334, 4335); Nuclear Waste Policy Act of 1982, secs.
144(f), 121, 135, 141, 148 (42 U.S.C. 10134(f), 10141, 10155, 10161,
10168); 44 U.S.C. 3504 note.
0
2. Amend Sec. 51.4 by adding the definition for ``Previously disturbed
areas'' in alphabetical order, to read as follows:
Sec. 51.4 Definitions.
* * * * *
Previously disturbed areas means areas that have been changed by
development of the facility and remain altered by human activity such
that they do not support important habitat or habitat to important
species and no longer have the potential to yield historic and cultural
resources. This includes the lateral and vertical extent of alteration
from natural cover to a managed state.
0
3. Revise and republish Sec. 51.21 to read as follows:
Sec. 51.21 Criteria for and identification of licensing and
regulatory actions requiring environmental assessments.
All licensing and regulatory actions subject to this subpart
require an environmental assessment except those identified in Sec.
51.20(b) as requiring an environmental impact statement, those covered
by categorical exclusions identified in Sec. 51.22(a) through (d), and
those identified in Sec. 51.22(e) as other actions not requiring
environmental review. As provided in Sec. 51.22, the Commission may,
in special circumstances, prepare an environmental assessment on an
action that could be covered by a categorical exclusion.
0
4. Revise and republish Sec. 51.22 to read as follows:
Sec. 51.22 Categorical exclusions.
Licensing, regulatory, and administrative actions eligible for
categorical exclusion must belong to a category of actions that the
Commission, by rule or regulation, has declared to be a categorical
exclusion, after first finding that the actions within the category do
not individually or cumulatively have a significant effect on the human
environment. Except in special circumstances, as determined by the
Commission upon its own initiative or upon request of any interested
person, an environmental assessment or an environmental impact
statement is not required for any action within a category of actions
included in the list of categorical exclusions set out in paragraphs
(a) through (d) of this section. Special circumstances include the
circumstance where the proposed action involves unresolved conflicts
concerning alternative uses of available resources within the meaning
of section 102(2)(H) of NEPA.
(a) The following categories of NRC actions are excluded from the
requirement to prepare an environmental assessment or environmental
impact statement:
(1) Actions that are administrative, procedural, or solely
financial in nature, including, for example:
(i) Issuance of or changes to procedures for filing and reviewing
applications;
(ii) Issuance of or changes to recordkeeping or reporting
requirements;
(iii) Issuance of or changes to surety, insurance, or indemnity
requirements;
(iv) Issuance of or changes to administrative procedures or
requirements;
(v) Actions on petitions for rulemaking, but not including
rulemakings in response to a petition for rulemaking;
(vi) Amendments to the regulations in this chapter that are
corrective or of a minor or nonpolicy nature and do not substantially
modify existing regulations;
(vii) Issuance of or changes to guidance for the implementation of
regulations in this chapter and other informational and procedural
documents that do not impose any legal requirements;
(viii) Changes to a person or organization's name, position, or
title;
(ix) Revisions that are editorial, corrective, or otherwise minor,
including the updating of NRC-approved references, or changes to
formatting of a document;
(x) Changes to contact information;
(xi) Personnel or managerial actions;
(xii) Actions on or changes to requirements for decommissioning
funding under parts 30, 40, 50, 70, or 72 of this chapter; or
(xiii) Termination of licenses that were issued but for which no
construction activities have begun or
[[Page 15533]]
where all decommissioning activities have been completed and approved
and license termination is a final administrative step.
(2) Issuance of or changes to education, training, experience,
qualification, or other employment suitability requirements.
(3) Amendments to parts 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 15,
16, 19, 21, 25, 26, 55, 75, 95, 110, 140, 150, 160, 170, or 171 of this
chapter.
(4) Procurement of general equipment and supplies, and procurement
of technical assistance and personal services relating to the safe
operation and protection of commercial reactors, other facilities, and
materials subject to NRC licensing and regulation.
(5) Entrance into or amendment, suspension, or termination of all
or part of an agreement with a State under section 274 of the Atomic
Energy Act of 1954, as amended, providing for assumption by the State
and discontinuance by the Commission of certain regulatory authority of
the Commission.
(6) Approvals of direct or indirect transfers of any license issued
by the NRC (any associated amendments of a license required to reflect
the approval of a direct or indirect transfer of an NRC license are
included in paragraph (a)(1) of this section).
(7) The import of nuclear facilities and materials under part 110
of this chapter, but not including the import of spent power reactor
fuel.
(8) Approvals of or changes to operators' licenses under part 55 of
this chapter.
(9) Approvals of package designs for packages to be used for the
transportation of licensed materials.
(10) Actions under parts 30, 31, 32, 33, 34, 35, 36, 39, 40, or 70
of this chapter authorizing the following:
(i) Distribution of radioactive material and devices or products
containing radioactive material to general licensees and to persons
exempt from licensing;
(ii) Distribution of radiopharmaceuticals, generators, reagent kits
and/or sealed sources to persons licensed under 10 CFR 35.18;
(iii) Nuclear pharmacies;
(iv) Use of radioactive materials for medical and veterinary
purposes;
(v) Use of radioactive materials for research and development and
for educational purposes;
(vi) Industrial radiography;
(vii) Irradiators;
(viii) Use of sealed sources and use of gauging devices, analytical
instruments and other devices containing sealed sources;
(ix) Use of uranium as shielding material in containers or devices;
(x) Possession of radioactive material incident to performing
services such as installation, maintenance, leak tests and calibration;
(xi) Use of sealed sources and/or radioactive tracers in well-
logging procedures;
(xii) Acceptance of packaged radioactive wastes from others for
transfer to licensed land burial facilities provided the interim
storage period for any package does not exceed 180 days and the total
possession limit for all packages held in interim storage at the same
time does not exceed 50 curies;
(xiii) Manufacturing or processing of source, byproduct, or special
nuclear materials for distribution to other licensees, except
processing of source material for extraction of rare earth and other
metals;
(xiv) Nuclear laundries;
(xv) Possession, manufacturing, processing, shipment, testing, or
other use of depleted uranium military munitions; or
(xvi) Any use of source, byproduct, or special nuclear material not
listed above which involves quantities and forms of source, byproduct,
or special nuclear material similar to those listed in paragraphs
(a)(10)(i) through (xv) of this section.
(11) Standard design approvals under part 52 of this chapter.
(12) Issuance of amendments to 10 CFR 72.214 for new, amended,
revised, or renewed certificates of compliance for cask designs used
for spent fuel storage.
(13) Issuance, amendment, modification, or renewal of a certificate
of compliance of gaseous diffusion enrichment plants under part 76 of
this chapter.
(14) The decommissioning of sites where licensed operations have
been limited to the use of--
(i) Small quantities of short-lived radioactive materials;
(ii) Radioactive materials in sealed sources, provided there is no
evidence of leakage of radioactive material from these sealed sources;
or
(iii) Radioactive materials in such a manner that a decommissioning
plan is not required by 10 CFR 30.36(g)(1), 10 CFR 40.42(g)(1), or 10
CFR 70.38(g)(1), and the NRC has determined that the facility meets the
radiological criteria for unrestricted use in 10 CFR 20.1402 without
further remediation or analysis.
(15) The Commission finding for a combined license under 10 CFR
52.103(g).
(16) Actions under 10 CFR 50.55a.
(b) The following categories of NRC actions are excluded from the
requirement to prepare an environmental assessment or environmental
impact statement, provided that any ground disturbance is limited to
previously disturbed areas:
(1) Procurement of confirmatory research.
(2) Review and approval of transportation routes under 10 CFR
73.37.
(c) The following categories of NRC actions are excluded from the
requirement to prepare an environmental assessment or environmental
impact statement except to the extent they include activities directly
affecting the environment, such as the construction of facilities; a
major disturbance brought about by blasting, drilling, excavating or
other means; field work, except that which only involves noninvasive or
non-harmful techniques such as taking water or soil samples or
collecting non-protected species of flora and fauna; or the release of
radioactive material:
(1) Grants to institutions of higher education in the United
States, to fund scholarships, fellowships, and stipends for the study
of science, engineering, or another field of study that the NRC
determines is in a critical skill area related to its regulatory
mission, to support faculty and curricular development in such fields,
and to support other domestic educational, technical assistance, or
training programs (including those of trade schools) in such fields.
(2) [Reserved]
(d) The following categories of NRC actions are excluded from the
requirement to prepare an environmental assessment or environmental
impact statement provided that any ground disturbance is limited to
previously disturbed areas and there is no significant change in the
types or significant increase in the amounts of any effluents that may
be released offsite, no significant increase in individual or
cumulative public or occupational radiation exposure, and no
significant increase in the potential for or consequences from
radiological accidents.
(1) Changes to inspection or surveillance requirements.
(2) Changes to equipment servicing or maintenance requirements.
(3) Changes to safeguard plans or materials control and accounting
inventory requirements, including modifications to systems used for
security and/or materials accountability.
(4) Changes to requirements for fire protection, emergency
planning, physical security, cybersecurity, or quality assurance.
[[Page 15534]]
(5) Changes to scheduling requirements.
(6) Changes to extend implementation dates for activities
previously found to not have a significant environmental impact.
(7) Actions that result in a change in process operations or
equipment under licenses for fuel cycle facilities or radioactive waste
disposal sites, or under the materials licenses identified in Sec.
51.60(b)(1).
(8) Authorizations under, or changes to requirements in 10 CFR part
50 or 52 with respect to installation or use of a facility component.
(e) In accordance with section 121 of the Nuclear Waste Policy Act
of 1982 (42 U.S.C. 10141), the promulgation of technical requirements
and criteria that the Commission will apply in approving or
disapproving applications under part 60 or 63 of this chapter shall not
require an environmental impact statement, an environmental assessment,
or any further environmental review under subparagraph (H) or (I) of
section 102(2) of NEPA.
0
5. Revise and republish Sec. 51.25 to read as follows:
Sec. 51.25 Determination to prepare environmental impact statement or
environmental assessment; eligibility for categorical exclusion.
Before taking a proposed action subject to the provisions of this
subpart, the appropriate NRC director will determine on the basis of
the criteria and classifications of types of actions in Sec. Sec.
51.20, 51.21 and 51.22 whether the proposed action is of the type
listed in Sec. 51.22(a) through (d) as a categorical exclusion or
whether an environmental impact statement or an environmental
assessment should be prepared. An environmental assessment is not
necessary if it is determined that an environmental impact statement
will be prepared.
0
6. In appendix A to subpart A of part 51, revise footnote 4 to read as
follows:
Appendix A to Subpart A--Format for Presentation of Material in
Environmental Impact Statements
* * * * *
\4\ With respect to limitations on NRC's NEPA authority and
responsibility imposed by the Federal Water Pollution Control Act
Amendments of 1972, see Sec. Sec. 51.10(c) and 51.71(d).
Dated: March 25, 2026.
For the Nuclear Regulatory Commission.
Tomas Herrera,
Acting Secretary of the Commission.
[FR Doc. 2026-06049 Filed 3-27-26; 8:45 am]
BILLING CODE 7590-01-P